(dissenting):
I am unable to agree with the court’s decision because I do not believe that it treats the parties with justice. It is my view that the plaintiff has had her entitlement to a fair trial; that upon instructions which presented the issues in a fair and understandable manner she has had a determination thereon by a jury; and that determination has in turn had the approval of the trial court.
It is suggested that the damages awarded should have been greater and that this may have been due to the failure to include the term “mental” as a modifier of the term “suffering.” I think altogether too much importance is placed on that omission. It seems to me that the way any suffering or distress is experienced is through a “mental” perception thereof. I cannot believe that the omission had any substantial effect upon the outcome of the trial. I therefore do not see it as prejudicial error.
This court has innumerable times acknowledged that the question of damages is for the jury to determine; and further, that it is the jury’s prerogative to judge the credibility of the evidence; and specifically that it is not obliged to follow abjectly the plaintiff’s evidence as to damage, but may place its own evaluation on the evidence.
Illustrative of the principle here involved is the case of Arnold Machinery Co., Inc., v. Intrusion Prepakt Inc., 11 Utah 2d 246, 357 P.2d 496 (1960): In that case, the plaintiff had sued for repairs made to certain machinery and the only evidence presented was that of the plaintiff to the effect that the expense thereof was $3,580.52. In spite of that undisputed evidence, the jury awarded the plaintiff $2,500. On appeal, the plaintiff contended that because the only evidence was that presented by its witnesses, the jury was not entitled to find the lesser amount. On the basis of the principles stated above concerning the prerogative of the jury, this Court affirmed the judgment.
There is yet another reason why I think the Court’s decision herein does not treat the parties fairly. If the verdict and judgment are unsound, the case should be remanded for trial on all issues. This is a prime example of the kind of case that the trial court and jury should have the entire picture relating to the contested issues in order to properly assess damages, if that becomes necessary. According to my experience and judgment, this type of situation can result in a lop-sided and unfair trial unless the parties each have the opportunity of presenting fully their evidence and contentions to the jury. Consistent with honoring the right of the parties to a trial by jury, I would affirm the judgment; but at the very least would not deprive the defendants the privilege of presenting their side of all disputed issues.
HALL, J., concurs.