74 P. 1105 | Kan. | 1904
The opinion of the court was delivered by
Plaintiff below brought this action to recover his damages resultant upon personal injuries inflicted by reason of the negligence of the defendant. As elements of such damages he claimed actual expenses as follows: $65, hospital bill; $258, doctor bill; $175, medicines and other incidental expenses ; $1000, for loss of time. The balance of $8450 was the total amount claimed for his suffering and permanent injury. The jury returned a verdict of $800. . Upon the plaintiff’s motion this was set aside and a new trial granted, the court giving the following reason therefor : “ Because the verdict is not sustained by sufficient evidence, and is contrary to law, in this, that the verdict is too small, the same not being equal in amount to the actual pecuniary inj ury to plaintiff, as shown by the evidence.”
The record discloses that the plaintiff expended the amounts claimed for actual expenses, a total sum of $498. The value of the time which he lost was not established by evidence which gave to the jury any adequate basis to determine the same. Indeed, the evidence upon this point required the allowance of little more than a nominal amount, it showing only that the plaintiff at the time of his injury was, and had been for about two weeks before, engaged in the manufacture of vinegar, the value of the business de
The sole error urged here is the granting of the motion for a new trial. It is urged that this was error because of the language of section 307 of the code of civil procedure (Gen. Stat. 1901, § 4755), which, reads:
“A new trial shall not be granted on account of the-smallness of the damages, in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained.’’
We are here confronted with a positive denial of' power in the court to grant a new trial in certain cases. The statute has assumed to regulate the matter of the granting of new trials. In section 306 (Gen. Stat. 1901, § 4754), eight grounds are enumerated for which new trials may be granted and none of' them includes the right to a new trial on account of the smallness of the assessment of recovery except the-fifth, where it is provided that a new trial may be had
“This is an absolute limitation upon the power of courts to grant new trials in the cases referred to in the statute. But it does not follow that the courts are required to grant new trials where the damages do not equal the actual pecuniary injury sustained.”
The case of Shoff v. Wells, 1 Neb. 168, was an action for damages in assault and battery. The evidence showed an actual damage of $55. A verdict of $17.50 was rendered ; a new trial was granted. The supreme court, in commenting upon the provisions of a statute identical with our own,1 said :
“The reading and interpretation contended for by
In Sharpe v. O’Brien et al., 39 Ind. 501, 505, under a statute the same as ours, the court remarked:
“In actions for injuries to the person or reputation, no matter how small ,the damages may be, whether they equal the pecuniary injury sustained or not, the court cannot, for that reason, grant a new trial.”
This case overruled a former case in that court in which the contrary view was taken, and is cited and approved in a later case, Gann v. Worman, 69 Ind. 458.
The supreme court of Kentucky, in Taylor v. Hower, 12 Bush, 465, held to the view that in actions of this kind a new trial may be granted where the verdict does not equal the pecuniary injury sustained.
That this case is one “for an injury to the person,” and thus falls within the provisions of the quoted section, and that the new trial was granted on account of the smallness of the damages, there is no fair ground for debate. Why, then, was not the action of the court in granting a new trial erroneous under its terms ? The rule may be hard, and in some cases
We are quite persuaded that the court erred in granting the new trial, whichever view we may take. From the language of the section it must be clear that before a plaintiff in such an action could have a new trial, even under the view adopted by the Kentucky court, the burden would fall upon him to. show that there was ,an inadequacy in the verdict to meet the actual injury sustained. In this case, as we have seen, we are left entirely at sea as to the amount of the injury occasioned the plaintiff by the loss of time. His other actual injuries were his expenses, amounting to $498. This left $302 to be applied elsewhere. It may be that in the absence of adequate data upon which to estimate the value of his lost time the entire amount was awarded to him for personal injuries. If so, in any view, the section quoted would prohibit the court from granting a new trial.
Stripped of unnecessary words, .the reason assigned by the court for the granting of the new trial- is that the verdict did not equal the amount of the actual pecuniary injury to plaintiff as shown by the evidence. This amount not being so shown by the evidence, the reason, of course, must fail. •
The court should have overruled the motion and entered judgment upon the verdict. Its judgment is reversed and this course ordered.