Opinion
Decided November 7, 1934.
An exception to a finding by the trial justice that a verdict is excessive presents the question whether such finding could reasonably be made and will be set aside when it is apparent that the court unwittingly fell into a plain mistake. A verdict should not be set aside as excessive or inadequate if the evidence on the issue of damages is susceptible of opposite inferences. In determining whether there is evidence to support the amount of a verdict the function of the trial court is not, like that of a jury, to pass on the credibility of witnesses, but only to decide whether there exists any evidence to support the verdict; and if so then whether in the light of all other evidence this supporting evidence is so manifestly false or so clearly incredible or so overwhelmingly contradicted that no reasonable man could believe it.
TRESPASS, to the person. A trial by jury resulted in a verdict for the plaintiff in the sum of $498.75.
The plaintiff and her husband were tenants of the defendant. On July 16, 1931, while the defendant was attempting to evict the plaintiff for non-payment of the rent she remonstrated with him and he pushed her so that she fell to the floor which is the assault complained of.
The undisputed testimony indicates that prior to the assault the plaintiff had been in poor health. She had twice been a patient in a sanatorium for the tubercular and at the time the assault was committed she had but recently returned from a hospital after a major surgical operation. She contended, and introduced evidence tending to prove, that as a result of the assault her previous good recovery from the effects of her prior illnesses was halted, that she was hysterical immediately thereafter, and has been nervous and sleepless ever since, that she lost weight, and that for over a year she was unable to perform her household duties, although she had been able to attend to them before the assault.
The defendant, in the effort to show that her condition after the assault was not due thereto, showed that she had always been a nervous person, that she had only consulted a doctor once for the results of the assault, and that she had given birth to a child fourteen months thereafter.
During the course of the trial the court ruled that it was a question of fact for the jury whether the plaintiff's condition after July 16, 1931, was due to the assault, or whether it was to be attributed to other causes for which the defendant was not answerable.
After the verdict the defendant moved to have it set aside as against the law and the evidence and the weight of the evidence and because it was excessive. The court "found the verdict to be excessive and ordered that it be set aside unless the plaintiff would agree to remit all but one hundred dollars." This the plaintiff refused to do and excepted to the above finding and ruling.
Transferred by Young, J.
John D. Warren (by brief and orally), for the plaintiff.
George M. French, for the defendant, furnished no brief.
"The inquiry in such cases is, not whether the judge acting as a juror would or would not have come to the conclusion returned by the jury in their verdict, but whether reasonable men charged with the duty of finding facts from the evidence, under the court's instructions as to the law applicable to the case, could come to that result." Doody v. Railroad, 77 N.H. 161, 164; and cases cited. Although this inquiry is one of fact for the trial court, his decision thereon is not necessarily final. "Such a decision presents the question whether it could reasonably be made and may be set aside when it is apparent the trier of fact unwittingly fell into a plain mistake" Ingerson v. Railway, 79 N.H. 154, 159.
It is now established that a verdict may not be set aside as excessive or inadequate "if the evidence on the issue of damages is susceptible of opposite inferences." Andrew v. Goodale, 85 N.H. 510, 511; Morrell v. Gobeil, 84 N.H. 150; and cases cited. It is the duty of the court to determine whether or not there is evidence to support the verdict. If there is it should not be set aside. If there is not it should be. In passing upon this question it is not the function of the court to pass upon the credibility of witnesses in the same sense in which the jury is required to pass upon it. In dealing with the evidence the court may only go so far as to determine whether there exists in the case any evidence to support the verdict. If there is he must determine whether in the light of the other evidence this supporting evidence is so manifestly false or so clearly incredible or so overwhelmingly contradicted that he is justified in finding as a fact that no reasonable man could believe it.
In the case at bar there is evidence to support the verdict, and this evidence is neither so incredible, nor is it so manifestly false or mistaken, nor is it so overwhelmed by the defendant's evidence as to permit the finding that all reasonable men must reject it. The granting of the defendant's motion compels the conclusion that the court mistook the limits placed upon his authority and invaded the province of the jury by passing upon the credibility of the plaintiff and her witnesses. Under these circumstances it is our duty to sustain the plaintiff's exception and order
Judgment for the plaintiff for $498.75.
All concurred.
On October 16, 1934, Mr. Elwin L. Page was appointed an associate justice of this court to fill the vacancy occasioned by the retirement of Mr. Chief Justice Peaslee and took his seat upon the Bench at the November Session 1934.