Champion Home Builders v. Shumate, 8895-8897.

• Decision Date: 18 July 1967
• Docket Number: No. 8895-8897.,8895-8897.
• Citation: 388 F.2d 806
• Parties: CHAMPION HOME BUILDERS and Roger L. Hickman, Appellants, v. Leona J. SHUMATE, Appellee. CHAMPION HOME BUILDERS and Roger L. Hickman, Appellants, v. Susan Gail SHUMATE, etc., Appellee. CHAMPION HOME BUILDERS and Roger L. Hickman, Appellants, v. Michael G. PIPER, etc., Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

388 F.2d 806 (1967)

CHAMPION HOME BUILDERS and Roger L. Hickman, Appellants, v. Leona J. SHUMATE, Appellee.

CHAMPION HOME BUILDERS and Roger L. Hickman, Appellants, v. Susan Gail SHUMATE, etc., Appellee.

CHAMPION HOME BUILDERS and Roger L. Hickman, Appellants, v. Michael G. PIPER, etc., Appellee.

Nos. 8895-8897.

United States Court of Appeals Tenth Circuit.

July 18, 1967.

COPYRIGHT MATERIAL OMITTED

Glenn J. Shanahan, Wichita, Kan. (Dale M. Bryant and Morris H. Cundiff, Wichita, Kan., on brief), for appellants.

John W. Brimer, Wichita, Kan. (William P. Higgins, Wichita, Kan., on brief), for appellees.

Before JONES^*, SETH and HICKEY, Circuit Judges.

HICKEY, Circuit Judge.

The only issue in this tort action is the amount of damages awarded as compensation to persons and property injured in a rear-end collision at a stop sign on a public highway in Kansas. Appellant herein confessed liability on the part of its driver, and appellees proceeded to introduce evidence of the personal and property damages sustained as a result of the collision. The jury awarded damages to all the appellees for their personal injuries and awarded damages to appellee Piper for damage to his motor vehicle.

After judgment had been given upon the verdicts, appellant moved for a new trial on the grounds that the verdicts were contrary to the evidence and the law, were excessive, and had been given under the influence of passion and prejudice. The trial court overruled the motion. Appellants charge as error the trial court's failure to grant a new trial. The cases are consolidated by order for the purposes of this appeal.

Turning first to the questions relative to the evidence adduced in the trial of the case, we are cognizant of the rule, "A motion for a new trial on the ground that the verdict of the jury is against the weight of the evidence is normally one of fact and not of law and is addressed to the discretion of the trial court and the decision of the trial court on such a motion will not be reviewed in the absence of a showing of abuse of discretion." Locke v. Atchison, Topeka and Santa Fe Railway Company, 309 F.2d 811, 817 (10th Cir. 1962).

The standards used to show abuse of discretion have been established by this court. "In order to justify a court in setting aside the verdict of a jury, the verdict must be clearly, decidedly, or overwhelmingly against the weight of the evidence." Locke v. Atchison, Topeka and Santa Fe Railway Company, supra.

"In reviewing the record, we are mindful that the jury verdict must not be preempted unless it has no basis in fact. Insufficiency of the evidence is a ground for directing a verdict or granting a new trial Citations omitted. But, as we said in United States v. Hess, 10 Cir., 341 F.2d 444, `* * * to be insufficient to support a verdict, the evidence must all be one way from which only one reasonable inference can be drawn.' In this regard, the evidence must be viewed in a light most favorable to the party against whom a motion is made and he must be given the benefit of all inferences fairly drawn therefrom. Citation omitted." United States v. Fenix and Scisson, Inc., 360 F.2d 260, 262 (10th Cir. 1966).

The testimony of the appellees identified their personal injuries, established that the injuries occurred at the time of the collision, and explained the pain and discomfort suffered by appellees during the eighteen month period between the time of the collision and the date of trial.

The medical testimony relative to the damages sustained by Leona Shumate identified her injury as a back and neck sprain. A neurological residual from her neck sprain causes the pupil of her left eye to become larger and the eyelid droops. The record discloses she suffered pain, with no apparent relief, from July 1964 through December 1965 and that she still suffers from pain and discomfort. It was stipulated that the cost of medical attention for her was $1,406.38. The jury awarded her $13,500.00 for all of the elements properly considered in a personal injury action. It was further disclosed that Leona Shumate, a housewife approximately aged 43 years, required domestic help to perform the family chores normally accomplished by her prior to the collision. As a result of the collision, she was unable to participate in the normal family recreation and could not provide the normal type of home life formerly enjoyed by her family. The jury awarded $2,500.00 as compensation for this loss.

A teenage daughter of Mrs. Shumate was also injured in the collision. She suffered residual pain and spasm in her neck and lower back resulting from a whiplash injury. Her medical expenses were stipulated as $166.35. The child had been delicate during her entire lifetime and testified that she still suffers pain. The jury awarded $1,700.00 as compensation for her injuries.

Appellee Piper, the owner and operator of the vehicle with which appellant collided, was a young man twenty-one years of age. Mr. Piper suffered a back sprain which aggravated a scoliosis condition of his spine. He suffered pain in the upper center of his back, his neck and shoulder. The residual effects of these injuries were apparent to his employer and required that he be given lighter work. He has continued to suffer from the residual effects during his current employment as a draftsman and this discomfort was elaborately explained by him. The medical expenses for Mr. Piper were stipulated as being $326.50. He was awarded damages in the amount of $7,000.00 as compensation for his injuries.

The evidence recited above, viewed in a light most favorable to the parties...