Snodgrass v. Charleston Nugrape Co. Inc

• Decision Date: 25 April 1933
• Docket Number: No. 7584.,7584.
• Court: West Virginia Supreme Court
• Parties: SNODGRASS. v. CHARLESTON NUGRAPE CO., Inc.

169 S.E. 406

SNODGRASS.

v.CHARLESTON NUGRAPE CO., Inc.

No. 7584.

Supreme Court of Appeals of West Virginia.

April 25, 1933.

Petition for Rehearing Withdrawn

June 6, 1933.

Syllabus by the Court.

1. A verdict should be set aside on the ground of excessiveness when it is so large as to indicate that the jury was moved by prejudice or partiality or some other improper consideration, or acted in a mistaken view of its duty.

2. The duty of a trial judge to be present at all stages of a civil trial over which he is presiding discussed and emphasized.

3. Affidavits of counsel as to what occurred in a jury trial while the judge was absent from the courtroom do not constitute part of the record of the case.

Error to Circuit Court, Kanawha County.

Action by Freda Snodgrass, etc., against the Charleston NuGrape Company, Inc. Judgment for plaintiff, and defendant brings error.

Judgment reversed, and cause remanded for a new trial.

Campbell & McClintic and Ernest K. James, all of Charleston, for plaintiff in error.

Salisbury & Lopinsky, of Charleston, for defendant in error.

MAXWELL, President.

This writ of error presents for review a Judgment for plaintiff, based on a verdict, in the sum of $2,500.00.

Plaintiff, a girl of seventeen, was injured November 4, 1931, when a truck belonging to defendant collided with a school bus in which she was a passenger. A few hours after the accident, she was taken to a hospital where she remained until the next evening when she returned to her home. Dr. Herbert Gar-Ted, who examined her at the hospital, stated that her right thigh was swollen and bruised and "some skin knocked off just below the knee"; that she was nervous and suffering from shock; that the X-ray disclosed no fractures; and that he gave her "palliative treatment" for pain and suffering. Upon returning to her home, she remained in bed two or three days and resumed her school attendance within a week.

Dr. Garred stated also that plaintiff came to his office again December 30, 1931, complaining of pain in the knee joint; that she was limping; that he did not see her again until June 25, 1932; that thereafter he saw her about once every two weeks until October 10, 1932, which was about three weeks before the case was tried; that he administered "only efficacious therapy" to her leg and ankle; and that the scar below the knee was permanent. He was asked whether the pain and limping complained of by plaintiff was attributable to the injuries sustained in the accident and he replied, "in all probability * * * it is probable."

Three witnesses, one a sister of plaintiff, corroborated her in her statements that she limps occasionally; that she is extremely nervous when riding in automobiles; and that she cannot continue with her course in physical training at school as a result of the injuries sustained in the accident.

Dr. E. II. Swint, who examined plaintiff for the first time about a week before the tri-al, testified that there was a scar on her leg just below the knee but which was "freely movable with the skin"; that there was "no swelling, " no "pain on pressure, " no evidence of an injury, other than the scar; that she was not nervous; that she did not limp nor complain of pain; and that he could find nothing "to indicate cause for pain."

One of the grounds urged for reversal is alleged excessiveness of the verdict. We are of opinion that this point is well taken. The foregoing recital from the evidence discloses that the plaintiff was only slightly injured. The evidence adduced to show nervousness and other deleterious results of the injury is very meager and unconvincing. Her attending physician's testimony is carefully Circumscribed by "probabilities." He does not undertake to state a definite opinion as to wherein or how the injuries she received could produce the consequences of which she complains. In his diagnosis, her subjective symptoms were emphasized. Withal, however, the causal connection between her injuries and the alleged condition now sought to be emphasized is not clear. In such situation, a verdict of the large amount here involved is not properly grounded. The fact that a young school girl was injured through the carelessness and recklessness of an indifferent truck driver may have had an undue appeal to the jury, or the jury may have thought that it was warranted in imposing punitive damages. The declaration is not so drawn as to support punitive damages.

A verdict should be set aside on the ground of excessiveness when it is so large as to indicate that the jury was moved by prejudice, or partiality or some other improper consideration, or...