Opinion
No. 4834.
Argued November 1, 1960.
Decided November 30, 1960.
1. In personal injury actions by a father for his injured son's medical bills and loss of earnings and by the son for his pain and suffering resulting in verdicts for both plaintiffs, but in the son's case for "no dollars and no cents," it was not error for the Trial Judge after setting aside the latter verdict to resubmit the sole issue of the son's damages where his suffering was undisputed and it was apparent that the jury was experiencing difficulty only with the issue of his damages.
2. Where the jury was unable to agree on the issue of damages in personal injury actions it was proper for the Trial Court to charge them as to the desirability of their reaching an agreement if they could do so consistently with their consciences.
3. The granting or denial of a request to poll the jury as to their verdict rests within the sound discretion of the Trial Court.
TWO ACTIONS, on the case to recover for personal injuries alleged to have been received by Donald Gagnon and William Sconsa, and a third action by Dora Gagnon, mother of Donald, for his medical expenses and loss of earnings. A fourth action by Charles Sconsa, father of William, for his son's medical expenses and loss of earnings was tried with the foregoing cases, but is not transferred. The cases all arose out of an accident involving a motorcycle operated by Donald, on which William was a passenger, and an automobile driven by the defendant. There was a trial by jury with a view resulting in a verdict for the plaintiff Charles Sconsa for $1,987.10 for his son's medical bills and lost earnings, which is not appealed, a verdict for the plaintiff William Sconsa in the sum of $500 for his pain and suffering, and verdicts for the defendant in both of the Gagnon cases.
During the trial the plaintiffs excepted to the admission and exclusion of evidence and to portions of the Court's charge. After the verdicts, the plaintiff William Sconsa moved for a new trial on the question of damages in his action, and the plaintiffs Gagnon moved for a new trial on all issues. All of these motions were denied subject to the plaintiffs' exceptions. The plaintiffs excepted to the resubmission to the jury of the sole issue of William's damages for his pain and suffering and to the Court's refusal to conduct a poll of the jury.
Further facts appear in the opinion.
Reserved and transferred by Grimes, J.
Craig Craig and Arthur J. Costakis (Mr. Costakis orally), for the plaintiffs.
Sheehan, Phinney, Bass, Green Bergevin and Richard A. Morse (Mr. Morse orally), for the defendant.
The plaintiffs' basic claim is that "the Court as a matter of law could not resubmit the case to the jury after finding the verdict inadequate and setting it aside." This runs contrary to our decisions; the Court's discretion is controlling. Whiting v. Sussman, 78 N.H. 486, and authorities cited.
The record here discloses that when they began their deliberations the jury did not understand that the action in behalf of William, the minor son, for his pain and suffering was separate and distinct from that of his father for William's medical expenses and lost earnings, and that having found in the son's favor on liability they were bound to award him something for the suffering which he indisputably incurred. This misunderstanding persisted until the Court, after setting aside the verdict for William for "no dollars and no cents," had twice further instructed the jury, whereupon they returned with a verdict for William for $500.
There is no evidence that the determination of liability in the several cases had caused any problem or was not fully understood by the jury. As shown by the Court's questions after he had given them additional instructions and the foreman's reply, the difficulty centered entirely about the matter of damages. After the jury, being unable to agree on this issue, had been brought back to the courtroom the second time, the Trial Judge inquired with reference to William's case, "the only issue before you now is the question of the amount of damages. That is right, isn't it?" To this the foreman answered "Yes."
The Court then charged them as to the desirability of their agreeing, if they could do so "consistent with your conscience." This was proper. Dunne v. Carey, 97 N.H. 43, 44, 45. He further queried: "Now, is there any question that you want to ask about it?" The foreman replied: "They seem to think they have compensated him in giving him the twenty-two weeks at $50 . . . and they think they have given him enough." Since actually they had given William nothing, but had only recompensed his father, their confusion is obvious.
The procedural method then to be adopted was, as previously stated, entirely within the discretion of the Court, which had observed the whole course of the trial and the attitude of the jury. Whiting v. Sussman, supra. From their actions, including the replies to the questions, the Court decided that the error extended solely to damages and then, with further clarification, properly submitted again only that issue to them. Kilfoyle v. Malatesta, 101 N.H. 473, 475. We cannot say that this action was unsupported by the record or that it conclusively appears that it rendered the trial unfair. The case is thus clearly distinguishable from Gomes v. Roy, 99 N.H. 233. It follows that the plaintiffs' exceptions to the resubmission of the sole issue of damages to the jury are overruled. Cloutier v. Charland, 100 N.H. 63, 64.
The plaintiffs' final exception to the refusal of the Court to formally poll the panel does not require extended consideration. As previously stated, inquiries were made of the foreman, and furthermore it is firmly established that this matter also is discretionary. Caldwell v. Yeatman, 91 N.H. 150, 154, 155. Since no abuse of discretion appears, the order is
Judgment on the verdicts.
All concurred.