Johnson v. Garlow

478 S.E.2d 347, 197 W. Va. 674, 1996 W. Va. LEXIS 153
CourtWest Virginia Supreme Court
DecidedOctober 11, 1996
DocketNo. 23297
StatusPublished
Cited by1 cases

This text of 478 S.E.2d 347 (Johnson v. Garlow) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Garlow, 478 S.E.2d 347, 197 W. Va. 674, 1996 W. Va. LEXIS 153 (W. Va. 1996).

Opinion

PER CURIAM:

The plaintiffs below and appellants herein, Virginia Johnson and James Wilson Johnson, her spouse, appeal the denial of their post-trial motion for judgment notwithstanding the verdict or for a new trial. The plaintiffs filed this action seeking to recover damages for personal injuries attributed to an automobile accident involving the defendant below and appellee herein, Eugene Garlow. The defendant stipulated to liability and certain medical expenses, but the jury did not award any damages to the plaintiffs. During post-trial proceedings, the trial court granted plaintiffs an additur for the stipulated medical expenses. The plaintiffs now seek a new trial on the issue of damages above the trial court’s additur.

I.

FACTUAL AND PROCEDURAL HISTORY

The facts of this case are not in dispute. On December 8, 1989, the defendant was traveling in snowy weather eastward on Route 60 near St. Albans, when his car went into a skid and rear-ended a car being driven by Virginia Johnson.1 As a result of the collision, Mrs. Johnson was taken to the emergency room at Thomas Memorial Hospital, where she was treated for pain in her neck, shoulder, left wrist, and head. Mrs. Johnson was released from the hospital within hours after her arrival. The day following the accident Mrs. Johnson visited Charleston [677]*677Area Medical Center complaining of headaches and back pains. She was given pain medication and sent home.

In 1991, the plaintiffs filed the instant suit. Mrs. Johnson alleged she incurred medical expenses of approximately $21,003.81, due to the accident with the defendant. Mr. Johnson joined the suit seeking to recover for loss of consortium. The case went to trial on March 13, 1995. Prior to the start of trial, the plaintiffs moved in limine to preclude any testimony regarding past civil suits by them.2 The trial court granted the motion and ordered that no questions were to be asked of witnesses regarding prior lawsuits by the plaintiffs. However, based upon an argument by the defendant that Mrs. Johnson failed to disclose in discovery interrogatories that she filed lawsuits in 1972 and 1983, the trial court indicated the defendant could impeach the plaintiff by asking her whether she falsely answered a discovery interrogatory. Additionally, the trial court held the defendant could question Mrs. Johnson regarding inconsistent statements involving prior neck injury claims, without mentioning the underlying lawsuits.

Several times during the trial, the plaintiffs moved for a mistrial due to alleged violations by the defendant of the trial court’s order that no testimony of prior lawsuits be elicited. The trial court denied each such motion. At the close of all the evidence, the jury was instructed that the parties had stipulated that the defendant was 100 percent at fault in causing the accident; that the initial emergency room treatment and followup visits were reasonable (an admission of liability for $1,244 only); and that the jury was to return verdicts on several damage questions propounded in the verdict form. The jury returned with a damage verdict for the defendant. However, the trial court amended the verdict and awarded the plaintiffs the stipulated medical cost of $1,244, plus interest, which totaled an additur of $1,897.11. The plaintiffs assign as error the trial court’s denial of their mistrial motions and their post-trial motion for judgment notwithstanding the verdict3 or for a new trial on damages above the additur.

II.

DISCUSSION

We start out by noting that in Syllabus Point 2 of Young v. Duffield, 152 W.Va. 283, 162 S.E.2d 285 (1968), overruled on other grounds, Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995), we stated:

“ ‘It takes a stronger case in an appellate court to reverse a judgment awarding a new trial than one denying it and giving judgment against the party claiming to have been aggrieved.’ Point 1, Syllabus, The Star Piano Co. v. Brockmeyer, 78 W.Va. 780[, 90 S.E. 338 (1916) ].”

[678]*678As stated in Syllabus Point 4 of Young v. Duffield, supra, we have long held that:

“An appellate court is more disposed to affirm the action of a trial court in setting aside a verdict and granting a new trial than when such action results in a final judgment denying a new trial.”

Additionally, “‘“[wjhere a verdict does not include elements of damage which are specifically proved in uncontroverted amounts and a substantial amount as compensation for injuries and the consequent pain and suffering, the verdict is inadequate and will be set aside. Hall v. Groves, 151 W.Va. 449, 153 S.E.2d 165 (1967).” King v. Bittinger, 160 W.Va. 129, 231 S.E.2d 239, 243 (1976).’ Syllabus Point 1, Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983).” Syl. Pt. 2, Maynard v. Napier, 180 W.Va. 591, 378 S.E.2d 456 (1989); We indicated in Syllabus Point 3 of Walker v. Monongahela Power Company, 147 W.Va. 825, 131 S.E.2d 736 (1963) that:

“In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.”4

In addressing the issue of a motion for mistrial, we have held in Syllabus Point 9 of Board of Education of McDowell County v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990):

“ “Whether a motion for a mistrial should be sustained or overruled is a matter which rests within the trial court’s discretion and the action of the trial court in ruling on such a motion will not be cause for reversal on appeal unless it clearly appears that such discretion has been abused.’ Syllabus Point 4, Moore, Kelly & Reddish, Inc. v. Shannondale, Inc., 152 W.Va. 549, 165 S.E.2d 113 (1968).”

The first contention raised by the plaintiffs is that during jury selection and periodically during the course of the trial, counsel for the defendant would speak extremely loud during bench conferences to the extent that the jury could hear matters pertaining to the trial court’s in limine ruling on prior litigation by the plaintiffs. In Syllabus Point 5 of State v. Davis, 180 W.Va. 357, 376 S.E.2d 563 (1988), we stated:

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Bluebook (online)
478 S.E.2d 347, 197 W. Va. 674, 1996 W. Va. LEXIS 153, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-garlow-wva-1996.