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Wooley v. Great Atlantic & Pacific Tea Co.

July 20, 1960


Author: Kalodner

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

KALODNER, Circuit Judge.

Did the court below abuse its discretion in denying plaintiffs' motion for a new trial based on inadequacy of the jury's verdict in their favor in their action for damages?

That is the single question presented by this appeal.

The facts are detailed in the opinion of the District Court reported at W.D.Pa., 1960, 180 F.Supp. 529. They may be summarized as follows:

On the afternoon of November 12, 1954, the minor plaintiff, Terrence Wooley, then four years old, was injured when several 10-ounce cans of tomato soup which had been stacked in pyramid fashion on a shelf in defendant's supermarket in Braddock, Pennsylvania fell and struck him, one of them on his head. Terrence was at the time in the company of his parents.

In their action for damages*fn1 the minor plaintiff sought recovery for pain and suffering, past, present and future, and the plaintiff, Vida Wooley Vetterly, his mother, for medical expenses, past and future.

Negligence of the defendant was at issue in the court below as well as the extent of the injuries sustained by the minor plaintiff. The jury determined the issue of negligence in the plaintiffs' favor and returned a verdict of $1,700 in favor of the minor plaintiff and $300 in favor of his mother. In their motion for a new trial plaintiffs urged that the respective verdicts were grossly inadequate in view of claimed serious injuries to the minor plaintiff, and medical expenses, incurred and to be incurred, by the mother plaintiff. In denying the motion the trial judge stated that "the verdict was adequate for both."

On this appeal plaintiffs contend that their testimony established that as a result of the accident the minor plaintiff's eyes crossed, and he suffered emotional difficulties and personality changes which required and will require psychiatric treatment; that the crossed eyes will require one or two operations; that the psychiatric treatment will extend from six months to two years in the future. The cost of the eye operations was estimated at $350.00 to $400.00; eye treatments prior to trial cost $70.00. Expenses for future psychiatric treatment were estimated at $1,000; $335.00 had been spent prior to trial for psychiatric consultations.

With respect to the eye condition, Dr. Evans, an ophthalmologist, testified that the minor plaintiff had a "fusional weakness" of his eyes prior to the accident and that the accident "was the precipitating cause of the esotropia" or crossed eyes, and one or two operations would be required to correct the condition.

On the score of the minor plaintiff's psychiatric difficulties, emotional and personality changes, Dr. Morgenlander, a psychiatrist, testified that "some minor behavior abnormalities existed prior to the accident" but the latter "was in a manner of speaking the instrument that broke the camel's back"; that the accident "was not a causative thing, but it did enhance and set up a cycle."

The trial court in its opinion denying plaintiffs' motion for a new trial on the ground of inadequacy of the verdict stated (at page 531):

"* * * There was ample evidence from which the jury could find that certain of the claimed damages were unconnected with the injuries complained of. For example, the jury could have found that the psychiatric difficulties suffered by the minor plaintiff, or the major portion thereof, were unrelated to the blow on the head, and the jury could also have found that the eye problem in considerable proportion was due to other factors as well as the glancing blow of a 10-ounce can on the child's head. It was within the jury's province to evaluate the medical opinions and to apportion the medical expenses between the effects it found by a fair preponderance of the evidence were cause by the injury and the effects it found were not so established as to both the eye condition and the psychiatric difficulties of the minor plaintiff, and to award damages for only those medical expenses proximately resulting from defendant's negligence."

Upon review of the record we cannot say that the trial court abused its discretion in denying the plaintiffs' motion ...

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