Kaiser v. Hensley

• Decision Date: 26 May 1983
• Docket Number: No. 15788,15788
• Court: West Virginia Supreme Court
• Parties: Everett J. KAISER, et al. v. Jeffrey K. HENSLEY, et al.

Page 598

318 S.E.2d 598

173 W.Va. 548

Everett J. KAISER, et al. v. Jeffrey K. HENSLEY, et al.

No. 15788.

Supreme Court of Appeals of West Virginia.

May 26, 1983.

Syllabus by the Court

1. In an appeal from an allegedly inadequate damage award, the evidence concerning damages is to be viewed most strongly in favor of the defendant.

2. A damage award "which disregards the instructions of the court or constitutes a mistake and by virtue thereof does not cover the actual pecuniary loss properly proved," syl. pt. 3, Richmond v.

Campbell, 148 W.Va. 595, 136 S.E.2d 877 (1969), is an inadequate award.

3. "Where 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).

4. "In an action for recovery of damages arising from the operation of a motor vehicle, the jury should not in any manner be informed that the defendant is not protected by insurance. If in such a case counsel for the defendant, in his argument addressed to the jury, states that the defendant is not protected by such insurance, or if he makes remarks clearly implying that the defendant is not so protected, his so doing will ordinarily constitute reversible error, notwithstanding the fact that the jury is instructed by the court not to consider such remarks in arriving at a verdict." Syl. pt. 2, Graham v. Wriston, 146 W.Va. 489, 120 S.E.2d 713 (1961).

5. A remark clearly implies that a defendant is protected or unprotected by insurance if it otherwise has no relevancy to any issue properly raised in the case, or if its repetition exceeds the bounds of proper, enthusiastic advocacy.

Jenkins, Fenstermaker, Krieger, Kayes & Farrell, Norman K. Fenstermaker and William P. Hagenbuch, Jr., Huntington, for appellants.

Campbell, Woods, Bagley, Emerson, McNeer & Herndon, James D. McQueen, Jr. and Cheryl L. Connelly, Huntington, for appellees.

NEELY, Justice:

Our appellants, Mr. and Mrs. Kaiser, are aggrieved by a jury award for damages sustained when appellees Jeffrey and Keith Hensley drove into their car on U.S. Route 60 near Huntington. The appellants allege that the award did not amount to the actual damages incurred, and, since liability was admitted, was therefore insufficient as a matter of law. Appellants further allege that in his argument appellees' counsel repeatedly alluded to the uninsured status of his clients in violation of our rule against such insinuations announced in Graham v. Wriston, 146 W.Va. 484, 120 S.E.2d 713 (1961). We are convinced by neither argument, and affirm the Cabell County Circuit Court.

I

Liability was admitted by the appellees, and the trial was solely on the issue of damages. The jury below awarded damages of $5,000.00 to Mr. Kaiser and $4,000.00 to his wife. The appellees had stipulated that, with respect to Mr. Kaiser, damages of $333.00 for medical expenses were reasonable and necessarily incurred and, with respect to Mrs. Kaiser, that damages of $900.00 for the destruction of her automobile and $277.00 in medical expenses were reasonable and necessarily incurred.

In addition to the stipulated damages, the appellants claimed special damages. First, they claimed special damages of $2,294.00 for medical treatment of a hiatal hernia caused by excessive doses of aspirin taken by Mr. Kaiser to relieve back pain caused by the accident. Second, they claimed special damages of $2,124.00 and $4,075.34 for maintenance work which Mr. and Mrs. Kaiser, respectively, were unable to perform themselves as a result of injuries received in the accident. The special damages were contested at trial by the appellees on the grounds that there was no substantial causal relationship between the crash and the hiatal hernia, that Mr. Kaiser had failed to mitigate his damages properly, and that much of the hiring out of the maintenance work was not actually necessitated by the appellants' injuries. The judgments brought by the jury evidently represented their resolution of this conflict.

We analyzed the standards by which to review damage awards in the case of Freshwater v. Booth, 160 W.Va. 156 233 S.E.2d 312 (1977). Under the typology developed by this Court in Freshwater, this is a Type 1 case in that the plaintiff below "would have been entitled to a directed verdict on liability as a matter of law," 233 S.E.2d, at 315. The question before us, then, is whether "the damages are inadequate even when viewed most strongly in favor of the defendant," id., the second condition required of a Type 1 case before it will be reversed. If this latter condition is satisfied, "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." Id.

