Brake v. Speed

• Decision Date: 22 July 1992
• Docket Number: No. 89-CA-14,89-CA-14
• Citation: 605 So.2d 28
• Parties: Wilnetia BRAKE v. Sally SPEED.
• Court: Mississippi Supreme Court

Page 28

605 So.2d 28

Wilnetia BRAKE v. Sally SPEED.

No. 89-CA-14.

Supreme Court of Mississippi.

July 22, 1992.

Jim Davis Hull, Moss Point, for appellant.

James W. Backstrom, Bryan Nelson Schroeder Backstrom Castigliola & Banahan, C. Michael Lanford, Pascagoula, for appellee.

EN BANC.

BANKS, Justice, for the Court:

Wilnetia Brake (Brake) asks this Court to address familiar principles of tort law made problematic because of the factual scenario to which she attempts to apply them. She was involved in two accidents within a six-month time period, and she sustained injuries in both. The first accident was caused by the negligence of the defendant here involved, Sally Speed (Speed). Brake maintains that the two accidents resulted in a single, indivisible injury to her neck and back, and that Speed, according to principles of joint and several liability, was responsible for the entire injury. Finding Brake's arguments with regard to this and other points raised without merit, we affirm.

I.

On March 7, 1986, Brake was operating a vehicle which was hit in the rear by a car being driven by Speed. ¹ On September 19, 1986, Brake was injured again when the car she was operating was hit broadside. On September 18, 1987, Brake filed a complaint in the Circuit Court of Jackson County against Speed, claiming that she sustained injury to her lower back, right hip and leg. These injuries caused her to experience headaches, paravertebral muscle spasms of the neck and upper thoracic spine, and extreme nervousness. She claimed that she was unable to work because of the injuries and lost $21,153 in income.

The case against Speed proceeded to trial and at the conclusion the jury returned a verdict for Brake, assessing her damages at $5,600. An order overruling motion for new trial was entered November 28, 1988. Aggrieved, Brake appeals to this Court, presenting the following issues for our review and decision:

1. Whether the trial court erred in refusing to grant an instruction directing the jury to assess Speed for the entire amount of damages suffered where it could not distinguish the injuries arising out of first accident from those arising out of the second accident;

2. Whether the trial court erred in allowing the jury to be informed that Brake had filed a lawsuit arising out of the second accident making the same or similar injury claims;

3. Whether the court erred in refusing to grant an additur; and

4. Whether the court erred in refusing to conduct a hearing to determine whether certain jurors were improperly influenced.

II.

There was no issue of liability at trial and the sole question to be determined was the amount of damages suffered by Brake as a result of Speed's negligence. Brake testified that prior to March 7, 1986, the date of the first accident, she worked as a sales representative for Watch-It Publications. She stated that at the time of the collision, she was earning approximately $165 per week. Brake could not verify this salary because she had not filed any tax returns since 1983. She stated that although her employers withheld income taxed from her, she never received any W-2 forms. Brake recalled that she had been working for Watch-It Publications only for a couple of months at the time of the March accident.

Minutes before the collision, Brake was stopped at a traffic light. She had been at the light only a couple of minutes when she heard brakes screeching and glanced up. At that second, the rear of her vehicle was hit. Brake stated that she was thrown all around, the steering wheel pressed against her arms and shoulders, and her head went forward and backwards. She made two small attempts to get out of the car. Brake testified that Speed told her:

Don't move. You've got to be hurt. You're hurt. Oh, my God, don't move. Don't move. You have to be hurt. You got the full impact of me hitting you. I'm sorry. Just don't move. Don't move. You got the full impact of me hitting you going 55 miles an hour.

The first thing Brake noticed after the accident was excruciating pain in her neck, back and stomach.

The collision was investigated by Jimmy O'Banner, (O'Banner) of the Mississippi Highway Patrol. During his investigation, O'Banner talked to Brake and Speed; neither reported any injuries to him. In fact, he marked "no injury" on the accident report for both Brake and Speed. On cross-examination, however, O'Banner stated that at the time of the accident, he thought that Brake was in shock. He stated that he offered Brake an ambulance several times, but she declined. The officer only let her leave the scene because she promised that she would go to the emergency room later that night. Based on his observation of the scene of the accident, he surmised that Brake sustained a rear-end whiplash type injury.

