Copeland v. City of Jackson, 58317

Decision Date05 April 1989
Docket NumberNo. 58317,58317
Citation548 So.2d 970
PartiesDouglas A. COPELAND v. CITY OF JACKSON, MS, et al.
CourtMississippi Supreme Court

John H. Fox, III, Fox & Watson, Jackson, for appellant.

Tim Hancock, Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and BLASS, JJ.

PRATHER, Justice, for the Court:

The propriety of an additur in a personal injury suit is the subject of this appeal. The case was originally before this Court in City of Jackson v. Copeland, 490 So.2d 834 (Miss.1986). In that case, this Court affirmed the holding of the lower court as to the negligence of the City of Jackson and Willie Lee Butler, but reversed and remanded for a new trial as to the issue of Copeland's contributory negligence, if any, and damages. Id. at 839. On retrial in the Circuit Court of Hinds County, the jury awarded Copeland $40,000 in damages and found him to be thirty percent contributorily negligent. The trial judge granted an additur to $350,000.00 in Copeland's favor, but reduced the award by thirty percent to $245,000.00. Copeland and the City of Jackson appeal to this Court, and Copeland assigns as error the following:

(1) The trial court erred in upholding the jury's assessment of contributory negligence.

(2) The order of additur failed to take into consideration the additional loss and injury of the plaintiff.

(3) The trial court erred when it refused to admit into evidence the official report of the deceased Officer Hickman as a business record of the defendant City of Jackson.

(4) The trial court erred in refusing to grant the motion for mistrial.

(5) The trial court erred in granting the defendant's instruction D-9.

(6) The trial court erred in granting the defendant's instruction D-11.

(7) The trial court erred in denying plaintiff's instruction P-7.

(8) The trial court erred in denying plaintiff's instructions P-1 and P-13.

CROSS-APPEAL

The appellees City of Jackson and Willie Lee Butler assign as error the following:

(1) The trial court erred in setting aside the damages awarded by the jury and in granting an additur.

I.

On the evening of February 13, 1981, at about 8:00 p.m. Douglas Copeland was on his way to work at the Clarion-Ledger. He was driving east on Pascagoula Street in the City of Jackson. Pascagoula Street is a one-way street for east bound traffic which has been marked with three lanes and which also has parking spaces intermittently on either side of the street. It is intersected by Mill Street, Roach Street and Farish Street, in that order.

Appellee Willie Lee Butler was making garbage pickups on the same evening in a city-owned garbage truck. After picking up some trash at the Pascagoula-Roach Street intersection, Butler began traveling on Pascagoula in the left hand lane; while doing so, he looked in his rear view mirror in an attempt to move into the center lane and eventually into the right hand lane.

Butler testified that he was trying to move into the right hand lane, but could not do so because the traffic was too heavy. Both he and Copeland claimed to have been traveling east on Pascagoula Street between 25 and 30 miles per hour, although Butler admitted during his testimony that the odometer on his truck was broken. Copeland testified that once he turned into the right hand lane on Pascagoula Street, he never deviated from that lane. Butler testified that he never saw Copeland's car until he heard the sound of tires screeching, looked in the mirror, and when he looked back, saw Copeland's car crossways on his front bumper. The point of impact was just beyond the Pascagoula-Farish Street intersection.

Butler swerved to the left, and hit the brakes in an effort to shake Copeland's car loose, but he was unable to do so. The vehicles did not separate until they came to a stop after striking a telephone pole in front of the B.F. Goodrich Store on the north side of Pascagoula Street. The force of the blow severed the telephone pole at its base.

The accident resulted in the fracture of Copeland's first thoracic and cervical vertebrae. Three surgical procedures were The first lawsuit by Copeland against the City of Jackson and Willie Lee Butler resulted in a verdict for the defendant City and Butler. A motion for judgment notwithstanding the verdict (JNOV) was filed by Copeland, but was overruled; however, his concurrent motion for a new trial was granted. In November, 1983, a second trial upon the merits resulted in a judgment for Copeland in the amount of $350,000.00. However, the jury also found that Copeland was twenty-five percent negligent, thereby reducing his award of $350,000.00 by twenty-five percent.

eventually required--the first to decompress the spinal column, the second, to insert acrylic rods on each side of Copeland's spine from his hairline to his shoulder blades in order to stabilize the area and allow the fusion of the bones, and finally, a third operation to remove the acrylic rods; however, he was not paralyzed.

