Appeal from the United States District Court for the Northern District of Indiana, South Bend Division - No. 70 S 41 George N. Beamer, Judge.
Pell and Stevens, Circuit Judges, and Laramore, Senior Judge.*fn*
This is a personal injury case in which negligence was admitted by the defendant, Dean Johnson, and the only issue presented to the jury was the amount of damages, if any, to which the plaintiff, Clara Galard, was entitled for any injuries she sustained as a result of an automobile accident. The jury returned a verdict in the amount of $45,000 for the plaintiff. The principal issue on appeal is whether the district court erred in denying Johnson's motion for a new trial on the ground that the verdict was excessive, being against the manifest weight of the evidence.
A motion for a new trial on the ground of inadequate or excessive damages is addressed to the discretion of the trial court. Fronz v. Pennsylvania R.R. Co., 239 F.2d 639, 640 (7th Cir. 1956); Bucher v. Krause, 200 F.2d 576, 586 (7th Cir. 1952), cert. denied, 345 U.S. 997, 97 L. Ed. 1404, 73 S. Ct. 1141 (1953). To reverse the judgment below, we must conclude that the verdict was so "gross" or "monstrously excessive" that the trial judge abused his discretion in permitting it to stand. Quilter v. Elgin, Joliet & Eastern Ry. Co., 409 F.2d 338, 340 (7th Cir. 1969); Price v. H. B. Green Transp. Line, Inc., 287 F.2d 363, 365 (7th Cir. 1961).*fn1 As the Second Circuit has noted, "the very nature of the problem counsels restraint." Dagnello v. Long Island R.R. Co., 289 F.2d 797, 806 (2d Cir. 1961). Damages assessed by a jury are largely discretionary with it. "Just as the trial judge is not called upon to say whether the amount is higher than he personally would have awarded, so are we appellate judges not to decide whether we would have set aside the verdict if we were presiding at the trial, but whether the amount is so high that it would be a denial of justice to permit it to stand." Dagnello v. Long Island R.R. Co., supra at 806; Bucher v. Krause, supra 200 F.2d at 587.
The evidence in the present case indicated that in the accident, which occurred in August 1968, the automobile in which Mrs. Galard was riding was struck from the rear and thrown into a line of motorcycles resulting in a second impact. The collision caused the plaintiff, who was riding in the back seat, to be thrown forward and sideways and pinned between the front and back seats of the car.
Mrs. Galard testified, at the trial, that prior to the accident, she had never had any headaches or any problems with her abdomen, back, or legs. According to the plaintiff, her health in general before the accident was "A-1." Mrs. Galard testified that immediately after the accident she was in great pain and was taken to a hospital. She stated that, at that time, she had a bump on her forehead and severe pain in her shoulders, back, neck, abdomen, and left leg. There were bruises, Mrs. Galard testified, over large parts of her body and her left calf was swollen. The plaintiff remained in the hospital for four or five days before going home.
Mrs. Galard testified that since the accident and continuously until the time of the trial five years later, she had headaches and severe pain in her back, abdomen and left leg. The plaintiff also stated that, on occasion, she experienced difficulty walking. Mrs. Galard further testified that, due to the pain, she could no longer do heavy work around the house but could do only light household chores. Finally, Mrs. Galard testified about the various costs which she had incurred as a result of her injuries.
Much of Mrs. Galard's testimony was supported by that of her daughter, Judy Witek. Mrs. Witek testified that, prior to the accident, her mother never complained of pain and was always able to do her housework. Mrs. Witek stated that, after the accident, the plaintiff complained of pain, was unable to do housework, and, on occasions, had difficulty walking.
In addition to the testimony of Mrs. Galard and her daughter, the jury also heard extensive medical testimony concerning the extent and cause of Mrs. Galard's injuries. The two physicians who had treated Mrs. Galard after her initial hospitalization both testified, by deposition, on behalf of the plaintiff.
Johnson argues that since this testimony was by way of deposition, this court is at no peculiar disadvantage vis-a-vis the trial court and jury with respect to seeing and observing these two witnesses. While testimony introduced in deposition form cannot be the basis of credibility determinations of the type to which the live witness is subjected, such as demeanor on the stand, here Mrs. Galard, as a live witness whose credibility was exceedingly important to her cause, was subjected to these witness-chair tests. She apparently was not found wanting. Further, insofar as the live medical testimony introduced by the defense was concerned, the credibility determination could have taken the form of discrediting. The coin is two-sided.
Dr. George Downes, a general practitioner, testified that from July 1972 until the time of the trial in May 1973, Mrs. Galard had visited him once or twice a week. Dr. Downes stated that his examinations of the plaintiff revealed tenderness in the abdomen and lower back, a muscle spasm in the lower back, hardening of the left calf, and limitations in movement in the neck, hips, and left knee. Dr. Downes also testified that, in his opinion, Mrs. Galard's headaches and pains in her neck, back, and leg were the result of the accident and were permanent in nature. The doctor stated that he himself had not seen x-rays of the plaintiff's back and, therefore, did not know whether Mrs. Galard had arthritis, but that his diagnosis would remain the same even if she did in fact have arthritis. Finally, Dr. Downes testified that, in his opinion, Mrs. Galard was truthful about her symptoms and was not a malingerer.
Dr. Elsie Eng, an osteopathic physician specializing in internal medicine, testified that she treated Mrs. Galard from September 1968 until August 1970.*fn2 Dr. Eng, like Dr. Downes, stated that her examinations of the plaintiff revealed tenderness in the neck, back, abdomen, and leg as well as limitation in movement in the neck and back. Dr. Eng also noted a hardening of the tissue in the plaintiff's left calf. In August 1970, at the time of her last examination of Mrs. Galard, the plaintiff, according to Dr. Eng, was unable to bend forward and had pain when assuming an upright position. An x-ray examination indicated, Dr. Eng stated, that Mrs. Galard had an arthritic condition in her back. Dr. Eng testified that the automobile accident could, and probably did, aggravate the arthritic condition to a point where ...