Smithey v. Sinclair Refining Co.

*149 Spratley, J.,

dissenting.

I find myself unable to agree with my brethren that the trial court was justified in reducing the verdict of the jury. A more complete statement of the evidence contained in the record shows that Smithey suffered injuries much greater than those summarized by the trial court and accepted by the majority. In addition to the evidence which showed that Smithey suffered “a crushing injury to chest, mutiple contusions, and lacerations of the left arm and right knee, and a sprain and strain of the thoracic and lumbosacral spine,” and “spasms of the muscles,” his attending physician further testified that:

On June 23, 1960, more than 9 months after the accident a persistent complaint of pain in the lumbosacral joint, objective findings of limitation of motion above that joint, and pain particularly after hours of work, indicated that he had a chronic low back strain instead of an acute strain; that a back brace was prescribed at that time, although he, the physician, had not felt that it was needed on September 30, 1959; that, while of the opinion the injuries were not permanent, he did not know how long Smithey would suffer; that in his opinion, Smithey would not be able to do much physical labor, and manual lifting would aggravate his back condition; and that Smithey was specifically told in September, 1959, that he should not then return to work.

In Webster’s Third New International Dictionary, Unabridged, “chronic” is defined as: “marked by long duration, by frequent recurrence over a long time, and often by slowly progressing seriousness.”

At the time of the collision, Smithey was an employee at a gas station. His employer, and a brother of his employer, testified that after the accident, he suffered from shortness of breath, could not perform his usual duties of greasing automobiles or lifting tires, had blackout spells; and that he had “slowed down a whole lot.”

The wife of Smithey said that after the accident, her husband suffered from vomiting for a short time, and that he was “so restless he could hardly sleep at night, and was still in that condition.”

Smithey said that he did not see his physician more often because he did not particularly like doctors; and that, as he told his physician, it was necessary for him “to return to work because he needed to feed his family;” that he had been driving a bus since December 21, 1959; and that after he worked 4 or 5 hours, he had a constant pain in his back “like a sprained ankle.”

*150 It has long been the settled rule of this Court, recognized and acted upon in a multitude of cases, “that no method has yet been devised, nor scales adjusted by which to measure or weigh and value in money the degrees of pain and anguish of a suffering human being,, nor ever likely to be, and that the verdict of the jury will not be disturbed unless the damages awarded be so great as to necessarily have been the result of prejudice or partiality. It must be clearly shown in the record that the jury was actuated by prejudice or partiality, otherwise, under the well-settled rules of the law, the verdict will not be disturbed.” Southern R. Co. v. Oliver, 102 Va. 710, 722, 723 , 47 S. E. 862 . Richmond Ry., etc. Co. v. Garthright, 92 Va. 627, 24 S. E. 267 , 32 L. R. A. 220, 53 Am. St. Rep. 839 ; Hoffman v. Shartle, 113 Va. 262, 264 , 74 S. E. 171 ; Aronovitch v. Ayres, 169 Va. 308, 325 , 193 S. E. 524 ; Braxton v. Flippo, 183 Va. 839, 844 , 33 S. E. 2d 757 ; Dinwiddie v. Hamilton, 201 Va. 348, 352 , 111 S. E. 2d 275 .

“In borderline cases the verdict of a jury should prevail and should not be set aside merely because the judge, had he been a member of the jury, would have favord another verdict.” Braxton v. Flippo, supra, 183 Va., at page 844 . Southern Mutual Ins. Co. v. Trear, 29 Gratt. (70 Va.) 255, 261; Simmons v. Boyd, 199 Va. 806, 811, 812 , 102 S. E. 2d 292 .

I agree with the majority that “the evidence is devoid of even a suggestion that the jury was actuated by passion, prejudice, or corruption.” Nor is there anything in the record to indicate that they misconceived or misunderstood the facts, or the law of the case.

It is fairly apparent from the memorandum opinion of the trial judge that his conclusion was because plaintiff’s attorney commented upon the fact that his client was a poor man and that the defendant a big corporation. Plaintiff alleges in his brief that the first reference to the size of the defendant corporation was made by its counsel in his closing argument to the jury,, and that this was a justification for the comment of the plaintiff. Moreover, it does not appear from the record that any exception was made to the argument until after the verdict had been rendered and a motion to set aside the verdict was being argued. To render plaintiff’s argument sufficient ground for reversal of the judgment, it must have been excepted to and shown to have been prejudicial to the exceptant.

The majority say that it is not their intention to depart from the established rules. In view of the evidence here, there will be considerable difficulty in persuading plaintiff or his counsel that the rules have not been departed from in this case.

*151 I would reverse the judgment of the trial court and reinstate the verdict of the jury.