Copeland v. Compton, 19830

• Decision Date: 17 January 1996
• Docket Number: No. 19830,19830
• Parties: Joe Douglas COPELAND and Tracy Lynn Copeland, Plaintiffs-Appellants, v. John COMPTON, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 378

914 S.W.2d 378

Joe Douglas COPELAND and Tracy Lynn Copeland, Plaintiffs-Appellants, v. John COMPTON, Defendant-Respondent.

No. 19830.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 17, 1996.

Appeal from the Circuit Court of Greene County; Bob J. Keeter, Associate Judge. AFFIRMED.

Andy B. Hodges, Springfield, for plaintiffs-appellants.

June Clark, Carmichael, Gardner & Clark, Springfield, for defendant-respondent.

SHRUM, Chief Judge.

Joe and Tracy Copeland (Plaintiffs) ¹ appeal from an adverse judgment entered pursuant to a jury verdict in their damage suit against Amy Nelson ² (Defendant) for her alleged negligent operation of an automobile.

In their first two points, Plaintiffs charge that there was a complete absence of probative facts to support the jury's verdict that Defendant was not liable and, consequently, the trial court erred and abused its discretion in denying their motion for a new trial on that basis. In their third point, Plaintiffs contend that the trial court committed prejudicial error when it excluded the term "policyholder" from Plaintiffs' "insurance question" during voir dire. We disagree with Plaintiffs' first two points. Plaintiffs have not preserved their third point. We affirm.

On April 26, 1993, automobiles operated by Joe and Defendant collided with each other on the streets of Springfield, Missouri. Joe was travelling along Sunshine Street when Defendant, who had been stopped at a stop sign on Woodward Street, attempted to cross Sunshine to reach a supermarket on the other side. Defendant did not see Joe when she pulled out and, although he swerved, he was unable to avoid the collision.

The policeman who investigated the accident testified at trial that there were no skid marks indicating that Joe was travelling at an excessive rate of speed. He also testified that he issued Defendant a ticket for failure to yield the right-of-way.

As mentioned earlier, Plaintiffs' first two points maintain that the trial court erred when it overruled their motions for new trial. Such assertions of error, when read literally, do not present an issue for review. "[D]enial of a motion for new trial is not an appealable order; but appeal must be taken from the judgment to which the motion was directed." Hitt v. Martin, 872 S.W.2d 121, 122 (Mo.App.1994). Nevertheless, from the argument portion of Plaintiffs' brief, we perceive that Plaintiffs merely inartfully worded their first two points relied on, and indeed, they are appealing from the trial court's judgment. See White v. Land Clearance For Redevelopment Authority, 841 S.W.2d 691, 694 (Mo.App.1992). We presume that in their first two points Plaintiffs are challenging the sufficiency of the evidence supporting the jury's verdict.

In Point I, Plaintiffs argue that:

"The verdict for liability in favor of [Defendant] was not supported by substantial evidence, or for that matter any evidence. There was absolutely no evidence at trial which could allow a jury to find a verdict of no liability for [Plaintiffs], and by not granting a new trial on this issue alone the trial court abused its discretion." (Emphasis added.)

To support this argument, Plaintiffs insist that Defendant conceded "liability" when her counsel made certain statements in the jury's presence to the effect that "fault" was not a significant issue in the case. They also point to trial testimony which tends to show that Defendant negligently operated her automobile. The flaw in Plaintiffs' position is their failure to recognize the breadth of meaning associated with the term "liability." ³

"In any action for negligence, the plaintiff must establish that (1) the defendant had a duty to the plaintiff; (2) the defendant failed to perform that duty; and (3) the defendant's breach was the proximate cause of the plaintiff's injury." Martin v. City of Washington, 848 S.W.2d 487, 493 (Mo. banc 1993). As one court explained liability, "It is axiomatic that the mere fact that injury follows negligence does not necessarily create liability. Plaintiff must also prove the negligent conduct amounted to a violation of some duty owed to him and that the conduct was an efficient and proximate cause of his injury." Buck v. Union Electric Co., 887 S.W.2d 430, 433 (Mo.App.1994). Liability is the conclusion when there is a duty, breach, and causal connection between the conduct of the defendant and the resulting injury to the plaintiff. Schaffer v. Bess, 822 S.W.2d 871, 876 (Mo.App.1991).

In this case, if Defendant conceded anything it was "negligence," i.e., duty and breach; not liability--the whole prima facie case. However, we need not decide if "negligence" was admitted since Plaintiffs apparently assert that the alleged concession of these two elements made a jury finding against them impermissible, any other issues notwithstanding. This is obviously not so, since a plaintiff with a negligence claim must also prove the element of causation and damages.

