ERASTUS C. RAWLE
v.
ANITA MCILHENNY.
Supreme Court of Virginia.
Allen, Walsh & Waddell, for the plaintiff in error.
Perkins & Battle and C. Venable Minor, for the defendant in error.
Prеsent, Campbell, C.J., and Epes, Hudgins, Gregory, Browning and Chinn, JJ.
1. EVIDENCE -- Motion to Strike out Plaintiff's Evidence -- Waiver. -- In the instant case, an action to recover for injuries sustained in an automobile collision, defendant, at the conclusion of plaintiff's evidence in chief, moved the court to strike out all the evidence, on the ground that plaintiff's driver was guilty of negligence, chargeable to plaintiff, which contributed to causing the injury. The motion was overruled and defendant, after duly excepting, introduced evidence on his behalf, and after an adverse verdict, assigned as error the court's action in overruling the motion to strike out plaintiff's evidence.
Held: That defendant waived his right to insist upon his motion to strike out by subsequently introducing evidence in his own behalf on the issue оf liability.
2. EVIDENCE -- Motion to Strike out All Evidence -- Motion for Compulsory Nonsuit or for Directed Verdict -- Analogy. -- A motion to strike out all the evidence is very closely akin to a motion for a compulsory nonsuit or a motion for a directed verdict.
3. EVIDENCE -- Motion to Strike out Plaintiff's Evidence -- Where Court Would Have Been Warranted in Sustaining Motion -- Cause Proceeded with and Verdict in Favor of Plaintiff. -- Even where the trial court would have been warranted in sustaining a motion to strike out all the evidence of the plaintiff made at the conclusion of his evidence in chief, it does not follow that a judgment for the plaintiff will be reversed, if the court overrules the motion. If the cause is thereafter proceeded with to what appears to be a fair develоpment of the evidence for both parties, and upon a consideration of the whole evidence the verdict of the jury in favor of the plaintiff is plainly right, the Supreme Court of Appeals will not reverse a judgment for the plaintiff and order a new trial.
4. NEW TRIAL -- Setting Aside Verdict for Inadequate or Excessive Damages -- General Rule. -- Although courts have the power and are charged with the duty of setting aside, in proper cases, the verdict in an action for a personal tort where the damages are either inadequate or excessive, a court will not disturb the verdict in such a case either because of its smallness or because of its largeness, unless, in the light of all the evidence, it is manifestly so inadequate or so excessive as to show very plainly that the verdict has resulted from the misconduct of the jury, or the jury's misconception of the merits of the case in so far as they relate to the amount of damages, if any, recoverable.
5. NEW TRIAL -- Right of Plaintiff to Have Favorable Verdict Set Aside for Inadequacy. -- The right of a plaintiff to have a verdict in his favor set aside, over the objection of the defendant, on the ground of inadequacy, does not depend solely upon the evidence bearing upon the damage he has suffered. Both the apparent cause for the return of an inadequate verdict and the state of the evidence relative to the liability of the defendant have an important, and to a considerable extent interаcting, bearing upon the plaintiff's right to have the verdict set aside.
6. NEW TRIAL -- Right of Plaintiff to Have Favorable Verdict Set Aside for Inadequacy -- Where Evidence Is Insufficient to Support Verdict Adverse to Defendant. -- In cases in which the evidence is insufficient to support a verdict finding the defendant liable, the court will refuse to set aside the verdict in favor of the plaintiff on the ground of inadequacy, whether it be for merely a nominal amount or for a substantial but inadequate sum. In such a case the plaintiff cannot be prejudiced by the smallness of the verdict in his favor, for he is entitled to recover nothing.
7. NEW TRIAL -- Right of Plaintiff to Have Favorable Verdict Set Aside for Inadequacy -- Where Evidence Is Insufficient to Sustain Verdict Finding Defendant Not Liable. -- In cases in which the еvidence is insufficient to sustain a verdict finding the defendant not liable, the court will set aside a verdict in favor of the plaintiff on the ground of inadequacy and grant a new trial, whether the verdict be for merely a nominal amount or for a substantial but inadequate sum. And the new trial should be limited to the question of the amount of the damages.
