Clark v. Viniard By and Through Viniard, 59361

• Decision Date: 30 August 1989
• Docket Number: No. 59361,59361
• Citation: 548 So.2d 987
• Parties: Cleo K. CLARK v. Samuel Craig VINIARD, a Minor, By and Through his Friends, Legal and Natural Guardians, Danny Ray VINIARD and Doris Viniard.
• Court: Mississippi Supreme Court

Page 987

548 So.2d 987

Cleo K. CLARK v. Samuel Craig VINIARD, a Minor, By and Through his Friends Legal and Natural Guardians, Danny Ray VINIARD and Doris Viniard.

No. 59361.

Supreme Court of Mississippi.

Aug. 30, 1989.

Haynes Alexander Brinkley, Michael B. McMahan, McMahan & McMahan, Hattiesburg, for appellant.

Joseph H. Montgomery, Williams Williams & Montgomery, Poplarville, Bobby Garraway, Office of Public Defender, Lumberton, for appellee.

Before ROY NOBLE LEE, C.J., and ROBERTSON and PITTMAN, JJ.

PITTMAN, Justice, for the Court:

Craig Viniard sustained a severe injury to his left leg when the motorcycle he was riding was involved in a collision with an automobile. Viniard sued Cleo Clark, alleging that her negligence was a proximate cause of his injuries. A jury found in favor of Viniard, but awarded him no damages. Viniard moved for an additur, or in the alternative a new trial solely on damages. The trial judge considered this request, and ordered instead a new trial on all issues. Cleo Clark requested an order on certification for interlocutory appeal, which was granted by the trial court. This Court granted permission to appeal, and Cleo Clark assigns the following as error:

I. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING A DIRECTED VERDICT OR J.N.O.V. IN FAVOR OF THE DEFENDANT.

II. WHETHER THE TRIAL COURT HAD THE AUTHORITY AND/OR JURISDICTION TO GRANT A NEW TRIAL ON ALL ISSUES.

III. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING THE NEW TRIAL, ASSUMING THAT IT HAD THE AUTHORITY AND/OR JURISDICTION TO DO SO.

Craig Viniard has cross-appealed, assigning as error:

I. THE TRIAL COURT ERRED IN DENYING PLAINTIFF, SAMUEL CRAIG VINIARD, AN ADDITUR OR A NEW TRIAL ON DAMAGES ONLY.

II. THE JURY VERDICT ON THE ISSUE OF DAMAGES IN AWARDING PLAINTIFF, SAMUEL CRAIG VINIARD $0.00 IN LIGHT OF HIS MEDICAL EXPENSES TOTALLING $53,

693.19 AND A MEDICAL EXPERT'S OPINION ASSIGNING A 20-30% PERMANENT PARTIAL DISABILITY TO HIS LEFT LEG WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

STATEMENT OF THE FACTS

On August 5, 1983, at about 10:30 a.m., Craig Viniard was riding his XR-75 Honda motorbike in a westerly direction down General Robert E. Blount Drive, also known as Foote Street, in Bassfield, Mississippi. Because Viniard's bike was intended primarily for off-the-road use, it was not equipped with a headlight, brakelight, turn signals, or rear-view mirrors. As Viniard approached the intersection of Foote Street and Ida Avenue, he put out his left arm in order to signal for a left turn. As he began to make his turn, he collided with an automobile driven by Estes Townsend, who was headed in the same direction as Viniard and was also attempting a left turn. As a result of the accident Viniard received an extensive laceration of the left leg with a compound fracture. The doctor who first reached Viniard had to "unwind" the leg twice in order to feel a pulse in the foot. Viniard had to undergo sixteen surgical procedures as a result of his injuries.

On July 1, 1986, Craig Viniard filed suit in the Circuit Court of Jefferson Davis County against Cleo Clark, alleging that Clark's negligence had been a proximate cause of his accident and resulting damages. Viniard alleged that Clark had been behind him in her car on the day of his accident, and that she had run into his bike from behind, knocking him into the path of the Townsend car. The complaint also alleged that Clark failed to stop after having caused the accident. The complaint asked for actual and punitive damages. Cleo Clark filed her answer on August 4, 1986. Clark maintained that she had never been at the scene of the accident, but had turned off of Foote Street north onto Jefferson Street and had headed home before reaching the intersection where the accident occurred. Alternatively, Clark alleged that Viniard was negligent in that he did not properly signal for his left turn onto Ida Avenue, that he was not old enough to have a driver's license or to be riding the bike on a public street, and that the Honda was not properly equipped to be operated on a public street.

