Poston v. Hollar

• Decision Date: 16 December 1942
• Docket Number: 7040
• Citation: 132 P.2d 142,64 Idaho 322
• Parties: PHILIP POSTON, a minor, by M. S. Poston his guardian ad litem, Respondent, v. LLOYD D. HOLLAR, Appellant
• Court: Idaho Supreme Court

132 P.2d 142

64 Idaho 322

PHILIP POSTON, a minor, by M. S. Poston his guardian ad litem, Respondent, v. LLOYD D. HOLLAR, Appellant

No. 7040

Supreme Court of Idaho

December 16, 1942

AUTOMOBILES-DAMAGES SUFFICIENCY OF-NEW TRIAL-APPEAL AND ERROR-STATUTES CONSTRUCTION OF.

1. Trial courts possess a discretion to be exercised wisely in granting or refusing new trials, and such discretion will not be disturbed by the appellate court unless it manifestly and clearly appears to have been exercised unwisely and to have been manifestly abused.

2 $896.96 for severe injury to arm of 14-year old boy causing a 25 per cent permanent impairment of use of the arm and $578 medical and hospital bills was insufficient.

3. Where a trial court believes that a verdict is not in accord with law or justice, he may grant a new trial.

4. In passing upon motion for new trial, the appellate court applies a different rule to consideration of an order granting a new trial from that which it applies to consideration of denial of a new trial.

5. Where order granting new trial was sustainable upon ground of inadequacy of an award for personal injuries Supreme Court was not required to pass upon other grounds of the motion for new trial.

6. In determining whether amendatory statute making it unlawful to drive a motor vehicle past a school bus while anyone is getting off such bus was repealed by the Uniform Motor Vehicle Act, Supreme Court was guided by the rule that legislative intent is the main lodestar of construction. (I.C.A., sec. 48-1101, Sess. Laws, 1921, chap. 249; Sess. Laws, 1925, chap. 48; Sess. Laws, 1927, chap. 260.)

7. Where a statute specifies certain things, the designation of such things excludes all others.

8. Amendatory statute making it unlawful to drive a motor vehicle past a school bus while anyone is getting off such bus did not conflict with the Uniform Motor Vehicle Act, and the prior statute was not impliedly repealed by the Act, where the purpose of the amendatory statute was to protect school children from injury and the general purpose of the Uniform Act was to make the highways safe for motor vehicle travelers. (I.C.A. sec. 48-1101; Sess. Laws, 1921, chap. 249; Sess. Laws, 1925, chap. 48; Sess. Laws, 1927, chap. 260.)

9. A subsequent statute does not repeal an earlier one by implication, unless they are irreconcilable and inconsistent and there is no other reasonable construction.

10. In action for injuries sustained by a student when he was struck by defendant's automobile as he was attempting to cross a street after getting off a school bus, trial court properly instructed in statutory language that it was unlawful to drive a motor vehicle past a school bus while anyone is getting off such bus. (I.C.A., sec. 48-1101.)

Appeal from the District Court of the Tenth Judicial District of the State of Idaho, in and for the County of Nez Perce. Honorable Miles S. Johnson, District Judge.

Action for the recovery of damages for personal injuries. Judgment for plaintiff and respondent. From an order granting respondent a new trial, defendant appeals. Affirmed.

Order affirmed, with costs to respondent.

Verner R. Clements for appellant.

The evidence is sufficient to justify the verdict of $ 896.96. (Asumendi v. Ferguson, 57 Idaho 450, 65 P.2d 713 (also distinguishing Riggs v. Smith, 52 Idaho 43, 11 P.2d 358); Mintun v. Moorman, 44 Idaho 659, 259 P. 1.)

Trial courts possess a discretion to be exercised wisely in the granting or refusal of new trials. That discretion means sound judicial discretion, governed and guided by law and rule and not by humor. It must not be an arbitrary, capricious, vague or fanciful, granted or refused at the mere will or pleasure of the judge, but legal and regular, exercised according to and within the bounds of law and reason. (46 C. J. 409; Watt v. Stanfield, 36 Idaho 366, 210 P. 998; Baillie v. City of Wallace, 22 Idaho 702, 127 P. 908.)

(a) For the purpose of construction, an amendment is to be construed as a part of the original act as if it had always been contained therein. (State v. Pasta, 44 Idaho 671, 677, 258 P. 1075; 59 C. J., Sec. 647, p. 1096; 25 R. C. L., Sec. 159, p. 907; Kamerick v. Castleman, 21 Mo.App. 587; Turner v. Missouri-Kansas-Texas R. Co., (Mo.) 142 S.W. 455.)

Durham & Hyatt for respondent.

