Opinion
December 7, 1972
Appeal from the Civil Court of the City of New York, County of Bronx, SIDNEY H. ROSEN, J.
Henry Wolfman and James B. Reich for appellant.
Abraham E. Freedman and Edward M. Katz for respondents.
The trial court admitted into evidence, over defendant's objection based on subdivision (c) of CPLR 2309, the out-of-State depositions of plaintiffs' two physicians, despite the absence of the certificates authenticating the commissions of the notary public, on the ground that defendant had waived this technical objection by failing to advise plaintiffs of same during the intervening period of some four months from when defendant received copies of the depositions prior to trial. Defendant wished to forbid the use of the out-of-State depositions, and had available as a means to this end a motion to suppress the depositions under subdivision (c) of CPLR 3103. Not having sought to suppress the depositions prior to trial, defendant, under the circumstances delineated above, was properly deemed to have waived such formal objection (see Wright v. Cabot, 89 N.Y. 570, 577; Risley v. Harlow, 48 Misc. 277; see, also, CPLR 3117, subd. [a]; 3116, subd. [e]).
It is also noted that "a record or other documentary evidence which proves itself, and on which no question can arise in the cause except such as is apparent on its face, which has been inadvertently or unadvisedly omitted at the trial, may be produced at the argument of the appeal for the purpose of sustaining the judgment, though not to reverse it" (10 Carmody-Wait 2d, New York Practice, § 70:282; see Dumford v. Weaver, 84 N.Y. 445; People v. Flack, 216 N.Y. 123). This rule is founded on the clear dictate of justice that to do otherwise would be a wanton waste of time and expense and a trifling with the real rights of litigants ( Petersen v. City of New York, 133 Misc. 720; see Dunham v. Townshend, 118 N.Y. 281, 286). The said certificates or "flags" are patently in the nature of documentary evidence, and the absence of same was a defect or irregularity susceptible of correction nunc pro tunc at the trial (see Raynor v. Raynor, 279 App. Div. 671). It now appears that the "flags" have been obtained with respect to one of the physicians. Under these circumstances, the objection is deemed sterile.
However, in this personal injury negligence action, on this record, the verdict is excessive. This conclusion is impelled by the speculative nature of much of the testimony relating to the injuries to plaintiffs and the nature of the objective signs and symptoms of such injuries.
The judgment should be reversed and new trial ordered, limited to the issue of damages, with $30 costs to appellant to abide the event, unless respondents, within 10 days after service of a copy of the order entered hereon with notice of entry, respectively stipulate to reduce the recovery as follows: Abraham King, Jr. to $6,702 (of which $5,000 represents recovery for pain and suffering), Johnnie King to $3,000, Ronald King to $1,500, Margaret Magazine to $3,000 and Margaret McGinnes to $750; in which event the judgment should be modified accordingly, and as modified, affirmed without costs.
I dissent from so much of the Per Curiam as holds that the verdicts are excessive. In my judgment, the amount of the verdicts does not shock the conscience and should not be disturbed.
Fixing the quantum of damage resulting from personal injuries is peculiarly the function of a jury. There is nothing in the record which justifies our replacing the jury in this case. To the contrary, the record makes clear that the jury carefully considered the question of damages and reached its conclusions with full knowledge of the facts. Defendant offered no medical evidence of its own and, basically, merely seeks another bite to the apple because dissatisfied with the result of its earlier tactical moves.
My view is confirmed by the amount my brethren recommend as substitute recoveries. Reducing a $7,500 verdict to $5,000, a $5,000 verdict to $3,000, a $2,500 verdict to $1,500, a $5,000 verdict to $3,000, and $1,250 to $750, hardly indicates bias or passion or inadequate consideration by the jury — particularly where the verdict was reached on uncontradicted testimony.
Credibility was for the jury; not for us. Plaintiff's car was rather badly damaged — as a consequence of the accident both sides of plaintiff's car buckled and the front seat was jarred loose. Mr. King was under treatment for a period of three and a half months. He was hospitalized between July 25, 1965 to August 8, 1965. The doctor's findings included aggravation of an underlying condition leading to a stomach ulcer and acute cervical and low back sprains. Surely, if this be so, a $7,500 verdict may not be deemed manifestly excessive. Much the same may be said for the other plaintiffs: Mrs. King was under treatment from July 16, 1965 until September 27, 1965. If the uncontradicted testimony of her doctor is accepted as true, a $5,000 verdict in her case was also not unjustified. So also as to the verdict in favor of Margaret Magazine. She was under treatment between July 16, 1965 and October 29, 1965. If her doctor was believed, and he obviously was, the $5,000 verdict in her favor was not shocking. The smaller verdicts have similar foundation in the uncontested testimony of the doctors. They are accordingly firmly based.
The Judge's charge was extensive and fair to both sides. Defendant's counsel took only a general exception "to the last part" of the charge without specifying what he objected to. The jury asked for further instructions on the subject of damages and was instructed as agreed with counsel for both sides. The verdict was unanimous. In short, the verdicts represent the considered opinion of the jury. Whether or not we would have granted like amounts were we the triers of the facts, these verdicts are binding on us unless outrageously high. On the record before us the verdicts may not be so characterized.
I vote to affirm.
QUINN, J.P., and LUPIANO, J., concur in Per Curiam opinion; MARKOWITZ, J., dissents in memorandum.
Judgment reversed unless, etc.