Dinneen v. Finch

SHEPARD, Justice,

dissenting.

I disagree with the majority opinion not only as to the result obtained, but also as to the philosophy espoused in reaching that result. I must also disagree with the vague and amorphous language used in the majority discussion of a “standard” to be applied by a trial judge when reviewing jury verdicts. In my judgment the majority opinion not only permits and invites a trial judge to invade the province of a jury, but indeed requires such invasion in many cases wherein a trial judge, if sitting to try the facts, might have arrived at a different result.

In the instant case, in my opinion, the trial judge’s denial of the motion for a new trial can only be taken as an indication that he was unwilling to substitute his view of controverted facts for that of the jury. At trial a defense physician who had examined the plaintiff testified that the plaintiff had suffered no serious disability resulting from the accident. That physician also testified that the plaintiff’s lower back region was normal; that his neck and spinal areas were normal and apparently causing no pain; that movement in his pelvic area was normal and apparently painless; and that his rib fractures had completely healed. The plaintiff himself testified that approximately four months after the accident, he skied, rode trail bikes, and lifted weights. My view of the record indicates evidence, albeit controverted, that plaintiff did not suffer any permanent injury or suffer continuing pain from the accident. Although there was testimony regarding lost wages, the plaintiff himself testified that he had been laid off work at the time of the accident and that he made about the same amount of money in 1973 (the year of the accident) as he did in 1972.

The above briefly outlined evidence is clearly in contradiction with much of that set out in the majority opinion, and the jury was faced with the task of resolving those conflicts in its determination of damages. The trial judge, of course, sat through the trial, saw the same witnesses, and heard the same evidence as the jury. I believe he correctly allowed the jury verdict to stand as the result of its resolution of the conflicting evidence.

The determination of personal injury damages, particularly in the area of pain and suffering, has long been recognized as peculiarly within the expertise of a jury. Mendenhall v. MacGregor Triangle Co., 83 Idaho 145 , 358 P.2d 860 (1961). Our statutes provide that the jury be the exclusive judge of the credibility of witnesses. I.C. § 9-201. Nevertheless, a jury will err and the trial judge performs an important, function when jury error occurs. I.R.C.P. 59(a)(5), at issue in this case, gives the trial judge authority to order a new trial when the jury verdict was the result of passion or *629 prejudice. The majority interprets I.R.C.P. 59(a)(5) as follows:

“The sole question on a Rule 59(a)(5) motion is the amount of the jury’s damage award, as compared to the amount of damages the trial court on his view of the evidence would have awarded. Where the disparity is so great as to suggest, but not necessarily establish, that the award is what might be expected oí a jury acting under the influence of passion or prejudice, the court will in the interests of justice grant a new trial * * *. ******

It need not be proven that there was in fact passion or prejudice nor is it necessary to point to such in the record. The appearance of such is sufficient.” (Emphasis added.)

Thereunder a trial judge need not establish that the jury award resulted from passion or prejudice; a mere “suggestion” or “appearance” is all that is needed for a trial judge to overturn a jury award on the basis that it was too low or too high. This, of course, allows a trial judge to substitute his opinion for that of a jury. Such a practice has been consistently condemned both in Idaho and elsewhere. See, e. g., Meissner v. Smith, 94 Idaho 563 , 494 P.2d 567 (1972); Blaine v. Byers, 91 Idaho 665 , 429 P.2d 397 (1967); 58 Am.Jur.2d New Trial § 155.

The majority opinion cites cases for the proposition that a trial judge in Idaho has extremely broad discretion to override jury verdicts when he feels that “justice” has not been done. That concept has been the focus of a continuing and on-going controversy within the membership of this Court for many years. Compare National Produce Distributors v. Grube, 78 Idaho 33 , 297 P.2d 284 (1956) and Baldwin v. Ewing, 69 Idaho 176 , 204 P.2d 430 (1949) with Deshazer v. Tompkins, 93 Idaho 267 , 460 P.2d 402 (1969) (Shepard, J., dissenting) and Sanchotena v. Tower Co., 74 Idaho 541 , 264 P.2d 1021 (1953) (Taylor, J., dissenting).

However, that conflict may still rage. The last pronouncement of this Court, prior to today, had indicated that in ruling upon a motion for a new trial, the trial judge sits as a thirteenth juror with the responsibility at a motion for new trial of insuring that justice was done. Deshazer v. Tompkins, supra. At this point in time, then, it is significant to inquire as to the function of the appellate court in reviewing the action of a trial court which has denied a motion for a new trial. As well stated by Justice McFadden:

“It is well settled in this jurisdiction that the trial court has broad discretion in ruling on a motion for new trial, and an order granting or refusing to grant a new trial will not be disturbed absent a manifest abuse of that discretion.” Rosenberg v. Toetly, 93 Idaho 135, 138 , 456 P.2d 779, 782 (1969) (Emphasis supplied),

and

“The test of the propriety of the court’s action in such a case is whether it clearly or manifestly abused its discretion, and in the absence of such abuse this court will not reverse that determination.” Deshazer v. Tompkins, supra, 93 Idaho at 271, 460 P.2d at 406 . See Blaine v. Byers, supra.

In sum, the majority opinion reverses the action of the trial judge here in denying a motion for a new trial not on the basis that he clearly and manifestly abused his discretion, but that the verdict of the jury, approved by the trial judge, in the view of the majority of this Court, was “too low” and, hence, must have resulted from passion and prejudice. Inf eren tially, of course, that assignment of passion and prejudice is assigned as much to the trial judge as to the jury.