Smithey v. Sinclair Refining Co.

• Decision Date: 27 November 1961
• Docket Number: No. 5294,5294
• Citation: 122 S.E.2d 872,203 Va. 142
• Court: Virginia Supreme Court
• Parties: JIMMY LEE SMITHEY v. SINCLAIR REFINING COMPANY, ET AL. Record

Page 872

122 S.E.2d 872

203 Va. 142

JIMMY LEE SMITHEY v. SINCLAIR REFINING COMPANY, ET AL.

Record No. 5294.

Supreme Court of Appeals of Virginia.

November 27, 1961.

Richard D. Mattox (Moody & Mattox, on brief), for the plaintiff in error.

Robert M. Furniss, Jr. (Taylor, Gustin, Harris & Furniss, on brief), for the defendants in error.

JUDGE: CARRICO

CARRICO, J., delivered the opinion of the court.

Jimmy Lee Smithey, hereinafter referred to as the plaintiff, filed a motion for judgment against Sinclair Refining Company, a corporation, and Frank Carper, hereinafter referred to as the defendants, to recover damages in the sum of $25,000.00 for personal injuries sustained when the automobile operated by the plaintiff was in a collision with the vehicle owned by Sinclair Refining Company and operated by its agent, Frank Carper.

At a jury trial the defendants admitted liability for the plaintiff's injuries, and the case was submitted to the jury on the issue of damages alone. The jury returned a verdict in favor of the plaintiff for $15,000.00, which the defendants moved to set aside, on the ground that it was excessive.

The trial judge, in a written opinion, held that the verdict was excessive and put the plaintiff on terms to accept an award of $5,000.00 or face a new trial on the issue of damages. The plaintiff accepted the reduced judgment for $5,000.00 under protest, according to the provisions of § 8-350 ¹ Code of Virginia, 1950, and excepted to the court's action in ordering the remittitur of $10,000.00. Plaintiff sought and was granted a writ of error.

The defendants assigned cross-error to the ruling of the trial court, asserting that they were entitled to a new trial as to the full amount of damages. However, the assignment of cross-error was not printed as required by Rule of Court 5:1, § 6(d), was not urged in argument before us, and therefore will not be considered.

The collision in which the plaintiff suffered his injuries occurred on September 3, 1959. The trial was held approximately ten months later, on June 24, 1960. The evidence submitted to the jury concerning plaintiff's injuries was accurately summarized in the trial judge's written opinion as follows:

'The evidence shows that at 7 p.m. on September 3rd the plaintiff, a young man 21 years old, was involved in a headon collision on Victory Boulevard in this city between the car driven by him and a truck driven by Frank Carper, a servant and employee of the Sinclair Refining Company. Immediately after the accident the plaintiff crawled through the window of his automobile and walked to the other vehicle. He stated the impact of the vehicles caused him to have a 'numb feeling.' He then went to the Maryview Hospital where he received emergency treatment. He was charged $3.00 for this service and was told to see his family physician. The next day he saw Dr. W. S. Jennings. X-rays were taken and these were negative as to any broken bones. The doctor found the plaintiff suffering with a 'crushing injury to chest, multiple contusions and lacerations of the left arm, right knee, and a sprain and strain of the thoracic and lumbosacral spine.' The only treatment given was 'strapping and medication to relieve pain and discomfort and relieve spasms of the muscles involved in the injury.' The physician saw the plaintiff only four times, namely, September 4, 5th, 19th and 30th, exclusive of his visit on the day before the trial. All visits were at the doctor's office and the last visit on the day before the trial was to refresh the doctor's memory of the case so that he might intelligently testify; to permit the doctor to re-examine the plaintiff, if necessary, and to inform the doctor of the plaintiff's subjective complaints if there were no lingering objective signs of injury. The doctor's bill for services was $16.00 and the x-ray cost was $40.00. The plaintiff suffered no permanent injuries of any nature or kind (page 26).

'According to the plaintiff, he was bruised in a rib just below the heart; he suffered from soreness and stiffness for several days; he had a slight injury to the arm that caused him to lose grip in his hand for 'a couple of days,' but this 'went down all right;' he had a little trouble with his chest that lasted 'two or three days,' but 'it got all right' yet some soreness was still there; and he stated that he still has pain in his back. The plaintiff lost only seven days from his work as a helper in a filling station. His wages for this period were $45.00. Since leaving his employment with the service station, he has worked continuously as a bus driver, operating buses eight hours a day. He complains of discomfort after working about six hours. From these complaints the doctor characterized this condition of the plaintiff as a chronic low back strain as distinguished from an acute strain. He found some slight limitation of back motion, but this would not be permanent.'

