Johnson v. Garlow, No. 23297

CourtSupreme Court of West Virginia
Writing for the CourtPER CURIAM
Citation478 S.E.2d 347,197 W.Va. 674
PartiesVirginia Jean JOHNSON and James Wilson Johnson, Plaintiffs Below, Appellants, v. Eugene GARLOW, Defendant Below, Appellee.
Docket NumberNo. 23297
Decision Date11 October 1996

Page 347

478 S.E.2d 347
197 W.Va. 674
Virginia Jean JOHNSON and James Wilson Johnson, Plaintiffs
Below, Appellants,
v.
Eugene GARLOW, Defendant Below, Appellee.
No. 23297.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 24, 1996.
Decided Oct. 11, 1996.

Page 349

Syllabus by the Court

1. "In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true." Syl. Pt. 3, Walker v. Monongahela Power Company, 147 W.Va. 825, 131 S.E.2d 736 (1963).

2. " 'Whether a motion for a mistrial should be sustained or overruled is a matter which rests within the trial court's discretion and the action of the trial court in ruling on such a motion will not be cause for reversal on appeal unless it clearly appears that such discretion has been abused.' Syllabus Point 4, Moore, Kelly & Reddish, Inc. v. Shannondale, Inc., 152 W.Va. 549, 165 S.E.2d 113 (1968)." Syl. Pt. 9, Board of Education of McDowell County v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990).

3. " ' "Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court." Point 6, Syllabus, Yuncke v. Welker, 128 W.Va. 299 [36 S.E.2d 410 (1945) ].' Syllabus point 7, State v. Cirullo, 142 W.Va. 56, 93 S.E.2d 526 (1956)." Syl. Pt. 5, State v. Davis, 180 W.Va. 357, 376 S.E.2d 563 (1988).

4. "Where the witness cannot recall the prior statement or denies making it, then under W.Va.R.Evid. 613(b), extrinsic evidence as to the out-of-court statement may be shown--that is, the out-of-court statement itself may be introduced or, if oral, through the third party to whom it was made. However, the impeached witness must be afforded an opportunity to explain the inconsistency." Syl. Pt. 4, State v. Schoolcraft, 183 W.Va. 579, 396 S.E.2d 760 (1990).

5. "In an appeal from an allegedly inadequate damage award, the evidence concerning damages is to be viewed most strongly in favor of the defendant." Syl. Pt. 1, Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983).

William W. Pepper, Mathew J. Hayes, Pepper & Nason, Charleston, for Appellants.

David A. Mohler, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Charleston, for Appellee.

PER CURIAM:

The plaintiffs below and appellants herein, Virginia Johnson and James Wilson Johnson, her spouse, appeal the denial of their post-trial motion for judgment notwithstanding the verdict or for a new trial. The plaintiffs filed this action seeking to recover damages for personal injuries attributed to an automobile accident involving the defendant below and appellee herein, Eugene Garlow. The defendant stipulated to liability and certain medical expenses, but the jury did not award any damages to the plaintiffs. During post-trial proceedings, the trial court granted plaintiffs an additur for the stipulated medical expenses. The plaintiffs now seek a new trial on the issue of damages above the trial court's additur.

I.

FACTUAL AND PROCEDURAL HISTORY

The facts of this case are not in dispute. On December 8, 1989, the defendant was traveling in snowy weather eastward on Route 60 near St. Albans, when his car went into a skid and rear-ended a car being driven by Virginia Johnson. 1 As a result of the collision, Mrs. Johnson was taken to the emergency room at Thomas Memorial Hospital, where she was treated for pain in her neck, shoulder, left wrist, and head. Mrs. Johnson was released from the hospital within hours after her arrival. The day following the accident Mrs. Johnson visited Charleston

Page 350

Area Medical Center complaining of headaches and back pains. She was given pain medication and sent home.

In 1991, the plaintiffs filed the instant suit. Mrs. Johnson alleged she incurred medical expenses of approximately $21,003.81, due to the accident with the defendant. Mr. Johnson joined the suit seeking to recover for loss of consortium. The case went to trial on March 13, 1995. Prior to the start of trial, the plaintiffs moved in limine to preclude any testimony regarding past civil suits by them. 2 The trial court granted the motion and ordered that no questions were to be asked of witnesses regarding prior lawsuits by the plaintiffs. However, based upon an argument by the defendant that Mrs. Johnson failed to disclose in discovery interrogatories that she filed lawsuits in 1972 and 1983, the trial court indicated the defendant could impeach the plaintiff by asking her whether she falsely answered a discovery interrogatory. Additionally, the trial court held the defendant could question Mrs. Johnson regarding inconsistent statements involving prior neck injury claims, without mentioning the underlying lawsuits.

