Rawle v. Mcilhenny

• Decision Date: 15 November 1934
• Parties: ERASTUS C. RAWLE v. ANITA MCILHENNY.
• Court: Virginia Supreme Court

Page 735

163 Va. 735

ERASTUS C. RAWLE v. ANITA MCILHENNY.

Supreme Court of Virginia, Richmond.

November 15, 1934.

Present, Campbell, C.J., and Epes, Hudgins, Gregory, Browning and Chinn, JJ.

1. EVIDENCE — Motion to Strike out Plaintiff's Evidence — Waiver. — In the instant case, an action to recover for injuries sustained in an automobile collision, defendant, at the conclusion of plaintiff's evidence in chief, moved the court to strike out all the evidence, on the ground that plaintiff's driver was guilty of negligence, chargeable to plaintiff, which contributed to causing the injury. The motion was overruled and defendant, after duly excepting, introduced evidence on his behalf, and after an adverse verdict, assigned as error the court's action in overruling the motion to strike out plaintiff's evidence.

Held: That defendant waived his right to insist upon his motion to strike out by subsequently introducing evidence in his own behalf on the issue of liability.

2. EVIDENCE — Motion to Strike out All Evidence — Motion for Compulsory Nonsuit or for Directed Verdict — Analogy. — A motion to strike out all the evidence is very closely akin to a motion for a compulsory nonsuit or a motion for a directed verdict.

3. EVIDENCE — Motion to Strike out Plaintiff's Evidence — Where Court Would Have Been Warranted in Sustaining Motion — Cause Proceeded with and Verdict in Favor of Plaintiff. — Even where the trial court would have been warranted in sustaining a motion to strike out all the evidence of the plaintiff made at the conclusion of his evidence in chief, it does not follow that a judgment for the plaintiff will be reversed, if the court overrules the motion. If the cause is thereafter proceeded with to what appears to be a fair development of the evidence for both parties, and upon a consideration of the whole evidence the verdict of the jury in favor of the plaintiff is plainly right, the Supreme Court of Appeals will not reverse a judgment for the plaintiff and order a new trial.

4. NEW TRIAL — Setting Aside Verdict for Inadequate or Excessive Damages — General Rule. — Although courts have the power and are charged with the duty of setting aside, in proper cases, the verdict in an action for a personal tort where the damages are either inadequate or excessive, a court will not disturb the verdict in such a case either because of its smallness or because of its largeness, unless, in the light of all the evidence, it is manifestly so inadequate or so excessive as to show very plainly that the verdict has resulted from the misconduct of the jury, or the jury's misconception of the merits of the case in so far as they relate to the amount of damages, if any, recoverable.

5. NEW TRIAL — Right of Plaintiff to Have Favorable Verdict Set Aside for Inadequacy. — The right of a plaintiff to have a verdict in his favor set aside, over the objection of the defendant, on the ground of inadequacy, does not depend solely upon the evidence bearing upon the damage he has suffered. Both the apparent cause for the return of an inadequate verdict and the state of the evidence relative to the liability of the defendant have an important, and to a considerable extent interacting, bearing upon the plaintiff's right to have the verdict set aside.

6. NEW TRIAL — Right of Plaintiff to Have Favorable Verdict Set Aside for Inadequacy — Where Evidence Is Insufficient to Support Verdict Adverse to Defendant. — In cases in which the evidence is insufficient to support a verdict finding the defendant liable, the court will refuse to set aside the verdict in favor of the plaintiff on the ground of inadequacy, whether it be for merely a nominal amount or for a substantial but inadequate sum. In such a case the plaintiff cannot be prejudiced by the smallness of the verdict in his favor, for he is entitled to recover nothing.

7. NEW TRIAL — Right of Plaintiff to Have Favorable Verdict Set Aside for Inadequacy — Where Evidence Is Insufficient to Sustain Verdict Finding Defendant Not Liable. — In cases in which the evidence is insufficient to sustain a verdict finding the defendant not liable, the court will set aside a verdict in favor of the plaintiff on the ground of inadequacy and grant a new trial, whether the verdict be for merely a nominal amount or for a substantial but inadequate sum. And the new trial should be limited to the question of the amount of the damages.

8. NEW TRIAL — Right of Plaintiff to Have Favorable Verdict Set Aside for Inadequacy — Where Preponderance of Evidence Is against Plaintiff's Right to Recover. — In cases in which clearly the decided preponderance of the evidence is against the right of the plaintiff to recover, though there is sufficient evidence to support a finding by the jury that the defendant is liable, the court will refuse to set aside a verdict for the plaintiff for inadequacy.

