Busick v. St. John

Decision Date02 October 2003
Docket NumberNo. 2002-CA-01011-SCT.,2002-CA-01011-SCT.
Citation856 So.2d 304
PartiesBeverly D. BUSICK v. Susan I. ST. JOHN.
CourtMississippi Supreme Court

Bill Waller, Sr., Jackson, attorney for appellant.

William W. McKinley, Jr., Jackson, attorney for appellee.


SMITH, Presiding Justice, for the Court.

¶ 1. This personal injury damage action comes to this Court from a take-nothing judgment against the plaintiff, Beverly D. Busick, in the Rankin County Circuit Court where the jury found that the defendant, Susan I. St. John, was not negligent in the two-car accident. Aggrieved by the judgment, Busick appeals to this Court.


¶ 2. This case arises from a two-car accident in a grocery store parking lot on December 12, 1998, in Pearl, Mississippi. Beverly D. Busick, the plaintiff, was driving south in her 1988 Cadillac along the side drive of the parking lot toward U.S. Highway 80. Susan I. St. John, the Defendant, driving in a Toyota Tercel, was attempting to turn from one driveway to that same drive along the side of the parking lot. She stopped at a row of bushes where she planned to turn left. Busick alleges that approximately 100 yards before she reached Highway 80, St. John came out of a driveway from the parking lot without stopping and ran directly in front of her vehicle, causing the accident.

¶ 3. However, St. John contends that because the bushes were overgrown, she inched forward until she could see around the corner and stopped again. St. John testified that, while stopped, she could see Busick's vehicle coming toward her. St. John contends that, despite the fact that Busick had adequate time and adequate distance of approximately 300 feet to avoid her, Busick neither reduced her speed nor did she try to avoid St. John's car. According to St. John, Busick's car collided with her vehicle. Busick testified that she was going 35 mph down a side drive in the parking lot and did not brake until a moment before the collision. Busick submits that she had traveled 300 feet before reaching the side road and had the right-of-way to continue south until she reached Highway 80. Busick argues that the accident occurred on a publicly used parking lot street which was 40 feet wide and terminated at the point where St. John entered without stopping from a 25 feet wide side street.

¶ 4. Busick alleges that the impact of the vehicles caused her to be thrown forward into her steering wheel. She contends that the accident caused injuries to her head, neck and back. As a result, Busick claims to have suffered extensive pain. Busick asserts that the accident caused a disc in her cervical spine to protrude and place pressure on the nerves in her neck causing pain in her shoulder and otherwise disabling her.

¶ 5. The jury returned a unanimous answer in the negative to the following special interrogatory. "Do you find Susan St. John guilty of negligence which proximately caused or contributed to the injuries and/or damages of the Plaintiff?"

¶ 6. The trial court entered final judgment for St. John and denied post-trial motions. Busick appeals.


¶ 7. When the jury has returned a verdict in a civil case, we are not at liberty to direct that judgment be entered contrary to that verdict short of a conclusion on our part that, given the evidence as a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found. Snapp v. Harrison, 699 So.2d 567, 569 (Miss.1997); Starcher v. Byrne, 687 So.2d 737, 739 (Miss.1997); Junior Food Stores, Inc. v. Rice, 671 So.2d 67, 76 (Miss.1996); Bell v. City of Bay St. Louis, 467 So.2d 657, 660 (Miss.1985). "In reviewing a jury verdict, this Court resolves all conflicts of evidence in the appellee's favor and determines all reasonable inferences from testimony given towards the appellee's position. Reversal occurs only where the facts presented are so overwhelming in favor of the appellant's position that reasonable jurors could not have found for the appellee." Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d 149, 151-52 (Miss. 1997) (citations omitted). An essential part of the claim in a personal injury tort case is to demonstrate, not only the extent of the injury, but that the negligence of the defendant was the proximate cause of the injury. Id. Causation is generally to be determined by the jury. Donald v. Amoco Prod Co., 735 So.2d 161, 174 (Miss. 1999). Our standard for review is de novo in passing on questions of law. Miss. Farm Bureau Cas. Ins. Co. v. Curtis, 678 So.2d 983, 987 (Miss.1996); Seymour v. Brunswick Corp., 655 So.2d 892, 895 (Miss. 1995).

