Opinion
Submitted May 10, 1967.
Opinion Withdrawn 159 S.E.2d 378.
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[Copyrighted Material Omitted]
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Syllabus by the Court
1. In an action for personal injuries a verdict in favor of the plaintiff will not be set aside on the ground of inadequacy where the state of the evidence is such that, if a verdict had been rendered for the defendant, instead of the plaintiff, the court could not have disturbed it.
2. "A verdict which disregards the instructions of the court or constitutes a mistake and by virtue thereof does not cover the actual pecuniary loss properly proved will be set aside." Syl. Pt. 3, Richmond v. Campbell, 148 W.Va. 595, 136 S.E.2d 877.
3. "Rule 59(a), R.C.P., provides that a new trial may be granted to any of the parties on all or part of the issues, and in a case where the question of liability has been resolved in favor of the plaintiff leaving only the issue of damages, the verdict of the jury may be set aside and a new trial granted on the single issue of damages." Syl. Pt. 4, Richmond v. Campbell, 148 W.Va. 595, 136 S.E.2d 877.
Callaghan & Callaghan, Dan O. Callaghan, Brooks B. Callaghan, Richwood, for appellants.
Ernest V. Morton, Jr., Webster Springs, Barber & Dunn, James A. Barber, Richwood, for appellee.
BROWNING, Judge.
Plaintiffs, W.B. Coakley and Nina R. Coakley, husband and wife, instituted this action in the Circuit Court of Webster County to recover damages allegedly the result of an automobile collision caused when the defendant, G.S. Marple, drove his automobile into the rear of the Coakley automobile. Mrs. Coakley, the driver and owner of the automobile, sought recovery for property damage to her automobile in the amount of $163.66 and for personal injuries. Mr. Coakley sought to recover the medical expenses incurred in behalf of his wife and for loss of consortium. It was stipulated that a medical bill of $11.00 was necessary and reasonable for the care and treatment of Mrs. Coakley as a result of the accident but other expenses, in the amount of $834.20, while stipulated as to amount and reasonableness, were denied to have been occasioned by the accident. Evidence of additional expense of $520.00 for employment of household help, while uncontradicted, was contested for the same reason. On the trial of the case, the jury returned a verdict in favor of Mrs. Coakley in the amount of $1,000.00 but refused any recovery to her husband and judgment was entered thereon. A motion to set aside the verdicts and judgment was overruled and, on application of plaintiffs, this Court granted an appeal and supersedeas on December 12, 1966.
The accident happened on October 22, 1964, at approximately 2:30 p.m. at the intersection of Routes 41 and 20 at Craigsville, Nicholas County, West Virginia. Mrs. Coakley's automobile was traveling west and she testified that upon reaching the intersection she stopped intending to make a left turn; that she had turned on her directional signal light, pulled up in the left side of her lane, and while waiting for oncoming traffic to clear the intersection, she was struck in the rear by defendant's automobile. She is corroborated by another witness as to the signal light and the position of her car on the highway. The defendant, proceeding west on the same highway and following the Coakley car, testified that Mrs. Coakley gave no signal of her intention to turn but stopped suddenly in front of him whereupon he applied his brakes and turned to the right but was unable to avoid a collision. Repairs to defendant's automobile were estimated to be $229.00 while the repairs to the Coakley automobile amounted to $163.66. The defendant, however, produced witnesses to show that only minimum damage to the Coakley automobile was occasioned by the accident and not the entire $163.66 itemized statement contended for by plaintiffs. Mrs. Coakley further testified that while she did not immediately feel any ill effects she subsequently became dazed, suffered much pain and the next morning sought medical treatment. Her attending physician testified that upon examination his diagnosis was a fracture of the sixth cervical vertebra and a "tearing" of the supporting ligaments. Mrs. Coakley was hospitalized in traction for twenty-one days and released with a neck brace. Her physician further testified that upon his last examination of Mrs. Coakley he was of the opinion that she had a permanently unstable neck and would have to wear a brace for the rest of her life.
Defendant's evidence, adduced from radiologists, was that she suffered no fracture of the neck and that the degenerative condition of the neck vertebra antedated the accident of October 22, 1964. Defendant also produced evidence that the condition presently existing in plaintiff's neck may or may not be of a permanent nature; that plaintiff had been involved in automobile accidents in Buckhannon, West Virginia, in May, 1961, and in Kentucky in October of 1961; that she underwent surgery for a facial disorder as a result of the Kentucky accident; and, that in January of 1964 Mrs. Coakley had been hospitalized in Morgantown, West Virginia, complaining of facial pain radiating down into her neck and arms. Plaintiff contends that the complaint as to her neck in January was with regard to a small swelling, which was exhibited to the jury, and which she stated had not increased in size. She also testified that previous to the accident she had attended to her normal household duties and produced corroborating evidence to that effect, and that subsequent to the accident she had been unable to engage in any heavy household activities, which testimony was also corroborated. It was admitted that Mrs. Coakley had no estate of her own and that her husband was primarily responsible for her medical expenses.