Several depositions were taken before the trial, including that of Stella Mae Hathorn, an alleged eyewitness to the accident, who was deposed on October 7, 1986. Other witnesses' testimony placed Cleo Clark driving her automobile in the area. No one other than Hathorn claimed to have seen Clark hit the motorbike driven by Viniard.

Don Bourgeois, a Mississippi Highway Patrolman, was called on August 5, 1983, to assist with the Viniard accident. He arrived at the accident scene just as the ambulance was leaving. He examined the Townsend car and the marks that the motorcycle had made at the scene. Bourgeois then listened to Stella Hathorn give her statement to Officer Ricky Davis. Ms. Hathorn identified the car which struck Viniard as being a brown, four-door sedan driven by the lady who owned a washerteria. After this Bourgeois, Officer Davis, and Officer Wayne White went to Mrs. Clark's house. According to Bourgeois, when Mrs. Clark was told about the accident, she replied that she had not left the house. Bourgeois checked the hood of her car, which was still warm. The officers carefully examined the car, but could find no evidence one way or another to substantiate a collision. The three went back to the accident scene and then to the Viniard residence to check the motorcycle. The officers then returned to the Clark residence. Mr. Clark was under the carport when they arrived. Mr. Clark told the officers that the only place Mrs. Clark had been was to the Post Office (Mr. Clark's place of employment). Bourgeois then informed Mr. Clark that Mrs. Clark had told them earlier that she had not left the house. According to Bourgeois, Mrs. Clark then came outside "in hysterics, and said that if she hit the boy, she didn't know it, and at that time Mr. Clark told her to hush her mouth and go back inside, and asked us to leave." Bourgeois admitted on cross-examination that he could find no physical evidence to indicate that there had been any collision or impact as to the Clark car, although Bourgeois added that a slight bump involving a motorcycle with a plastic fender moving in the same direction as the car probably would not cause much damage to the car.

Craig Viniard, the plaintiff, testified that he had been looking for a tennis game on August 5, 1983, when he was heading west down Foote Street. He put out his left hand to signal for a turn south onto Ida Street when "[his] head jolted back and went forward and [his] helmet flew off, and then [he] went--[he] got hit by the Townsend car." He did not remember much about the way the collision occurred. Viniard admitted on cross-examination that at the time of the accident he had no driver's license, that his bike was not equipped to be driven on the street, and that he could not of his own personal knowledge say that Cleo Clark had been involved in the accident.

Dr. William G. Giles, an orthopedic surgeon, testified as to the nature of Viniard's injury and his treatment. He found that Viniard had suffered an extensive laceration with a compound fracture. Much of the muscle and skin had been stripped from the back of the lower left leg, and there were bone fragments sticking through the skin with a large piece of bone missing. Dr. Giles eventually performed sixteen surgical procedures on the leg in an effort to repair it, including a bone graft. He testified that Viniard was a good patient who endured a great deal of pain. Dr. Giles stated that he was happy with the result, although Viniard had suffered a 20-30% permanent impairment of the leg. Dr. Giles stated that the $53,693.19 in medical bills were reasonable and necessary expenses resulting from the injury.

The jury found for the plaintiff, Craig Viniard, but awarded him no damages. Cleo Clark moved for a J.N.O.V. and for reformation of the verdict. Craig Viniard moved for an additur, or in the alternative a new trial solely on the issue of damages. A hearing on these motions was scheduled for October 16, 1987. There is no transcript of this hearing or any other in the record. Counsel for Cleo Clark has supplied an affidavit claiming that the trial judge heard only the above-mentioned motions, and that no notice was ever given of any other hearing before December 17, 1987. Counsel for Viniard responded with a counter-affidavit, claiming that two...