This case is before us on a petition for review of a decision of the Court of Appeals, Division Two, reported at
The decision of the Court of Appeals is vacated, and the judgment of the Superior Court ■ is reversed and remanded with directions.
Several issues might havе been argued, but were not — such as the propriety of the trial court’s directing a verdict in favor of the plaintiff. . However, the only issue presented is the correctness of the -trial court’s order granting a new trial beсause of the refusal of the defendants to accept the additur.
The case arose out of the fact that Kathy Samoyoa, while driving a pickup truck owned by her stepfather, Virgil Creamer, rear-ended plaintiff’s car. Since she was a minor at the time of the accident, the family purpose doctrine was invoked and her mother and stepfather were joined as defendants, though no cause of action was pleaded against them!
Plaintiff began to show symptoms- of a whiplash injury the day after the accident and was treated by an osteopath and several M.D.’s. The medical testimony wás in sharp conflict. One doctor thought that he might have a protruding disc which could be verified by a test that plaintiff refused ■to take. The doctor said that an operation would probably cure all of the trouble. -Another doctor stated that a week of traction wоuld end plaintiff’s pain. Plaintiff tried three days of traction and got 50% relief. He was examined by a defense doctor who stated that plaintiff would not cooperate and was probably malingering. In court, plaintiff carriеd his head in a peculiar position and moved as though his head, neck and shoulder were “frozen.” His car damages were treated as in issue, -even though not pleaded in his complaint. One mechanic testified that the major transmission damage was due to the car’s old age and not to the accident. Plaintiff’s medical bills totaled about $700.
Defendants had a detective keep plaintiff under surveillance for several days just before the trial. The detective’s testimony indicated that plaintiff’s movements were normal in every way, and that outside of the courtroom he did not walk like a person with neck and shoulder stiffness. Prior to the trial, before the detective’s report had been received, defendants offered to settle for $7,500. The trial court directed a verdict for plaintiff and submitted to the jury only the amount of damages.
*575 The tests for reviewing the damages awarded laid down by the cases in this court, though not always expressed in the same language, are reasonably consistent and cover a long period of time. We have re-examined them from 1934 to the present time аnd set them out briefly here.
Carr v. Florian,
Keen v. Clarkson,
Smith v. Moroney,
Young Candy & Tobacco v. Montoya,
Meyer v. Ricklick,
Larriva v. Widmer,
Tucson Utilities Supplies v. Gallagher,
The above seven cases are a representative rather than an exhaustive list of our cases on thе subject of the size of jury verdicts. It is interesting to note that in every single one of these cases we affirmed the trial court’s order. That in itself should carry a strong inference that one of the key factors in our decisions is tо give the trial judge the benefit of the doubt. Like the jury, he has had the opportunity to observe the witnesses’ demean- or on the stand, and his ruling on additur, remittitur, and new trial, because of an inadequate or excessive verdict, will gеnerally be affirmed, because it will nearly always be more soundly based than ours can be. Thus, Carr, supra, nearly forty years ago set out a rule which is still good today.
The difficulty is that each case is slightly different, and we have to adjust to them *576 as they come before us. Hence, in the later cases, the reasons for our opinions have not always been stated in the same words. It is also true that emotions such as passion and prejudice are rarely seen from the reporter’s transcript, and must be sought — ■ in this court — in the size of the verdict compared to damages actually proved, and tempered by how much of the damages are effectively contrаdicted, the prestige of the doctors who testify, undercover investigators, etc.
In its early days, the Court of Appeals closely followed our decisions.
See
Garcia v. Tucson,
Even as late as 1969, in Hardy v. So. Pac. Empl. Ass’n,
However, in Zadro v. Snyder,
In the instant case, the Court of Appeals applied Zadro, and affirmed, holding that the trial court must first dеtermine whether the verdict is insufficient, or is the result of passion and prejudice; that the trial court must have determined that the cause was merely insufficiency; and that where there is a conflict in the evidence as tо damages, the trial court’s ruling should not he reversed.
Appellants complain that the decision in the instant case gives carte blanche to the trial judge whenever the evidence on the extent of the damages is in conflict; that in nearly every personal injury case the evidence as to the injuries is in conflict; hence, the opinion gives carte blanche to the judge in all personal injury cases.
We do not agree with the Zadro position that the trial judgе should not be reversed when the amount of damages is in conflict. In fact, in Meyer, supra, we explained how the jury — in a conflict of evidence case— could believe some evidence and disbelieve other evidencе, so that what appeared to be an inadequate verdict was really adequate. It is true that in Meyer we did not reverse, but that was because the trial judge denied a new trial and let the jury’s verdict stand. In the instant case, the jury might vеry well have believed defendant’s physician (who said that plaintiff was malingering) and might have believed the detective (who said the plaintiff carried himself normally when he did not know that he was being observed) and might have believеd the mechanic (who said the transmission damage was not caused by the accident). Under those circumstances, the award would appear to be for a considerable sum over the proved out-of-pоcket expenses.
From what we have written, it is obvious that the test for reviewing the granting or refusing of a trial judge’s adjustment of a verdict is complex and can only be solved by an ad hoc approach. Almost always whеn there is a conflict in the evidence, the trial judge should not interfere with what is peculiarly the jury’s function, and if he does not, we will nearly always uphold him. If there is no conflict in the evidence on items that obviously were omittеd from the verdict, the trial judge must adjust, and we will uphold him if he does. Behind all of these tests still *577 stands the original doctrine — that if the verdict is supported by adequate evidence, it will not be disturbed, and the greatest possible discretion is in the hands of the trial judge. In this court, the ultimate test will always be justice, and any case before us which shows an unjust result because of the granting or denial of either additur or remittitur, will be reversed. Each case will be considered upon its own facts.
In the case at bar, we have a situation where the judge has not only directed a verdict for the plaintiff in a negligence suit, but has also directed the amount, despite very considerable evidenсe that the plaintiff was exaggerating his damages. If the right to trial by jury means anything, it means that these defendants have been deprived of it.
The opinion of the Court of Appeals is vacated; the order of the Superior Court granting a new trial is reversed; and that court is directed to reinstate the $1,500 judgment obtained by the plaintiff. Anything in Zadro, supra, contrary to our views expressed herein, is overruled.