Rudnick v. Jacobs

• Decision Date: 15 February 1938
• Citation: 39 Del. 169,197 A. 381
• Court: United States State Supreme Court of Delaware
• Parties: FREDERICK RUDNICK, Plaintiff Below, Plaintiff in Error, v. JACOB A. JACOBS, also known as J. Jacobs, Defendant Below, Defendant in Error

197 A. 381

39 Del. 169

FREDERICK RUDNICK, Plaintiff Below, Plaintiff in Error, v. JACOB A. JACOBS, also known as J. Jacobs, Defendant Below, Defendant in Error

Supreme Court of Delaware

February 15, 1938

Supreme Court, No. 1, June Term, 1936.

Writ of Error to Superior Court for New Castle County.

Plaintiff sued defendant to recover judgment for damages alleged to be due him by reason of the negligence of defendant's employee in the operation of an automobile which came in collision with the plaintiff's automobile at a street intersection in the City of Wilmington.

Plaintiff claimed damages for injuries to both himself and his automobile. He offered evidence which was uncontradicted to show the following items of expense to which he was put by reason of the defendant's alleged negligence:

Repair bill to automobile

$ 70.25

Dr. Keyser, attending physician

16.00

Dr. Burris, X-ray

15.00

Dr. Strikel, ear specialist

2.00

Delaware Hospital

5.00

$ 108.85

In addition to these items of expense incurred, the plaintiff claimed further damages as compensation for the personal injuries which he alleged he had suffered.

The jury returned a verdict in favor of the plaintiff in the sum of $ 92.85. The plaintiff moved for a new trial. The court below, upon observing that the verdict was for $ 16.00 less than the total of the above items of calculable liability clearly proved and unquestioned by the defendant, reached the conclusion that a new trial should be granted, unless the defendant would consent that judgment be entered for $ 16.00 more than the verdict called for. The defendant stipulated his consent in that behalf, and the court, over the objection of the plaintiff, refused the motion for a new trial and directed judgment to be entered in the amount of $ 108.85. The plaintiff thereupon sued out this writ of error.

The judgment affirmed.

H Albert Young for plaintiff in error.

William H. Bennethum (of Marvel, Morford, Ward and Logan) for defendant in error.

WOLCOTT Chancellor, LAYTON, C. J., HARRINGTON, RODNEY and SPEAKMAN J. J., sitting.

OPINION

WOLCOTT, Chancellor

The plaintiff relies upon two assignments of error.

1. The first is that the court erred in charging the jury as follows:

"In considering the damage to his automobile, if your verdict should be for the plaintiff, the measure of damages is the difference between the value of the automobile immediately before the accident and its value immediately after the accident."

The plaintiff objects to this language as calculated to confuse the jury since there was no evidence before it of the value of the car before and after the accident. The only evidence of damage to the car was as to the cost to which the plaintiff was subjected in the way of repairs. The charge, therefore, might be said not to have been adapted to the facts.

But even so, we find no reversible error on that score, because the judgment which the plaintiff obtained embraced the full amount of the repair bills. The plaintiff himself, by his proof, invited the jury to measure the damage to his car by the cost of its repair.

2. The remaining assignments of error may be grouped as one. They are all directed to the point that it was error for the court to refuse the plaintiff's motion for a new trial and to enter judgment for the amount of the verdict increased by the additur of $ 16.00.

The jury's verdict established the negligence of the defendant. The only question with which we are concerned is the question of the money measure of the damages. The elements of damage which the plaintiff claimed were three --(a) injury to his automobile, (b) medical and hospital bills paid or incurred by the plaintiff, and (c) injury to his person, including the pain and suffering occasioned thereby.

The jury's verdict compensated the plaintiff for the property damage in full, allowed him nothing for his alleged personal injuries, and fell $ 16.00 short of fully compensating him for the medical and hospital bills. That is the way the court below interpreted the verdict. The case was argued before us on that interpretation, and we think it is entirely justified. From the itemization of plaintiff's definitely ascertainable claims set out in the statement of facts, it will be observed that there is an item of $ 16.00 claimed by the plaintiff for the medical services of Dr. Keyser, his attending physician. The jury evidently disallowed that item, notwithstanding it was clearly proved and was in fact uncontested by the defendant. As the bill of Dr. Keyser had not been actually paid but only incurred when the trial was had, it is not surprising that the jury disallowed it in view of the charge by the court that the plaintiff could be compensated for doctors' bills in such amounts as were expended by him. The jury evidently noted the court's language and faithfully applied it, rejecting a claim to be reimbursed a bill in payment of which the plaintiff had not yet expended anything.

