Mullett v. Milkey

• Decision Date: 05 January 1943
• Docket Number: No. 1146.,1146.
• Parties: MULLETT v. MILKEY.
• Court: Vermont Supreme Court

29 A.2d 806

MULLETT

v. MILKEY.

No. 1146.

Supreme Court of Vermont. Windham.

Jan. 5, 1943.

[Copyrighted material omitted.]

Exceptions from Windham County Court; Orrin B. Hughes, Judge.

Action by Rose Hastings Mullett, as administratrix of estate of Erving D. Hastings, deceased, against Frank W. Milkey, Jr., for death of plaintiff's intestate. Verdict for plaintiff and plaintiff's motion to set the verdict aside and for new trial on issue of damages only was overruled and plaintiff brings exceptions.

Affirmed.

Before MOULTON, C. J, and SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

Alban J. Parker and L. S. Tillotson, both of Springfield, for plaintiff.

Irwin S. Kendall, of Brattleboro (Richard E. Gale and F. J. Nash, both of Brattleboro, on the brief), for defendant.

MOULTON, Chief Justice.

This accident happened in the town of Bernardston, Massachusetts, when the plaintiff's intestate, a pedestrian on the highway, was struck and instantly killed by an automobile driven by the defendant. The cause of action is predicated upon Sec. 5, Chap! 229, of the General Laws of Massachusetts, (Ter.Ed.), which, so far as material, provides that: "a person who by his negligence or by his wilful, wanton or reckless act * * * causes the death of a person in the exercise of due care, who is not in his employment or service, shall be liable in damages in the sum of not less than five hundred nor more than ten thousand dollars, to be assessed with reference to the degree of his culpability * * * to be recovered in an action of tort * * * by the executor or administrator of the deceased." The jury returned a verdict for the plaintiff to recover the sum of $500. The plaintiff, being dissatisfied with this amount, moved to set the verdict aside and for a new trial on the issue of damages only. The motion was overruled and she excepted. She has also briefed two other exceptions taken during the trial, one to an instruction given to the jury, the other to the failure to give a requested instruction.

The motion to set aside the verdict has five grounds and one of these is that the verdict was contrary to the instructions of the court on the subject of damages. It is true, as the plaintiff says, that where it is clear that in arriving at their verdict the jury disregarded the charge of the court it is its duty to set the verdict aside upon proper motion. French v. Wheldon, 91 Vt. 64, 69, 99 A. 232; Whitman v. Dailey, 95 Vt. 454, 456, 115 A. 559. It is not a matter upon which the court can exercise discretion, and the ruling is reviewable here. Paska v. Saunders, 103 Vt. 204, 217, 153 A. 451; Wellman, Adm'r, v. Wales, 97 Vt. 245, 248, 122 A. 659; Smith v. Martin, 93 Vt. 111, 122, 106 A. 666. But in this case the particular instructions which are claimed to have been disregarded are not pointed out in the plaintiff's brief. Since we do not search the record to discover grounds upon which to predicate error (Higgin v. Metzger, 101 Vt. 285, 297, 143 A. 394), we give the question no further consideration.

The other grounds of the motion assert, in one form of expression or another, the claims that the damages awarded by the jury are grossly inadequate and contrary to the evidence, which were questions addressed to the discretion of the trial court. Rule v. Johnson, 104 Vt. 486, 490, 491, 162 A. 383; Paska v. Saunders, 103 Vt. 204, 217, 153 A. 451; Woodhouse v. Woodhouse, 99 Vt. 91, 157, 130 A. 758; Wellman, Adm'r, v. Wales, 97 Vt. 245, 249, 122 A. 659; Lincoln v. Central V. R. Co., 82 Vt. 187, 196, 72 A. 821, 137 Am.St.Rep. 998; Massucco v. Tomassi, 80 Vt. 186, 194, 67 A. 551. The ruling below is not reviewable here in the absence of proof that the discretion was withheld or abused. Paska v. Saunders, supra; Daniels v. Preston, 102 Vt. 337, 339, 148 A. 285. Nothing appearing to the contrary we cannot assume that it was withheld; indeed, the assumption is that it was exercised. State v. O'Brien, 106 Vt. 97, 102, 170 A. 98; Slack v. Bragg, 83 Vt. 404, 412, 76 A. 148. And to establish an abuse of discretion it must appear that the discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Temple v. Atwood, 99 Vt. 434, 435, 134 A. 591; Schlitz v. Lowell Mut. Fire Ins. Co., 96 Vt. 337, 342, 119 A. 513; New England Box Co. v. Tibbetts, 94 Vt. 285, 290, 110 A. 434.

Where, as here, the damages are unliquidated and cannot be determined by a standard set by a contract between the parties or by exact evidence of pecuniary loss, and therefore rest in the judgment of the jury, they are not to be held either excessive or inadequate unless it clearly appears that they are grossly so. There is no presumption that they are the result of improper motives or a disregard of the evidence. Although a verdict may differ in amount from what, in our judgment, it ought to have been, we will not interfere unless the sum is so great or so small as plainly to indicate that it is the result of prejudice, perverted judgment, accident or mistake. Rule v. Johnson, 104 Vt. 486, 491, 162 A. 383; Woodhouse v. Woodhouse, 99 Vt. 91, 154, 157, 130 A. 758; Barrette v. Carr, 75 Vt. 425, 427, 428, 56 A. 93. Since the trial court is in the better position to determine the question the fact that a verdict has received its express approval is strongly in its favor and inclines us against disturbing the ruling which should ordinarily be accepted. Rule v. Johnson, supra; Platt v. Shields, 96 Vt. 257, 269, 119 A. 520. We will not substitute our judgment for the judgment of the jury or our discretion for the discretion of the trial court. Pocket v. Almon, 90 Vt. 10, 14, 96 A. 421.

Although the Massachusetts statute upon which this action is based has a remedial aspect in that the sum recovered is for the use of the surviving widow or husband and children or other next of kin of the deceased, its chief characteristic is penal. Macchiaroli v. Howell, 294 Mass. 144, 200 N.E. 905, 906; Porter v. Sorell, 280 Mass. 457, 182 N.E. 837, 839, 85 A.L.R. 1159. "Its primary purpose is punishment proportionate to the degree of blame inherent in the wrongful act for which the defendant is liable." O'Connor v. Benson Coal Co., 301 Mass. 145, 16 N.E.2d 636, 637; Boott Mills v. Boston & M. R. R. 218 Mass. 582, 106 N.E. 680, 681; Brown v. Thayer, 212 Mass. 392, 99 N.E. 237, 240. The damages, as they are termed, "are assessed with reference to the degree of culpability of the defendant and not by way of compensation for any loss sustained by the beneficiaries of the action." Macchiaroli v. Howell, supra [294 Mass. 144, 200 N.E. 906]; Shockett v. Akeson, 310 Mass. 289, 37 N.E.2d 1015, 1017. The degree of culpability is a question for the jury to determine, having regard to all the circumstances of the accident. Dzura v. Phillips, 275 Mass. 283, 175 N.E. 629, 630.

In passing upon the issue raised by this motion any doubt regarding the weight of the evidence is to be resolved in favor of the verdict. Reed v. Hendee, 100 Vt. 351, 355, 137 A. 329; Platt v. Shields, 96 Vt. 257, 269, 119 A. 520. On the evidence, much of which was uncontradicted, it was open to the jury to find these facts:

At about 131, 81 A. 958, 31, 1941, the defendant was driving northerly on the main highway between Greenfield, Massachusetts, and his home in Brattleboro, Vermont. He was familiar with the road, which was of black macadam, straight, slightly ascending,...