Bischert v. Limousine Rental Service (33 A.D.2d 355, 1970)

Greenblott, J.

These are appeals (1) from a judgment of the Supreme Court in favor of plaintiffs Malcolm Perry and Malcolm Perry, Jr., entered February 27, 1969 in Sullivan County, upon verdicts rendered at a Trial Term, and (2) from orders which denied defendants’ motions to set aside the verdicts.

These actions arose out of a collision between a bus owned by Limousine Rental Service, driven by Richard Ferber, and a tractor-trailer owned by Swan Lake Poultry Corp., driven by John Bischert, which occurred July 21, 1964 on old Route 17 in Sullivan County. The bus was proceeding easterly up a hill on the two-lane highway, and the tractor-trailer was proceeding downhill around a curve to its right. The trailer struck the left rear side of the bus, then rolled over on its left side and down an embankment.

Bischert, the truck driver, and a passenger, Malcolm Perry, sued the bus company and bus driver (Action No. 1). Another passenger in the truck, Malcolm Perry, Jr., who was six years old at the time of the accident, sued the owners and drivers of both vehicles, and his mother sued for medical expenses (Action No. 2). Swan Lake’s insurance company also sued to recover for property damage to the tractor-trailer (Action No. 3).

Bischert and Perry each testified that the truck was proceeding down the hill in the right-hand lane at about 20 miles per hour and that as they came around the curve, they saw the bus about 300 feet away, straddling the double center line. Bischert testified that he applied the truck’s brakes and turned to the right, but the rear part of the trailer hit the bus, and then the trailer tipped over. His testimony was substantiated by Perry.

The bus driver testified that his speed was about 40 miles per hour and that his vehicle was in the proper lane. He said that when he first saw the tractor-trailer, its left wheels were on the •’.enter line, that the driver of the tractor then ‘ ‘ brought the ctor back to his side of the road, and the trailer leaned out, -ailer continued across into my road ” and struck the mirwindows on the left side of the bus. It was his testimony that when the trailer swerved, only the top of the trailer tilted into his lane, not the tires. Ferber testified that he pulled to his right prior to the collision.

The jury awarded damages in favor of the infant respondent Malcolm Perry, Jr. in the amount of $30,000 and in favor of his father, Malcolm Perry, Sr. in the amount of $20,000.

The appellant bus company contends that the award to the infant respondent was grossly excessive and that in his summation, counsel for the infant respondent made improper comments as to damages.

Following the accident, the infant respondent’s condition was described by his doctor as ‘ ‘ critical ’ ’. He was unconscious at the scene of the accident, having sustained a concussion and failed to recognize his mother until two or three days later. He also received multiple contusions and abrasions, the most severe of which was a ‘ ‘ through and through ’ ’ laceration of his left upper lip, extending into the left side of his.face. There was much bleeding, requiring seven sutures. The attending physician, testifying four and a half years after the happening of the accident, opined that the scars had reached the maximum amount of recovery. Moreover, it was the doctor’s belief that the deformity would increase as the boy grows and develops into manhood, since the scar tissue would not expand as the face enlarges.

We are also impressed, as the jury probably was, by the fact that there is a complete absence of any testimony in the record, on behalf of the defense, that would even tend to controvert the testimony of the attending physician. There can be no doubt that the jury relied heavily upon these factors in arriving at its verdict.

Since appellants offered no medical testimony in opposition to the strong medical proof of the infant plaintiff, we cannot give credence to their present contentions. The jury observed the scars and the trial court denied a motion to set aside the verdict. The language of this court in Slater v. Town of Rochester (31 A D 2d 590) is appropriate: “While the verdict might be regarded as excessive under some circumstances, this court cannot indulge in speculation or surmise, but on the present record must rely upon the judgment of the jury and the trial court.”

Assuming, arguendo, that error was committed by the infant respondent’s counsel in his summation to the jury, it was harmless error and was promptly corrected by proper instructions from the court.

As to the verdict in favor of the respondent Perry, Sr., the appellant bus company contends that it was against the weight of the evidence, the result of misunderstanding and the result of a summation which aroused the sympathy and prejudice of the jury.

Both Bischert, the truck driver, and respondent Perry, Sr., testified that when they rounded the curve they saw the bus partly in their lane of travel, proceeding at a speed in excess of 25 miles per hour, the recommended speed at that point. While this testimony was contradicted by other witnesses, it would, if believed, support the verdict that the negligence of both drivers contributed to the collision. Since the jury could properly have resolved the question of credibility against the bus company, the verdict is not against the weight of the evidence.

We conclude after an examination of the summations in their entirety, that the comments of counsel for the respondent Perry, Sr., were not improper under the circumstances.

Nor do we find any error in the procedure adopted by the trial court when the jury reported its verdict (cf. Fairchild v. Cervi Bros. Trucking Co., 1 A D 2d 508). We find no evidence that any juror was required to make up his mind in open court. It is proper practice for the trial court to send the jury back for reconsideration of its verdict in order to correct an obvious misunderstanding (cf. Bernard v. Seyopp Corp., 11 A D 2d 140, affd. 9 N Y 2d 676).

We have examined the remainder of the appellants’ contentions and find them to be without merit.

The judgment and orders should be affirmed, with costs.

Reynolds, J.

(dissenting). The judgment entered upon verdicts for Malcolm Perry (Action No. 1) and Malcolm Perry, Jr. (Action No. 2) should be reversed on the law and the facts, and a new trial ordered. The judgment in favor of Malcolm Perry, Jr. is tainted by the improper tactics of his counsel in his summation which was compounded by the fact that the improper tactics were discussed before summation in the trial court’s chambers and the court had informed counsel that they were improper and not to use them. This is admitted. The judgment in favor of Malcolm Perry in Action No. 1 was also not legally reached. The summation of Malcolm Perry’s counsel was so prejudicial a new trial is required. The jury’s verdict in that case was originally one of no cause of action. The statements of Malcolm Perry’s attorney in the presence of the jury as to the inconsistency of the verdicts and the failure of the court to properly poll and charge the jury anew were unwarranted intrusions into the private decision-making province of the jury and constituted reversible error. When the court ordered the jury back to the jury room after plaintiff’s counsel suggested that the verdict was inconsistent without further instruction, it apparently acquiesced in this suggestion which was tantamount to a direction to the jury that it return a verdict for the plaintiff. Defendants’ rights were preserved by an immediate exception.

The appellant bus company contends that counsel for the infant respondent, in the course of his summation, improperly interjected the “ unit-of-time ’’basis for measuring damages and his own opinion as to the amount of damages his client was entitled to. These errors mandate reversal.

In his summation, counsel for the infant respondent made this comment, followed by an objection by appellant’s counsel, and statement by the court: “So I say to you that when you talk about how much you are going to award this little boy, that you must take into consideration the fact that as the years pass, he becomes 15, 18, 20, 30, and if God willing, 55 or 60 or 70, these scars are going to be worse; this deformity is going to be worse. And every day of his life, everytime he looks in a mirror * * # that mark is going to be there for the rest of his days. * * # I say to you that in considering this you must consider this in the light of every-day experience. I don’t know how much a year. Two hundred? Three hundred? Five hundred dollars a year? I don’t know how much you are going to think about. But I do say to you, I feel, and I feel in all good conscience ■ — and I know you are going to be guided by your own good conscience — I think any award in the neighborhood of twelve or fifteen thousand would be ridiculously inadequate.