¶ 8. Busick argues that the verdict was against the overwhelming weight of the evidence based on the physical facts and the evidence offered by both parties. This Court must resolve all conflicts of evidence in St. John's favor and draw all reasonable inferences from testimony in favor of St. John. The jury chose to believe St. John's evidence which indicates that she acted in a reasonable manner when she pulled forward to gain an unobstructed view of traffic. Further, the jury favored the argument that she did so at a time when Busick's vehicle was not an immediate hazard. Busick testified that she was traveling at a rate of 35 mph in the parking lot and that she did not see St. John nor attempt to stop until a moment before the accident. Randy Taggart, testified about where the cars came to rest after the accident, and his testimony was consistent with St. John's version of the accident. We find no merit to this issue.


¶ 9. The verdict of the jury is to be given great weight. No trial is free of error; however, to require reversal the error must be of such magnitude as to leave no doubt that the appellant was unduly prejudiced. Davis v. Singing River Elec. Power Ass'n, 501 So.2d 1128, 1131 (Miss. 1987); Parmes v. Illinois Cent. Gulf R.R., 440 So.2d 261, 268 (Miss.1983). Where error involves the admission or exclusion of evidence, we will not reverse unless the error adversely affects a substantial right of a party. In re Estate of Mask, 703 So.2d 852, 859 (Miss.1997); Terrain Enters., Inc. v. Mockbee, 654 So.2d 1122, 1131 (Miss.1995). This Court has held that "[t]he standard of review regarding admission [or exclusion] of evidence is abuse of discretion." Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d at 152.

¶ 10. Busick argues that the trial court erred when, over objection, it admitted evidence related to facts and coverage of her health insurance at the time of the accident. St. John argues that this evidence was not offered for the purpose of reducing damages but to impeach Busick's testimony as to the reasons she ceased physical therapy.

¶ 11. The records at issue pertain to Busick's treatment at the Capital Orthopedic Clinic. Those records contain a sentence in which Busick stated that although her health insurance company asked her to settle, she was afraid to do so because of her symptoms. Busick's attorney indicated fear that the jury would interpret this as evidence of her liability insurance. The record indicates that the court required the statement to be redacted.

¶ 12. Busick testified that she was not able to continue physical therapy for injuries caused by the accident because she could not afford it. St. John introduced evidence that Busick had paid only $45 as her part of those medical expenses. Busick contends that it was error to allow St. John to impeach her by eliciting testimony in which she was forced to make reference to payments made by her health insurance provider. However, St. John argues that Busick made no objection to the testimony at the time. Busick's attorney stated that at the time of the statement, he was doing something else and did not hear it until afterwards when his assistant called it to his attention. Busick's attorney requested, in lieu of a motion for a mistrial, that the jury be instructed to disregard the statement. This was done by the trial court. Additionally, the trial court gave a limiting instruction that the testimony could only be used for impeachment and not for the purpose of reduction in damages. Jury Instruction number 16 was given to the jury and stated: "The Court instructs the jury that the fact that the Plaintiff has or had medical and hospitalization insurance cannot be considered by you in awarding damages."

¶ 13. The trial court found that M.R.E. 411, only makes inadmissible proof of a party's liability insurance so that negligence cannot be imputed to that party simply because of the insurance. The judge cited to the second sentence which says that exclusion of evidence of liability insurance is not required when offered for another purpose such as bias or prejudice of a witness. He distinguished the statement because the evidence here concerned medical insurance and because Busick stated earlier that she discontinued therapy because she could not afford it.

¶ 14. The collateral source rule in Mississippi provides that "[compensation or indemnity for the loss received by plaintiff from a collateral source, wholly independent of the wrongdoer, as from insurance, cannot be set up by the [defendant] in mitigation or reduction of damages...." Coker v. Five-Two Taxi Serv., 211 Miss. 820, 826, 52 So.2d 356, 357 (1951) (quoting 25 C.J.S. Damages, § 99). Accord, Baugh v. Alexander, 767 So.2d 269, 272 (Miss.Ct. App.2000)


¶ 15. In McCary v. Caperton, 601 So.2d 866 (Miss.1992), we held that the trial court committed reversible error in allowing the defendant to introduce evidence of McCary's insurance coverage or benefits of sick leave. Id. at 869. We were asked to rule on the issue of whether an impeachment exception...

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