Instruction No. 14, given in behalf of the plaintiff, instructed the jury that " * * * if you find for the plaintiff, Nina R. Coakley, you will be required also to consider the damages of the plaintiff, W.B. Coakley, and shall find for him the cost of medical and hospital care and treatment for his wife, Nina R. Coakley, in the amount of $844.20 which has been stipulated. * * * " As heretofore noted the jury returned a verdict in favor of Nina R. Coakley in the amount of $1,000.00 and found nothing for W.B. Coakley, although it had been stipulated that at least $11.00 was incurred by W.B. Coakley as a result of the accident. Plaintiffs therefore contend that the jury verdicts should be set aside on the grounds of inadequacy and as showing that the verdicts were arrived at as a result of passion, prejudice, bias or a misconception of the law. Defendant contends that the evidence was in such conflict that even though the jury found for the plaintiffs on the question of liability they could find that the medical treatment and expenses were incurred not as a result of the accident but resulted from a preexisting condition.
In the case of Shipley v. Virginian Railway Company, 87 W.Va. 139, 104 S.E. 297, the plaintiff, a railroad engineer, suffered a paralytic stroke which he attributed to an injury suffered in a collision between the engine he was operating and some railway cars in the yards of the defendant company, which collision he alleged was occasioned by the negligence of the yard master. Evidence of any contributory negligence on the part of the plaintiff was very slight and, although the paralysis was said to be permanent, the medical witnesses were divided as to whether it was caused by the injury received in the collision. A jury returned a verdict for the sum of Five Thousand Dollars which was set aside by the trial court on the ground of inadequacy. On appeal to the Circuit Court of Kanawha County the verdict was reinstated and judgment entered for the plaintiff in the amount of Five Thousand Dollars, from which order the plaintiff appealed to this Court. In affirming the action of the Circuit Court of Kanawha County this Court stated:
" * * * To warrant the setting aside of a verdict on the ground of mere disparity between the amount thereof and what it might have been, in cases in which there is no fixed rule for determination of the amount, the difference must be so great as to make it apparent that the verdict was the result of prejudice, partiality, passion or corruption on the part of the jury, or that they were influenced in their conclusion by some mistaken view of the case. There are comparatively few instances in which verdicts have been set aside on the ground of excessiveness, and there are still fewer in which they have been disturbed on the ground of inadequacy. It seems that, at common law, a verdict in an action of trespass could not be set aside at all for inadequacy. Jackson v. Boast et al., 2 Va.Cas. 49. That defect was remedied at an early date in Virginia by statute. Revised Code of 1819, Vol. 1, p. 510. But what is meant by prejudice passion, partiality or mistake, justifying disturbance of a verdict for excessiveness or inadequacy, has never been very clearly defined in any of our decisions. None of them indicates clearly what constitutes evidence of prejudice or partiality. It is not so difficult to find what is meant by mistake, for there are many instances in which juries have rendered verdicts contrary to law upon proof of practically uncontroverted facts. In other jurisdictions, however, decisions are found in which evidence of prejudice and passion within the meaning of the rule, are defined, not in terms, but in effect. A manifest and flagrant disproportion between the verdict and the amount of damages clearly proved is evidence of passion and prejudice. * * *
"In each of these cases, there was a practical denial of a clearly established right to a substantial recovery. Though the damages, being indeterminate could not be accurately ascertained, it is apparent that the jury had arbitrarily awarded practically nothing, under circumstances justifying and calling for a substantial amount. This was regarded and held to be proof of improper conduct on their part in determining the amount of the verdict. It was apparent that they had acted partially and discriminatingly against the plaintiff and in favor of the defendant, and against the plain dictates of reason, law and justice. The verdicts were clearly contrary to the law and the evidence. The differences between the verdicts and the amounts the courts deemed the plaintiffs to be entitled to were manifestly not due to mere differences of opinion. They were due to failures, for some reason, on the part of the juries to perform their duties. In all such cases, it suffices to say in general terms, that the jury must have been influenced by partiality, prejudice or mistake, and it is unnecessary for the court to undertake to determine just which it is. The rule governing such cases, as adduced from the decisions here referred to, requires a very great and palpable disproportion between the verdict and the right of recovery as disclosed by the evidence.
"Evidence, facts and circumstances disclosed in a case, constituting what may have been, in the minds of the jury, the basis of a doubt as to right of recovery, seems to preclude power in the court to grant a new trial, on the ground of inadequacy, even though, as attested by the record, the verdict is inconsistent and amounts to a practical denial of right as indicated by the plaintiff's evidence. If a verdict awards only nominal damages and the state of the evidence is such that, if a verdict had been rendered for the defendant, instead of the plaintiff, the court could not have disturbed it, there is no right in the trial court to set it it aside on the ground of inadequacy. * * * " (Italics supplied.)
