Lewis v. Calice

JONES, Judge,

respectfully dissenting.

The jury was not manifestly erroneous in its determination of liability and the award of damages to plaintiff.

The majority concludes that the plaintiff misled his doctor when he sought medical treatment. Therefore, the question of injury caused by the accident which is the subject of this suit was not proven by a preponderance of the evidence. This is a fact question which the jury decided in favor of the plaintiff.

The jury, as the trier of fact heard the testimony of all the physicians, either by court appearance or deposition. The jury saw and heard plaintiff as he testified concerning the treatment he received for the four accidents in question. The jury concluded that the plaintiff suffered injuries in this accident and that he was entitled to damages. This court has effectively overruled the jury and substituted its own factual determination for that of the jury. Since I believe that the jury was not clearly *1153wrong in its determination, I respectfully dissent.