Remmenga v. Selk

• Decision Date: 06 April 1950
• Docket Number: No. 32693,32693
• Citation: 42 N.W.2d 186,152 Neb. 625
• Parties: REMMENGA v. SELK.
• Court: Nebraska Supreme Court

Page 186

42 N.W.2d 186

152 Neb. 625

REMMENGA v. SELK.

No. 32693.

Supreme Court of Nebraska.

April 6, 1950.

Syllabus by the Court.

1. In an instruction to a jury that the plaintiff is entitled to recover such damages as 'she may have sustained' by reason of the injuries complained of, the use of the word 'may' does not introduce an element of conjecture and uncertainty, and such an instruction is not erroneous upon that ground.

2. An instruction that damages for future pain and suffering must be proved with reasonable certainty is not required where damages already sustained are alone submitted to the jury.

3. The proper method of submitting a case to a jury is by a clear and concise statement of those issues which find support in the evidence and not by substantially copying the pleadings of the parties into the instructions, and if, by doing the latter, it results in prejudice to the complaining party it ordinarily constitutes sufficient grounds for reversal.

4. Where the only issue is the nature and extent of the injuries sustained and the amount of recovery therefor, the inclusion of allegations of negligence in the submission of the issues upon which no evidence has been adduced in support thereof is not prejudicial to the rights of the party charged with such acts of negligence.

5. While in a personal injury action the better practice is to state to the jury in suitable words that plaintiff sues for an amount sufficient to compensate him for the loss sustained, it is not ordinarily prejudicial error to state the amount for which the action is brought.

6. In an action for damages, where the law furnishes no legal rule for measuring them, the amount to be awarded rests largely in the sound discretion of the jury and courts are reluctant to interfere with a verdict so rendered.

7. A verdict may be set aside as excessive only when it is so clearly exorbitant as to indicate that it was the result of passion, prejudice, or mistake, or that it is clear that the jury disregarded the evidence or controlling rules of law.

V. H. Halligan, North Platte, Davis, Stubbs & Healey, Lincoln, for appellant.

Geo. B. Dent, Jr., North Platte, Beatty, Clarke, Murphy & Morgan, North Platte, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

CARTER, Justice.

This is an action for damages for personal injuries sustained in an automobile accident alleged to have been caused by the negligence of the defendant. The jury returned a verdict for the plaintiff for $10,000 and judgment was entered thereon. The defendant appeals.

The case was previously before this court. Remmenga v. Selk, 150 Neb. 401, 34 N.W.2d 757. A detailed statement of the facts in the case can be found in the former opinion.

The action as originally instituted was based on two causes of action. The first was based on the personal injuries the plaintiff suffered in the accident. The second was based on the assigned claim of her husband, James Remmenga, for medical, hospital, nursing, household, and traveling expenses incurred for plaintiff as a result of the accident. Both causes were submitted to a jury and a verdict was returned for defendant. The trial court sustained a motion for a new trial as to the first cause of action and overruled it as to the second. On appeal to this court the order granting a new trial on the first cause of action was sustained and the order denying a new trial on the second cause of action was reversed. After remand to the district court, plaintiff dismissed her second cause of action without prejudice. The case was thereupon tried upon the issues raised by the first cause of action with the result hereinbefore stated. This appeal is from the verdict and judgment rendered on the first cause of action.

The defendant asserts that the trial court erred in four respects and has assigned such alleged errors on this appeal. They are in substance as follows: (1) That the trial court erred in giving an instruction which did not limit damages for permanent injuries to damages which are reasonably certain; (2) that the trial court erred in setting forth plaintiff's petition verbatim in the instructions, including allegations of negligence not supported by evidence; (3) that the trial court erred in instructing the jury that, although defendant's attorney had informed the jury that he would prove contributory negligence on the part of the plaintiff, he was unable to prove it; and (4) that the verdict is excessive.

With reference to the first assignment the record shows that the trial court instructed the jury 'that Plaintiff's measure of damages for any personal injuries she may have sustained is such a sum as will fully and fairly compensate her for the damages thus sustained, * * *. In considering the damages thus sustained, you may take into consideration the extent and character of said injuries, Plaintiff's physical pain and suffering, whether said injuries are permanent or not, and any other evidence in the case bearing upon the question of Plaintiff's injuries.'

It is the contention of defendant that the use of the words 'may have sustained,' used in the fore part of the instruction have application to the whole instruction and authorize the jury to allow uncertain, speculative, or probable future damages. We do not think the quoted words are subject to any such interpretation. The words are of common usage and in the manner used mean that plaintiff is entitled to recover compensation for any personal injury already sustained which was the result of defendant's negligence. There is nothing in the instructions given which authorizes a recovery for future pain and suffering or any physical disabilities that may result in the future. The instructions authorize a recovery only for disabilities already sustained. Under such circumstances we cannot say that the instruction given contains prejudicial error.

This question has been directly passed upon by this court in Henry v. Omaha Packing Co., 81 Neb. 237, 115 N.W. 777, 779, wherein it was said: 'The defendant complains of the use of the word 'may' in the following, taken from one of the instructions given by the court on its own motion: 'If the plaintiff has established these facts by a preponderance of the evidence, then the plaintiff would be entitled to recover such damages as she may have received by reason of the injuries complained of, not exceeding the sum of $2,000.' A charge which allows damages for the pain and suffering which plaintiff may endure hereafter is erroneous, as allowing the jury to go into the field of mere probability. Nixon v. Omaha & C. B. Street R. Co., 79 Neb. 550, 113 N.W. 117. Used concerning a past transaction, the word is not capable of such a construction. To speak of such suffering as one may endure in the future is to introduce into the estimate an element of conjecture and uncertainty which is not at all involved in speaking of the damages one may have sustained in the past. The amount of the latter cannot, under any construction of the language used, exceed the damage which has actually been sustained. The trial judge, not being permitted to assume that the plaintiff had suffered any damage, used the word 'may' to express the possibility of the existence of such damages which were limited by the amount that she had already experienced, and therefore no element of probability was included. We think the rule laid down in Nixon v. Omaha & C. B. Street R. Co., has no application to the case at bar, and there was no error in the use of the word 'may' in the instruction complained of.'

In Ballard v. Kansas City, 110 Mo.App. 391, 86 S.W. 479, 480, the court in dealing with this same question said: 'So far as this criticism is applied to the issue of permanent injury, it is without merit. 'May have suffered' is a form of the verb 'to suffer,' descriptive of completed action, and, so far as tense is concerned, is the equivalent of the past...