I regret that I must dissent, but my conclusion is that this court should not substitute its judgment for that of the jury whose province it was to fix the amount of plaintiff's damages for his pain and suffering.
I am well aware that the settled law of this state is to permit a remittitur rather than reverse a judgment, when it appears from the record that the amount of the verdict is for a greater amount that this court would sustain as a matter of law, under the evidence, where no error was otherwise committed. But I do not see wherein this is such a case.
The record shows that the plaintiff was injured so that he suffered great pain in his chest and would spit blood. His testimony is that he suffered intense pain. The record shows that he was hurt on July 20th, 1930. It was not until October 1st, 1930, that the physician declared that he was "apparently" cured of his injuries. I know of no rule of law which says that a plaintiff can recover no greater amount for pain and suffering than he is permitted to recover for his out of pocket loss in wages and doctor's bills. The opinion prepared by my brother, MR. JUSTICE ELLIS cites no such authority, altho such rule is contended for in the plaintiff in error's brief by comparing the situation to that presented by Fla. Central
Pen. R. Co. vs. Foxworth,
Assuming that the jury allowed $298.00 for actual damages and $1201.08 for pain and suffering from July 20 to *Page 787 October 1st, 1930, a period of over two months, I am unable to say that in law such allowance is so excessive that we cannot allow it to stand. I therefore dissent.
BROWN, J., concurs.