Viewed most strongly in favor of the appellees, however, the evidence permits a conclusion that Mr. Kaiser was damaged by treating himself with excessive doses of aspirin, and that this damage would have been averted had Mr. Kaiser obtained proper medical treatment. ¹ Again viewed most strongly in favor of appellees, the evidence permits a conclusion that the wages paid out by Mr. and Mrs. Kaiser included significant amounts for work which the Kaisers had not done themselves before the accident, and that much of the hiring out of work did not follow from incapacitation caused by the accident.

Our most generous conclusion regarding adequacy of damages was reached in King v. Bittinger, 160 W.Va. 129, 231 S.E.2d 239 (1976) (reh. denied, 1977) in which we stated:

Where 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. 231 S.E.2d at 243.

The only elements of damage which have been specifically proven in uncontroverted amounts in this case are the stipulated damages. The amounts of the special damages are directly controverted by appellees--not over a question of liability or unreasonableness, but rather on the grounds that the costs were not incurred by the Kaisers as a result of the accident. When the stipulated damages are subtracted from the award, a substantial remainder is left as compensation for injuries and consequent pain and suffering. Even under the King v. Bittinger generous standard of inadequacy, the awards are not inadequate when the evidence is viewed most strongly in favor of the defendant. The second condition of Freshwater v. Booth, supra, is therefore not met, and a retrial is consequently not indicated.

II

Appellants go on to allege that at trial below the Hensleys' lawyer deliberately attempted to create the false impression in the minds of the jury that the Hensleys were uninsured, and that any award would have to come out of their own pockets. This was allegedly accomplished by the lawyer's describing the occupations of the Hensleys and stating, one time in the opening argument and seven times in the closing argument, that they would be obliged "to pay" any judgment rendered.

It was not improper for appellees' counsel to have mentioned the occupations of his clients. ² It is a common practice for trial attorneys to introduce a client to the jury, and elicit from the client his or her age, address, family situation and employment. We do not condemn this practice. However, the repetition by the lawyer of his reference to "payment" presents a more perplexing issue.

In Graham v. Wriston, 146 W.Va. 484, 120 S.E.2d 713 (1961), we had occasion to discuss the propriety of allusions to a defendant's uninsured status. In that case our legal conclusion was that:

... the jury should not be apprised in any way that the defendant is not insured against liability, not only because such fact is immaterial to any proper issue in the case, but also because of the tendency such fact may have to cause the jury out of sympathy for the defendant to relieve him improperly from liability, or to return in favor of the plaintiff a verdict which is inadequate in amount. Id., at 718.

We stand by that conclusion today. The issue before us is thus a factual one--whether the Hensleys' lawyer apprised the jury that these defendants were not insured against liability. He obviously did not do so explicitly, but Graham v. Wriston, supra, also requires reversal if an attorney clearly implies that his client is uninsured.

The statement that we singled out for condemnation in Graham v. Wriston, supra, was made by defendant's counsel in argument to the jury:

"This is a matter of quite a great deal of importance to Orville Wriston. As I said the other day to some of you, when you go to your jury room you are in the position of having a blank check with his name signed to it and you can fill it in for any amount you want to and he will have to pay it. That is the measure of your responsibility in this case, and I know you realize it. I know I do. And I particularly know that Orville Wriston keenly realizes it." 146 W.Va. at 494, 120 S.E.2d at 720.

As we noted in Graham, our particular objection to that statement was that it "could have no conceivable relevancy to any proper issue in the case." Id.

Their lawyer's repetitive mention of the Hensleys' having "to pay" is not in this category of otherwise irrelevant statement. The seven references to payment are directly related to proper arguments by the lawyer. ³ Where causality is an issue concerning the various elements of the damage, the question of who should be the one to pay for what is a question that a lawyer is very likely to argue. In fact, appellants' own lawyer used a similar argument in his own closing statement. ⁴ Furthermore, the seven references occurred over eighteen pages of...