Pettingill v. Kelton

Decision Date02 February 1965
Docket NumberNo. 1230,1230
Citation124 Vt. 472,207 A.2d 245
PartiesNed H. PETTINGILL v. C. E. KELTON, doing business as C. E. Kelton Motor Transportation, and Warren Blanchard.
CourtVermont Supreme Court

Monti, Patterson, Calhoun, Edredge & Nobel, Montpelier, for appellant.

Black & Plante, Alfred Guarino, White River Junction, and Frank G. Mahady, White River Junction, on the brief for defendants.

Before HOLDEN, C. J., SHANGRAW, BARNEY and SMITH, JJ., and O'BRIEN, Superior Judge.

HOLDEN, Chief Justice.

This appeal concerns the authority of the trial court to unconditionally increase the jury's award of damages in this action of negligence. The issue developed from a highway accident on December 15, 1958, in the town of Royalton, Vermont. The plaintiff's evidence indicated that his tractor-trailer unit was forced to leave the highway when it was overtaken by a tractor-trailer owned by the defendant Kelton and operated by his co-defendant, Blanchard.

At the close of all the evidence, the plaintiff moved for a directed verdict on the issue of liability. The question of damages was not involved in the motion. The motion was denied and the cause was submitted to the jury to determine liability and assess the damages if the defendants were found liable. This the jury did, and returned a verdict against both defendants in the amount of $10,000.

After the jury was discharged, the plaintiff moved orally that the court increase the amount of the damages awarded. At the court's request, the motion was later presented in writing demanding the court to increase the amount of the verdict to $23,129.40, plus an additional sum of $6,938.83 in lieu of interest from the date of the accident.

The motion specifies four separate items which include damage to the tractor, $4,000 to $11,000; damage to the trailer, $7,000; loss of the use of the unit for the three week period of repair, $2,938; and loss of profits for the period from the accident to August 26, 1959, in the amount of $8,891.40. At the time of hearing, the motion was amended the state, 'That the plaintiff have alternative relief by way of a new trial on the question of damages if this [trial] court does not increase the jury's verdict as provided by the said original motion.'

Both aspects of the motion were denied. This appeal by the plaintiff followed. The single question for review is whether the trial court erred in refusing to grant the plaintiff's motion for additur.

The plaintiff pursues the question on appeal from the same position taken below--that he was entitled to the increase as a matter of law. He contends the uncontradicted evidence requires, and the law demands the award be increased as requested by his motion. The plaintiff's petition does not invoke nor involve the defendants' consent.

The power of the trial court to vacate a verdict and order a new trial because of excessive damages is firmly imbedded in our system of jurisprudence. The power has frequently been exercised on the condition that the plaintiff accede to a remission of that part of the damages that are deemed to be excessive. Otherwise a full new trial would follow. Smith v. Martin, 93 Vt. 111, 121 et seq., 106 A. 666; Woodhouse v. Woodhouse, 99 Vt. 91, 157, 130 A. 758; Lancour v. Herald & Globe Assoc., 112 Vt. 471, 483, 28 A.2d 396.

There is related authority to set aside a verdict and order a new trial where the damages are inadequate. Collins v. Fogg, 109 Vt. 433, 436, 199 A. 251. The practice of attaching the condition that the defendant accept an increase in the damages has been more cautiously applied, and for substantial reasons. Harper, Excessiveness or Inadequacy of Verdicts, 1 Duquesne University Law Review 153; Dimick v. Schiedt, 293 U.S. 474, 484, 55 S.Ct. 296, 79 L.Ed. 603.

But that is not the precise question which this appeal presents. Our problem is whether the evidence required the court, as a matter of law, to increase the damages in the amount specified. The question is related, though not the same, as the novel proposition which was sought to be raised in Collins v. Fogg, supra, 109 Vt. at 436, 199 A. 251.

The plaintiff imposes determinant reliance on the point that the defendant presented on evidence on the question of damages. From this vantage ground, he urges evidence on the issue was uncontradicted.

We do not find it so. The plaintiff's evidence in the area of loss of profits was directly opposed by the witness Cosgrove. This witness was called by the defendants. Since he was the source of the plaintiff's anticipated profits, his testimony was of particular importance. And there was room for the jury to find the loss in this regard was nominal.

Beyond that, the evidence concerning the damage to the tractor and the trailer tank as presented by the testimony of the plaintiff and his expert witness on the issue was subject to conflicting inferences. And the opinions of these witnesses were at variance in some details.

In any event, their testimony could not settle the question of damage to the vehicles, even though not directly contradicted. The differing testimony as to purchase price, the extent of physical damage and salvage values furnished an adequate basis for differing inferences. When such a conflict develops, the...

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12 cases
  • Dupona v. Benny, 110-71
    • United States
    • Vermont Supreme Court
    • April 4, 1972
    ...it found the verdict to be excessive, could have set it aside as a matter of discretion and ordered a new trial. Pettengill v. Kelton, 124 Vt. 472, 473, 207 A.2d 245 (1965), and cases cited therein. The plaintiff claimed damages for pain and suffering, as well as for permanent injury to her......
  • Quesnel v. Raleigh, 79-68
    • United States
    • Vermont Supreme Court
    • October 7, 1969
    ...to be adversely affected by the change. Town of Stockbridge v. State Highway Board, 125 Vt. 366, 372, 216 A.2d 44; Pettengill v. Kelton, 124 Vt. 472, 475, 207 A.2d 245. Perhaps the trial court could have imposed an additur directing the verdict to be set aside unless the increment was accep......
  • Town of Stockbridge v. State Highway Bd.
    • United States
    • Vermont Supreme Court
    • December 14, 1965
    ...for a smaller or larger amount than the verdict made without the consent of the party adversely affected, is error. Pettingill v. Kelton, 124 Vt. 472, 475, 207 A.2d 245. Furthermore, on appeal to county court the trial was de novo on the issue of damages. Fiske v. State Highway Board, 125 V......
  • Lash v. Lash Furniture Co. of Barre, Inc.
    • United States
    • Vermont Supreme Court
    • October 12, 1972
    ...on certain items of damage where the master's findings either denied it or failed to award it. As was said in Pattengill v. Kelton, 124 Vt. 472, 475, 207 A.2d 245 (1965), since the damages represent a recovery for wrongful acts of the defendants, Ralph and Betty Lash, the recovery of intere......
  • Request a trial to view additional results
1 books & journal articles
  • Gillies No Title
    • United States
    • Vermont Bar Association Vermont Bar Journal No. 2002-12, December 2002
    • Invalid date
    ...accepted feature of former Vermont practice. See Lancour v. Herald & Globe Assoc., 112 Vt. 471, 28 A.2d 396 (1942); Pettengill v. Kelton, 124 Vt. 472, 207 A.2d 245 (1965). In recent cases, the court has left open the propriety of additur. Pettengill v. Kelton, supra; Quesnel v. Raleigh, 128......

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