Esry v. Carden

• Decision Date: 21 April 1997
• Docket Number: No. 96-406,96-406
• Citation: 942 S.W.2d 846,328 Ark. 153
• Parties: Kathy ESRY, Appellant, v. James CARDEN, Appellee.
• Court: Arkansas Supreme Court

Page 846

942 S.W.2d 846

328 Ark. 153

Kathy ESRY, Appellant, v. James CARDEN, Appellee.

No. 96-406.

Supreme Court of Arkansas.

April 21, 1997.

Jack Wagoner, III, Little Rock, for Appellant.

Margaret M. Newton, Little Rock, for Appellee.

ARNOLD, Chief Justice.

This is a personal-injury case where Kathy Esry, the appellant, brought suit against James Carden, the appellee, to recover for injuries allegedly sustained in an automobile accident. At trial, appellant testified that she had incurred damages for medical bills, lost wages, and mileage expenses totalling over $8400; appellee challenged these damages. Appellee testified that the accident was minor and that neither he nor his passenger was injured; additionally, he testified that the accident was his fault. The jury returned a general verdict in favor of appellee despite his testimony that he was responsible for the accident.

On appeal, appellant argues that the verdict for the appellee resulted from trial court errors which created a false picture for the jury, thus depriving appellant of a fair trial. Specifically, appellant claims that (1) the jury's verdict was against the preponderance of the evidence; (2) the trial court erred in denying the appellant's motion for a new trial; and (3) the trial court erred in suppressing evidence related to the appellee's insurance coverage to rebut his testimony that he did not work because of disabilities. We conclude that there was substantial evidence to support the jury's finding and that the trial court did not abuse its discretion in the exclusion of evidence related to insurance coverage; therefore, we affirm.

I. Sufficiency of Evidence to Support the Jury's Verdict

Appellant's first and second arguments regard the sufficiency of the jury's verdict and the trial court's denial of the motion for a new trial. Rule 59(a) of the Ark. Rules of Civil Procedure allows a motion for a new trial to be granted upon a showing of one of eight reasons. One permissible reason is that "the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to law." Ark. R. Civ. P. 59(a)(6). In Hall v. Grimmett, 318 Ark. 309, 885 S.W.2d 297 (1994), we stated that the test on appeal for a denial of a motion for a new trial is "whether there is substantial evidence to support the jury verdict." Id. at 310, 885 S.W.2d 297, citing Minerva Enter., Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992). Substantial evidence is defined as "evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture." Id. In examining whether substantial evidence exists, all evidence must be examined "in the light most favorable to the party on whose behalf the judgment was entered and [given] its highest probative value, taking into account all reasonable inferences deducible from it." Id., citing Gipson v. Garrison, 308 Ark. 344, 824 S.W.2d 829 (1992). In such situations, the "weight and value [of testimony] is a matter within the exclusive province of the jury." Id., citing Rathbun v. Ward, 315 Ark. 264, 866 S.W.2d 403 (1993).

In instances where the verdict is against the party which has the burden of proof and that party appeals the denial of a motion for a new trial, the test above is not applied strictly. In Hall, we held that, in such instances, "a literal application of the rule would be untenable, as the defendant may have introduced little or no proof" yet been granted the verdict. Id. at 312, 885 S.W.2d 297.

This case provides a similar factual scenario to a case we recently decided, Bell v. Darwin, 327 Ark. 298, 937 S.W.2d 665 (1997). In Bell, the appellee was involved in an automobile accident, and in his deposition, admitted fault for a portion of the accident. Despite the testimony, the jury returned a general verdict for the appellee. The appellant moved for a new trial which was denied; an appeal followed. We determined that although the appellee had admitted fault, there was substantial evidence for the jury to determine conversely that he was not at fault. Accordingly, a jury is in the best position to determine the weight to be given testimony. Id. at 301-02, 937 S.W.2d 665.

In Primm v. U.S. Fidelity & Guaranty Ins. Corp., 324 Ark. 409, 922 S.W.2d 319 (1996), we determined that when a jury returns a general verdict, such a verdict could be based upon a finding of no liability, no damages, or both; we will not speculate on the basis of a jury's verdict. When special interrogatories concerning liability or damages are not requested, we are left in the position of not knowing the basis for the jury's verdict, and we will not question nor theorize about the jury's findings. See, Barnes, Quinn, Flake & Anderson v. Rankins, 312 Ark. 240, 848 S.W.2d 924 (1993). See also, Smith v. Babin, 317 Ark. 1, 875 S.W.2d 500 (1994); Harding v. Smith, 312 Ark. 537, 851 S.W.2d 427 (1993); and Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994).

