Oliver v. Burlington Northern, Inc.

• Decision Date: 30 January 1975
• Citation: 271 Or. 214,531 P.2d 272
• Parties: Jerry A. OLIVER, Appellant, v. BURLINGTON NORTHERN, INC., a Delaware Corporation, Respondent.
• Court: Oregon Supreme Court

Page 272

531 P.2d 272

271 Or. 214

Jerry A. OLIVER, Appellant, v. BURLINGTON NORTHERN, INC., a Delaware Corporation, Respondent.

Supreme Court of Oregon.

Argued and Submitted Jan. 9, 1975.

Decided Jan. 30, 1975.

George M. Joseph, Bemis, Breathouwer & Joseph, Portland, argued the cause for appellant. With him on the brief was Douglas S. Querin, of Reiter, Wall, Bricker & Zakovics, P.C., Portland.

Delbert W. Johnson, Portland, argued the cause for respondent. With him on the brief was Gary H. Peterson, Portland.

Before O'CONNELL, C.J., and DENECKE, HOLMAN, TONGUE, HOWELL and BRYSON, JJ.

HOLMAN, Justice.

Plaintiff brought an action against his employer under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq.) for damages resulting from personal injuries suffered during his employment. He received a judgment based upon a jury verdict in the sum of $44,000. On defendant's motion the trial court ordered a remittitur in the sum of $20,000 or, in the alternative, a new trial. There was a stipulated loss of wages in the sum of $9,000; therefore, the remittitur resulted in a reduction in the amount awarded by the jury for plaintiff's injuries, disability and suffering from $35.000 to $15,000. Plaintiff appeals, claiming the trial judge erred in granting the remittitur or, in the alternative, a new trial.

The manner in which the injury occurred is irrelevant to the issues in this appeal. The only issues are the proper criteria to be applied by a trial judge in determining whether a remittitur should be granted, whether the trial judge applied these criteria, and whether the trial judge abused his discretion.

We will proceed to the first issue of the proper criteria to be applied by the trial judge. In two fairly recent cases we have used different language in discussing the subject. In Sandow v. Weyerhaeuser Co., 252 Or. 377, 379, 449 P.2d 426, 427 (1969), we said:

'* * * (T)he trial court has the authority to grant a new trial, unless plaintiff files a remittitur, when the judgment exceeds any rational appraisal. Hust v. Moore-McCormack Lines, Inc., 180 Or. 409, 435--436, 177 P.2d 429 (1947). * * *.'

In McMahan v. States Steamship, 256 Or. 554, 556, 474 P.2d 515, 516 (1970), cert., denied, 401 U.S. 956, 91 S.Ct. 977, 28 L.Ed.2d 239 (1971), we quoted with approval:

'* * * unless the verdict is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.'

In both Sandow and McMahan we sustained a remittitur which had been granted by the trial judge. Though different language is used in the two cases, it is apparent that the same general idea is being expressed. Our experience in attempting to define gross negligence has demonstrated that, at best, descriptions of a difference of degree in an inexact concept are doomed to furthur inexactness. The use of more words in an attempt to describe exactly that which is incapable of exact description would be counterproductive.

In both Sandow and McMahan we also said that the application of the test to the facts of a particular case is a matter within the discretion of the trial judge, for which he will not be reversed unless it can be demonstrated that there was a clear abuse of discretion. McMahan v. States Steamship, Supra, 256 Or., at 556--557, 474 P.2d 515; Sandow v. Weyerhaeuser Co., Supra, 252 Or. at 379, 449 P.2d 426. We described the discretionary authority of the trial court in another manner in Staples v. Union Pacific R.R. Co., 265 Or. 153, 155, 508 P.2d 426, 427 (1973) by using the following language:

'* * * (T)he trial court will not be reversed for denying remittitur unless the appellate court is of the opinion that the amount of the verdict is 'outrageous,' shocking' or 'monstrous.' * * *.'

Plaintiff contends the trial judge applied the wrong criteria as demonstrated by the statements he made from the bench. Although he said many things, we believe the trial judge had the proper criteria in mind, since he said:

'Now with all these circumstances, the Court could not feel there was any rational basis for the verdict returned.'

