Odell v. Public Service Co.

• Decision Date: 01 November 1965
• Docket Number: No. 20909,20909
• Citation: 158 Colo. 404,407 P.2d 330
• Parties: Dolores ODELL, Guardian of the Estate of Donald Gage Odell, Jr., a minor, Plaintifcf in Error, v. PUBLIC SERVICE COMPANY of Colorado, a corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 330

407 P.2d 330

158 Colo. 404

Dolores ODELL, Guardian of the Estate of Donald Gage Odell Jr., a minor, Plaintifcf in Error, v. PUBLIC SERVICE COMPANY of Colorado, a corporation, Defendant in Error.

No. 20909.

Supreme Court of Colorado, En Banc.

Nov. 1, 1965.

Rehearing Denied Nov. 22, 1965.

George T. Ashen, Thomas C. Singer, Denver, for plaintiff in error.

Lee, Bryans, Kelly & Stansfield, Alfred J. Hamburg, Thomas J. Mitchell, Denver, for defendant in error.

McWILLIAMS, Justice.

Dolores Odell, as the guardian of her minor son Donald Odell, Jr., brought an action in his behalf against the Public Service Company of Colorado, seeking damages in the amount of $354,000 for injuries claimed to have been suffered by Donald Odell, Jr., in an explosion which was alleged to have been caused by the negligencce of the defendant company. Donald Odell, Sr., also made claim against this same defendant for damages in the sum of $29,334.99 which he too allegedly had sustained as a result of the explosion, averring in this connection that he had incurred considerable hospital and medical expenses in the treatment of his son as well as extra expense for his special schooling and tutoring.

Upon trial the Public Service Company confessed liability for 'all injuries and damages caused by the explosion,' with the question of damages being then the only issue submitted to the jury. The jury determined that the damages sustained by Donald Odell, Sr., were in the sum of $22,809.05; and the same jury also awarded Dolores Odell, as the guardian of Donald Odell, Jr., the sum of $35,000. The judgment which was thereafter duly entered in favor of Donald Odell, Sr., has been satisfied in full and the present writ of error relates only to the judgment in the amount of $35,000 entered for Dolores Odell, as the guardian of Donald Odell, Jr.

Plaintiff in error's basic contention is that the jury's verdict in the amount of $35,000 was 'wholly inadequate' and in nowise fully compensated Donald Odell, Jr., for the grievous personal injuries which he suffered as a result of the explosion. Public Service Company concedes that injuries sustained by Donald Odell, Jr., were indeed serious, but argues that $35,000 is not an inconsequential amount, and that in any event the jury heard the evidence and personally observed Donald Odell, Jr. and his various injuries, and that in such circumstance it would be highly improper for this Court to now upset this solemn determination of the jury.

We have repeatedly held that the verdict of a jury in a personal injury action should not be set aside on the ground of inadequacy unless, under the evidence, it can be definitely said that the verdict is 'grossly and manifestly inadequate,' or unless the amount thereof is so small as to clearly and definitely indicate that the jury neglected to take into consideration all the evidence pertaining to the damages sustained by the injured party or were influenced by 'prejudice, passion or other improper considerations.' See for example, Lehrer v. Lorenzen, 124 Colo. 17, 233 P.2d 382; and Cottingham v. Star Bus Line, 152 Colo. 188, 381 P.2d 25. We have reviewed the record in the instant case with great care and it is at once apparent even from only a perusal of the cold printed page that Donald Odell, Jr., suffered very serious and permanent injury in the explosion. Even though such be true, however, we are not prepared to hold that the award of $35,000 was 'grossly and manifestly inadequate' or so small as to definitely indicate that the jury overlooked some particular item of damage or was motivated by any 'prejudice, passion or other improper considerations.' To overturn this verdict on the ground of alleged inadequacy would, under the circumstances, be highly improper and would amount to nothing more than a usurpation by us of a matter peculiarly within the province of the jury. This we can not do. See Wall v. Livezay, 6 Colo. 465.

