reviewing prior North Dakota cases
How later courts described this case
- reviewing prior North Dakota cases
- "[T] he trial court observed and heard all witnesses, and thus occupied a position of advantage not available to us."
Written by the judges who cited it.
The opinion
VOGEL, Justice,
dissenting.
I dissent. I believe the jury verdict was within the range permissible, and that the trial judge’s discretion was abuséd when he granted the motion for a new trial.
The verdict does not appear to me to be arbitrary or unjust, shocking to the judicial conscience, or so extreme as to be without support in the evidence.
The plaintiff’s partial disability will be permanent during a 47-year life expectancy. She has suffered pain in the past and will suffer intermittent pain in the future, pain which a jury can evaluate at least as well as judges can. She will live hereafter deprived of some of the pleasures which go *400 to make life worth living. If her pleasure in dancing and bowling is diminished, as the evidence indicates it is, she has lost some of the pleasures of life which go to make life worth living. Such pleasures add nothing to one’s income, but losing them deprives one of something which money will not buy. Juries should be allowed to make an award compensating in dollars, as best they can, for the loss of pleasures as well as income.
I believe this verdict is no different, so far as grounds for finding passion and prejudice are concerned, from those cited by the majority on this question: Eriksen v. Boyer, 225 N.W.2d 66 (N.D.1974); Anderson v. Miller’s Fairway Foods, 225 N.W.2d 579 (N.D.1975); Strandness v. Montgomery Ward, 199 N.W.2d 690 (N.D.1972); Skjonsby v. Ness, 221 N.W.2d 70 (N.D.1974). To this list might be added Schan v. Howard Sober, Inc., 216 N.W.2d 793 (N.D.1974).
In all of the five cases just cited we affirmed the verdict or the judgment of the trial court trying the case without a jury.
The only recent case in which we have made a reduction in a verdict was in a contract action, Vallejo v. Jamestown College, 244 N.W.2d 753 (N.D.1976), a three-to-two decision.
I have no quarrel with the majority’s statement of the holdings of our past cases, or the rules which we should apply. I simply would apply those rules in this case to sustain the jury’s discretion, and hold that the judge’s discretion was abused. The majority, in effect, holds that the jury’s discretion was abused, and the trial judge’s was not. Believing as I do, that juries can best decide questions of damages and that their verdicts should rarely be upset — and most rarely in tort cases involving future damages — I would reverse the order granting the new trial and reinstate the verdict.