Reisberg v. Walters
| Decision Date | 07 May 1940 |
| Docket Number | No. 8217.,8217. |
| Parties | REISBERG v. WALTERS. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Alexis J. Rogoski, of Muskegon, Mich., for appellant.
Laurent K. Varnum, of Grand Rapids, Mich. (Travis, Merrick & Johnson of Grand Rapids, Mich., on the brief), for appellee.
Before HICKS, SIMONS, and ALLEN, Circuit Judges.
In an appeal from a judgment in a tort action for damages growing out of an automobile collision, the appellant complains of the inadequacy of the verdict in her favor. The record being devoid of other assignments of error, with no issues otherwise preserved for review, the appeal presents the single question whether the court erred in denying a motion for a new trial on the ground of the inadequacy of the verdict, the contention being that the jury disregarded the instructions of the court, and that the verdict was the result of compromise and dictated by prejudice. We are therefore faced with the problem often considered, as to the power of a Federal appellate court to review orders denying new trials.
The collision out of which the suit arose, occurred on August 27, 1937, upon a public highway in Muskegon County, Michigan, between an automobile owned and operated by the appellant, and one owned and operated by the appellee. With the manner of the accident we need not concern ourselves, since it appears that the expected result followed the effort of the driver of an overtaking car attempting to pass another going in the same direction in the face of on-coming traffic, when there was not sufficient room for the maneuver. We are not concerned with questions of negligence, primary or contributory, since the jury found for the plaintiff in substantial damages. It is the size of the verdict, in the light of the evidence, that gives rise to the determinative question.
As a result of the collision the appellant's automobile was forced from the highway and demolished. She sustained severe injuries consisting of a Pott's fracture of the ankle, a Colles' fracture of the wrist, and various bruises, sprains and contusions. Her glasses were broken and her clothes ruined. She was required to remain in the hospital for a period of 65 days, with her wrist and ankle in casts, and for a long time thereafter was obliged to use crutches. She was disabled from engaging in her employment as a school teacher in Chicago, resulting in a substantial loss of salary, and at the time of the trial was still unable to participate in the social and recreational activities which she had previously enjoyed. She presented competent proof that her expenses, including the services of physicians and surgeons, nurses, hospital, replacement of damaged clothing, and loss of salary and automobile damage, totaled the sum of $2,274.78. While there was controversy respecting direct and contributory negligence, there was no controversy in respect to the necessity for the plaintiff incurring the expenses or that she suffered the losses for which she sought recovery. Nor was the reasonableness of the amounts of the several items in issue. At one stage of the trial the plaintiff undertook to produce proof of the reasonableness of the hospital bill, when the following colloquy took place:
The trial proceedings appear to have been wholly devoid of error and the instructions of the court to the jury unexceptional and affording no ground for complaint. Upon the question of damages the court instructed the jury that if they found for the plaintiff they were to award her damages in such amount as would justly and fairly compensate her for her loss and damages, including pain and suffering; that she would be entitled to recover such sums of money as she had expended, or for which she had incurred liability, including doctors' bills, hospital bills, x-rays, nurses, medical attendance and other expenses, and such loss in earnings or salary as were shown by the evidence to have been sustained, and for the depreciated value of her automobile shown to have resulted from the accident.
The jury returned a verdict for the plaintiff in the sum of $1,500. A motion for new trial on her behalf followed as indicated. It was denied on the ground that the verdict was not so inadequate as to establish prejudice, partiality or disregard of the instructions of the court. A motion to reconsider upon other grounds was likewise denied for the reason that the court, upon an examination of the record, found no sufficient support for the additional grounds urged.
That the award was insufficient to compensate the plaintiff for her loss and injuries is beyond successful controversy. Her actual expenses and specific damages were subtantially in excess of the verdict. That she incurred the expenses and suffered the losses is not disputed. Indeed, the colloquy hereinbefore recited is equivalent to a concession in this respect. It is impossible otherwise to interpret it. That the District Judge so viewed it is clear from his memorandum in denial of the motion to reconsider his order on new trial, wherein he stated: "The court ruled that there was no issue in regard to reasonableness of any of the bills, and thereby withdrew from the consideration of the jury any question concerning their reasonableness." The inadequacy of the verdict gives rise to an inescapable inference that the jury failed to consider elements of specific damage and included in its award nothing at all for physical pain and suffering which, under the undisputed evidence, was severe.
This squarely confronts us with the question whether a Federal Court of Appeals is powerless to correct a miscarriage of justice, when the trial court by denying a motion for new trial has failed to do so. The power has been variously asserted and denied in numerous cases. It will serve no purpose to review them. In Miller v. Maryland Casualty Co., 2 Cir., 40 F.2d 463, Judge Learned Hand has provided us with a sufficient springboard for present discussion. His search has been thorough and his conclusions appear sound. Starting with the premise that courts will rarely review an award of damages (New York Cent. & H. R. R. Co. v. Fraloff, 100 U.S. 24, 25 L.Ed. 531; Wilson v. Everett, 139 U.S. 616, 11 S.Ct. 664, 35 L.Ed. 286; Lincoln v. Power, 151 U.S. 436, 14 S.Ct. 387, 38 L.Ed. 224), he classifies the several cases in which orders refusing new trials because of the amount of the verdict have been reversed, and finds them to be, with one exception, cases (1) where the jury gave merely nominal damages, that is where they did not attempt to...
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...that the verdict must be set aside for inadequacy of the amount awarded plaintiff relies upon a decision of this court, Reisberg v. Walters, 111 F.2d 595. We there held that the award of a jury in a personal injury case arising out of an automobile accident was grossly inadequate if it fail......
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...less than the unquestionably proven damages." Traylor v. United States, 396 F.2d 837, 839 n. 1 (6th Cir.1968) (citing Reisberg v. Walters, 111 F.2d 595 (6th Cir.1940)); see Anchor v. O'Toole, 94 F.3d 1014, 1021 (6th In the present case, we believe that the district court abused its discreti......
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