dissenting.
[¶ 19] Because I believe the trial court has not abused its discretion in denying the motion for new trial, I respectfully dissent.
[¶20] The majority correctly explains the standards for reviewing a motion for new trial. However, I fail to see how the trial court acted in an arbitrary, unreasonable, or unconscionable manner under the standard. Nesseth v. Omlid, 1998 ND 51, ¶ 6, 574 N.W.2d 848.
[¶ 21] As we explained in Reisenauer, a special verdict by a jury should be upheld on appeal whenever possible, and a special verdict will be set aside only when it is perverse and clearly contrary to the evidence. Reisenauer v. Schaefer; 515 N.W.2d 152,157 (N.D. 1994). “The test is whether no reconciliation of the jury’s answers is possible and the inconsistency is such that the special verdict will not support the judgment entered below or any other judgment.” Id. “A new trial should not be granted on the ground that the verdict is inconsistent unless it is virtually impossible to make sense of the verdict.” 50A C.J.S. Juries § 239 (1997).
[¶ 22] The jury was instructed to consider each of the following items claimed as a detriment proximately resulting from the injury in question: (1) medical expenses; (2) pain, discomfort, and mental anguish; and, (3) permanent disability. The jury was not required to award medical expenses in order to make an award for pain and suffering. The jury was also instructed Barta had the burden to prove the elements of damages, if any, and that any damages awarded must be reasonable. We have stated: “There is no certain or definite rule by. which the amount of damages can be measured, and each case must be determined on its merits. This determination is in the province of the jury and the matter of damages rests largely in the sound discretion of the jury. Before this court will interfere with the verdict on appeal, it must be so excessive or so inadequate as to be. without support in the evidence.” Dewey v. Lutz, 462 N.W.2d 435, 442 (N.D. 1990) (citations omitted).
[¶ 23] Here, the jury’s verdict is not excessive, it is not inadequate, and it is supported by the evidence. The jury verdict can be reconciled. The jury simply may have decided to award one type of damages and not another. That the amount awarded for pain and suffering is the exact amount of medical expenses is an interesting coincidence, but speculating as to what the jury may have meant is just that, speculation.
[¶24] In Nesseth, we affirmed the trial court’s denial of a motion for new trial under similar circumstances. As in the present case, the jury in Nesseth was instructed to consider several items of claimed detriment. Nesseth, 1998 ND 51, ¶ 13, 574 N.W.2d 848. The jury was instructed to award reasonable damages, “if any ” for each item. Id. at ¶ 13. Under the law presented, the jury was free to award damages under one category, without awarding damages under another. Id. at ¶ 13. In Nesseth, the jury awarded an amount for medical expenses, but nothing for pain and discomfort, lost productive time, permanent disability, or future damages. Id. at ¶ 4.
[¶ 25] By reversing the jury’s verdict based on alleged inconsistencies, we are speculating on the jury’s intent. In doing so, we invade the discretionary province of the jury to find the facts and award damages. I would affirm the trial court’s denial of the motion for new trial.
[¶ 26] SANDSTROM, J., concurs.