This second trial was appealed to this Court and in City of Jackson v. Copeland, 490 So.2d 834 (Miss.1986), this Court upheld the lower court's judgment regarding negligence as to the City of Jackson and its employee Butler. The trial court had given an instruction on contributory negligence; however, in instructing the jury, the trial court had erred in not properly instructing the jury on the facts necessary upon which to find Copeland's contributory negligence, if any. The case was remanded for a new trial on the issue of contributory negligence, if any, and damages only. Id. at 839.

After remand, the case was tried for the third time on January 12-15, 1987, and a peremptory instruction to the jury as to the negligence of the City of Jackson and its driver Butler, was given. The jury found that Copeland's loss and injury amounted to $40,000.00 and that he was thirty percent contributorily negligent, reducing his net judgment to an amount of $28,000.00. After the jury reached its verdict, the trial court, upon plaintiff's motion for a new trial or JNOV, entered an order of additur. The order entered by the trial court reinstated the award of damages to $350,000.00; the lower court did accept the jury's finding of contributory negligence on Copeland's part of thirty percent, and consequently reduced his judgment by $105,000.00, resulting in a net judgment of $245,000.00. Copeland then perfected his appeal to this Court and the defendant City of Jackson and Butler cross-appealed the additur made by the lower court.

II.

DID THE TRIAL COURT ERR IN UPHOLDING THE JURY'S ASSESSMENT

OF CONTRIBUTORY NEGLIGENCE?

Under this assignment of error, Copeland contends that it was improper for the trial court to grant a jury instruction concerning his contributory negligence due to a failure of proof on the appellee's part establishing his negligence. This Court agrees.

There were only two witnesses at trial who testified as to the actual details of the accident itself. These two witnesses were the appellant Douglas Copeland and the appellee Willie Lee Butler. Copeland testified that his car was in good running order, and that he never exceeded 25 to 28 miles per hour. He also testified that he was driving in the extreme right-hand lane of Pascagoula Street and that he never deviated from this lane. The only other things he remembered from the accident were feeling the impact of something from his rear and looking through his passenger window at the telephone pole rushing to meet him.

In support of their claim that Copeland was contributorily negligent, the appellees only put on two witnesses, Appellee Willie Lee Butler and Officer Phil Burnham. Butler testified that he began driving on the left hand lane of Pascagoula Street, attempting to move across the center lane and eventually into the right hand lane. However, there were cars passing on either side of him, and he was not able to get into the right hand lane as soon as he would have liked. He also testified that Copeland's car had to be on the right hand side of the garbage truck. Butler never saw Officer Burnham was one of the first officers on the scene after the accident took place. However, the only noteworthy testimony he presented was the fact that he found skidmarks in the far right hand lane of Pascagoula Street going east, i.e., the lane in which Douglas Copeland was traveling when the accident took place. He also presented no testimony of any kind as to a negligent act on Copeland's part. Therefore, there was simply no evidence present in this record to support a finding of contributory negligence.

Copeland's car until it was "crossways" on the front bumper of his truck. He also testified on cross-examination that there was a "pretty good chance" that he could have been over in the right hand lane, and pictures of Copeland's car show an impact point on the left rear side of his vehicle. Butler also offered no testimony concerning negligence on Copeland's part; indeed, this would have been difficult for him to do since he never saw Copeland's vehicle at all until it was on the front of his truck. Thus, Butler's testimony reveals no facts constituting negligence by Copeland.

It is well established under Mississippi law that jury instructions should only be granted where there is evidence presented to support the giving of those instructions.

A party to an action is entitled to have the jury instructed regarding a genuine issue of material fact so long as there is credible evidence in the record which would support the instruction.

Hill v. Dunaway, 487 So.2d 807, 809 (Miss.1986). See also Detroit Marine Engineering v. McRee, 510 So.2d 462, 465-466 (Miss.1987); Barkley v. Miller Transporters, Inc., 450 So.2d 416, 419 (Miss.1984); Lewis Grocer Co. v. Williamson, 436 So.2d 1378, 1380 (Miss.1983); Alley v. Praschak Machine Co., 366 So.2d 661, 665 (Miss.1979).

There was simply no evidence presented in the record before this Court to justify...

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