Freshwater v. Booth

Decision Date22 March 1977
Docket NumberNo. 13700,13700
Citation160 W.Va. 156,233 S.E.2d 312
PartiesCharles FRESHWATER and Ila Mae Freshwater v. Albert BOOTH and Ida Bell Booth, Executrix of the Estate of Fisher Booth, Deceased.
CourtWest Virginia Supreme Court

Syllabus by the Court

In a tort action for property damage and personal injuries this Court will set aside the jury verdict and award a new trial on all issues where: (1) the jury verdict is clearly inadequate when the evidence on damages is viewed most strongly in favor of defendant; (2) liability is contested and there is evidence to sustain a jury verdict in favor of either plaintiff or defendant; and (3) the jury award, while inadequate, is not so nominal under the evidence as to permit the court to infer that it was a defendant's verdict perversely expressed.

Frankovitch & Anetakis, Carl N. Frankovitch, Weirton, for appellants.

Bachmann, Hess, Bachmann & Garden, William D. Wilmoth, R. Noel Foreman, Wheeling, Jordan & Wilson, Ronald E. Wilson, New Cumberland, for appellees.

NEELY, Justice:

This is a case about inadequate damages. The plaintiffs asserted that the damages were clearly too low in light of the evidence and requested that we reverse and remand on the question of damages alone, or in the alternative reverse and remand for a new trial on all issues. The defendants argued that the inadequate verdict was either a defendant's verdict perversely expressed or, alternatively, a legitimate compromise verdict which was sufficiently in accord with the evidence to withstand appellate review.

This is the quintessential, crossing center line, automobile accident case; nevertheless, the diversity of reasonable alternatives for handling a clearly inadequate jury award presents the Court with an opportunity to clarify this subject and formulate some functional rules for the orderly classification of inadequate judgments.

The facts of this particular case are important only insofar as they demonstrate that liability was seriously contested and the damages included pain and suffering. On the day of the accident the plaintiffs, Ila Mae Freshwater and Charles Freshwater, an elderly couple, were traveling west on Hardin's Run Road in Hancock County, and the defendant, Albert Booth, a young and inexperienced driver, was traveling east on Hardin's Run Road, operating a 1967 pick-up truck. The plaintiffs alleged that the defendant's vehicle went across the center line and struck their vehicle, which Mrs. Freshwater was driving.

All special damages were stipulated for both plaintiffs and defendants. The plaintiffs' vehicle was a total loss in the stipulated amount of $3,095.00; the plaintiff, Charles Freshwater, sustained personal injuries which resulted in medical and hospital expenses in the amount of $2,044.58; the plaintiff, Ila Mae Freshwater, sustained personal injuries which resulted in medical and hospital expenses in the stipulated amount of $914.45; and, the defendants' vehicle was damaged in the stipulated amount of $900.00. Undisputed testimony revealed that both plaintiffs sustained personal injuries and were removed from the accident in an ambulance. Ila Mae Freshwater sustained "multiple contusions of the arms, chest, legs, and a small tip fracture of the lateral malleolus of the ankle." Mrs. Freshwater was hospitalized for twelve days and the uncontroverted testimony demonstrated that she incurred pain and suffering as a result of the injuries.

Mr. Freshwater sustained injuries which consisted of "multiple contusions of the head, neck, forearm, lower leg, with a positive diagnosis of a fractured patella." He received pain medication while confined in the hospital and after initial hospital treatment, he received extended care service and was forced to use a wheelchair because he was unable to walk. As a result of the injuries he sustained, Mr. Freshwater used a cane at the time of trial. Mr. Freshwater introduced medical evidence that he suffered a permanent disability as a result of the accident and that in the future he would continue to suffer pain in the knee cap. There was further testimony that the accident aggravated a pre-existing arthritic condition.

The court properly instructed the jury that if they should find in favor of the plaintiffs that the amount of damages "must be in an amount which would reasonably, fairly, and adequately compensate (them) for (their) damages and loss." In spite of that instruction the jury returned a verdict in favor of the plaintiffs which was for the precise amount of the stipulated special damages, i. e., $5,139.58 for plaintiff Charles Freshwater and $914.45 for plaintiff Ila Mae Freshwater, and no award whatsoever was given for pain, suffering, and permanent injury, all of which had been conclusively proven.

The defendants strongly contested the issue of liability, and the defendant, Albert Booth, testified that he observed plaintiffs' automobile swerve from the right side of the roadway to the left side in an area close to some mail boxes and then begin to swerve back to the right side of the road immediately before the collision. Mr. Booth testified that he was traveling at a speed of from 20 to 25 miles per hour and that before the collision his vehicle did not cross the center line, which was plainly visible. The defendants also suggested that Mrs. Freshwater had reason to be in a hurry on the day of the accident, since she and her husband anticipated that they might be late for a doctor's appointment in Steubenville, Ohio, due to their late start from home that morning. After the accident Mrs. Freshwater told the investigating officer that she had been driving at a speed of approximately forty miles per hour at the time of the accident; however, at trial Mrs. Freshwater testified that she was driving at a speed of between 20 and 25 miles per hour as she approached the site of the accident. The investigating officer testified that the width of the road at the point of the accident was approximately fourteen feet and that after the accident the plaintiffs' vehicle was off the roadway on the right berm, almost in contact with a stone wall. He also testified that the wheels of the defendants' vehicle were not across the center line at the scene of the accident but were very close, and that the left front portion of the defendants' vehicle was in the westbound or the plaintiffs' lane of traffic.

