Slocum v. Kansas Power & Light Co.
Decision Date | 26 January 1963 |
Docket Number | No. 43053,43053 |
Citation | 378 P.2d 51,190 Kan. 747 |
Parties | Donn SLOCUM, a minor, by Goldie Foster, his mother and next friend, Appellant, v. The KANSAS POWER AND LIGHT COMPANY, a Corporation, Appellee. |
Court | Kansas Supreme Court |
Syllabus by the Court
1. In a damage action for personal injuries the plaintiff, a fourteen-year-old boy, recovered a verdict in the sum of $95,000 for injuries received from a high voltage electrical transmission line while climbing in a tree. The trial court ordered a new trial on the issue of damages, unless the plaintiff agreed in writing to accept a remittitur which would leave a judgment of $60,000 and costs. On appeal from such order the record is examined and it is held: The trial court did not abuse its discretion in finding the verdict excessive and in ordering a new trial on the issue of damages, unless the plaintiff agreed to accept the remittitur.
2. Where an excessive verdict is rendered under the influence of passion and prejudice, it cannot be cured by a remittitur, but where it is not rendered under the influence of passion and prejudice the vice in an excessive verdict for compensatory damages may be cured by a remittitur consented to by the prevailing party.
3. An order of the trial court granting a motion for a new trial on the issue of damages, unless the plaintiff agrees to accept a remittitur, will not be reversed unless abuse of discretion is apparent.
4. A much stronger showing with respect to abuse of discretion is required where a new trial on the issue of damages has been granted, unless the plaintiff agrees to accept a remittitur, than where it is refused, and this court will not reverse the trial court's ruling unless satisfied that it was wholly unwarranted and an abuse of its discretion.
Herbert A. Marshall, Topeka, and Allen Meyers and Doral H. Hawks, Topeka, for appellant.
Lawrence D. Munns, Topeka, and Harry W. Colmery, Robert E. Russell and O. R. Stites, Jr., Topeka, for appellee.
This is a damage action wherein the plaintiff, a fourteen-year-old boy, was injured from a high voltage electrical transmission line while climbing in a tree and recovered a verdict is the sum of $95,000. The trial court ordered a new trial on the issue of damages, unless the plaintiff agreed in writing to accept a remittitur which would leave a judgment of $60,000 and costs. Appeal has been duly perfected from the foregoing order
The only question presented is whether the trial court abused its discretion in finding the verdict excessive and in ordering a new trial on the issue of damages, unless the plaintiff agreed to accept the remittitur.
The trial court in considering the appellant's motion for a new trial and supplemental motion for a new trial announced that there was no valid ground for a new trial save one, and that was the possible ground that the judgment was excessive. In announcing the decision the court said:
'I have not reached any conclusion that this jury was under what I would call passion and prejudice, but I do believe that the jury was extremely generous with someone else's money and that they were possibly motivated somewhat by the fact that the defendant was a large corporation, believing perhaps that this judgment would be paid by the stockholders thereof, and not realizing that such judgments are paid by utility rate payers, if state regulation of utility rates works as it is supposed to.
Thereafter the trial court, on the appellant's motion to reconsider and clarify its order for a new trial, modified its order to the effect that if the appellant did not accept the judgment on the basis of the remittitur, the new trial be upon the issue of damages alone.
We construe the foregoing statement of the trial court to be a finding that there was no passion or prejudice involved on the part of the jury in awarding the verdict of $95,000, or that the damages awarded were so excessive as to permeate the entire verdict.
It has been held where the trial court gives the plaintiff an option to remit, or in the alternative, to submit to a new trial, it necessarily found that there was neither passion nor prejudice in connection with the verdict. It merely disagreed with the jury respecting the amount which would compensate for the plaintiff's injuries. (Hockman v. Sifers Candy Co., 104 Kan. 94, 178 P. 254; Emerick v. Jones Motor Car Co., 104 Kan. 136, 178 P. 399; Davidson v. Douglass, 129 Kan. 766, 284 P. 427; and Blevins v. Al Weingart Truck & Tractor Service, Inc., 186 Kan. 258, 349 P.2d 896.)
In the Emerick case it was said:
'* * * We must start with the assumption that the trial court, placed in a position far more favorable than is this court for discovering whether or not the original verdict was tainted with prejudice and passion, determined that question against the defendants' contention, holding, however, that the amount of the judgment was excessive. In such a situation, it becomes the first duty of the trial court to determine whether the excessive verdict has been rendered as a result of prejudice and passion which deprived the defeated party of a fair trial; and, where the court has reason to believe this to be the case, the taint cannot be removed, nor the error cured by merely reducing the verdict to an amount which the court thinks would compensate the injured party, if he is entitled to recover.
'* * * we are confronted with the fact that the trial court saw and heard the witnesses and must have been convinced that the error of the jury in fixing an excessive amount of damages did not permeate the entire verdict. * * *' (Pages 140, 141, 178 P. page 401.)
It has also been held in an action for damages for personal injuries, where there was a judgment for the plaintiff and nothing in the record to indicate passion or prejudice other than the amount of the verdict, this court will not require the plaintiff to accept a remittitur or grant a new trial, unless, under the facts disclosed by the record, the judgment is so large that it cannot in reason be allowed to stand. Thus, if a jury returns a verdict in excess of that which the trial court or this court deems proper under the evidence, and without any other indication of passion or prejudice on the part of the jury, the fact that the verdict is larger than the court can sustain does not require a new trial if the plaintiff is willing to consent to a proper remittitur. (Green v. Fleming, 126 Kan. 560, 268 P. 825; and Blevins v. Al Weingart Truck & Tractor Service, Inc., supra.)
In Young v. Kansas City Public Service Co., 156 Kan. 624, 135 P.2d 551, this subject was discussed in the following language:
'* * * In fact, there is nothing in the record which remotely indicates passion or prejudice unless it can be said to be reflected in the amount of the verdict. * * *' (Pages 628, 629, 135 P.2d page 554.)
Another decision in point is Motor Equipment Co. v. McLaughlin, 156 Kan 258, 133 P.2d 149. Other decisions treating this subject matter are Lienbach v. Pickwick Greyhound Lines, 135 Kan. 40, 10 P.2d 33, and cases cited therein; Cox v. Kellogg's Sales Co., 150 Kan. 561, 95 P.2d 531; and Wiggins v. Missouri-K.-T. R. Co., 128 Kan. 32, 276 P. 63.
An examination of the record in the instant case discloses that there is nothing which remotely indicates passion or prejudice on the part of the jury, unless it can be said to be reflected in the amount of the verdict. On this point the trial court found the jury was not influenced by passion or prejudice. The trial court, in a much better position to judge the matter than this court, thought the verdict excessive and required the remittitur, if a new trial on the issue of damages was to be avoided. This further demonstrated that the trial court did not regard the amount of the original verdict as...
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