When insufficiency of the evidence to support a verdict is the claim on appeal, our standard of review is as follows:

"An appellate court interferes with a jury verdict only if there is a complete absence of probative facts to support a jury verdict.... The reason for this rule is that the plaintiff bears the burden to prove that the defendant was negligent and that plaintiff's injuries directly resulted from the defendant's negligence.... The sufficiency of the evidence to support a defendant's verdict is not a question amenable to appellate review."

Hitt, 872 S.W.2d at 123[4-5] (citations omitted).

As the verdict here was for Defendant, we look to the evidence to determine whether probative facts existed to support the jury's implicit finding that Plaintiffs failed to prove one or more elements of their prima facie case. We focus on causation, since our review of the record indicates that probative facts supported a jury verdict based on Plaintiffs' failure to prove this element.

Joe claimed that injuries to his neck and back resulted from his collision with Defendant. However, evidence of similar ailments which predated the accident as well as statements made by Joe following the collision contradicted the testimony offered by Plaintiffs.

In 1972, Joe fractured his back in a bicycle accident, and that injury resulted in chronic and severe neck, head, and back pain. At that time (1972), Joe was obese and continued to be overweight throughout his adult life. At one point prior to 1992, his weight reached 336 pounds, although he was only 5'5"' tall. Joe was involved in no fewer than three automobile accidents which predated his collision with Defendant, in 1979, 1980, and 1987. In all three he was treated for either neck or back pain, or both, as a result of the accidents.

Joe testified that he had no complaints of pain at the scene of the accident in question. Joe also admitted that he lied about his medical condition to a doctor he saw in connection with an on-the-job injury he sustained after the collision with Defendant.

We conclude that this record contains probative facts to support a jury verdict for Defendant. ⁴ The jury was entitled to believe that Joe's injuries did not directly result from Defendant's negligence.

Although Plaintiffs assert that they offered a variety of testimony proving the element of causation, a jury is allowed to disbelieve some or all of any witness' testimony. See Wells v. Bellman, 531 S.W.2d 770, 771 (Mo.App.1975). Plaintiffs simply failed to meet their burden of proving that their injuries directly resulted from Defendant's negligence. Since our review is limited to the question of whether there was a complete lack of probative facts to support the Defendant's verdict, deciding there was not, we conclude that the trial court did not err in failing to grant Plaintiffs' motion for new trial on the grounds that no substantial evidence supported the verdict in favor of Defendant. Point I is denied.

In Point II, Plaintiffs argue again that no evidence supported the verdict, and also that a verdict for zero damages is impermissible as well as asserting that the jury was overcome with bias, passion, or prejudice as a result of certain testimony and argument.

Plaintiffs begin their argument by maintaining that it is "impossible to tell from this verdict director whether the jury found liability in favor of the defendant or the jury found liability in favor of the plaintiff and zero damages." ⁵ However, the pattern verdict director did no more than correctly hypothesize the elements of a negligence claim to the jury. Plaintiffs' complaint is no more than a repetition of the argument they unsuccessfully set out in Point I.

The second part of Plaintiffs' argument is unique to Point II. However, since Plaintiffs' premise that the jury found "liability in favor of the plaintiff" is not true, the conclusion that the jury then impermissibly found zero damages cannot follow.

In attempting to characterize the verdict for Defendant as erroneous, Plaintiffs cite two cases for the proposition that a verdict for zero damages is impermissible, Porter v. Mallet, 596 S.W.2d 451, 452-53 (Mo.App.1980), and Pietrowski v. Mykins, 498 S.W.2d 572, 579 (Mo.App.1973). ⁶ Alternatively, Plaintiffs argue, the verdict could be characterized as inadequate, and they cite Hagedorn v. Adams, 854 S.W.2d 470 (Mo.App.1993), and Smith, Etc. v. Archbishop of St. Louis, Etc., 632 S.W.2d 516, 524 (Mo.App.1982), for the proposition that an inadequate verdict warrants a new trial. Neither of these two points of law control this case.

First, we do not have a verdict for zero damages here. The cited proposition only applies where there is a verdict making a finding for the plaintiff but awarding plaintiff no damages. Here, the verdict was for Defendant. A case cited by the Porter court, Boone v. Richardson, 388 S.W.2d 68 (Mo.App.1965), while holding that a zero damages verdict is invalid, explains that a...