8. NEW TRIAL -- Right of Plaintiff to Have Favorable Verdict Set Aside for Inadequacy -- Where Preponderance of Evidence Is against Plaintiff's Right to Recover. -- In cases in which clearly the decided preponderance of the evidence is against the right of the plaintiff to recover, though there is sufficient evidence to support a finding by the jury that the defendant is liable, the court will refuse to set aside a verdict for the plaintiff for inadequacy.
9. NEW TRIAL -- Right of Plaintiff to Have Favorable Verdict Set Aside for Inadequacy -- Where Preponderance of Evidence Is in Favor of Recovery. -- In cases in which clearly the decided preponderance of the evidence is in favor of the right of recovery, though there is sufficient evidence to support a verdict finding the defendant not liable, the court will set aside a verdict for the plaintiff for inadequacy and grant a new trial; and, usually the court will restrict the new trial to the question of damages. But in this class of cases where the amount of damages recoverable is not distinctly separable from the matters involved in the issue as to liability, the new trial should be granted on all issues.
10. NEW TRIAL -- Right of Plaintiff to Have Favorablе Verdict Set Aside for Inadequacy -- Where Evidence Is Conflicting and Verdict Is for Nominal Damages Only. -- In cases of conflicting evidence, in which there is sufficient evidence to support a verdict in favor of either the plaintiff or the defendant, but in which there is no clear preponderance of the evidence in favor of either, where a verdict in favor of the plaintiff is for nominal damages only, ordinarily it should be considered as a finding for the defendant perversely thus expressed, and should not be set aside, unless there is some fact or circumstance other than the smallness thereof which warrants the inference that the jury was actuated by partiality, sympathy, bias, prejudice, passion, corruption, or other impropеr influences or nature acting against the plaintiff. If, under this rule, it be proper to set the verdict aside, a new trial should be granted on the question of damages only.
11. NEW TRIAL -- Right of Plaintiff to Have Favorable Verdict Set Aside for Inadequacy -- Where Evidence Is Conflicting and Verdict Is for Substantial though Inadequate Damages. -- In cases of conflicting evidence, in which there is sufficient evidence to support a verdict in favor of either the plaintiff or the defendant, but in which there is no clear preponderance of the evidence in favor of either, where a verdict in favor of the plaintiff is for substantial though inadequate damages, it cannot upon any reasonable theory be considered a finding for the defendant, and it should be set asidе, and a new trial granted, which ordinarily should be limited to the question of the amount of damages.
12. NEW TRIAL -- Setting Aside Verdict for Inadequacy -- Where Evidence Is Conflicting -- When Court Should Grant New Trial on All Issues. -- In cases of conflicting evidence, in which there is sufficient evidence to support a verdict in favor of either the plaintiff or the defendant, but in which there is no clear preponderance of the evidence in favor of either, where the merits of the case as to liability appear not to have been reasonably well developed upon the trial, or the question as to the amount of damages is not distinetly separable from the matters involved in the issue as to liability, or the evidence with reference to liability has probably еxerted a material in-24 fluence upon the jury in determining the amount of the verdict, or the evidence warrants the inference that, instead of deciding the question of liability, the jury has arbitrarily determined to make both parties bear a part of the burden of the injury, or for some other reasons the ends of justice would seem to be better promoted by granting a new trial on all issues, where the court sets aside a verdict in favor of the plaintiff, it should grant a new trial on all issues.
13. NEW TRIAL -- Whether Inadequate Verdict Should Be Set Aside Rests in Trial Court's Discretion. -- A sound discretion is vested in the trial court as to whether the ends of justice will be better served by setting aside, or refusing to set aside, an inadequate verdict.
14. NEW TRIAL -- Discretion of Trial Court as to Granting New Trial on All Issues or on Damages Only. -- A sound discretion is vested in the trial court as to whether, if an inadequate verdict is set aside, a new trial should be granted upon all issues, or limited to the question of damages.
15. APPEAL AND ERROR -- New Trial -- Action of Trial Court in Setting Aside Inadequate Verdict. -- The appellate court will not reverse the action of the trial court setting aside a verdict as inadequate unless it plainly appears from the record that its action in so doing is plainly wrong.