Plaintiffs' testimony indicated that the Freshwater vehicle was operated entirely in the right lane of traffic. The defendant, Ida Belle Booth, a passenger in the vehicle operated by the defendant, Albert Booth, admitted that after the accident the left front portion of defendants' truck, or the wheels themselves were across the center line. The plaintiff, Charles Freshwater, testified that the defendants' vehicle crossed the center line and struck the plaintiffs' vehicle.

These facts demonstrate that the jury could have decided the question of liability either way and also that if the plaintiffs were entitled to recover anything at all, they were entitled to recover some reasonable amount in excess of the stipulated special damages for pain, suffering, and substantial inconvenience, the existence of which, if not the degree, was uncontroverted.


In order to give a principled and reasoned analysis of why the Court must reverse this case and remand it for a new trial on all issues, as opposed to adopting one of three other alternatives, i. e., accepting the judgment as a defendant's verdict perversely expressed, reversing on the question of damages alone, or accepting the judgment as a legitimate and adequate compromise verdict under all the circumstances, it is necessary to develop a typology of inadequate judgments and demonstrate why the facts of this case mandate a particular result.


The easiest type of inadequate jury award is where the plaintiff would have been entitled to a directed verdict on liability as a matter of law, and the damages are inadequate even when viewed most strongly in favor of the defendant. In this type of case an appellate court need not agonize about reversing and remanding for a new trial on the issue of damages alone and that is the proper course. The following West Virginia cases represent an application of this rule of law: Hall v. Groves, 151 W.Va. 449, 153 S.E.2d 165 (1967); Delong v. Albert, W.Va., 205 S.E.2d 683 (1974). 1


The second type of case is one where liability is strongly contested and the award of damages is clearly inadequate if liability were proven. The case at bar falls into this category. In this situation an appellate court cannot infer from the jury verdict alone whether the jury were confused about the proper measure of damages or whether they were confused about the proper rules for determining liability, or both. These cases represent an extreme example of the compromise verdict which in its less oppressive form has historically been rejected in theory by all appellate courts, yet accepted in practice by almost every bar and bench.

Appellate courts are not so naive as to believe that juries can operate like law professors and segregate the circumstances of liability and the degree of moral fault which those circumstances imply from the proper measure of damages for the victims. 2 A jury award for pain and suffering is an inherently subjective undertaking, and the degree of moral fault which a jury imputes to the tortfeasor is almost inevitably reflected in the liberality or parsimony of the pain and suffering award. Nevertheless, subjective though pain and suffering awards may be, the jury must give some reasonable compensation for pain and suffering to victims when such pain and suffering have been demonstrated, and an award which is so unreasonable that its adequacy cannot be debated by fair-minded men must be set aside. Where, however, liability is contested and an appellate court is unable to infer whether upon a new trial a jury...

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  • Roberts v. Stevens Clinic Hosp., Inc.
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    • April 2, 1986 almost inevitably reflected in the liberality or parsimony of the pain and suffering [or solatium] award." Freshwater v. Booth, 160 W.Va. 156, 161, 233 S.E.2d 312, 315-16 (1977) (also see n. 2 Despite the jury's almost absolute discretion in determining the amount of the damages in a wro......
  • Grove By and Through Grove v. Myers
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    ...payment of such expenses. 10 This situation is characterized as a "Type 4" inadequate damage case in Freshwater v. Booth, 160 W.Va. 156, 164, 233 S.E.2d 312, 317 (1977). Cf. Martin v. Charleston Area Medical Ctr., 181 W.Va. 308, 382, S.E.2d, 502 ( 1989) (new trial on liability and damages a......
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    ...trial of this matter. The trial judge went on to state that the jury verdict was a "type 1" inadequate award under Freshwater v. Booth, 160 W.Va. 156, 233 S.E.2d 312 (1977); 1 therefore, he vacated the jury's verdict and awarded a new trial only on the issues of product identification and T......
  • Combs v. Hahn
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    • June 11, 1999
    ...not labor long to resolve this issue. The facts of this case fall squarely under typology four from our decision in Freshwater v. Booth, 160 W.Va. 156, 233 S.E.2d 312 (1977), overruled, in part, by Linville v. Moss, 189 W.Va. 570, 433 S.E.2d 281 (1993). A type four case is one in the issue ......
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