I dissent from the ruling of the majority, on the ground that, in my opinion, the verdict of ten thousand dollars in favor of plaintiff was and is excessive. Its effect is to compensate plaintiff in the sum of seventy-five hundred dollars for a broken hip, which, at the date of the trial, had satisfactorily healed and united. I agree that it was entirely proper for the jury to find that the effects of the injury suffered by plaintiff would continue, and that, in a sense, his injury was of a permanent nature; but from the evidence considered as a whole, it appears to me that the sum of seventy-five hundred dollars was not justified as based on any reasonably probable permanent disability the plaintiff would suffer from such injury. The monetary loss, including outlay for hospital and medical expenses and loss of wages, was approximately twenty-five hundred dollars, and this being true the balance of the verdict must be attributed to what the jury thought should be allowed for probable or possible disability accruing after the expiration of the period when plaintiff might have returned to his usual employment.
I do not question the statement made in point 6 of the syllabus that "In an action for personal injuries a verdict of a jury will not be disturbed solely on the ground of excessive damages, except where it plainly appears to have resulted from mistake, partiality, passion, prejudice, or a lack of due consideration"; but I am of opinion that the verdict in this case plainly indicates either mistake, partiality, passion, prejudice or a lack of due consideration of the evidence bearing on the reasonably probable consequences of plaintiff's injury. *Page 335
We do nothing, when we merely pay obeisance to principles, such as that announced by this Court in the language quoted above, and then fail to apply them to the facts presented in a particular case. It is a rare occasion when the fact of either mistake, partiality, passion, or prejudice can be established by direct evidence; we can only infer the existence of either thereof from the amount of the verdict, and the evidence upon which it is based. Here, I think that we may reasonably infer that the jury was influenced by mistake, partiality, passion, or prejudice, because the evidence does not, in my opinion, furnish any reasonable basis for the verdict returned. The jury would have been justified, under all the facts and circumstances of the case, in returning a verdict for plaintiff in a substantial sum; but not the excessive sum of ten thousand dollars.
The death of plaintiff below since the verdict and judgment in the trial court, and since the issuance of the writ of error in this Court has been suggested on the record, and I am assuming that if a new trial were granted the case could be revived and prosecuted to judgment under the provisions of Code, 56-8-2, and that upon any new trial the testimony of the deceased plaintiff taken on the former trial could be read to the jury.
I would reverse the judgment of the circuit court, set aside the verdict, and award defendant a new trial.
I am authorized to state that Judge Haymond concurs in this dissent. *Page 336