9. NEW TRIAL — Right of Plaintiff to Have Favorable Verdict Set Aside for Inadequacy — Where Preponderance of Evidence Is in Favor of Recovery. — In cases in which clearly the decided preponderance of the evidence is in favor of the right of recovery, though there is sufficient evidence to support a verdict finding the defendant not liable, the court will set aside a verdict for the plaintiff for inadequacy and grant a new trial; and, usually the court will restrict the new trial to the question of damages. But in this class of cases where the amount of damages recoverable is not distinctly separable from the matters involved in the issue as to liability, the new trial should be granted on all issues.

10. NEW TRIAL — Right of Plaintiff to Have Favorable Verdict Set Aside for Inadequacy — Where Evidence Is Conflicting and Verdict Is for Nominal Damages Only. — In cases of conflicting evidence, in which there is sufficient evidence to support a verdict in favor of either the plaintiff or the defendant, but in which there is no clear preponderance of the evidence in favor of either, where a verdict in favor of the plaintiff is for nominal damages only, ordinarily it should be considered as a finding for the defendant perversely thus expressed, and should not be set aside, unless there is some fact or circumstance other than the smallness thereof which warrants the inference that the jury was actuated by partiality, sympathy, bias, prejudice, passion, corruption, or other improper influences or nature acting against the plaintiff. If, under this rule, it be proper to set the verdict aside, a new trial should be granted on the question of damages only.

11. NEW TRIAL — Right of Plaintiff to Have Favorable Verdict Set Aside for Inadequacy — Where Evidence Is Conflicting and Verdict Is for Substantial though Inadequate Damages. — In cases of conflicting evidence, in which there is sufficient evidence to support a verdict in favor of either the plaintiff or the defendant, but in which there is no clear preponderance of the evidence in favor of either, where a verdict in favor of the plaintiff is for substantial though inadequate damages, it cannot upon any reasonable theory be considered a finding for the defendant, and it should be set aside, and a new trial granted, which ordinarily should be limited to the question of the amount of damages.

12. NEW TRIAL — Setting Aside Verdict for Inadequacy — Where Evidence Is Conflicting — When Court Should Grant New Trial on All Issues. — In cases of conflicting evidence, in which there is sufficient evidence to support a verdict in favor of either the plaintiff or the defendant, but in which there is no clear preponderance of the evidence in favor of either, where the merits of the case as to liability appear not to have been reasonably well developed upon the trial, or the question as to the amount of damages is not distinetly separable from the matters involved in the issue as to liability, or the evidence with reference to liability has probably exerted a material in-24 fluence upon the jury in determining the amount of the verdict, or the evidence warrants the inference that, instead of deciding the question of liability, the jury has arbitrarily determined to make both parties bear a part of the burden of the injury, or for some other reasons the ends of justice would seem to be better promoted by granting a new trial on all issues, where the court sets aside a verdict in favor of the plaintiff, it should grant a new trial on all issues.

13. NEW TRIAL — Whether Inadequate Verdict Should Be Set Aside Rests in Trial Court's Discretion. — A sound discretion is vested in the trial court as to whether the ends of justice will be better served by setting aside, or refusing to set aside, an inadequate verdict.

14. NEW TRIAL — Discretion of Trial Court as to Granting New Trial on All Issues or on Damages Only. — A sound discretion is vested in the trial court as to whether, if an inadequate verdict is set aside, a new trial should be granted upon all issues, or limited to the question of damages.

15. APPEAL AND ERROR — New Trial — Action of Trial Court in Setting Aside Inadequate Verdict. — The appellate court will not reverse the action of the trial court setting aside a verdict as inadequate unless it plainly appears from the record that its action in so doing is plainly wrong.

16. AUTOMOBILES — Damages for Injuries Resulting from Collision — Verdict for Inadequate Damages Set Aside — Case at Bar. — In the instant case, an action to recover for injuries sustained in an automobile collision, the trial court sustained plaintiff's motion to set aside the verdict for inadequacy, and granted a new trial upon the question of damages alone. After the second jury returned a verdict assessing larger damages, defendant assigned as error the court's action in setting aside the verdict and granting a new trial on the issue of damages. The evidence introduced upon the first trial, in so far as it related to the amount of damages, was without material conflict. Upon a consideration of...