Stewart v. Genesco, Inc.

• Decision Date: 30 July 1979
• Citation: 406 A.2d 25
• Parties: Mary STEWART, Plaintiff Below, Appellant, v. GENESCO, INC., and Storm's Shoes, Inc., Defendants Below, Appellees.
• Court: United States State Supreme Court of Delaware

Page 25

406 A.2d 25

Mary STEWART, Plaintiff Below, Appellant, v. GENESCO, INC., and Storm's Shoes, Inc., Defendants Below, Appellees.

Supreme Court of Delaware.

Submitted April 10, 1979.

Decided May 29, 1979.

Revised July 30, 1979.

Motion for Reargument Denied July 30, 1979.

Upon Appeal from Superior Court. Affirmed.

Alene S. Berkowitz and Garry G. Greenstein, of Knecht, Greenstein, Schagrin & Berkowitz, Wilmington, for plaintiff-appellant.

Roger Sanders and Richard R. Wier, Jr., of Prickett, Ward, Burt & Sanders, Wilmington, for defendants-appellees.

Before DUFFY, QUILLEN and HORSEY, JJ.

QUILLEN, Justice:

This is an action to recover for personal injuries resulting from breach of warranty of merchantability. The plaintiff claims she was injured when her left shoe and then her right shoe failed to bear her weight and broke. The jury found that the shoes were defectively manufactured and unfit for their ordinary and intended use and held defendants liable to plaintiff for the breach of implied warranty in the amount of $135,000.00.

On a post trial motion by the defendants for a new trial, the Trial Court concluded in its initial post trial letter opinion that the award was "so grossly excessive as to shock the Court's conscience." It further concluded that a remittitur reducing the verdict to $50,000.00 was appropriate, finding such lesser amount "substantial" but bearing "a fair relationship to plaintiff's injuries." In the absence of the acceptance of the remittitur, a new trial was ordered. A motion for reargument was denied, the Trial Court making it clear that the new trial would extend to liability as well as damages.

The plaintiff suggests that the usual deference to the judgment of the Trial Judge here is inappropriate because the Trial Judge himself improperly substituted his own fact findings for those of the jury. It is true that the Trial Judge, in denying reargument, indicated that the prognosis "does not include probability of permanency," which was an unfortunate and ambiguous comment in a case where the Trial Judge's own charge permitted the jury to find permanency in some respects. But the comment is unclear as to the precise context being addressed especially since the same letter opinion recognized that pain "may continue indefinitely into the future." Moreover, the primary focus of the Court in that discussion was on "the amount of remittitur." The initial post trial letter opinion, noted above, expressly applied the proper standard on a motion for new trial based on the excessiveness of the verdict. A trial court should not set aside a verdict unless it is so grossly excessive as to shock the Court's conscience and sense of justice, and unless the injustice is clear. Riegel v. Aastad, Del.Supr., 272 A.2d 715, 718 (1970). ¹ We conclude there is no reason to deny the decision of the Trial Judge granting a new trial customary deference.

The question of whether or not a verdict is excessive is one peculiarly within the province of the trial judge, since he is better qualified to determine that question than an appellate court. Williams v. Chittick, Del.Supr., 139 A.2d 375, 379 (1958). As a consequence, the better rule is that the appellate court will not reverse the trial judge's decision on a motion for new trial on the ground of excessiveness of the verdict unless it holds that the trial court abused its discretion. Riegel v. Aastad, supra 272 A.2d at 718; 6 A Moore's Federal Practice P 59.08(6). ²

Our review of the record fails to support the conclusion that the Trial Judge abused his discretion. While it is possible to dispute some of his factual emphasis, his decision to set aside the verdict as grossly excessive was not "clearly unreasonable or capricious." Chavin v. Cope, Del.Supr.,243 A.2d 694, 697 (1968).

We make no judgment in this case as to the precise amount of the remittitur. As noted above, we find some confusion in the Trial Judge's language on the subject of permanency. Moreover, we feel, under the Delaware policy to highlight the role of the jury, our practice should be to grant the plaintiff every reasonable factual inference from the record and determine what verdict the record justifies as an absolute maximum. Burns v. Delaware Coca-Cola Bottling Company, Del.Super., 224 A.2d 255, 259 (1966). Compare the discussion in 6A Moore's Federal Practice P 59.05(3). But, notwithstanding these considerations, we do not feel qualified in this case to judge the precise figure entered by the Trial Judge. The plaintiff, under the stay entered below, has the option to accept that figure in lieu of a new trial, but she is not compelled to do so.

There is a second issue on appeal since the Trial Judge held that any new trial would extend to liability as well as damages. It appears that during the trial, evidence, offered by the defendants, of laboratory tests made on shoes similar to those worn by the plaintiff at the time of the accident was excluded. The basis of exclusion was that the evidence offered was "surprise evidence" in light of the failure to disclose its existence as part of pre-trial discovery. The Trial Judge concluded that there would be no basis for excluding the evidence in the event of a new trial. His decision was not an abuse of discretion under the permissive authority contained in Superior Court Civil Rule 59 to grant a new trial "on all or part of the issues." Bennett v. Andree, Del.Supr., 252 A.2d 100, 103 (1969).

The judgment of the Superior Court is affirmed.

On Plaintiff's Motion for Reargument

The plaintiff's motion for reargument is an effective statement of her factual position but does not add anything that was not already before the Court. It is important to bear in mind not only the substantive standards but also the role of the trial and ...