as to the loss of value because of depreciation. There was some inconsistency in the evidence of Mr. Rhoades, Sr., who said that the plaintiff would 'ask' for $ 15,000 because Mr. Rhoades, Jr., had indicated this to United's agent in California, while in fact Mr. Rhoades, Jr., had informed the agent that the value of the airboat was between $ 15,000 and $ 30,000, but that when the agent requested him to specifically assign a declared value to the airboat, he agreed to have it in the sum of $ 15,750 -- not $ 15,000.
The plaintiff now asks that the jury's verdict of $ 7500 be molded to a rounded $ 15,000. But why $ 15,000? Because the plaintiff's witness, Mr. Rhoades, Sr., said that he was 'asking' the sum of $ 15,000. Would such expression (in evidence) of 'asking' by plaintiff's president work a mandate upon the jury and preclude it from using its own judgment of evaluation? To support its $ 15,000 claim, the plaintiff argues in effect incontrovertibility of its demand and offers Devine v. Patteson, 6 Cir., 242 F.2d 828 (1957). But this does not help the plaintiff. Here a claim was based upon malicious prosecution and the compensatory damages shown were for traveling and attorney fees in a definite sum. The jury allowed compensatory damages in a lesser amount than these. It was held that the compensatory damages were definitely ascertainable, and there was no question of judgment left for the jury. This is distinguishable from the present case because of the multiple amounts in evidence from which the jury was required to weigh the damages in accordance with the principles of law as we shall see. There was no out and out definite specific amount (except the settling amount) which the witness, Rhoades, Sr., conveyed as a satisfactory substitute of the actual damages. This, too, is distinguishable from the Pennsylvania cases which hold that medical bills, hospital bills and the like when ascertained in evidence are compensable specifically. Krusinski v. Chioda, 394 Pa. 90, 145 A.2d 681 (1958); Keefer v. Byers, 398 Pa. 447, 456, 159 A.2d 477 (1960). However, there is also authority in Pennsylvania where the jury has been permitted to disregard even evidence of specific amounts for doctor bills and the like and allow a 'compromise' verdict where a verdict is substantial and the question of negligence and contributory negligence is open or doubtful. Karcesky v. Laria, 382 Pa. 227, 114 A.2d 150 (1955).
The jury had before it in this case the evidence of $ 15,000 loss and evidence of $ 35,000 and $ 40,000. It had before it the value of $ 15,750. It had before it the value in excess of $ 17,400 and it had evidence of diminished unascertained value of use and depreciation. It had also evidence of liability entitlement by the plaintiff to the sum of $ 1080. It was for the jury to make a determination of what the true facts were. It had to review all of the evidence in this case in order to arrive at its decision.
If there had been any direction by the trial judge to the jury to ignore those portions of the evidence which it had heard of figures other than the two sums of $ 1080 and $ 15,000, then a portion of the testimony would have effectively been wiped out of existence, but this testimony was before the jury and it had a right, and in fact was required to consider all of the evidence in arriving at a final determination. While it appears obvious that the jury did not believe the defendant's testimony of limited liability, it is also as obvious that the jury did not believe the plaintiff's evidence of value, and I have not the slightest doubt that there is sufficient evidence on the record to support the jury's finding in this connection. A trial judge should only rarely and reluctantly disturb a jury's finding. Rice v. Union Pacific Railroad Co., 82 F.Supp. 1002, 1006 (D.C.Neb., 1949).
This is a case in which answers to interrogatories and the final determination of the case were for the jury. It had both the right and the duty to evaluate the evidence as a whole and to consider, among other things, the manner and appearance of the witnesses on the stand and the probability or lack of probability of their testimony. This right could not have been taken away from the jury. Garvin v. United States, 86 F.2d 325 (Cir. 4, 1936). It was for the jury to weigh the evidence in this case and consider the credibility of the witnesses and to accept their evidence as true or untrue. Elzig v. Gudwangen, 91 F.2d 434, 440, (Cir. 8, 1937).
The testimony as presented to the jury was not specific and definite. It was more of the character of opinion evidence. As such, it was for the jury to consider such evidence in arriving at the true value. Peoples Loan & Finance Corp. v. Halbeisen Motors Co., 5 Cir., 271 F.2d 538. Particularly is this true when the plaintiff, itself, was not impressive in conveying completely credible evidence of value. It is clear that a jury is permitted to disregard uncontradicted evidence of interested persons if the testimony produced lacked credibility. Quon v. Niagara Fire Insurance Co. of New York, 190 F.2d 257 (Cir. 9, 1951).
The second part of the plaintiff's motion that a new trial be granted for the resubmission of the question of value to the jury in my opinion merits no consideration. This is such a case as appears to be bound up from beginning to end in the credibility of the witnesses in the various phases of this case. The liability of the defendant, the liability of the third-party defendant, the limited liability of the defendant, the condition of the machine and its use as related to limited liability were questions of fact so tied up with each other as to have required giving the jury a full observation of all the witnesses and the evidence as a whole. The question of value as testified by the plaintiff's witnesses was interconnected with the question of liability to the plaintiff. The jury's evaluation of the true facts depended upon all of the evidence as a whole. To say that it was wrong in one part as to damages, I must say that it was wrong as to both damages and liability. I cannot do that. Neither can I divorce these parts and believe that one part will be better tried by itself. It would be like playing only one-half of a complete phonograph record. To re-submit the question of damages alone at a new trial, in my opinion, would not be just. Furthermore, there is no reason why the question of damages should be re-submitted.
For all of these reasons, the various motions will be denied.
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