Newcomer v. Weyerhaeuser Co.
| Decision Date | 28 July 1980 |
| Docket Number | No. 8133-1-I,8133-1-I |
| Citation | 614 P.2d 705,26 Wn.App. 958 |
| Parties | Geraldine C. NEWCOMER, as Personal Representative of the Estate of Gary P. Newcomer, Deceased, Appellant, v. WEYERHAEUSER COMPANY, a Washington Corporation, Respondent. |
| Court | Washington Court of Appeals |
John C. Kouklis, Davies, Pearson, Anderson, Seinfeld, Gadbow, Hayes & Johnson, P. S., Tacoma, for appellant.
D. L. Donaldson, Walstead, Mertsching, Husemoen, Donaldson & Barlow, Longview, for respondent.
Geraldine C. Newcomer appeals from a judgment entered on a jury verdict. Weyerhaeuser cross-appeals from the denial of a motion for remittitur for excessive damages.
1. Where a jury returns a defective verdict which is sent back for reconsideration, may its deliberation be restricted to considering only one portion of the verdict, or does the entire verdict remain under the jury's control?
2. Should a motion for remittitur be granted where there is no evidence to support the jury's damage award?
Gary Newcomer was severely and permanently injured on June 8, 1973, when he fell approximately 50 feet from an elevated water tank owned by Weyerhaeuser. He had been sandblasting and painting the tank for his employer, Northwest Tank and Maintenance Company. A "spider rod" which supported the planking he was working on broke allegedly because Weyerhaeuser failed to inspect and replace it. Approximately 2 years later, on August 6, 1975, Newcomer committed suicide.
Geraldine Newcomer, his widow, commenced this action against Weyerhaeuser on two grounds. First, she claimed damages on behalf of the estate for medical and hospital expenses and loss of income from the date of her husband's injury to the date of his death. Second, she sought damages on behalf of herself and her children occasioned by her husband's suicide, alleging that it occurred as the proximate result of an uncontrollable impulse caused by his previous accident.
Instruction No. 16 stated that if the verdict was for the plaintiff, but Newcomer's death was not a proximate result of Weyerhaeuser's negligence, it should only include as elements of damages the medical and hospital expenses incurred and loss of income resulting from the injury. After trial, the jury returned its verdict and answered eight specific questions which had been submitted to it. The trial judge read the jury's answers to counsel:
THE COURT: . . . The verdict was handed to the bailiff, and the jury has not yet been polled, answers question No. 1, "Was the defendant negligent?" "Answer: Yes." "Question 2: Was the defendant's negligence a proximate cause of the original accident and injury to Gary Newcomer?" "Answer: Yes." "Question 3: What is the total amount of plaintiff's damages for Gary Newcomer's injuries from the original accident to the date of his suicide?" And the jury has written in in pencil, "$75,000 to widow and children," plus sign, and then the word "plus," "plus all court cost," singular, "legal expense and medical expenses." And "Question 4: Was the defendant's negligence a proximate cause of Gary Newcomer's suicide?" Answer: No." Question 5 is blank. " Question 6: Was Gary Newcomer negligent in his actions at the time of the original accident?" "Answer: No." The rest of the questions, 7 and 8, are not answered. It is signed by (the) foreman.
The trial judge concluded that although the jury had determined liability, it had returned a defective verdict because it failed to calculate a specific amount for medical expenses. After hearing argument, the court, over objection, polled the jury concerning answers to questions Nos. 1, 2, 4 and 6. Each juror stated that the answers were his or her own verdict and the verdict of the jury. The trial court then sent the jury back only to reconsider its answer to question No. 3. In the course of its deliberation, the jury posed a written question: "In addition to lost wages and medical costs, may we add a benefit for the accident's happening?" The court's written reply was, "No." When the jury returned a second time, question No. 3 had been filled in for the amount of $45,367. The jury was polled and the verdict accepted. Geraldine Newcomer moved for a mistrial; Weyerhaeuser moved for remission for excessive damages, contending that the proof on damages showed that the total amount allowable under instruction No. 16 was approximately $33,341. In denying Newcomer's motion for mistrial, the trial judge gave the following reasons:
There wasn't any inconsistency about (the jury's) direct findings that Weyerhaeuser was negligent and the proximate cause of Mr. Newcomer's injuries. There wasn't any inconsistency with that in view of the evidence, and the impending audit the next day, the finding of the jury was unanimous the suicide wasn't caused by the injury. There wasn't any, really any inconsistency with the finding that his special damages were $75,000 plus medical expenses, plus legal expenses, and out-of-pocket expenses, I think they said. That is not inconsistent. It is just improper in the sense that it is obvious they have to calculate the medical expenses and find what has been proved. They can't leave it up to the judge to do so. Had they said $1,000, $100,000 or $110,000, I would have accepted the verdict and we would have argued the remittitur afterwards. Obviously the jury wished to give more than what the instruction authorized them to give in the event they found that negligence of Weyerhaeuser caused the accident and that he didn't, his negligence didn't. But it seems to me that if, had we sent them back and say, well, now, you can't give more than that, you will have to reconsider that of course, I didn't do that. I originally sent the jury back to reconsider their answer to this particular interrogatory. It was simply to straighten up the thing that they had, that was a misunderstanding, all the legal fees and medical expenses, as I said, and come out and give us $110,000, I would have accepted it, as we ultimately did, but when they sent out the question, it seems to me is the question, we are asking, or they are asking if we can give more than the lost wages and medical expenses, that we got in trouble at that stage.
With regard to Weyerhaeuser's motion, the trial court commented that although the damage evidence was "pretty skinny in a lot of ways," the jury was entitled to return the verdict as it did under instruction No. 16 and denied the motion.
DECISION
The trial court's discretionary authority to return a jury for further consideration of an insufficient verdict is set forth in...
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