16. AUTOMOBILES -- Damages for Injuries Resulting from Collision -- Verdict for Inadequate Damages Set Aside -- Case at Bar. -- In the instant case, an action to recover for injuries sustained in an automobile collision, the trial court sustained plaintiff's motion to set aside the verdict for inadequacy, and granted a new trial upon the question of damages alone. After the second jury returned a verdict assessing larger damages, defendant assigned as error the court's action in setting aside the verdict and granting a new trial on the issue of damages. The evidence introduced upon the first trial, in so far as it related to the amount of damages, was without material conflict. Upon a consideration of it, the Supreme Court of Appeals was not able to say that the trial court was plainly wrong in setting the verdict aside on the ground that the amount of the verdict was so inadequate as to warrant the inference that the jury had misconceived the evidence as to the extent of plaintiff's injuries, and for that reason would not disturb the trial court's action.
Error to a judgment of thе Corporation Court of the city of Charlottesville in a proceeding by motion for a judgment for damages. Judgment for plaintiff. Defendant assigns error. The opinion states the case.
EPES
EPES, J., delivered the opinion of the court.
This is an action, instituted by notice of motion for judgment, brought by Anita McIlhenny against Erastus C. Rawle, to recover damages for injuries to her person and property received on February 5, 1933, in an automobile collision, which she alleges was caused by the negligence of the driver of an automobile owned and operated by Rawle, while acting within the scope of his employment.
At the conclusion of the plaintiff's evidence in chief, Rawle moved the court to strike out all the evidence on the ground that it showed that the plaintiff's driver was guilty of negligence, chargeable to the plaintiff, which contributed to causing the injury.
The court overruled the motion. Rawle, after duly excepting to this ruling, introduced evidence on his behalf. After the introduction of evidence for both parties had been concluded, Rawle did not renew his motion to strike out the evidence. The case was submitted to the jury, which returned a verdict for Mrs. McIlhenny against Rawle for $1,500.
No motion to set aside the verdict was made by Rawle; but, on the other hand, Mrs. McIlhenny moved the court to set it aside on the ground that the damages awarded were "inadequate and insufficient in amount." Rawle resisted this motion; but the court, over his objection, sustained the motion, set aside the verdict only in so far as it fixed the amount of damages, and ordered that another jury be impanelled to try the single question of the amount of damages. To this ruling of the court Rawle excepted on the ground that the damages were adequate, and also that, as *740 the verdict was not so small as to indicate that the jury was influenced by any prejudice or improper motive, it should not be disturbed.
The second jury returned a verdict assessing Mrs. McIlhenny's damages at $5,000. Rawle moved the court to set this verdict aside on the ground (1) that the damages awarded were excessive, and (2) that the court had erred in setting aside the first verdict and "judgment should be entered on the former verdict." The court overruled Rawle's motion and entered judgment for Mrs. McIlhenny for $5,000. To this judgment Rawle has been granted a writ of error. He assigns only two errors:
(1) The court erred in overruling the motion to strike out the plaintiff's evidence on the ground that it showed plaintiff's driver was guilty of negligence, chargeable to her, which contributed to causing the injury.
(2) The court erred in setting aside the verdict of the first jury on the ground of inadequacy and in ordering another inquiry of damages.
While we are of opinion that the court correctly refused to sustain Rawle's motion to strike out, however this may be, he was waived his right to insist upon it by subsequently introducing evidence in his own behalf on the issue of liability.
A motion to strike out all the evidence is very closely akin to a motion for a compulsory non-suit or a motion for a directed verdict. [1] The principles with reference to waiver which apply to a motion to strike out made at the conclusion of the plaintiff's evidence in chief are correctly stated by Professor Wigmore in 5 Wigmore on Evidence (2d Ed.) section 2496, where he says:
"When an opponent, at the close of the proponent's case in chief, has made a motion asking in effect for the direction of a verdict, how is the opponent's situation affected by his subsequent conduct, with respect to a waiver of the motion?"
"(1) In the first place, the opponent cannot claim a ruling *741 by the judge, as a matter of right, if he makes the motion at the close of the proponent's case in chief without then resting his own case. At that point, he is only invoking the court's discretion; not until the entire evidence is closed may he demand a ruling as of right."
"(2) In the next place, it follows that the opponent waives no right by going on to put in his own evidence after the judge's refusal to rule against the proponent for insufficiency of evidence at the close of the proponent's case in chief. The opponent may therefore renew the motion at the close of the whole case on both sides, and is entitled to the benefit of the ruling, if in his favor at that time."
"(3) Conversely, however, he cannot take advantage of the judge's original erroneous refusal to direct a verdict for insufficiency at the time of the first motion, if he does not renew the motion at the close of all the evidence, or if at the time of the final motion the ruling correctly refuses to order a verdict for insufficiency; the court is at that time entitled to decide upon a survey of the whole evidence; and this survey naturally renders any prior error immaterial. This is sometimes put upon the ground of waiver; but it is rather a necessary consequence of the discretionary nature and limited scope of the first ruling."
What was done by this court in Jones Hanbury,
In Va. Elec. & P. Co. Mitchell,
In Shenandoah Milling Co. Phosphate Products Corp.,
In the following cases at the conclusion of the plaintiff's evidence a motion was made by the defendant to strike out all the plaintiff's evidence, which motion was sustained, but upon appeal the judgment was reversed and the case remanded for a new trial: Green Smith,
In Marsh Penn. R.R. Co.,
In Barksdale So. Ry. Co.,
Hentz Wallace's Adm'r,
For other cases on motion to strike out all the evidence which have, however, no bearing on the question here under consideration, see Fleshman Bibb,
"A motion to strike out all the evidence of the plaintiff made at the conclusion of his evidence in chief is not in all respects the equivalent to a demurrer to the evidence. *743 See Green Smith,
We do not understand that the court meant in Clarke Com., to hold that the accused had not waived his right to insist upon his motion to strike out, or to modify the rule laid down in Jones Hanbury, supra, that, upon a motion to strike out made at the conclusion of the plaintiff's evidence in chief, the court considers the evidence somewhat more strictly than it does upon a motion to set aside a verdict. See Bray Boston Lbr. & Builders' Corp.,
In Virginia, certainly since the enactment of the act of February 25, 1818 (1 Rev. Code 1819, ch. 125, section 96, page 510), courts have had the power and been charged with the duty of setting aside, in proper cases, the verdict in an action for a personal tort, such as a physical injury to the body or slander, where the damages are either inadequate or excessive. [4] But the rule has been, and still is, that a court will not disturb the verdict in such a case either because of its smallness or because of its largeness, unless, in the light of all the evidence, it is manifestly so inadequate or so excessive as to show very plainly that the verdict has resulted from one or both of two causes:
(A) The misconduct of the jury, as for instance that the jury has permitted itself to be actuated by partiality, sympathy, bias, prejudice, passion, [5] or corruption, or has acted perversely, capriciously, or arbitrarily;
(B) The jury's misconception of the merits of the case is so far as they relate to the amount of damages, if any, recoverable, as for instance, that it has taken into consideration *745 improper items or elements of damage or has failed to take into consideration proper items or elements of damage, [6] or that it has in some way misconstrued or misinterpreted the facts or the law which should have guided it to a just conclusion as to the amount of the damages, if any, recoverable. [7]
As to the substance and application of the rule above stated, see the following cases in which the court refused to set aside the verdict on the ground that it was excessive: Farish & Co. Reigel, 11 Gratt. (52 Va.) 697, 62 Am.Dec. 666; Colonna Shipyard Dunn,
This rule applies alike to cases in which it is clаimed that the verdict is inadequate as to those in which the claim is that it is excessive. 1 Graham & Waterman on New Trials (2d Ed.) 447.
The reason for the rule (which marks the limit of its application) is well set forth in 1 Graham & Waterman on New Trials (2d Ed.) 451, and the following cases, and will not be restated here: Farish & Co. Reigle, 11 Gratt. (52 Va.) 697, 722, 62 Am.Dec. 666; Bertha Zinc Co. Black's Adm'r,
How tenaciously this court has held to this rule and how strictly it has applied it in the past is forcibly told by the following facts.
While it had exercised the power to set aside a verdict as inadequate in two actions for slander, Rixey Ward (1824), supra, and Blackwell Landreth (1894), supra, the only personal injury case to which our attention has been called, in which it has done so, is Howell Murdock, supra, decided in 1931. In that case the plaintiff received serious injuries, but the verdict was for only $5 more than the expenses of the plaintiff for doctors' and hospital bills up to the time of the trial.
The first personal injury case that has been called to our attention in which this court has sustained a motion to set aside the verdict, in whole or in part, on the ground that it was excessive, is C. & O. Ry. Co. Arrington (1919),
The first personal tort case called to our attention in which it can be said that this court sustained a motion to set aside the verdict solely on the ground that it was for an excessive amount is Bishop Webster (1930),
There are also two later personal injury cases in which the court has set aside verdicts as excessive. In American Oil Co. Nicholas (1931),
The cases decided in and after 1919 make no change in the rule above stated as to setting aside a verdict on the ground that it is inadequate or excessive, but they do disclose a somewhat less rigid application of it than had theretofore been given it.
But the right of a plaintiff to have a verdict in his favor set aside, over the objection of the defendant, on the *748 ground of inadequacy, does not depend solely upon the evidence bearing upon the damage he has suffered. Both the apparent cause for the return of an inadequate verdict and the state of the evidence relative to the liability of the defendant have an important, and to a considerable extent interacting, bearing upon the plaintiff's right to have the verdict set aside.
Five classes of cases turning upon the state of the evidence relating to the liability of the defendant arise:
1. Cases in which the evidence is insufficient to support a verdict finding the defendant liable.
In such cases it is held with practical unanimity that the court will refuse to set aside the verdict on the ground of inadequacy, whether it be for merely a nominal amount or for a substantial but inadequate sum. [9] In such a case the plaintiff cannot be prejudiced by the smallness of the verdict in his favor, for he is entitled to recover nothing.
2. Cases in which the evidence is insufficient to sustain a verdict finding the defendant not liable.
In such cases it is generally held that the court will set aside the verdict on the ground of inadequacy and grant a new trial, [10] whether the verdict be for merely a nominal amount or for a substantial but inadequate sum. And, where the practice of granting in proper cases new trials limited to the question of damages prevails (as it does in Virginia), the new trial should be limited to the questiоn of the amount of the damages. (See section 6251, Code Va. 1919.)
3. Cases in which clearly the decided preponderance of the evidence is against the right of the plaintiff to recover, though there is sufficient evidence to support a finding by the jury that the defendant is liable.
In such cases it is generally held that the court will refuse to set aside the verdict for inadequacy. [11]
4. Cases in which clearly the decided preponderance of the evidence is in favor of the right of recovery, though there is sufficient evidence to support a verdict finding the defendant not liable.
In such cases it is generally held that the court will set aside the verdict for inadequacy and grant a new trial; and, usually, where the practice of granting in proрer cases new trials limited to the question of damages prevails, the court will restrict the new trial to the question of damages. [12] But in this class of cases where the amount of damages recoverable is not distinctly separable from the matters involved in the issue as to liability, the new trial should be granted on all issues. Benton Collins,
[10-12] 5. Cases of conflicting evidence, in which there is sufficient evidence to support a verdict in favor of either the plaintiff or the defendant, but in which there is no clear preponderance of the evidence in favor of either.
In this class of cases there is much diversity of opinion among the courts. Without undertaking to review the cases falling in this class, we state our conclusion as to the correct rules applicable to them, which has been formed after an extensive examination of the subject: *750
(a) Where the verdict is for nominal damages only, ordinarily it should be considered as a finding for the defendant perversely thus expressed, and should not be set aside, [13] unless there is some fact or circumstances other than the smallness thereof which warrants the inference that the jury was actuated by partiality, sympathy, bias, prejudice, passion, corruption, or other improper influences or nature acting against the plaintiff.
If, under the above rule, it be proper to set the verdict aside, a new trial should be granted on the question of damages only.
(b) Where the verdict is for substantial though inadequate damages, it cannot upon any reasonable theory be considered a finding for the defendant, and it should be set aside, and a new trial granted which ordinarily should be limited to the question of the amount of damages. [14]
(c) In the fifth class of cases where the merits of the case as to liability appear not to have been reasonably well developed upon the trial, or the question as to the amount of damages is not distinctly separable from the matters involved in the issue as to liability, or the evidence with reference to liability has probably exerted a material influence upon the jury in determining the amount of the verdict, or the evidence warrants the inference that, instead of deciding the question of liability, the jury has arbitrarily determined to make both parties bear a part of the burden of the injury, or for some other reasons the ends of justice would seem to be better promoted by granting a new trial on all issues, where the court sets aside a verdict of this class, it should grant a new trial on all issues.
[13-15] In all five classes a sound discretion is vested in the trial court as to whether the ends of justice will be *751 better served by setting aside, or refusing to set aside, an inadequate verdict and as to whether (if it is set aside) a new trial should be granted upon all issues, or limited to the question of damages; and the appellate court will not reverse the action of the trial court setting aside a verdict as inadequate unless it plainly appears from the record that its action in so doing is plainly wrong. (Section 6363, Code Va. 1919; 28 L.R.A.(N.S.) 130, note.) However, in the exercise of this discretion it is always to be borne in mind that, before a new trial should be limited to the amount of damages, it should be reasonably clear that the misconduct or misconception of the jury from which the inadequacy of the verdict has resulted, has not extended to its determination of the question of liability as well as to its determination of the amount of damages.
So far as the evidence relating to liability is concerned, the instant case falls within class 5, subclass b, above mentioned. The record does not, we think, warrant an inference that the size of the verdict has been caused by any misconduct on the part of the jury; and, if it should have been set aside for inadequacy, it must have been beсause the jury misconceived the merits of the case in so far as it relates to the amount of damages.
The evidence introduced upon the first trial, in so far as it relates to the amount of damages, was without material conflict. Upon a consideration of it, we are not able to say that the court was plainly wrong in setting the verdict aside on the ground that the amount of the verdict was so inadequate as to warrant the inference that the jury had misconceived the evidence as to the extent of Mrs. McIlhenny's injuries. For that reason its action in so doing will not be disturbed. [15]
The action of the court in setting aside a verdict as inadequate is to be determined primarily, and except in exceptional cases wholly, upon the evidence introduced at that trial. But the order of the court setting the verdict aside is an interlocutory order. (Irving Freezer Miller [Sept., 1934], ante, page 180,
What has been said does not impinge upon the Virginia cases which have held that, in passing upon the action of the court in setting aside a verdict and awarding a new trial, the court will look only to the evidence introduced upon the first trial. In all these cases the evidence introduced upon the second trial, which was relevant to the question before the court, was as to facts existing at the time of the first trial. In this case the relevant facts are facts which did not exist at the time of the first trial.
That there may be no misunderstanding of what the writer has said in this note, it should be added that the court does not concur in these views.
The judgment of the trial court will be affirmed.
Affirmed.
NOTES
Notes
[1] Limbaugh Com.,
[2] In Limbaugh Com.,
[3] In Clarke Com.,
[4] Section 6260, Code Va. 1919; Jackson Boast (1816) 2 Va.Cas. 49, comment of reporter; Rixey Ward (1824), 3 Rand. (24 Va.) 52, damages in action for slander held inadequate; Bertha Zinc Co. Black's Adm'r,
[5] In Blackwell Landreth,
[6] Howell Murdock,
[7] The verdicts in Biship Webster,
[8] The opinion of the court in this case was written by Judge Prentis, who had dissented in E. I. DuPont De Nemours & Co. Taylor,
[9] Flanders Meath,
[10] Cochran Mitchum,
[11] Hubbard Mason City,
[12] Howell Murdock,
[13] Rubinson Des Moines City R. Co.,
[14] Stone Turner,
[15] The writer is of opinion that the action of the court in setting aside the first verdict should not be disturbed for another and to him more cogent reason. The first trial was had on June 19, 1933. When the second trial was had on April 30, 1934, developments (about which there was no conflict in the evidence) had taken place, sincе the first trial, which showed beyond all contravention that, had the verdict for $1,500 been permitted to stand, Mrs. McIlhenny would have received a grossly inadequate compensation for the injury done her and have been done a grave injustice. She had the ulna of her right arm broken. It failed to heal properly and (as was foretold at the first trial) she had to undergo a serious bone grafting operation to restore her arm to reasonably normal usefulness. For more than a year her arm was rendered largely useless to her, and for about nine months of that time was in a cast or splints. During much of this time she suffered much pain. The actual out-of-pocket expense to which she had been put as a result of her injury up to the time of the second trial was approximately $1,300.