Clark v. Black

• Decision Date: 27 August 1993
• Citation: Clark v. Black, 630 So.2d 1012 (Ala. 1993)
• Parties: Michael E. CLARK, et al. v. Tommie Maddox BLACK. 1920240.
• Court: Alabama Supreme Court

Page 1012

630 So.2d 1012

Michael E. CLARK, et al. v. Tommie Maddox BLACK.

1920240.

Supreme Court of Alabama.

Aug. 27, 1993.

As Modified on Denial of Rehearing

Jan. 7, 1994.

Harry M. Renfroe, Jr. of Mountain & Renfroe, Tuscaloosa, for appellants.

Wilbor J. Hust, Jr. of Zeanah, Hust, Summerford and Davis, Tuscaloosa, for appellee.

ADAMS, Justice.

Michael Clark, a minor, and his parents, Tillman and Carolyn Clark, appeal from a judgment based on a jury verdict in their favor and against Tommie Black in the Clarks' action seeking compensation based on personal injuries incurred in an automobile-motorcycle accident. We reverse and remand.

On August 24, 1990, Michael Clark was injured when the motorcycle he was driving collided in the intersection of Union Chapel Road and Watermelon Road, in the vicinity of Tuscaloosa, Alabama, with an automobile driven by Tommie Black. On December 4, 1990, Michael, by and through his parents as next friends, and his parents, individually, sued Black in the Tuscaloosa County Circuit Court. The complaint sought compensation for physical and mental suffering, loss of services and society, and medical expenses, based on alleged negligence; it sought punitive damages, based on alleged wantonness.

The trial began before a jury on July 24, 1992. The trial judge directed a verdict for Black on the claims alleging wantonness. On the claims alleging negligence, the jury returned the following verdict:

"We, the jury, find the issues in favor of the plaintiffs Michael Clark, a minor, Carolyn Clark, and Tillman Clark and against the defendant, Tommie Maddox Black, and assess plaintiffs' damages as follows:

"Michael Clark $ 5,000.00 Past Damages

$ 15,000.00 Future Damages

"Carolyn Clark $ 0

"Tillman Clark $ 0 "

Subsequently, the Clarks moved for a new trial, setting forth the following grounds:

"1. Extraneous facts were introduced into the jury's deliberation and were processed and/or used and relied upon by the jury in reaching its decision....

"2. The amount awarded to Michael E. Clark for past damages, $5,000.00, was inadequate as a matter of law. The amount awarded to Michael E. Clark for future damages, $15,000.00, was inadequate as a matter of law....

"3. The jury's verdict in favor of Michael, Tillman, and Carolyn Clark with an award of damages to Michael Clark but without an award of damages to Tillman and Carolyn Clark constitutes an inconsistent verdict as a matter of law.

"4. The trial court erred in not allowing testimony from the plaintiffs about their lost wages and income resulting from the collision which forms the basis of this suit....

"5. The trial court erred in allowing evidence and testimony that the ... medical expenses resulting from this collision were paid by insurance....

"6. The trial court erred in charging the jury on contributory negligence rather than comparative negligence under either of the proposed comparative negligence instructions submitted by the plaintiffs."

From the denial of this motion, the Clarks appealed. ¹ On appeal, they contend that (1) the trial court erred in directing a verdict for the defendant on the wantonness claim, and (2) that the verdict, in which the jury found for all the plaintiffs but awarded the parents no damages, was inconsistent, and, therefore, invalid.

I. Directed Verdict

Black directs this Court's attention to the fact that the Clarks' motion for a new trial contained no allegation that the trial judge erred in directing a verdict for Black on the wantonness claims. She contends that because the Clarks' appeal is from the order denying their motion for a new trial, the issue whether the trial court erred in directing a verdict in her favor has not been preserved for appellate review. For this proposition, she cites a rule expressed in State v. Ward, 293 Ala. 516, 306 So.2d 265 (1975): " 'Where the appeal is from the ruling on the motion for a new trial, that ruling is the only matter which is subject to review on appeal, and assignments of error relating to rulings in the trial itself will not be considered unless they were included in the motion for a new trial.' " 293 Ala. at 517, 306 So.2d at 266 (emphasis added) (quoting Water Works & Sanitary Sewer Board v. Norman, 282 Ala. 41, 208 So.2d 788 (1968)).

