Brownfield v. F. W. Woolworth Co.

248 P.2d 1078, 69 Nev. 294, 1952 Nev. LEXIS 84

Opinions

OPINION

By the Court,

Merrill, J.:

This is an action brought by appellant as plaintiff for personal injuries resulting from negligence. The appeal is taken from judgment of the trial court on the ground that the damages awarded are inadequate in the light of the findings (the trial having been had before the court without a jury); that the judgment, therefore, is not supported by the findings. Judgment was in favor of appellant in the sum of $1,233.20. The record is limited to the judgment roll. It does not appear that any motion for new trial ever was made.

No objection to the findings of fact was made by respondent, nor were any additions thereto or modifications thereof proposed. The findings by reference adopt as true many of the allegations of the complaint, In this manner they deal in detail with the nature - of respondent’s negligence, with the manner in which that negligence proximately caused the injury to appellant and, in particular detail, with the nature and extent of appellant’s injuries. By such reference the trial court has incorporated into its findings not only a wealth of factual detail, but also much of appellant’s descriptive language and reiteration respecting severe pain, severe shock, constant pain, intense pain and agony, fear and anguish. It is this elaborate detail, attributable to the findings, which, appellant contends, renders the findings so complete as to eliminate all need for a transcript of testimony in order that this court determine as matter of law that the judgment is inadequate. This, however, is not the essential problem presented by this appeal.

The findings also contain the following: “That said injuries to the Plaintiff, Floy Emily Brownfield, caused said Plaintiff, Floy Emily Brownfield, extreme physical and mental pain and suffering, as above found, to the damage of said Floy Emily Brownfield in the sum of One Thousand Dollars.” This finding squarely supports the judgment. It would appear, therefore, that rather than an inconsistency between the findings, standing as a whole, and the judgment, the inconsistency is between the findings themselves.

Appellant contends, however, that the finding quoted is, properly speaking, no finding at all, but rather the court’s conclusion and decision from the facts. No authority is cited for this proposition and we are unable to accept it as valid. This is not a case where the monetary extent of damage can be calculated by reference to some objective standard and thus ascertained as matter of law. The elements of pain and suffering are wholly subjective. It can hardly be denied that, because of their very nature, a determination of their monetary compensation falls peculiarly within the province of the jury or, as in this case, the trial court as finder of fact.

We are, then, confronted with findings which upon their face appear inconsistent. Under these circumstances and in the absence of any record of the evidence we cannot assume that either is correct or that either is erroneous or unfounded. Of necessity we must hold that appellant has failed to sustain her proposition that the judgment is not supported by the findings but is inconsistent therewith.

December 22, 1952. 251 P.2d 589. Clyde D. Souter, of Reno, for Appellant. Woodburn, Forman & Woodburn, and Gordon R. Thompson, of Reno, for Respondent.

Further it should be clear that even were we disposed, in the absence of any record of the evidence, to prefer one finding over another and conclude generally that the judgment was inadequate, the proper remedy would be to remand for new trial. We may not invade the province of the fact-finder by arbitrarily substituting a monetary judgment in a specific sum felt to be more suitable. Appellant having failed to move for new trial, this relief, even were we disposed to grant it, is not available.

Judgment is affirmed with costs.

Badt, C. J., and Eather, J., concur.