Sykes v. Brown

• Decision Date: 22 June 1931
• Parties: D. H. SYKES v. JANE BROWN.
• Court: Virginia Supreme Court

Page 881

156 Va. 881

D. H. SYKES v. JANE BROWN.

Supreme Court of Virginia, Wythebille.

June 22, 1931.

Present, Prentis, C.J., and Campbell, Epes, Hudgins and Browning, JJ.

1. NEW TRIALS — Power of Trial Courts Over Verdicts — Section 6251 of the Code of 1919. — While it is true that section 6251 of the Code of 1919, authorizing a judgment on the merits, where a verdict is set aside as not sustained by the evidence, conferred enlarged powers upon the trial courts, it is well settled by the decisions of the Supreme Court of Appeals that trial courts have no greater power over verdicts than they had before the enactment of the statute.

2. NEW TRIALS — Verdict Set Aside because Court would have Rendered a Different Verdict — Purpose of Section 6251 of the Code of 1919. — A trial court is not warranted in setting aside a verdict merely because the court, if upon the jury, would have rendered a different verdict. The action of the trial court must proceed from a firm conviction that the verdict is plainly wrong or without evidence to support it. The main purpose of section 6251 is to put an end to an action, if and when the ends of justice may be attained, and put the losing party to his writ of error.

3. APPEAL AND ERROR — Judgment by Appellate Court — Section 6365 of the Code of 1919. — The power conferred by section 6365 of the Code of 1919 on the Supreme Court of Appeals to render final judgment will not be arbitrarily exercised when, in the opinion of the Supreme Court of Appeals, the ends of justice demand that instead of entering final judgment a trial de novo should be had.

4. DAMAGES — Hospital Expenses — Best and Secondary Evidence — Opinion of Surgeon as to Plaintiff's Approximate Expenses — Case at Bar. — In the instant case, an action for personal injuries, a physician attached to a hospital was shown what purported to be a statement of plaintiff's expenses for treatment in the hospital after the accident and stated that it was approximately correct. The witness did not undertake to state the correct amount due the hospital, or that same was paid by the plaintiff, or that she was primarily liable for the bill. From his general knowledge of hospital expenses, he merely approximated the expenses incurred.

Held: That an objection to this evidence should have been sustained.

5. DAMAGES — Hospital Expenses — Best and Secondary Evidence — Opinion of Surgeon as to Plaintiff's Approximate Expenses — Case at Bar. — In the instant case, an action for personal injuries, a physician attached to a hospital was shown what purported to be a statement of plaintiff's expenses for treatment in the hospital after the accident and stated that it was approximately correct. If, as appeared, plaintiff's account was kept in a book, the book itself was the best evidence to prove its contents, and secondary evidence was incompetent to prove it unless the non-production of the book was satisfactorily accounted for, which ought to have been shown before the evidence of its contents was given to the jury.

Held: That this evidence was secondary, and the objection to it should have been sustained.

6. DAMAGES — Hospital Expenses — Payment of Expenses by Plaintiff. — In an action for personal injuries, payment of the expense of treatment is not essential to a recovery. If plaintiff is liable for the debt incurred, that is all that is necessary.

7. DAMAGES — Hospital Expenses — Payment of Expenses by Plaintiff. — In the instant case, an action for personal injuries, the court was asked to instruct the jury that in assessing damages they could not consider "any expenses incurred for hospital care, nursing, medical or surgical treatment." The record showed that a major portion of the hospital bill had been paid, but did not show that plaintiff paid it. It also appeared from the record that plaintiff owed a physician for medical services rendered her as a result of the accident.

Held: That in the state of the record the instruction was not a proper one.

8. DAMAGES — Personal Injuries — Loss of Earnings and Suffering Coupled Together in an Instruction. — In an action for personal injuries it was assigned as error that the court refused to instruct the jury that if plaintiff's injuries were permanent, in determining the amount of damages sustained by the plaintiff by reason of loss of earnings and suffering, the jury should take into consideration the age and the probable duration of plaintiff's life.

Held: That it was not error to refuse the instruction as offered. The vice in the instruction was that it coupled together "loss of earnings and suffering." They are independent elements of damages.

9. DAMAGES — Suffering — Loss of Earning Power — Age. — Age is not to be considered when awarding damages for suffering. Loss of earning power should be considered in connection with the age of plaintiff.

10. DAMAGES — Personal Injuries — Earning Power of Plaintiff Prior to Injury. — In an action for personal injuries, the defendant was entitled to have the jury instructed that they could take into consideration the amount earned by plaintiff before the injury, and likewise the probable reduction in her earning capacity, regardless of the injury, and it was error to refuse an instruction to that effect.

Error to a judgment of the Circuit Court of Surry county, in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error.

The opinion states the case.

Plummer & Bohannan and Willis W. Bohannan, for the plaintiff in error.

W. Stanley Burt, for the defendant in error.

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

Jane Brown, a colored citizen of Surry county, brought this action against D. H. Sykes to recover damages for personal injuries inflicted on her by the defendant by striking her with an automobile while she was a traveler upon the highway. There was a trial by a jury, which resulted in a verdict for the defendant. The motion of the plaintiff to set aside the verdict was sustained by the trial court, on the ground that "the verdict was without proper evidence to sustain it." Pursuant to section 6251 of the Code, judgment on the merits was pronounced in favor of the plaintiff and a jury was empanelled to assess plaintiff's damages. The trial on the question of damages resulted in a verdict in favor of the plaintiff in the sum of $2,000.00, and thereupon the court entered up judgment on the verdict.

In view of our ultimate conclusion, we deem it unnecessary to set forth the facts shown or to enter upon a detailed discussion of the alleged conflict in the evidence. While it is true that the enactment of section 6251 conferred enlarged powers upon the trial courts, it is well settled by the decisions of this court that trial courts have no greater power over verdicts than they had before the enactment of the statute.

In Flowers Virginian Ry. Co., 135 Va. 367, 116 S.E 672, it is held that the statute was not designed to materially change or affect the control of trial courts over the verdict of the jury.

It is also well settled that a trial court is not warranted in setting aside a verdict merely because the court, if upon the jury, would have rendered a different verdict. The action of the trial court must proceed from a firm conviction that the verdict is plainly wrong or without evidence to support it. The main purpose of section 6251 is to put an end to an action, if and when the ends of justice may be attained, and put the losing party to his writ of error. Clark Hugo, 130 Va. 99, 107 S.E. 730.

Under the provisions of section 6365 of the Code, similar power is conferred on this court. But the power thus conferred by section 6365 will not be arbitrarily exercised when, in the opinion of this court, the ends of justice demand that instead of entering final judgment a trial de novo should be had.

In the petition for a writ of error prepared by eminent counsel, defendant prays that this court render final judgment in his favor on the verdict in the first trial, "or else that the case be remanded for a trial de novo."

The rule laid down by Kelly P., in Morris & Co. Alvis, 130 Va. 448, 107 S.E. 664, 669, is, we think, applicable to the case at bar. There it is said:

"* * * The case was tried below and was originally presented to this court in such a way as to indicate that both parties probably regarded the question as one within the province of the jury. We approve the policy and purpose of sections 6251 and 6365 of the Code, looking to a speedy determination of litigation and the rendition of a final judgment wherever it is clear that, upon the facts before it, the court can by such order attain the ends of justice. In this instance, we are not sure that these ends could be attained by a final order, but, viewing the case as a whole, we are of opinion that it should be remanded for a new trial, and an order to that effect will accordingly be entered."

In view of our conclusion that a new trial should be had, and anticipating that some of the questions arising in this case will be...