Plaintiff in error also claims that the trial court erred in sustaining an objection to certain evidence which she sought to introduce as to the present inflationary trend of wages and prices. An economist called by her as a witness was permitted to testify as to the upward trend of wages from the date of the explosion to the date of the trial and this same witness went on to opine that these inflationary trends as to both wages and prices would probably continue indefinitely into the future. However, this witness was not permitted to go back to the year 1914 and show the trend of wages from that date forward to the date of trial and then presumably forecast what would be the trend of wages for the entire life expectancy of Donald Odell, Jr., or to the year 2020. In a somewhat similar vein, plaintiff in error was also precluded from eliciting from another witness, who was the headmaster of a private school which Donald Odell, Jr., then attended, an opinion as to whether Donald Odell, Jr., could complete high school and go on to college. Donald Odell, Jr., was then in fourth grade, and the trial court sustained an objection to this testimony on the ground that it was too speculative and that his opinion, if any, would be based on hearsay. It should be noted that the headmaster testified at great length as to the scholastic performance in his school of Donald Odell, Jr. and to his general physical and mental capabilities. Suffice it to say we have reviewed the entire testimony of both the economist and the headmaster and find no reversible error in connection therewith. Under the circumstances the error, if any, was at the most harmless and not a cause for reversal. See Rule 61, R.C.P. Colo.

Minor complaint is made by the plaintiff in error concerning the instruction pertaining to damages given by the court to the jury. This instruction advised the jury that in assessing the damage sustained by Donald Odell, Jr., the jury should take into consideration, among other things, 'any impairment of his future earning capacity and capability as a result of said injuries.' Such does not go 'far enough,' says the plaintiff in error, who tendered an instruction--which was refused by the trial court--to the effect that Donald Odell, Jr., was entitled to be compensated for impairment in his earning capacity 'even though the injured party was a child at the time of his injury' and in determining his loss of earning capacity 'you will consider his diminished capacity to perform manual labor.' This, then, is not an instance where there was no instruction on a particular item of damage, i. e. impairment of future earning capacity. On the contrary there was such instruction and the complaint is that different phraseology, presumably more favorable to Donald Odell, Jr., should have been adopted. Under this circumstance, we perceive no error in this regard.

Other matters here urged as constituting error on the part of the trial court of such magnitude as to require a reversal of the judgment have been examined and found to be without substance. From our examination of the record--which consists of some 1434 folios--we are convinced that the plaintiff in error had her day in court and that no interlocutory ruling of the trial court to any real degree hampered her in getting her case--and all of it--before the jury. That she is now dissatisfied with the award of the jury is under the circumstances no ground for a reversal of the judgment. Hence, the judgment is affirmed.

FRANTZ, Justice (dissenting).

For purposes of this dissent I quote the following portion of Rule 59, R.C.P. Colo.:

'(a) Grounds. A new trial may be granted to all or any of the parties and on all or a part of the issues, after trial by jury * * *. Subject to the provisions of rule 61, a new trial may be granted for any of the following causes: * * *

'(5) Excessive or inadequate damages.'

It should be noted that the rule does not require the presence of grossly inadequate or grossly excessive damages. In a case where damages are grossly inadequate or grossly excessive, the court should as a matter of law grant a new trial; the trial court has no discretion under such circumstances. Denver & R. G. R. R. v. Scott, 34 Colo. 99, 81 P. 763.

In the present case, the minor plaintiff filed a motion for a new trial and gave as one of the grounds therefore that the verdict of the jury, upon which judgment entered, was grossly inadequate. Because of the language appearing in the case of Lehrer v. Lorenzen, 124 Colo. 17, 233 P.2d 382--made without supporting authority and indeed against the many prior decisions of this Court and the majority view of the courts of the Union--the minor plaintiff apparently felt that he had to couch the language of this ground for new trial on the theory that the verdict had to be grossly and manifestly inadequate in order to obtain a new trial, and that he had to convince the trial court it was inadequate to such degree.

In the cited case, the Court said:

'Considering Rule 59, R.C.P. Colo., we held it to be an abuse of discretion on the part of the court to set aside the verdict of the jury and grant a new trial solely on the ground of inadequacy of the verdict unless, under the evidence, it can be definitely said that the verdict is grossly and manifestly inadequate, or unless the amount thereof is so small as to clearly and definitely indicate that the jury neglected to take into consideration evidence of pecuniary loss or were influenced either by prejudice, passion or other improper considerations.'

This decision engrafted language on the rule and changed the ground for a new trial from that of excessive or inadequate damages to that of grossly and manifestly inadequate or excessive damages. The rule as written comported with the conventional concept of new trial procedure. The added stricture contained in the interpretation is out of keeping with traditional new trial procedure. At the trial court level a motion for new trial on the ground...