Several times during the trial, the plaintiffs moved for a mistrial due to alleged violations by the defendant of the trial court's order that no testimony of prior lawsuits be elicited. The trial court denied each such motion. At the close of all the evidence, the jury was instructed that the parties had stipulated that the defendant was 100 percent at fault in causing the accident; that the initial emergency room treatment and follow-up visits were reasonable (an admission of liability for $1,244 only); and that the jury was to return verdicts on several damage questions propounded in the verdict form. The jury returned with a damage verdict for the defendant. However, the trial court amended the verdict and awarded the plaintiffs the stipulated medical cost of $1,244, plus interest, which totaled an additur of $1,897.11. The plaintiffs assign as error the trial court's denial of their mistrial motions and their post-trial motion for judgment notwithstanding the verdict 3 or for a new trial on damages above the additur.

II.

DISCUSSION

We start out by noting that in Syllabus Point 2 of Young v. Duffield, 152 W.Va. 283, 162 S.E.2d 285 (1968), overruled on other grounds, Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995), we stated:

" 'It takes a stronger case in an appellate court to reverse a judgment awarding a new trial than one denying it and giving judgment against the party claiming to have been aggrieved.' Point 1, Syllabus, The Star Piano Co. v. Brockmeyer, 78 W.Va. 780[, 90 S.E. 338 (1916) ]."

Page 351

As stated in Syllabus Point 4 of Young v. Duffield, supra, we have long held that:

"An appellate court is more disposed to affirm the action of a trial court in setting aside a verdict and granting a new trial than when such action results in a final judgment denying a new trial."

Additionally, " ' "[w]here a verdict does not include elements of damage which are specifically proved in uncontroverted amounts and a substantial amount as compensation for injuries and the consequent pain and suffering, the verdict is inadequate and will be set aside. Hall v. Groves, 151 W.Va. 449, 153 S.E.2d 165 (1967)." King v. Bittinger, 160 W.Va. 129, 231 S.E.2d 239, 243 (1976).' Syllabus Point 1, Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983)." Syl. Pt. 2, Maynard v. Napier, 180 W.Va. 591, 378 S.E.2d 456 (1989); We indicated in Syllabus Point 3 of Walker v. Monongahela Power Company, 147 W.Va. 825, 131 S.E.2d 736 (1963) that:

"In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true." 4

In addressing the issue of a motion for mistrial, we have held in Syllabus Point 9 of Board of Education of McDowell County v. Zando, Martin & Milstead, Inc., 182 W.Va. 597, 390 S.E.2d 796 (1990):

" 'Whether a motion for a mistrial should be sustained or overruled is a matter which rests within the trial court's discretion and the action of the trial court in ruling on such a motion will not be cause for reversal on appeal unless it clearly appears that such discretion has been abused.' Syllabus Point 4, Moore, Kelly & Reddish, Inc. v. Shannondale, Inc., 152 W.Va. 549, 165 S.E.2d 113 (1968)."

The first contention raised by the plaintiffs is that during jury selection and periodically during the course of the trial, counsel for the defendant would speak extremely loud during bench conferences to the extent that the jury could hear matters pertaining to the trial court's in limine ruling on prior litigation by the plaintiffs. In Syllabus Point 5 of State v. Davis, 180 W.Va. 357, 376 S.E.2d 563 (1988), we stated:

" ' "Failure to make timely and proper objection to remarks of counsel made in the presence of the jury, during the trial of a case, constitutes a waiver of the right to raise the question thereafter either in the trial court or in the appellate court." Point 6, Syllabus, Yuncke v. Welker, 128 W.Va. 299 [36 S.E.2d 410 (1945) ].' Syllabus point 7, State v. Cirullo, 142 W.Va. 56, 93 S.E.2d 526 (1956)."

While plaintiffs' brief sets out several examples where it is indicated during bench conferences that defense counsel was speaking too loud, the record does not show that any such incident was preserved for appellate review by a proper objection and ruling on the issue by the trial court. We find, therefore, that under Davis, this issue was waived. This Court has consistently maintained that failure to make a timely objection seriously impairs the right to subsequently raise the objection.

The next matter urged on this Court involves comments by defense counsel during his opening statement which mentioned a prior litigation by Mrs. Johnson. The pertinent...

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1 practice notes
  • Summers v. Martin, No. 23462
    • United States
    • Supreme Court of West Virginia
    • June 5, 1997
    ...a clearly erroneous standard. Questions of law are subject to a de novo review. We indicated in syllabus point 1 of Johnson v. Garlow, 197 W.Va. 674, 478 S.E.2d 347 (1996) that '[i]n determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate infe......
1 cases
  • Summers v. Martin, No. 23462
    • United States
    • Supreme Court of West Virginia
    • June 5, 1997
    ...a clearly erroneous standard. Questions of law are subject to a de novo review. We indicated in syllabus point 1 of Johnson v. Garlow, 197 W.Va. 674, 478 S.E.2d 347 (1996) that '[i]n determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate infe......

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