The rule expressed in State v. Ward was once well established in this state. Jones v. Strange, 289 Ala. 76, 265 So.2d 860 (1972); State v. Moore, 269 Ala. 20, 110 So.2d 635 (1959); Shaw v. Knight, 212 Ala. 356, 102 So. 701 (1925); Karter v. Peck & Bro., 121 Ala. 636, 25 So. 1012 (1899); and City of Mobile v. Murphree, 96 Ala. 141, 11 So. 201 (1892). In Jones v. Strange, for example, Strange sued Gateway Sporting Goods ("Gateway"), G.E.S. Stores, Inc. ("G.E.S."), Allen Jones, and other persons, seeking compensation for malicious prosecution. The trial court granted G.E.S.'s motion for an affirmative charge, but submitted the claims against Gateway to the jury. The jury returned a verdict for Strange.

Strange moved for a new trial of his claims against G.E.S. and Jones. The trial court granted Strange's motion as to Jones, but denied it as to G.E.S. Holding the propriety of the affirmative charge to be unreviewable, this Court stated:

"The only grounds asserted by appellant Strange in his motion for a new trial as to defendant G.E.S. is in the following language:

" '1. For that the verdict of the jury was inconsistent and contrary to the law and evidence before the Court insofar as said verdict acquitted the Defendant, G.E.S. Stores, Inc., a corporation.'

"....

"Having failed, in his new trial motion, to complain of the action of the trial court in giving defendant G.E.S. the general affirmative charge, and the appeal being from [the] ruling on [the] motion for new trial, there is nothing for this court to review with respect to this assignment of error."

289 Ala. at 80, 265 So.2d at 863.

Unquestionably, the rule applied in Jones would preclude our review of the directed verdict in this case. The scope of that rule, however, has been considerably narrowed by the Rules of Appellate and Civil Procedure, a fact first noted in Reach v Reach, 378 So.2d 1115, 1116-17 (Ala.Civ.App.1979), cert. denied, 378 So.2d 1118 (Ala.1980). In that case, which involved an appeal from a judgment increasing an award of child support, the Court of Civil Appeals stated:

"As a preliminary matter we note that the wife contends this court is limited in its scope of appellate review to those matters contained in the order from which the husband appealed, i.e., the order denying his motion for a new trial. It is argued that because the husband designated that he was appealing from this order in his notice of appeal, such designation precludes appellate inquiry into other matters which, although properly preserved as error below, were not asserted as grounds for reversal in the motion for a new trial. Although this was once the law of Alabama, see State v. Ward, 293 Ala. 516, 306 So.2d 265 (1975), under our Rules of Appellate Procedure, it is not so today.

"Rule 3(c), ARAP, expressly requires, among other things, that the notice of appeal designate the judgment, order, or part thereof appealed from. However, the rule further provides that 'such designation of judgment or order shall not ... limit the scope of appellate review.' ... [I]n addition, pursuant to Rule 4(a)(3), any error which was asserted in the trial court may be raised on appeal without regard to whether such error was raised by post trial motion. Rule 4(a)(3), ARAP."

(Emphasis added.) This Court later agreed with the conclusion and rationale of Reach, qualifying it only to say that "[e]xcept in rare instances (e.g., sufficiency of the evidence ), errors asserted at trial may be raised on appeal without regard to whether such errors were raised, or whether adverse rulings were invoked, in the motion for new trial." McGough v. Slaughter, 395 So.2d 972, 975 (Ala.1981) (emphasis added).

The issue, therefore, may be stated as whether the plaintiffs, who in a motion for a new trial challenged, on grounds of inadequacy and inconsistency, a favorable jury verdict on their negligence claims, failed to preserve for appellate review the propriety of the trial court's action in directing a verdict for the defendant on the wantonness claim, by omitting to include in their motion for a new trial a ground that would require the trial judge to revisit the issue of the sufficiency of the evidence of wantonness. More briefly stated, does this case fall within McGough's parenthetical qualification? To resolve this issue, we must briefly review the rule that requires a party, as a prerequisite to appellate review, to present the trial judge with an opportunity to revisit the issue of the sufficiency of the evidence in a post-trial motion, and the rationale on which that rule is based.

A party initially tests the sufficiency of the evidence on a material factual issue by moving for a directed verdict on that issue. Coburn v. American Liberty Ins. Co., 341 So.2d 717 (Ala.1977). "In a doubtful case the court may prefer to deny the motion for a directed verdict, [choosing, instead, to consider an] attack on the sufficiency of the evidence subsequently on motion for judgment n.o.v." Ala.R.Civ.P. 50, committee comments. Indeed, "[w]henever a motion for a directed verdict ... is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion." Rule 50(b) (emphasis added).

"This course gives the court more time to consider the matter[;] the verdict of the jury, if in accord with the judge's own ideas as to the sufficiency of the evidence, may settle the matter, and after verdict the court may grant a new trial on the ground that the verdict is contrary to the great weight of the evidence, instead of directing judgment."

Rule 50, committee comments.

This procedure...