At the conclusion of the investigation, Brake drove her car home. She testified that the car she was driving was her daughter's car and it was "totalled" ² in the accident. Upon arriving home, she felt weak, was having cramps in her fingers and feet and experiencing difficulty in breathing. Later that night, Brake was treated in the emergency room of Singing River Hospital in Pascagoula, Mississippi.

Approximately three days after the collision, Brake sought treatment from a chiropractor, Dr. Alan Netherland, whose procedure, she said, afforded her some relief from pain and discomfort. Although she continued to see Dr. Netherland, Brake did not think that her condition improved during the four or five months of treatments from Dr. Netherland before the second collision.

Brake was still under chiropractic care at the time of the second accident on September 19, 1986. In fact, she was returning from Dr. Netherland's office when the car she was driving was hit by a car driven by James Johnson (Johnson). Brake testified that the second accident had little or no comparison to the first--"[i]t was just--it was from the side and just slightly." Her car sustained damage to the passenger door and front end.

Brake felt some pain and discomfort from the collision, but thought that this second accident primarily aggravated her existing problems. Her son and a neighbor's daughter were with her at the time of the collision. All three were transported to the emergency room of Singing River Hospital because Brake thought everyone should be examined. They were treated and released. The emergency room physician suggested that Brake contact Dr. Netherland, who examined and treated her on the night of this second collision.

Brake continued to experience pain in the same areas where she hurt after the first accident. Also, she kept seeing Dr. Netherland, who basically administered the same treatments as before. Dr. Netherland stated that he treated Brake many times since the first accident and was still treating her at the time of trial. He testified that the September accident aggravated the condition existing as a result of the March accident. He found the latter collision was more a disturbance than a traumatic injury. Further, it was his opinion that before the second accident, Brake had recovered considerably. In fact, on cross-examination, he testified that on the three visits prior to the September accident, Brake had no complaints of neck pain and her condition was generally improved.

The chiropractor stated that the injuries would restrict Brake's ability to work and/or to perform normal household duties. He also testified that arthritic changes will occur, sclerosis will interfere with nerve irritation and produce pain. He opined that Brake will need treatment for the rest of her life.

As a result of injuries received in the September accident, Brake sued Johnson. After this second collision, in addition to chiropractic treatment, Brake saw a number of medical doctors and underwent a battery of tests. She testified that the total amount of medical bills for treatment of injuries after March 7, 1986, was $11,560.

Speed sought to show that Brake was suing her for the same injuries that she claimed were made by and for which she used Johnson. Brake's testimony on cross-examination established that several of the claims she was making against Speed were also claimed against the tortfeasor from the September accident.

Speed was called to testify in her own behalf. She observed that after the collision, she asked Brake if she was hurt. She stated that Brake was upset about damaging her daughter's car. In her estimation, Brake did not appear to have any abnormal movement. Speed remembered that Brake mentioned that her stomach was hurting, but she did not hear Brake complain about neck or back pain.

III.

Brake argues that the court erred in refusing to grant instruction P-4(A). She maintained that the evidence indicated that Speed and Johnson were both tortfeasors whose negligent actions contributed and combined to cause a single individual injury to Brake. Speed responds that the court properly refused the instruction since it was not a correct statement of law because Speed was neither a co- nor joint tortfeasor and was thus not subject to joint and several liability for damages not caused by her. Instruction P-4(A) read,

The court instructs the jury that it is not necessary that the negligence of the operator of a motor vehicle be the sole cause of an injury in order to make the operator of the vehicle liable for that injury. It is sufficient that the operator's negligence, concurring with some other cause, proximately caused the injury.

Where successive negligent acts or omissions of two persons, although acting independently of each other, are, in combination the direct proximate cause of a single injury to a third person, and it is not possible to determine in what proportion each contributed to the injury, each negligent person is liable for the entire injury, even though that person's act alone might not have caused the entire injury or the same damage might have resulted from the act of...