Opinion
Opinion filed May 3, 1938.
Cause Assumed to Have Been Passed to Supreme Court under P.L. 2072 — Motion to Set Aside Verdict as to Damages Alone Construed — Motion Addressed to Discretion of Trial Court — Abuse of Discretion in Granting Motion Not Shown — Point Not Raised Below nor Presented by Bill of Exceptions.
1. Where verdict was set aside as to damages alone on plaintiff's motion and defendant excepted, Supreme Court assumed in absence of showing to the contrary that exception was passed to Court under P.L. 2072 for determination before final judgment, and overruled plaintiff's motion to dismiss on ground that controversy had not ended below.
2. Plaintiff's motion in automobile negligence action to set aside verdict as to damages alone on ground that by undisputed evidence her damage was certain sum was to be construed as meaning that verdict was grossly inadequate in view of undisputed evidence.
3. Plaintiff's motion in automobile negligence action to set aside verdict as to damages alone on ground that by undisputed evidence her damage was certain sum was addressed to trial court's discretion and Supreme Court could not reverse action of trial court in granting such motion unless abuse of discretion or its equivalent affirmatively appeared.
4. In automobile negligence action, where all evidence as to damages came from one witness, who had eleven years' experience as dealer in make of car involved and operator of repair garage, who was familiar with the car and testified it was worth $450 less after accident than before it, etc., and who, for aught that appeared, was credible and had no interest in outcome of case, no abuse of discretion was shown in action of trial court in granting plaintiff's motion to set aside as to damages alone verdict of $200.
5. Supreme Court would not consider as ground for awarding judgment proposition of law not brought before trial court nor presented by bill of exceptions but only presented in brief.
ACTION OF TORT to recover for property damage sustained in automobile accident. Plea, the general issue. Trial by jury in Franklin municipal court, P.L. Shangraw, Municipal Judge, presiding. Verdict for the plaintiff. Motion of the plaintiff to set aside the verdict as to damages alone was granted. The defendant excepted. The plaintiff moved to dismiss the exceptions. The opinion states the case. Affirmed and remanded.
Wm. R. McFeeters for the defendant.
J. Boone Wilson, Charles F. Black, Willsie E. Brisbin and Sylvester Ready for the plaintiff.
Present: POWERS, C.J., SLACK, MOULTON, SHERBURNE and BUTTLES, JJ.
The plaintiff seeks to recover the damages to her automobile resulting from the alleged negligence of the defendant. A verdict of $200 in her favor has been set aside as to damages only and a new trial granted on that issue only. To this ruling the defendant has excepted.
The plaintiff moves here that the defendant's exceptions be dismissed for the reason that the controversy has not ended below and that no full and perfect judgment has been there rendered. The bill of exceptions states, "Exceptions allowed; cause passed to the Supreme Court." Hence we will assume, nothing appearing to the contrary, that the trial court acted under P.L. 2072, and in its discretion passed the exception to this Court for determination before final judgment. In this view of the matter, the question is before us for decision, and the plaintiff's motion must be overruled. Ryan v. Barrett, 105 Vt. 21, 162 A. 793; Hannah v. Hannah, 96 Vt. 469, 472, 120 A. 886. This last case, one where the ruling was upon a motion to set aside the verdict before judgment, is directly in point, whereas Beam v. Fish, 105 Vt. 96, 163 A. 591, cited by the plaintiff, presents a much different situation.
In support of her motion to set aside the verdict as to damages and for a new trial on that issue only, the plaintiff, among other things, pointed out "that the undisputed evidence in the case was that plaintiff's damages were $450.00." The defendant insists from this expression that the motion which the court granted was in effect that there was no evidence warranting the verdict of $200. We do not so construe the language used. As a ground for the motion it merely pointed out that the verdict was grossly inadequate in view of the undisputed evidence. The motion was addressed to the court's discretion; and this Court cannot reverse its action thereon, unless an abuse of discretion or its equivalent affirmatively appears. Farr v. Fisher, 107 Vt. 331, 336, 178 A. 883, 98 A.L.R. 926; Bennett v. Robertson, 106 Vt. 112, 169 A. 901; Parizo v. Wilson, 101 Vt. 514, 523, 144 A. 856.
All the evidence as to damages came from one Krupp, an automobile dealer for eleven years in the make of car here involved and the operator of a repair garage over a like period. He had sold this car to the plaintiff and was familiar with it. He testified that in his judgment and opinion this car was worth $725 immediately before the accident, and $275 immediately after the accident, a difference of $450. He further testified that the car was repaired at his garage at a cost of around $400, and that there is considerable depreciation in the resale value of a wrecked car.
This evidence from a witness, who, for aught that appeared, was credible and had no interest in the outcome of the case, indicates strongly that the award was not reasonably adequate, and we cannot say that an abuse of discretion is shown. It should be noted, however, that no claim was made that if the verdict was to be set aside as to damages, it should also be entirely set aside and a new trial awarded on all issues.
In her brief the plaintiff asks that this Court give her judgment for $450. We need not consider the novel proposition as to whether uncontradicted opinion evidence as to values conclusively established the amount of damages. The point was not raised in the trial court, nor has it been brought here by a bill of exceptions.
Judgment affirmed, and cause remanded.