The granting of a motion for a new trial rests in the discretion of the trial court, and unless it is clearly shown that the trial court abused his discretion in granting the motion, his action will not be disturbed. (Riggs v. Smith, 52 Idaho 43; Egbert v. Twin Falls Canal Co., 52 Idaho 39; Turner v. First Nat. Bank of Bancroft, 42 Idaho 597-602.)

A new trial may be granted on the ground of insufficiency of the evidence to justify the verdict. (Sec. 7-602, I. C. A. (6).

The foregoing ground includes an inadequate recovery of damages. (Riggs v. Smith, 52 Idaho 43-46; Egbert v. Twin Falls Canal Co., 52 Idaho 39; Asumendi v. Ferguson, 57 Idaho 450-464; Peri v. Culley, (Cal.) 6 P.2d at p. 86.)

HOLDEN, J. Givens, C. J. and Budge, Ailshie, JJ. and Sutton, D. J., concur.

OPINION

HOLDEN, J.

March 25, 1940, defendant and appellant Hollar was driving his automobile north on 12th street located between the junior and senior high school buildings in Lewiston, Idaho. At the same time, two parked school busses were discharging children at the west curb of that street, on the east side of the senior high school building. Philip Poston, then a minor of 14 years of age and a junior high school student got off the rear bus. As he attempted to cross the street from a point between the two busses, he was struck by defendant's automobile. The left front fender of the Hollar car struck Philip in the stomach, turning him sidewise so that the car door struck him in the left arm. The ligaments of that arm were torn loose-- all of the flesh was laid back over his hand so that the bone was exposed to full view. A majority of the eighteen tendons in the forearm were badly lacerated and torn, requiring suturing; the muscles and nerves and fascia were torn on the anterior surface of the left forearm at the inner part of the arm. The radial nerve was severed; the supinators, or muscles which control the use of the hand and fingers were torn, and all the nerves in the forearm were severed; the bone was visible and required the suturing of nerves and muscles; particles of clothing were imbedded in the wound; after the suturing, blood poisoning set in and the boy was in the hospital about 33 days; after he was discharged from the hospital, he was required to return daily for a period of a month and a half for dressings for the infection and the sloughing; at the time of the trial, a large part of the forearm was insensible to pain--prickings with a pin failed to get any response from the boy over the injured area of the arm; the wound when healed left a large scar over the forearm so that the scar tissue interferes with the nerve supply to the skin, which condition cannot be remedied by surgery; and the use of the arm has been permanently impaired at least 25% of its natural possibilities.

February 27, 1941, this action was commenced by M. S. Poston, father and guardian ad litem of the minor boy, Philip Poston, to recover damages in the sum of $ 10,000 for the personal injuries so suffered by Philip, as well as for the recovery of special damages for medical care and hospitalization. The case was tried beginning November 28, 1941, by the court sitting with a jury. December 1, 1941, the jury returned a verdict in favor of plaintiff and respondent and against defendant and appellant for the sum of $ 896.96. December 8, 1941, plaintiff moved for a new trial upon the grounds: first, insufficiency of the evidence to justify the verdict; and secondly, "misconduct of the jury in that one or more of the jurors were induced to assent to the general verdict by the resort to the determination of chance." January 8, 1942, the trial court granted a new trial upon both the above-stated grounds, from which order defendant Hollar prosecuted an appeal to this court.

"Appellant's first assignment goes to the question of whether or not the evidence will sustain the order granting a new trial. Is the evidence insufficient to sustain the verdict of $ 896.96 damages awarded respondent?"

In other words, it is the contention of appellant that the jury, under the evidence, awarded respondent adequate damages for the personal injuries sustained. On the other hand, it is the contention of respondent the amount awarded for such injuries was inadequate under all the facts and circumstances.

The expense incurred for medical care and hospitalization is conceded by both parties to be $ 578.00. Deducting that amount from the verdict of $ 896.96 leaves $ 318.96, which latter amount must, and it is conceded does, represent the award for personal injuries. Boiled down, then, the question presented for determination is: whether the trial court erred in holding that $ 318.96 was inadequate under the evidence hereinbefore set forth in our statement of the facts. In passing upon this question, it should be emphasized that the trial judge saw the boy's injured arm. Then, too, and as pointed out in Say v. Hodgin, 20 Idaho 64, 68, 116 P. 410 [approved in Turner v. First National Bank of Bancroft, 42 Idaho 597, 601, 248 P. 14]:

" The trial judge sees the witnesses on the witness-stand observes the manner of their testifying, notes their apparent candor or fairness, or the want of it; hears the argument of counsel, and, in short, is in possession of many sources of information valuable in an inquiry as to whether justice has miscarried or not, and which cannot be made to appear in the record of the case which comes to the...