As heretofore noted, the facts in the instant case are inconclusive in nature. Plaintiff states that she had signaled her intention to turn by turning on her directional signal light and pulling into the intersection where such a turn could be made. Plaintiff is corroborated as to the signal light by one witness. Defendant states that no signal of the intention to turn was given; that both automobiles were proceeding at approximately the same speed; and that plaintiff stopped suddenly without warning. A jury question is thus presented under the circumstances and, regardless of the seriousness of any injuries occasioned by the collision, this Court could not have set aside a verdict in favor of defendant had one been rendered by the jury. The question as to the evidence with regard to the extent of plaintiff's injuries as a direct result of the accident is likewise in conflict, and we would be unable to disturb a verdict on the ground of inadequacy had the jury found for plaintiff but awarded her only the amount of her property damage. We are therefore, under the rule of the Shipley case, unable to say that the verdict in favor of the plaintiff, Nina R. Coakley, in the amount of $1,000.00 is inadequate and the judgment rendered in her favor for that amount is affirmed. It has been said many times that this Court has no authority to substitute its opinion as to what a verdict should be for that of the jury in such cases.
This Court reaches a different conclusion as to the jury's finding that W.B. Coakley, the husband of Nina R. Coakley, is entitled to nothing in the premises. The claim of W.B. Coakley is, of course, derivative and dependent upon the right of recovery of his wife. As it was undisputed that Mrs. Coakley had no estate of her own other than the ownership of the car involved, W.B. Coakley was, in law, primarily responsible for his wife's medical care and treatment. The jury having found by their verdict in favor of Mrs. Coakley that the defendant was liable for the accident and plaintiff's injury, if any, W.B. Coakley thereupon became entitled as a matter of law to recover of the defendant the amount of the necessary medical bills and other expenses incurred in behalf of his wife. It was stipulated that a medical bill in the amount of $11.00, submitted by Dr. James R. Glasscock, was necessary and reasonable for the care and treatment of Nina R. Coakley as a result of the accident. It is true that other medical bills and expenses in the approximate amount of $1,300.00 were disputed as to having been proximately incurred by the accident but the jury, having found in favor of Nina R. Coakley and awarded her the sum of approximately $800.00 for pain and suffering as a result of the accident, was not at liberty to disregard the plain instruction of the court that "If you find for the plaintiff, Nina R. Coakley, you will be required also to consider the damages of the plaintiff, W.B. Coakley, and shall find for him the cost of medical care and hospital treatment for his wife. * * * " and find nothing for W.B. Coakley. Especially is this true in view of the stipulation that a medical bill of at least $11.00 was a direct result of the accident. It might be argued that the maxim "de minimis non curat lex" applies and that we should not reverse the judgment as to W.B. Coakley on that ground. "De minimus" means that the law does not care for small things and has always been taken to mean trifles, that is, matters of a few dollars or less and, if it could be said conclusively that only the amount of $11.00 is involved, this would be true. However, in view of the approximately $800.00 award to Nina R. Coakley over and above her property damage, we cannot say that W.B. Coakley's losses are limited to the amount expressly stipulated and the disparity between the verdicts as to the plaintiffs makes it apparent that in denying any recovery to W.B. Coakley the jury was influenced in their conclusion by some mistaken view of the case. "A verdict which disregards the instructions of the court or constitutes a mistake and by virtue thereof does not cover the actual pecuniary loss properly proved will be set aside." Syl. Pt. 3, Richmond v. Campbell, 148 W.Va. 595, 136 S.E.2d 877. The judgment in favor of the defendant as against W.B. Coakley must therefore be reversed and the verdict against him set aside.
In view of our decision that we are unable to disturb the verdict as to Nina R. Coakley, which is conclusive upon the question of liability, the only error in the case is the finding of the jury that W.B. Coakley recover nothing in the premises and the question arises as to the scope of a new trial necessary to afford the requisite relief. " 'Rule 59(a), R.C.P., provides that a new trial may be granted to any of the parties on all or part of the issues, and in a case where the question of liability has been resolved in favor of the plaintiff leaving only the issue of damages, the verdict of the jury may be set aside and a new trial granted on the single issue of damages.' Point 4, syllabus, Richmond v. Campbell, 148 W.Va. 595, 136 S.E.2d 877." Point 1, syllabus, Hall v. Groves, W.Va., 153 S.E.2d 165. In discussing this rule in the Hall case, Judge Haymond said: "Though the general rule is that a new trial when granted is awarded for the entire case, Moss v. Campbell's Creek Railroad Company, 75 W.Va. 62, 83 S.E. 721, L.R.A. 1915C 1183, this Court has held in several cases, before the West Virginia Rules of Civil Procedure were adopted and became effective, that a new trial, limited to a separate and distinct issue, may be granted at the instance of any party to an action. Stone v. United Fuel Gas Company, 111 W.Va. 569, 163 S.E. 48; Auto Sales Company v. Yost, 91 W.Va. 493, 113 S.E. 758; Taylor v. Sturm Lumber Company, 90 W.Va. 530, 111 S.E. 481; Chafin v. Norfolk and Western Railway Company, 80 W.Va. 703, 93 S.E. 822; Moss v. Campbell's Creek Railroad Company, 75 W.Va. 62, 83 S.E. 721, L.R.A. 1915C 1183."
The judgment is affirmed as to Nina R. Coakley but reversed as to W.B. Coakley, the verdict against him set aside, and the case is remanded to the Circuit Court of Webster County for a new trial on the single issue of the damages sustained by W.B. Coakley.
Affirmed in part; reversed in part; and remanded with directions.