We now turn to the evidence of plaintiff's injuries, sufferings and disability. At the time of the injury plaintiff asked to go to the hospital; his left wrist was swelling and he was hurting pretty badly' and was 'almost in shock.' After having his wrist x-rayed, he was told he could return to work the next day. However, the next day, Friday, his arm and wrist were so badly swollen he could hardly move them; thereupon, he went to his own doctor who also x-rayed his wrist. Neither x-ray disclosed any fracture. The following Monday he went back to work where he remained about a month, but he continued to experience difficulty with his wrist. Finally, he made an appointment with Dr. Butler, a third doctor, who also x-rayed him and found that he had suffered a fracture of the carpel scaphoid, which is a small bone in the wrist. The fracture was not displaced and did not have to be reduced. The doctor described it as 'simply a small line in the bone.'

Plaintiff's wrist was put in a cast which ran from his elbow to the base of his fingers to prevent motion. It remained in the cast for 18 weeks. This was not an abnormal time for such an injury, but before the wrist was immobilized, bone had worn away which delayed the healing process. When the cast was removed plaintiff had stiffness due to the long period of immobilization. Dr. Butler testified that although plaintiff had the full motion of his left wrist after the stiffness wore off, he still experienced some tenderness and pain when he held it in certain positions, one of which was when he used a strong grip. Plaintiff is right-handed.

Dr. Butler also testified that whenever there is a fracture in a joint there is always the possibility of traumatic arthrosis, which is a premature wearing away process. He wrote a report to plaintiff's lawyer in which he said:

'I would say that the possibilities of significant future disability or necessity of surgery would be remote.'

By this he testified he meant there would be no disability which would require surgery. He also wrote:

'On the question of permanent partial disability, again it is very difficult to say. I don't think there is anything objectively rateable with regard to a disability and we are then dealing with a subjective element of pain which, possibly, would represent some degree of permanent partial disability.'

He testified that by 'rateable' he was referring primarily to loss of motion as used in rating under compensation plans. He also testified:

'Q Now, Doctor, based on his history, as well as your findings, and also based upon reasonable medical probability, and taking into consideration the type of work Mr. Oliver does, will you express an opinion as to whether you expect him to have permanent partial disability as a result of this incident?

'A Well, yes. In trying to think about this beforehand, it's very difficult to look ahead, but again, we have had a fracture on a joint surface, and in the face of that, we will have some partial disability that is permanent.

'Q Doctor, again taking into consideration the fact that you have a man working with his hands, how do you expect this disability to manifest itself?

'A By primarily an increase of pain, and almost loss of motion.

'Q By 'loss of motion' what do you mean?

'A The scaphoid is the keystone to the wrist, primarily referred to, and if you have some irregularity, you are not likely to have normal motion, particularly flexing motion and extension motion.'

Plaintiff testified that when his wrist was in the cast it hurt quite a lot--more at some times than at others. He said his wrist bothered him at work, but he just gritted his teeth and went on. When he lifted pins (a railroad term) there was a cramping on the right side of his hand and it hurt when he applied hand brakes. Driving, shoveling, and chopping with an ax bothered him, as did engaging in his hobby of archery. At times it hurt at night when he was in bed. He has worked regularly since his return to work.

Plaintiff's wife testified that plaintiff has trouble in using his hands and in lifting. She has seen him almost drop his two-year-old grandchild as well as a coffee pot. She said he could pull a bow but not as well as before. She now does most of the work in the yard.

Although the medical testimony is unclear, we conclude that a reasonable analysis of the testimony would permit a factfinder to conclude that plaintiff has a full range of motion in his wrist, there is a possibility of future traumatic arthrosis, and he will suffer some pain in the future when he uses his wrist in certain ways. In such circumstances it is our opinion that the record does not disclose a clear abuse of discretion by the trial judge in finding there was no rational basis for the verdict returned. We could, again, use more words in an attempt to justify our opinion, but in the inexact fields of a trial judge's discretion and a claimant's extent of disability, we do not believe any additional lucidity would result.

The judgment of the trial court is affirmed.

TONGUE, Justice (dissenting).

I agree with the majority that in actions under the Federal Employers' Liability Act (45 U.S.C. § 51 et seq.), a trial judge may not be reversed for granting a remittitur of a portion of the amount awarded by a jury verdict unless there has been an abuse of discretion by the trial judge.

Because of the size of the jury verdict in this case, when considered in the light of the nature and extent of plaintiff's injuries, I would also agree that there would be no proper basis for reversal of the exercise of discretion by this trial judge; provided, however, that he had exercised that discretion in accordance with and by application of the proper rules and standards applicable in such cases.

As held in State v. Lewis, 113 Or. 359, 364, 230 P. 543, 232 P....