Sargent v. Malcomb

• Decision Date: 08 February 1966
• Docket Number: No. 12455,12455
• Court: West Virginia Supreme Court
• Parties: Betty SARGENT, an infant, who sues by Jay Sargent, her next friend, and Jay Sargent, v. O. M. MALCOMB.

Page 561

146 S.E.2d 561

150 W.Va. 393

Betty SARGENT, an infant, who sues by Jay Sargent, her next friend, and Jay Sargent, v. O. M. MALCOMB.

No. 12455.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 25, 1966.

Decided Feb. 8, 1966.

Syllabus by the Court.

In a civil action to recover damages for personal injuries, the amount which the plaintiff is entitled to recover being indeterminate in character, the verdict of the jury may not be set aside by the trial court or by this Court on the ground that the amount of the verdict is excessive, unless the verdict in that respect is not supported by the evidence or is such that the amount thereof indicates that the jury was influenced by passion, partiality, prejudice or corruption, or entertained a mistaken view of the case.

Frank C. Mascara, Ross Maruka, Fairmont, for appellants.

William L. Fury, Weston, Lycurgus Hyre, Buckhannon, for appellee.

CALHOUN, Judge:

This case is before the Court on appeal from an order of the Circuit Court of Upshur County entered on June 13, 1964, in a civil action in which Betty Sargent, an infant, suing by Jay Sargent, as her next friend, sought recovery of damages for personal injuries resulting from burns sustained by her while she was employed in a restaurant operated by the defendant, O. M. Malcomb, in the City of Buckhannon. In the same action, Jay Sargent, in his own right, sought recovery from the defendant for hospital and doctor bills which were incurred by him in the treatment of his infant daughter as a consequence of the personal injuries she sustained.

Upon a trial of the case, the jury returned a verdict in favor of Betty Sargent in the sum of $22,500 and a separate verdict in favor of her father, Jay Sargent, in the sum of $935.61. The plaintiffs have appealed from the action of the trial court in setting aside the verdicts and in awarding the defendant a new trial.

The basic question presented for decision on this appeal is whether the trial court properly held that the verdict of $22,500 in favor of the infant plaintiff is excessive.

Numerous alleged errors were asserted in the trial court in the amended motion of the defendant to set aside the verdicts and to grant a new trial. In connection with his ruling upon the motion, the trial judge filed a written opinion which, by a court order, was made a part of the record. In such circumstances, we are authorized to consider the written opinion in order to determine the basis of the trial court's judgment. Rullins v. Daraban, 145 W.Va. 178, pt. 2 syl., 113 S.E.2d 369; Barnett v. Wolfolk, W.Va., 140 S.E.2d 466, 469; Work v. Rogerson, W.Va., pt. 2 syl., 142 S.E.2d 188; Boggs v. Settle, W.Va., 145 S.E.2d 446, 448.

The trial court's written opinion states that a new trial 'to all parties and on all issues should be granted on the ground of the excessiveness of the verdicts regardless of the merits of the other grounds upon which said motion for a new trial is based.' It appears from the written opinion that the trial court determined that the verdict for $22,500 was 'plainly and grossly excessive' and that, for that reason, both verdicts should be set aside. The trial court did not rule upon any other assignments of error. Neither the written opinion nor the court order indicates that the trial court's order in awarding a new trial was based on any ground other than the excessiveness of the verdicts, particularly the verdict in favor of the infant plaintiff. No cross-assignment of error has been made in behalf of the defendant. See Payne v. Kinder, 147 W.Va. 352, 127 S.E.2d 726. In this Court counsel for the respective parties, in their briefs and oral arguments, have urged no ground for affirming or reversing the order of the trial court except on the basis of the alleged excessiveness of the verdicts.

During the trial, no objection was made to the doctor and hospital bills. It was stipulated by counsel that such bills, aggregating the sum of $935.61, were reasonable in their amounts and that they were necessarily incurred in the treatment of the patient. The verdict in favor of Jay Sargent was for $935.61. The question of excessiveness, therefore, relates directly to the verdict for $22,500 in favor of the infant plaintiff.