The additur of $ 16.00, however, repaired that error.

It is evident that the jury considered that the plaintiff's personal injuries and his alleged pain and suffering were not sufficiently important to merit compensation. Accordingly the judgment entered on the verdict supplemented by the court's additur fully covered every other item of damage, all of which were capable of definite pecuniary measurement.

That the jury was justified in allowing nothing beyond mere nominal damages on account of the plaintiff's alleged personal injuries and his pain and suffering, admits of no doubt in our minds. Immediately after the accident the plaintiff refused to go to a hospital, saying there was nothing the matter with him and two hours later he was at work and refused, on the defendant's suggestion, to go to a doctor to be examined, saying "it would be foolish to go around to the doctor. There is nothing wrong with me." About a week and a half later he complained to the defendant that his neck was hurting him. There was evidence which justified the view, if believed, that the plaintiff was feigning injury and suffering. All the evidence which was calculated to show physical pain and suffering on analysis appears to be subjective, that is to say, having its source in the plaintiff's own statements. There were no outward and visible indications of injury beyond what the jury might well have regarded as very trifling.

We shall not review the evidence in detail. It is sufficient to say that it is of such character that if the suit had been one to recover for personal injuries alone, the jury would have been warranted in bringing in a verdict for nominal damages only. As the plaintiff was given judgment for other claims, the jury could overlook the traditional six cents.

The state of the case with respect to the claim for damages for personal injuries being as above shown, it follows that we may properly regard the case for the purposes of the motion for a new trial, as did the court below, as though the suit were one to recover solely for the liquidated items of expense to which the plaintiff was subjected, viz., the items totalling $ 108.85 set forth in the statement of facts.

When the jury plainly erred in refusing to allow the clearly proved item of $ 16.00 composing part of that total, we are of the opinion that the court was entirely justified, with the consent of the defendant, in granting an additur in that amount and directing the entry of judgment accordingly.

The practice has become settled in the Superior Court of this state of granting a remittitur when the verdict of a jury is in excess of what in any event the court is of the opinion the plaintiff should recover. The procedure in such cases is for the court to say in substance to the plaintiff--you will have to undergo a new trial unless you agree to a reduction of your verdict to a designated sum. Winkler v. Philadelphia & R. Ry. Co., 20 Del. 80, 4 Penne. 80, 53 A. 90; Spahn v. People's Ry. Co., 26 Del. 302, 3 Boyce 302, 83 A. 27, 92 A. 727. This court has never been called upon to pass upon the legal propriety of such procedure. It has been approved in most American jurisdictions. By January 2, 1935, when Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 300, 79 L.Ed. 603, 95 A. L. R. 1150, was decided, it had become so firmly established in the federal jurisdictions that the majority of the court in that case, though questioning its constitutional justification, declared that the doctrine of the remittitur as applied by the practice "would not be considered or disturbed."

The converse of the doctrine of the remittitur is that of the additur. The latter is what was applied by the court below in the instant case. In cases of a remittitur, the court says to the adversary of the moving party, as before indicated--unless you consent to a remission of that part of your verdict which embodies an unjustified excess, you must submit to a new trial. In the case of an additur the court says to the adversary of the moving party,--unless you submit to an addition to the verdict of an amount which in the judgment of the court is the minimum to which the plaintiff is entitled, you must submit to a new trial. The one is the converse of the other. In Dimick v. Schiedt supra, the Supreme Court of the United States was confronted with the case of an additur. The majority of the court in a five to four decision refused to apply the logic of the remittitur to the case of an additur. Its refusal appears to have been induced by its questioning of the soundness of the reasoning that underlies the doctrine of the remittitur, and it concluded that the doctrine of the remittitur, though it should not be disturbed because of its long acceptance, yet was of too doubtful soundness to...