Quesnel v. Raleigh, 79-68

• Decision Date: 07 October 1969
• Docket Number: No. 79-68,79-68
• Citation: 258 A.2d 840,128 Vt. 95
• Court: Vermont Supreme Court
• Parties: Mary Jane Keeler QUESNEL v. Michael J. RALEIGH and Thomas Walsh, Administrator, Estate of Bruce M. Costello.

Page 840

258 A.2d 840

128 Vt. 95

Mary Jane Keeler QUESNEL v. Michael J. RALEIGH and Thomas Walsh, Administrator, Estate of Bruce M. Costello.

No. 79-68.

Supreme Court of Vermont.

Oct. 7, 1969.

Gerard F. Trudeau, Middlebury, for plaintiff.

Ryan, Smith & Carbine, Rutland, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

HOLDEN, Chief Justice.

The plaintiff, Mary Keeler, now Quesnel, was a passenger in a Volkswagen sedan, apparently the guest of the owner and operator, Bruce Costello. She was injured when the Costello car collided with a vehicle that had been parked in a driveway off Vermont Route 53 in Forestdale by the defendant Raleigh. The plaintiff alleged the rear of the defendant's parked vehicle extended into the highway, interfering and impeding the flow of traffic moving south on Route 53. The accident occurred on the evening of August 7, 1966. The operator of the Volkswagen was killed. Mrs. Quesnel joined the representative of the deceased operator Costello and the operator of the parked vehicle in an action to recover for the personal injuries she sustained in the accident.

The claim against the decedent's estate was compromised before trial. The plaintiff received $9,500 in exchange for covenant not to sue the Costello estate. Her complaint against Raleigh went to trial by jury and resulted in a verdict of $1,500 against the remaining defendant.

This appeal by the plaintiff challenges the adequacy of the damages awarded her. Included in the main question of damages is a further claim that the verdict was prejudiced by the erroneous admission of evidence of the percentage of alcohol contained in the deceased operator's blood.

In considering the validity of the verdict, we are called upon to consider the evidence in an aspect favorable to the amount of damage found by the jury and approved by the trial court. Banker v. Dodge & Hemmings, 126 Vt. 534, 537, 237 A.2d 121; Jackson v. Rogers, 120 Vt. 138, 150, 134 A.2d 620. In any event, the plaintiff's injuries were serious and the defendant called no witnesses to oppose the medical evidence presented in her behalf.

The accident occurred during the plaintiff's summer vacation, preceding her last year in college. She was then engaged as a playground director in the town of Middlebury. On weekends she had further employment as a swimming instructor and lifeguard. Her return to college was delayed briefly and she was graduated the following June. At the time of trial she was employed as a mathematics teacher in grades seven and eight of Middlebury Union High School.

The plaintiff sustained a crushing blow to the central area of her fact, a wound in the forehead and a fractured ankle. She was hospitalized over a three week period. After intial treatment at the Rutland Hospital she was later transferred to Burlington for further medical treatment and surgery.

The fracture of the middle face extended into the root of the nose, incorporating the inner walls of the eyeball socket. The fracturing involved the upper skull, although apparently there was no neurological impairment. The plaintiff's upper teeth were chipped and became discolored as a result of the accident. They were finally extracted and replaced by a denture.

The shape of the plaintiff's face was altered by her injuries and resulted in some change in her personality. Her plastic surgeon, Dr. Barney, testified that there has been 'good, reasonable healing-with reasonable alignment.' Facial numbness is minimal and the nerves in the area have recovered completely. The witness also stated that on recovery, the residual facial scarring is quite minimal and relatively insignificant.

Up to the time of the accident the plaintiff was a healthy and active young lady. She was athletically inclined and participated in sports. Since this misfortune she tires easily, requires a special work schedule and is susceptible to infectious colds.

The plaintiff also sustained injury to her eyes which resulted in the blocking of the tear ducts and caused the eyes to be vulnerable to infection. This injury will be permanent unless alleviated by corrective surgery. At time of trial such surgery had not been recommended. Her vision at that time was 20-20.

The total medical and hospital expenses incurred by the plaintiff, as a result of her injuries, to the time of trial was $3,752.17. She lost earnings in the amount of $204. The combined special damages were $3,956.17. Her life expectancy at the time of trial was 47 and a fraction years.

Contending the verdict to be grossly inadequate, the plaintiff requested the trial court to increase the award to $50,000. In the alternative, the plaintiff moved the court to increase the amount of the verdict to such sum as it 'deems advisable in its sole discretion so as to adequately and justly compensate' the plaintiff for her injuries. The motion presented a further alternative by way of a request for a new trial limited to the issue of damages. All phases of that motion were denied.

Beyond assigning error to the lower court's refusal to increase the verdict, the plaintiff asks the Supreme Court to increse the damages to the proper amount. Neither the motion to the trial court nor the request made here for additur purport to invoke the consent of the defendant to such a change in the verdict.

When damages are liquidated and capable of correction by accurate measurement within fixed rules of law, an error in the verdict can and should be remedied either in the trial court or on appeal. The verdict in question does not have that capability. The error claimed is in the general award for pain and suffering and permanent physical impairment. These uncertain elements of damage in the verdict are not subject to correction without the consent of the party 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 accepted by the defendant. O'Connor v. Papertsian, 309 N.Y. 456, 131 N.E.2d 883, 56 A.L.R.2d 206, 211; Fisch v. Manger, 24 N.J. 66, 130 A.2d 815, 818. But see, Dimick v. Schiedt, 293 U.S. 474, 482, 55 S.Ct. 296, 79 L.Ed. 603, 95 A.L.R. 1150. But that is not the question before us. The motion presented did not invoke the lower court's discretion in this fashion. In the course of appellate review we will not substitute our judgment for that of the jury,-nor our discretion for that entrusted to the trial court. Mullett v. Milkey, 113 Vt. 42, 45, 29 A.2d 806.

We turn to the third aspect of the plaintiff's motion to set the verdict aside and order a new trial on the question of damages only. The request was stated on the principal ground '(t)hat the verdict is for insufficient damages, and as such is against the evidence as the weight of the evidence, contrary to the evidence and contrary to law, this because of the nature, extent and permancy of Plaintiff's injuries and her life expectancy of forty seven (47) plus years.'

The court instructed the jury that if they found the defendant liable, the amount of $9,500, which she received from the Costello estate, should be deducted from whatever amount they found to be her total damage and a verdict awarded for the difference. This instruction is consistent with the general rule opposing double recovery against joint tort feasors. Ramsey v. Camp, 254 N.C. 443, 119 S.E.2d 209, 94 A.L.R.2d 348, 350 and annotation at 360 et seq.; 25 C.J.S. Damages § 98(2); 22 Am.Jur.2d Damages, § 206. There was no objection to the instruction.

The question is whether the court's approval of the verdict which was awarded by the jury as an increment to the prior compromise, allowing total compensation of $11,000, exceeded the limits of judicial discretion. To be sure, the verdict is not generous. But the question is not how the appellate court, given the opportunity, would have assessed the plaintiff's damage. It is whether the jury could reasonably have done so on the evidence before it. And we will not interfere unless it appears that the jury's determination is so small that it plainly indicates the award was the product of prejudice or other misguidance which undermines its validity as a verdict. Cenate v. Hunter, 115 Vt. 402, 404, 62 A.2d 645; Dusckiewicz v. Carter, ...