Bray v. Rosen

SHEPARD, J.

This is an appeal by defendant from an order granting a new trial on the subject of damages alone. Plaintiff Retha Bray claimed whiplash injuries resultant from defendant’s ear striking the rear of the car in which she was riding. Defendant admitted liability but contested the amount of damages. A jury awarded damages in the amount of $5,000 to plaintiff against defendant. Plaintiff moved for a new trial on damages alone.

The notice of intention to move for a new trial gives as the grounds upon which said motion will be based:

“1. Misconduct of the jury.

“2.

Inadequate damages, appearing to have been given under the influence of passion or prejudice.

“3. Insufficiency of the evidence to justify the verdict and judgment and that they are against the law.

‘14. Error in law, occurring at the trial and excepted to by the party making the application.”

The court granted the motion and the only order appearing of record reads as follows:

“Motion for new trial having been taken under advisement and the Court having studied same, the Court now grants motion for new trial on damages only.”

There is no transcript of the argument on motion for a new

trial.

[683]

Defendant in his appeal contends that the order is erroneous in that there was no misconduct of the jury and there was no error in law occurring at the trial and excepted to by the party making the application. The ground listed as inadequate damages appearing to have been given under the influence of passion or prejudice is not a ground separately recognized by our statute as independent of the ground oE ‘1 insufficiency of the evidence to justify the verdict and judgment and that they are against the law.”

Plaintiff offered no affidavit in support of the ground o£ alleged misconduct of the jury. In her brief she does not point out any instances of such misconduct. This court’s examination of the record does not disclose to us any such misconduct.