Harvey v. Wall

649 So. 2d 184, 1995 WL 17745
CourtMississippi Supreme Court
DecidedJanuary 19, 1995
Docket91-CA-00973
StatusPublished
Cited by45 cases

This text of 649 So. 2d 184 (Harvey v. Wall) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harvey v. Wall, 649 So. 2d 184, 1995 WL 17745 (Mich. 1995).

Opinion

649 So.2d 184 (1995)

Lawrence Timothy HARVEY
v.
Bonnie B. WALL.

No. 91-CA-00973.

Supreme Court of Mississippi.

January 19, 1995.

*185 Anselm J. McLaurin, McLaurin & McLaurin, Brandon, for appellant.

Robert A. Miller, Watkins & Eager, Jackson, for appellee.

Before HAWKINS, C.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.

ROBERTS, Justice, for the Court:

This appeal comes to us from the Circuit Court of Rankin County, Mississippi, wherein the appellant, Lawrence Timothy Harvey, was granted a peremptory instruction as to liability against Bonnie Wall and was awarded $5,300.00 for personal injuries received as a result of an automobile accident. Feeling aggrieved with the amount of the award, Harvey appeals to this Court asserting the following errors:

I. THE VERDICT OF THE JURY IS CONTRARY TO THE OVERWHELMING WEIGHT OF THE CREDIBLE EVIDENCE, OR IS THE RESULT OF BIAS PREJUDICE OR PASSION ON THE PART OF THE JURY.
II. THE TRIAL COURT ERRED IN REFUSING TO GRANT HARVEY AN ADDITUR, OR IN THE ALTERNATIVE, A NEW TRIAL AS TO DAMAGES ONLY.

STATEMENT OF THE FACTS

On November 20, 1989, Lawrence Timothy Harvey (Harvey) was in his father's 1989 Mazda pickup truck traveling west on Barrow Street in Pearl. At the same time, Bonnie Wall (Wall) and her one year old daughter, Hannah, were in Wall's car traveling south on Louisa Street when she ran the stop sign at the intersection of those two streets and collided with Harvey's truck.

Both vehicles wound up in a yard and were totaled in the accident. Hannah sustained a bruise on her head and was treated at the hospital, but was not kept overnight. Harvey testified that he was knocked unconscious and that when he regained consciousness his left knee hurt and he had cuts on his forehead and face where he had hit the passenger *186 door of the truck. Harvey was taken by ambulance to Rankin General Hospital where the cuts were treated and his leg was x-rayed. He was given pain medication and sent home.

Harvey testified that prior to the accident he was in good health, had no knee problems and ran three miles per day. He continued to have pain in his knee after the accident, so he went to see Dr. Edgar Bobo who recommended he visit Dr. McWillie Robinson at the Bone and Joint Clinic. Dr. Robinson, an orthopedic surgeon, x-rayed Harvey's knee and gave him a prescription for pain medication. In February 1990, he saw Dr. Barrett, another orthopedic surgeon. Dr. Barrett did a magnetic resonance imagining (MRI) scan on Harvey's leg which read as normal, showing no tears in the cartilage or the ligaments. Since Harvey had experienced pain for several months it was decided that Dr. Barrett would perform an arthroscopic examination of the knee. The surgery was performed as an out-patient procedure at River Oaks Hospital.

Dr. Barrett testified at deposition that he did not find much other than the soft tissue lining of the knee was slightly irritated. Another MRI was done a week before the trial and again it was normal. Dr. Barrett believed that Harvey's problem was that "the knee cartilage which is the spacer between the bones, the whole thing is popping in and out. It is not a tear in it but it is just popping in and out. It is kind of irritating the tissue." Dr. Barrett estimated that Harvey had a ten percent impairment of the left leg and there would probably be some pain associated with it in the future. He stated that Harvey would need to exercise the knee at home for the rest of his life. He prescribed a brace for the knee which Harvey continued to wear at the time of trial. Dr. Barret could not remember placing any limitations on Harvey's activities. Dr. Barrett did not testify that Harvey's knee problems were a result of the accident. He stated that he had seen this type of membrane irritation in runners who ran as often as Harvey testified he ran before the accident.

At the time of the accident Harvey was nineteen years old, he was a nursing student at Hinds Community College and worked part-time at Service Drugs. He estimated that because of the accident he missed one hundred forty-six (146) hours of work at four dollars ($4.00) per hour. At the time of trial Harvey was still a student and he worked part-time at University Medical Center as an anesthesia technician. He stated that he could no longer run or exercise like he had in the past and that his knee hurt when he had to stand for long periods of time as was required in his job. Harvey stated that he joined a health club in order to do his exercises so he would not have to drive to Jackson to see his therapist. Dr. Barrett testified that the exercises he prescribed for Harvey could be done at home.

Harvey's mother, Wanda Harvey, testified that after the accident Harvey was given medication for pain and that he had to stay home for a couple of weeks. She stated that prior to the accident Harvey ran frequently, but that he could no longer do so. Mrs. Harvey testified that Harvey still had pain from time to time.

Harvey presented into evidence hospital, doctor and prescription drug bills in an amount aggregating $4,695.20. He also stated that he lost wages in the amount of $584.00 (i.e. 146 hours X $4.00/hour). Harvey's medical bills plus his lost wages amounted to a total of $5,279.20, $20.80 short of the jury's award of $5,300.00.

DISCUSSION

Harvey argues that the jury's award of $5,300.00, an amount which exceeded the total of his lost wages and claimed medical expenses by only $20.80, was so inadequate as to be against the overwhelming weight of the credible evidence and a result of bias, passion or prejudice on the part of the jury. He goes on to argue that since the award was so unreasonable, it was error for the trial court to deny him an additur or alternatively, a new trial on the issue of damages.

Wall contends the jury verdict was not inadequate because the jury could have found at least $554.55 of Harvey's alleged medical expenses were not reasonable and necessary. If the jury did decide certain damages alleged *187 by Harvey were not reasonable, as Wall maintains, then this would mean the $5,300.00 jury verdict could have included up to $575.35 for Harvey's pain and suffering and the impairment to his leg.

This Court applies the abuse of discretion standard of review when determining whether a trial court erred in refusing an additur or a new trial. Rodgers v. Pascagoula Public School District, 611 So.2d 942, 945 (Miss. 1992); Odom v. Roberts, 606 So.2d 114, 118 (Miss. 1992); Motorola Communications & Electronics, Inc. v. Wilkerson, 555 So.2d 713, 723 (Miss. 1989). It is primarily the province of the jury to determine the amount of damages to be awarded and the award will normally not "be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous." Rodgers, 611 So.2d at 945. The party seeking the additur must prove his injuries, damages and loss of income. In deciding if the burden has been met, we must look at the evidence in the light most favorable to the party in whose favor the jury decided, granting that party any favorable inferences that may reasonably be drawn therefrom. Miss. Code Ann. § 11-1-55 (Supp. 1994); Rodgers at Id.; Green v. Grant, 641 So.2d 1203, 1207-08 (Miss. 1994); Odom, 606 So.2d at 114; Copeland v. City of Jackson, 548 So.2d 970, 974 (Miss. 1989);

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Bluebook (online)
649 So. 2d 184, 1995 WL 17745, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harvey-v-wall-miss-1995.