191 Iowa 1328 | Iowa | 1921
1. Four items claimed for in the petition were: Lost time, three weeks, $75; damage to bicycle, $25; hospital bill, $31.35; physician’s bill, $25, — total, $156.35. Plaintiff’s testimony sustained the verdict of the jury as to these items, and this is the amount of the verdict as finally fixed by
The court instructed the jury:
“If, under the evidence and these instructions, you find for the plaintiff, and that he is entitled to recover, it will then be your duty to ascertain and determine from the evidence the amount of such recovery. And in doing this, you should take into consideration the damage of plaintiff’s bicycle, his loss of time, hospital and medical attendance, and assess such an amount as you find from the evidence will fairly compensate him for the damages sustained by him, if any, not, however, exceeding the sum of $156.35.”
The instructions seem to clearly limit plaintiff’s recovery to the items mentioned, so that it shall not exceed $156.35; although counsel for plaintiff argue that, properly construed, the instruction authorizes a recovery for other items, and in a larger amount. ¥e shall see in a moment that there was no pleading or evidence authorizing a larger recovery. When the jury returned a verdict for the larger amount, the court made this record:
‘ ‘ It appearing to the court that said verdict is not in accordance with the instruction of the court, in which instruction said jury is instructed that they shall not find for the plaintiff in any amount in excess of $156.35, it is ordered by the court, upon its own motion, that said verdict be amended and reduced, so that the amount therein shall read $156.35, instead of $656.35,” etc.
Judgment was thereupon rendered. The petition alleged that plaintiff was bruised, his leg lacerated, and his ankle and knee sprained, and that he was still sore and lame, and that because thereof he had lost time, etc.; but there is no claim in the petition for pain and suffering. However, some two or three days after .the trial, and after the judgment had been entered, the plaintiff filed an amendment to the petition, as it says, to conform to the proof, and to make his claim for damages more specific, and says that he suffered severe physical pain and anguish during the time he was in the hospital, and after he was out, for two weeks, and since then has suffered constant pain, but not so severe, which pain prevents him from enjoying eom-
“Plaintiff further says that his injuries are of a permanent character, and that he has not been able to perform efficient service since, on account of his said injuries. ’ ’
“Q. To go back, just exactly what is the effect of the injury upon your arm, — you say you suffered a sprain? A. Of the leg;'it strained the back of my neck and back. Q. What is the effect of it now? A. I have a catch in the back now, in the center of the back, and am not able to do the same kind of work I did before. At this time I suffer pain in my right leg and ankle and back. Q. Do you know whether that pain is liable to be permanent?”
This was objected to, as calling for a conclusion, and that the witness had not shown himself competent to testify with regard thereto. The objection was sustained. The accident happened on August 14, 1919, and the trial occurred somewhat less
2. Appellee cites Stevens v. Campbell, 6 Iowa 538, Chamberlain v. City of Des Moines, 172 Iowa 500, Robyn v. Van der Weide, 178 Iowa 608, Jacobson v. United States Gypsum Co., 150 Iowa 333, 337, Federspeil v. Johnstone, 87 Mich. 303 (49 N. W. 581), Archer v. Milwaukee Auto E. & S. Co., 144 Wis. 476 (129 N. W. 598), and Lowenstein v. Lombard, 2 App. Div. 610 (38 N. Y. Supp. 33), to the point that the court is not bound by the verdict returned by the jury if the same is not in conformity with the instructions, but may correct the verdict. We do not understand appellant to controvert the proposition, for he cites Hensley v. Davidson Bros. Co., 135 Iowa 106, as holding that the right of the court to set aside the verdict on its own motion should rarely be exercised. Appellant’s real complaint of the action of the court, as we understand it, is, as before stated, that the jury had the right to construe the instruction to allow other damages. Whether the defendant could complain of the action of the court we do not determine, but we are unable to see that appellant has any complaint, since the jury allowed, and the court sustained, a finding as to the full amount claimed by plaintiff for the items which were covered by the instruction of the court, and of which there was pleading or proof. Ap-pellee raises some, questions as to whether appellant is entitled to be heard on these matters, but we shall not prolong the opinion. We reach the conclusion that the judgment of the trial court ought to be, and it is, — Affirmed.