The evidence further discloses that Dr. Jennings, the only physician to treat the plaintiff, instructed the plaintiff to return for further treatment after the visit of September 30th. However, the plaintiff failed to follow the doctor's instructions and did not again seek medical attention until the day before trial, excusing his failure by testifying, 'I don't like doctors.'

The sole question to be determined is whether the trial judge erred in ruling that the verdict of the jury was excessive, and in requiring the plaintiff to remit $10,000.00 of the verdict as an alternative to the granting of a new trial.

In this Commonwealth we have, by decisions so numerous and so familiar that they require no citation, sought to uphold the sanctity of the jury verdict. It is our duty to sustain a verdict that has been fairly rendered.

In personal injury cases, where the action merely sounds in damages and where there is no rule for measuring such damages, the amount to be awarded is left largely to the discretion of the jury. The verdict of the jury, arrived at upon competent evidence and controlled by proper instructions, in an impartially conducted trial, has always been held to be inviolate against disturbance by the courts. Farish & Co. v. Reigle, 11 Gratt. (52 Va.) 697, 722; Ward v. White, 86 Va. 212, 220 9 S.E. 1021, 1024; E. I. DuPont Co. v. Taylor, 124 Va. 750, 762, 763, 98 S.E. 866, 870; Dinwiddie v. Hamilton, 201 Va. 348, 352, 353, 111 S.E.2d 275, 277, 278.

It is not our intention to depart from these salutary rules.

But this is not to say that the verdict of a jury is not subject to the control of the courts. A healthy administration of justice requires that, in a proper case, the courts must take action to correct what plainly appears to be an unfair verdict. This authority is an ancient and accepted part of the common law. As related to the problem before us, it has been recognized by the legislature in its enactment of Code § 8-224 ², relating specifically to the power of the court to award a new trial where the damages awarded by a jury are either too small or excessive, and Code § 8-350, supra, relating to the procedure to be followed in protesting and seeking an appeal from a court's action in ordering a remittitur.

In a case where the verdict of a jury is attacked on the ground that it is excessive, the rules controlling the actions of the court in relation thereto are clear and well defined. If the verdict merely appears to be large and more than the trial judge would have awarded had be been a member of the jury, it ought not to be disturbed, for to do so the judge must then do what he may not legally do, that is, substitute his judgment for that of the jury. Aronovitch v. Ayres, 169 Va. 308, 328, 193 S.E. 524, 531; Simmons v. Boyd, 199 Va. 806, 811, 812, 102 S.E.2d 292, 296.

But if it appears that the verdict is so excessive as to shock the conscience of the court and to create the impression that the jury has been influenced by passion, corruption or prejudice, or has misconceived or misunderstood the facts or the law, or if the award is so out of proportion to the injuries suffered to suggest that it is not the product of a fair and impartial decision, then it becomes the plain duty of the judge, acting within his legal authority, to correct the injustice. Chesapeake & O. Ry. Co. v. Arrington, 126 Va. 194, 217, 101 S.E. 415, 423, cert. denied 255 U.S. 573, 41 S.Ct. 376, 65 L.ed. 792; C. D. Kenny Co. v. Solomon, 158 Va. 25, 30, 31, 163 S.E. 97, 98, 99.

Under the law as it now exists, taking into consideration the practice at common law, as supplemented by Code §§ 8-224 and 8-350, in a case where the quantum of damages is the sole issue, if a court determines that a verdict is excessive, it may put the successful party on terms to accept a reduced amount, deemed reasonable to compensate the injured party, as an alternative to awarding a new trial, or it may order a new trial as to the whole amount of damages.

The plaintiff contends, however, that in personal injury cases the court is powerless to order a plaintiff to release a part of his verdict or else face a new trial, because there is no standard by which the damages in such cases may be determined.

This contention is without merit.

It is stated in Burk's Peading and Practice, 4th Ed., Sec. 321, pp. 582-585:

'It would seem that in cases where there is no legal measure of damages, as well as in those in which such legal measure exists, where the verdict is plainly excessive the court may put the successful party on terms to release what it regards as excessive, although there is no standard by which the excess can be measured, and, in Virginia, may enter up a final judgment for the reduced amount without any further trial. The court simply exercises its best judgment as to what is right under the circumstances of the case, subject to review for error. But the court cannot act arbitrarily. The assessment of damages is peculiarly the province of the jury, and when...