King v. Bittinger
| Decision Date | 21 December 1976 |
| Docket Number | No. 13588,13588 |
| Citation | 160 W.Va. 129,231 S.E.2d 239 |
| Parties | Clarence E. KING and Lillian B. King v. Joseph BITTINGER. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. Slight evidence will generally authorize the trial court to give an instruction presenting a litigant's theory of the case, even though the evidence is insufficient to support a verdict based entirely on this theory.
2. 'In an action for damages for personal injury allegedly due to the negligence of the defendant, a verdict of the jury in favor of the plaintiff for a Nominal amount will not be set aside on the ground of inadequacy where the evidence is such that if a verdict has (sic) been returned for the defendant the trial court could not have disturbed the verdict, inasmuch as such verdict must be considered as a finding for the defendant perversely expressed.' Syllabus Point 1, Coakley v. Marple, 152 W.Va. 68, 159 S.E.2d 378 (1968).
3. 'One claiming damages for loss of wages is not barred from recovering on the claim merely because he was paid in accordance with a sick leave policy or similar plan while away from work.' Syllabus Point 4, Ellard v. Harvey, W.Va., --- S.E.2d --- (decided November 30, 1976).
4. 'When in an action for the recovery of damages for personal injuries the verdict does not include as elements of damages all the items of hospital and medical expenses and loss of wages the amounts of which are definite and certain, are not controverted, and constitute a specific pecuniary loss by the plaintiff and which verdict does not award a substantial amount as compensation for permanent injuries to the plaintiff caused by the negligence of the defendant, and awards the plaintiff damages in an amount materially less than that to which the plaintiff is justly entitled, as shown by the evidence, such verdict is wholly inadequate in amount and will be set aside by this Court, and the case will be remanded to the trial court with directions that the plaintiff be granted a new trial upon the single issue of the quantum of damages which, under the evidence, he is justly entitled to recover.' Syllabus Point 2, Hall v. Groves, 151 W.Va. 449, 153 S.E.2d 165 (1967).
5. A married woman may sue and recover for loss of consortium to the same extent as a married man.
6. 'Rule 59(a), R.C.P., provides that a new trial may be granted to any of the parties on all or part of the issues, and in a case where the question of liability has been resolved in favor of the plaintiff leaving only the issue of damages, the verdict of the jury may be set aside and a new trial granted on the single issue of damages.' Syllabus Point 4, Richmond v. Campbell, 148 W.Va. 595, 136 S.E.2d 877 (1964).
7. A new trial may be limited to the single issue of damages when it is apparent from a review of the evidence that: (1) the issue of damages is separate and distinct from the issue of liability; (2) the liability of the defendant is definitely established; and (3) the limitation will not operate to the prejudice of the defendant.
Herschel Rose, Fairmont, for appellants.
Furbee, Amos, Webb & Critchfield, Kenneth R. Miller, Fairmont, for appellee.
This is an appeal from a judgment of the Circuit Court of Marion County entered in a personal injury action instituted by Clarence E. King and Lillian B. King, as plaintiffs, against Joseph Bittinger, as the defendant. Clarence King sought to recover damages for personal injuries sustained when the vehicle he was operating was struck in the rear by a pick-up truck driven by the defendant. Lillian King sought recovery for loss of consortium resulting from her husband's injuries.
The case was tried before a jury. Judgment was entered by the trial court in accordance with a verdict in favor of the defendant and against the plaintiff, Lillian King, and in favor of the plaintiff, Clarence King, in the amount of $547.86 and against the defendant. The plaintiffs by written motions sought to have the verdicts set aside and a new trial awarded. Upon the trial court's refusal to grant the motions, the plaintiffs prosecuted this appeal.
The accident which gave rise to this action occurred at 11:30 a.m. on U.S. Route 250 in Marion County. The highway was wet and the situs of the collision was in the middle of a sweeping curve.
Clarence King was a rural postman who was delivering mail to the boxes along the highway. King had pulled his 1971 Bronco stationwagon onto the berm of the highway. He was reaching across the seat of his car with his hand in the mailbox when his vehicle was struck from the rear. The defendant, who was negotiating the curve in the highway, in reaction to the flashing taillights on a car preceding him, 'hit the brake' and slid forward and sideways into the King vehicle.
King suffered injuries to his left wrist and hand. There was blood in his mouth resulting from a cracked cap on a tooth. He experienced stiffness in his shoulder and neck area and his wrist became numb.
King's wife, Lillian, took him to Fairmont Emergency Hospital, where he was x-rayed and given medication for pain. He was examined later in the day by Dr. