*1 Richmond Smithey Refining Et Al. Lee Company, v. Sinclair Jimmy
November Record No. 5294.
Present, All the Justices. *2 brief), Richard D. Mattox & on for Mattox, (Moody plaintiff in error.
Robert M. brief), Harris & Furniss, Furniss, on (Taylor, Gustin, Jr. for the defendants in error. delivered the of the court. J., opinion
Carrico, Lee hereinafter referred to as the Jimmy Smithey, plaintiff, filed a motion for Sinclair a against Refining judgment Company, and Frank as the de hereinafter referred to corporation, fendants, Carper, $25,000.00 to recover in the sum of for damages personal sustained when the automobile was injuries operated by plaintiff in a collision with the vehicle owned Sinclair by Refining Company Frank operated by agent, Carper. At a trial defendants admitted for jury liability the case was submitted to the on the issue of injuries, alone. The jury returned a verdict in $15,- favor of the for plaintiff 000.00, aside, which the defendants moved set that ground it was excessive.
The trial in a written held ex- was opinion, cessive and on terms $5,000.00 an award of put plaintiff accept or face a new trial on issue of The damages. plaintiff accepted $5,000.00 reduced under to the judgment protest, according pro- § 8-350(1), visions of Code to the Virginia, excepted (1) § 8-350. when Allowing verdict reduced and appeal under accepted protest.— at law action in which the trial court shall a to remit require plaintiff part of his as ascertained recovery, verdict of a or else by submit new trial, such remit and of the plaintiff may court thereon for judgment but, reduced sum under such remittitur and protest, notwithstanding if acceptance, under of the court in him to remit protest, requiring reviewed Court of a writ of error awarded the Supreme Appeals upon as in plaintiff 144 $10,000.00.
court’s Plaintiff action in remittitur of sought ordering and was a writ of error. granted court,
The cross-error to the trial defendants assigned ruling trial amount were entitled a new as to full asserting they However, of cross-error was not damages. assignment printed § 5:1, Rule Court 6(d), required by urged argument will therefore not be considered. The on collision in occurred which plaintiff injuries months was held ten September later,, approximately on The evidence submitted to the concern- June summarized the trial ing plaintiff’s injuries judge’s accurately written as follows: opinion
“The evidence that at shows on 3rd the p.m. September plaintiff, old, man in a headon involved collision young years Boulevard in this car him and between the driven Victory city truck driven Frank a servant and of the Sinclair Carper, employee after the accident Refining Company. Immediately crawled window of automobile walked through other vehicle. He stated the the vehicles him to caused impact *3 have a He ‘numb then went the where to feeling.’ Maryview Hospital he this received treatment. He for was $3.00 charged emergency service and was to see his The he saw told next family physician. day Dr. W. S. as to were taken and these were Jennings. X-rays negative a bones. The doctor found with broken the any plaintiff suffering chest, and contusions the left to lacerations of ‘crushing injury multiple arm, knee, and a and strain thoracic and of the lumbosacral right sprain The treatment and medication re- to spine.’ given only ‘strapping lieve and discomfort relieve of the muscles involved pain spasms times, in the The saw the four injury.’ physician only plaintiff 5th, 19th 30th, exclusive his of visit namely, September All the the before visits were at doctor’s office and trial. day visit last before the trial was to refresh doctor’s memory day case so that he to the doctor might testify; permit intelligently to if and to inform the doctor of re-examine the plaintiff, necessary, if were there no complaints objec- subjective lingering The tive bill services was doctor’s for $16.00 signs injury. no in- cost was $40.00. x-ray plaintiff permanent kind 26). nature or any (page juries law; actions at and in such case a writ of other in which error is awarded defendant, of the in such court remittitur requiring of review Court of of the amount. subject regardless Supreme Appeals, a below in rib he bruised “According just plaintiff, had he heart; several he suffered from soreness and for stiffness days; for his hand him lose arm that caused in slight grip injury ‘a had little trouble he but this ‘went down all couple days,’ right;’ with all three ‘it his chest that lasted ‘two but yet got right’ days,’ some in still has there; soreness was still he stated that he back. The lost seven his work as plaintiff helper only days station. His were Since $45.00. this leaving filling wages period seryice station, with the worked employment continuously as a bus driver, buses hours a He operating eight day. complains discomfort after six hours. about From these working complaints doctor characterized this condition low as a chronic plaintiff back strain as some from an acute strain. He found distinguished slight motion, limitation of back but this would be permanent.” The evidence further that Dr. discloses only Jennings, physician to treat the instructed the return for further treat- plaintiff, plaintiff ment after the visit of 30th. However, the failed September plaintiff to follow the doctor’s instructions and seek at- did not medical again trial, tention until the his failure day excusing by testifying, “I don’t like doctors.”
The sole determined is whether erred question that the verdict of the ruling requiring $10,000.00 to remit of the an verdict as alternative to of a new trial. granting
In have, this Commonwealth we decisions so numerous and so familiar citation, no they require sought uphold sanctity verdict. It our sustain a that has duty rendered. fairly cases, where action sounds personal injury merely
and where there is no rule for such the amount to measuring damages, be awarded is left to the discretion of the The verdict largely arrived at evidence and controlled upon competent *4 instructions, in an trial, conducted has been proper impartially always held to be inviolate disturbance the courts. Farish & Co. v. against (52 Va.) 11 Gratt. 697, 722; 212, Ward v. Reigle, 86 220 Va. White, 1021, 1024; 9 I. S. E. E. DuPont Co. 762, v. Taylor, 750, 124 Va. 763, 866, S. 870; 98 E. Dinwiddie v. 348, 353, Hamilton, 352, 275, 111 E. 2d 278. 277, S. not our to
It is intention from these rules. depart salutary this is to that not the But a is not the say to jury subject 146 A administration
control of the courts. requires justice healthy what correct that, case, in a take action to the must courts proper ancient an unfair This is be an verdict. to authority plainly appears the As related common law. to problem accepted part enactment it has been recognized legislature § the court to 8-224(2), Code to power relating specifically are either award a new a trial where the awarded by jury 8-350, § to the excessive, small or too Code supra, pro- relating a cedure to be an followed and seeking appeal protesting court’s action a remittitur. ordering where the case verdict of is attacked ground court excessive, that it is the actions of the rules controlling relation are clear well defined. If thereto ap merely awarded to be more than the trial would have pears had be been a member of large judge disturbed, to it not be ought is, do, so the do not that to do must then what may legally Aronovitch 169 substitute his for that of the v. Ayres, 806, 193 S. E. 308, 328, Va. 524, 531; Va. Simmons v. 199 Boyd, 102 S. 811, 812, 292, E. 2d if it as shock the con that verdict is so excessive to
But appears create science of court and that the to impression or or influenced has misconceived or by passion, corruption prejudice, law, misunderstood the or if the award facts is so out propor it is of a tion to injuries suggest product decision, then fair and it becomes impartial plain duty within his correct Chesapeake authority, acting legal injustice. S. E. 415, 423, & 101 cert. O. Co. v. Ry. Va. Arrington, 376, denied 255 41 S. Ct. ed. D. Co. U. S. L. C. Kenny E. 163 S. 25, 30, 31, v. Solomon, 158 Under law now as it into consideration exists, talcing §§ law, 8-350, at common as Code 8-224 practice supplemented by issue, the sole if court in a case where the is quantum damages determines that a verdict is successful may put party amount, on terms to a reduced deemed reasonable to compen trial, sate the as an or it alternative a new injured party, awarding as order a trial amount of new whole may damages. (2) § trial; new 8-224. often —In civil case or Power how grant proceeding, had, trial, it be before which a trial new unless the court is by jury may grant new as otherwise A where the damages well specially granted provided. new trials are too small where are excessive. Not more than two awarded they the verdict same in the same cause ground shall granted party court, evidence, or both. either the trial court or contrary appellate *5 cases contends,, however, that in injury personal plaintiff verdict or court is his order a release to to part powerless trial, which else face a is no standard new because there damages by in such cases be determined. may
This contention is without merit. Practice, Ed.,
It stated Burk’s 4th Sec. is Peading pp. .582-585:
“It cases is no measure would seem that in where there legal exists, as as well in those in which such measure where damages, legal the verdict the successful is excessive court may put party plainly terms to release what there is no on it regards although measured, and, standard which the excess can be by Virginia, may enter a final for the reduced amount without up judgment further trial. The court exercises best as what its simply case, is under the review circumstances of for right subject error. But the court cannot act The assessment of arbitrarily. damages is and when peculiarly province question is as to the to which the jury merely damages quantum plain- tiff is verdict, and there is evidence sustain no entitled, mere decided, difference of however can an interference opinion, justify with verdict for that cause. . . .” words, reached,
In other if the verdict is is sustained fairly by evidence, and there nois standard to measure the it is damages, hand, then excessive and cannot be disturbed. On if the other is excessive follows it is not necessarily plainly supported evidence, corrected, and it in the exercise of sound by discretion, on terms judicial by putting prevailing party amount or reduced else submit to new trial. E. I. DuPont Co. v. 124 Va. 763-765; at American Oil Taylor, supra, Co. v. Nicholas, pp. 1, 12-14, 754, 758, 759; 157 S. E. 13 Mich. Trials, New Jur., § 57, § 210, Trial, 39 Am. New Jur., p. p.
Each merits, case must be its own own judged according facts and circumstances. is fair in What one case peculiar might excessive in another. If the size entirely inadequate grossly verdict bears no reasonable relation to disclosed damages evidence,,it is unfair. If standard to measure the manifestly we must to use his sense of lacking, depend upon fairness, sometimes aided rule,” justice “average to correct the unfairness. Glass v. David Pender Grocery Co., 174 5 S. E. 2d case before was not of a serious plaintiff’s injury was never he was it
nature nor or disabling any way; permanent he treatment; $45.00 lost for only hospitalized emergency except treatment, $40.00 medical $59.00 wages; only expended earn was not which was for impaired; capacity x-rays; of trial the time at and his complaint suffering slight, only manner: described him in this equivocal *6 deal.”. hurt me a bit, and well it “Well, me a little back hurt great my of is devoid circumstances, the evidence Under these although or the actuated even a prejudice by passion, suggestion resulted from $15,000.00 have could an award of only corruption, the seriousness of plaintiff’s misunderstanding misconception as it verdict, of is size the out of so proportion injuries. is suf- and loss of and his medical wages, expenses plaintiff’s injuries and to of the court ficient, alone, to shock the conscience standing unfairness. cast of upon stamp of the trial
The law in hands placed judge power wisely of the verdicts exercise his sound discretion juries supervising intends that this of The law miscarriages power prevent should be justices. a mere exercised, should be more than and that judge test, in a of The ultimate case referee between litigating parties. has been nature, not the discretion abused. this is whether or there has been cannot We record say, true, we will not disturb the of such abuse. This action being record, court. It is shown that before lower clearly putting the trial on terms to the reduced judgment, judge, them testi- who had the of the witnesses advantage seeing hearing must hand, what we now first glean printed page, fy, of familiar with all of the evidence and incidents trial. completely have the fact that In have said we not been unmindful of what we $15,000.00 of value damages, placed accorded, such a but this case of the weight finding ordinarily the trial and such verdict has been verdict disapproved by jury’s is we would not, therefore, entitled to the same have been weight him. Butler v. Darden, it if it had to give approved by required 146, 480, 459, 471, E. Clark v. Barker, 53 S. 2d E. 171 S. that the trial did not err in We are of holding opinion $15,000.00 and in remittitur ordering $10,000.00 thereof, lieu of the of a new trial. His actions granting are, accordingly,
Affirmed. J., Spratley, dissenting. the trial court brethren that
I find unable to with agree my myself A more reducing complete justified record shows that the evidence contained in the statement of Smithey the trial summarized much than those greater injuries addition the evidence which court and accepted by majority. chest, showed that suffered “a mutiple crushing injury Smithey knee, contusions, and left and a lacerations of the arm and right sprain and strain the thoracic and lumbosacral spine,” “spasms muscles,” his further testified that: attending physician
On more than 9 months after the accident persistent June in the lumbosacral limi- complaint joint, objective findings tation of motion above that after hours of joint, pain particularly work, indicated that he had a chronic back an low strain instead of strain; acute time, that a back brace was at that prescribed although he, had not felt that it was needed on physician, September 1959; that, while of the were not opinion injuries permanent, did not know how would suffer; that in his long Smithey opinion, would not labor, be able to do much and manual Smithey physical *7 would condition; back his and that lifting aggravate Smithey 1959, told that he should not then return specifically September, to work.
In Webster’s Third New International Dictionary, Unabridged, duration, “chronic” is defined as: “marked re- by long by frequent time, currence over and often serious- long by slowly progressing ness.” the time collision,
At of the was an at a Smithey gas employee station. His and brother of his that testified employer, employer, accident, after the he suffered breath, from shortness of could not his duties usual automobiles or tires, had perform blackout greasing lifting and that he had “slowed down a whole lot.”
spells; wife accident, said that after her husband suf- Smithey from fered for a short time, and that he he was “so restless vomiting could at and was still in that condition.” hardly sleep night, that he did said not see his more often because
Smithey physician he did doctors; that, not like and he as told his particularly physician, it was for him “to return to work because he needed to necessary feed his that he had been 21, a bus since December family;” driving 1959; and that hours, after he worked or 4 5 he had a constant pain back “like a ankle.” sprained
150 Court, and acted It has the settled rule of this been recognized long devised, cases, in a multitude “that no method yet upon and value nor scales which to measure or money weigh adjusted nor ever human of a being,, degrees suffering anguish disturbed be, will be not that likely unless the jury awarded be have been so great necessarily in the or shown result It must clearly prejudice partiality. otherwise, that the or record actuated prejudice partiality, jury law, not be dis under the well-settled the verdict will rules of the 722, 723, 47 S. E. 710, turbed.” Southern R. Co. 102 Va. Oliver, v. 627, 24 S. E. etc. 92 Va. 862. Richmond v. Ry., Co. Garthright, 267, 220, L. 113 839; Shartle, 32 R. A. 53 Am. St. v. Rep. Hoffman 325, 308, Aronovitch 169 171; Va. 74 S. E. v. Va. Ayres, 844, 757; E. 2d E. Braxton v. 183 Va. 33 S. 193 S. Flippo, 348, 352, 111 2d Dinwiddie S. E. v. Hamilton, borderline should “In cases of a should the verdict prevail had been a member of set aside because merely Braxton supra, would favord another verdict.” v. have Flippo, Va., Mutual Ins. Co. v. 29 Gratt. Trear, at 844. Southern page 812, 102 255, 261; v. (70 Va.) Boyd, Simmons E. 2d S. is devoid even a
I with the that “the evidence sug- agree majority that or was actuated by passion, corruption.” gestion prejudice, that misconceived is there in the record indicate Nor they anything facts, case. misunderstood the the law of the or memorandum of the trial from the It fairly opinion apparent because commented that conclusion was plaintiff’s attorney his client was a man that the defendant a fact that poor upon that Plaintiff in his brief the first reference alleges big corporation. was made counsel size the defendant to the corporation to the this was a his closing argument jury,, justification Moreover, it does not the comment of the plaintiff. appear made until after record argument any exception and a motion to set aside had been rendered the verdict was *8 To render sufficient argument being argued. ground it must have been and shown reversal excepted judgment, have been exceptant. prejudicial is not their intention to say majority depart here, In view of the evidence there rules. established will consider- his counsel that the rules able have persuading plaintiff difficulty from in case. this not been departed
I would reverse the trial court and reinstate the verdict of the