This Court has recognized that it requires a stronger case in an appellate court to reverse a judgment awarding a new trial than a judgment denying a new trial. Graham v. Wriston, 146 W.Va. 484, pt. 3 syl., 120 S.E.2d 713. On the other hand, it is clear that the judgment of the trial court in awarding a new trial should be reversed if it is in that respect clearly wrong or if a consideration of the evidence shows that the case was a proper one for jury determination. Rollins v. Daraban, 145 W.Va. 178, pt. 6 syl., 113 S.E.2d 369; Reese v. Lowry, 140 W. Va. 772, pt. 4 syl., 86 S.E.2d 381; Henderson v. Hazlett, 75 W.Va. 255, 83 S.E. 907. This Court has affirmed the actions of trial courts in awarding new trials on the ground of excessiveness of verdicts where the verdicts were clearly excessive or where the evidence in relation to that question was doubtful. Browning v. Monongahela Transportation Co., 126 W.Va. 195, 27 S.E.2d 481; Pittsburgh-Wheeling Coal Co. v. Wheeling Public Service Co., 106 W.Va. 206, pt. 1 syl., 145 S.E. 272; Cain v. Kanawha Traction & Electric Co., 81 W.Va. 631, pt. 4 syl., 95 S.E. 88; Corns-Thomas Engineering & Construction Co. v. McDowell County Court, 92 W.Va. 368, pt. 11 syl., 115 S.E. 462; Adkinson v. Baltimore & Ohio Railroad Co., 75 W.Va. 156, pt. 3 syl., 83 S.E. 291. Even in a case in which the damages recoverable are indeterminate in character, this Court will reverse the action of the trial court in refusing to set aside the verdict on the ground of excessiveness where the verdict is clearly in excess of the amount which the evidence shows the plaintiff is entitled to recover. Winters v. Campbell, 148 W.Va. 710, pt. 5 syl., 137 S.E.2d 188. This Court in a personal injury case, will reverse the judgment of the trial court in setting aside a verdict on the ground of excessiveness, reinstate the verdict and enter judgment on the verdict in this Court, if it appears that the action of the trial court in setting aside the verdict was not justified. Reese v. Lowry, 140 W.Va. 772, 86 S.E.2d 381.

A well-settled legal principle, binding both on the trial court and this Court, is that in an action in which the compensation which the plaintiff is entitled to recover is indeterminate in character, the verdict of the jury may not be set aside as excessive unless it is not supported by the evidence or is so large that the amount thereof indicates that the jury was influenced by passion, partiality, prejudice or corruption, or entertained a mistaken view of the case. Poe v. Pittman, W.Va., pt. 7 syl., 144 S.E.2d 671. In such a case a mere difference of opinion between the court and the trial jury concerning the proper amount of recovery will not justify either the trial court or this Court in setting aside the verdict on the ground of inadequacy or excessiveness. Earl T. Browder v. County Court of Webster County, 145 W.Va. 696, pt. 5 syl., 116 S.E.2d 867.

Another well-settled legal principle, binding both on the trial court and the appellate court, is that, is that, in determining whether a jury verdict is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned must be considered, and all facts which the jury might properly have found from the evidence must be assumed as true. Bolling v. Clay, W.Va., pt. 1 syl., 144 S.E.2d 682; Poe v. Pittman, W.Va., pt. 5 syl., 144 S.E.2d 671; Walker v. Monongahela Power Co., 147 W.Va. 825, pt. 3 syl., 131 S.E.2d 736; Bower v. Brannon, 141 W.Va. 435, 440, 90 S.E.2d 342, 346; Butcher v. Stull, 140 W.Va. 31, pt. 1 syl., 82 S.E.2d 278.

In the light of the authorities previously referred to in this opinion, we believe we are required, in considering the question of the alleged excessiveness of the verdict for $22,500, to determine whether the verdict is one which the jury might properly have found from the evidence bearing on that question. Only witnesses for the plaintiffs testified concerning the nature and extent of the personal injuries sustained by Betty Sargent. No testimony of this character was adduced in behalf of the defendant. There is no substantial dispute, therefore, in the testimony bearing directly on the issue of the alleged excessiveness of the verdict in her favor.

On January 12, 1962, Betty Sargent entered a hospital in Buckhannon where she remained as a patient continuously until February 17, a total of thirty-six days. The testimony discloses some uncertainty on the question whether the date of her initial discharge from the hospital was February 7 or February 17, but both a hospital bill and a doctor's bill which were introduced in evidence indicate that the latter of the two dates is correct.

Dr. R. L. Chamberlain, a physician residing at Buckhannon, testified that he was called to see Betty Sargent in the emergency room of the hospital on January 12; that she was then suffering from burns 'all up and down her back,' on both buttocks, on her left breast, under her left arm, in the left armpit, and on her left leg; that all of the burns were either of the second degree or third degree; that, in connection with his initial treatment of the patient, she was given an injection for pain, skin which was obviously dead and destroyed was removed with surgical scissors and all burned skin which appeared likely to respond to treatment was treated with appropriate medications; that the first thing he did was to give the patient morphine; that pain remedies were given thereafter; that fluids were given intravenously from time to time because of the seepage of fluids through the raw tissues; that bandages were changed and ointment was reapplied at proper...