Appellant's testimony revealed several areas in which the jury could possibly have questioned her credibility and the legitimacy of her injuries. Immediately following the accident, she stated that she was not injured, refused medical treatment, and drove her automobile home. She sought medical attention the day following the accident complaining of an injury to her neck; the report from this doctors' examination indicated that her physical condition was normal and her x-rays showed no injuries. Approximately two weeks later, she scheduled an appointment with a neurosurgeon; she was administered an MRI, the results of which were normal. On cross examination, appellee's counsel questioned whether she had hired an attorney prior to this doctors' appointment. She testified that she had not; however, the medical report of this doctor indicated that a copy of the report was forwarded to appellant's counsel. Several months later, she scheduled an appointment with an orthopedic surgeon who suggested conducting an MRI one year later to follow-up on the pain she reported. The second MRI showed a bulging disk which the doctor, in a video deposition, classified as a minimal injury that he could only assume was caused by the accident because he did not know of any other injuries sustained by the appellant.

Appellant's testimony regarding the amount of her damages was challenged by appellee. On cross-examination, appellant admitted that she was seeking compensation for mileage to and from doctors appointments which were in the same building where she worked and which were scheduled on days she was already at work. Another important fact to note is that the only medical evidence submitted by appellant were written doctors' records and a video deposition of the orthopedic surgeon in which he testified that he assumed the accident caused appellant's injuries because he knew of no other occasion in which appellant had been hurt.

Appellee testified that he was disabled, and although he had previously fractured his skull, broken his backbone and neck, he barely felt the impact of the accident and was not injured. He testified that his passenger sustained no injuries in the accident. He also testified that he "supposedly hit [the appellant] because [he] hit behind the front door" and that he assumed the accident was automatically his fault because he was in the appellant's lane of traffic.

It is our determination that there was substantial evidence to support the jury's verdict. It is feasible that the jury could have determined, without speculation, that although the wreck was the fault of the defendant, appellant's injuries were not a result of the wreck. Additionally, it is conceivable that the jury could have determined that the defendant was not at fault although he testified that he was. Taking into consideration all of the evidence submitted and the fact that the jury returned a general verdict for the defendant, it is impossible to know exactly how the jury balanced the evidence submitted; therefore it is not within our domain to question the jury's general verdict.

II. Evidentiary Issues

Appellant's principle argument arises from testimony given by appellee in his defense in which he stated that he was disabled and not working. Immediately after appellee's remarks, appellant approached the bench and, outside the jury's presence, claimed that the remarks opened the door for evidence regarding the existence of appellee's liability insurance policy. The testimony in question follows:

Mr. Sayes: [Defendant's Attorney] Now what do you do for a living?

Defendant: I'm disabled.

Mr. Sayes: Do you have some physical problems of some sort?

Defendant: Yeah, I broke my back and neck.

Mr. Sayes: You broke your back and neck?

Defendant: Yes, sir, fractured my skull and several other things.

Mr. Sayes: So you do not work I take it?

Defendant: No, sir.

[BENCH CONFERENCE]

Mr. Sayes: Mr. Carden, this is my last question. As a result of this incident, were you injured in any way?

Defendant: Well, I already had prior injuries and I have a doctor that I go see every month.

Mr. Sayes: Were you any worse as a result of this than what you were before?

Defendant: I didn't hardly feel it. It was just a ricochet off the front of my truck.

Mr. Sayes: Did you drive away?

Defendant: Yes, sir. I drove the truck for three months.

Mr. Sayes: Was your passenger injured?

Defendant: No, sir.

Appellant argues that this testimony "opened the door" to allow the introduction of appellee's liability insurance policy because testimony relating to appellee's unemployment could mislead the jury to assume that appellee did not have the financial means to endure a judgment. Appellant claims that such evidence is necessary to rebut the presumption of the appellee's meager financial status. Appellee argues that this particular questioning does not create such a presumption nor is it...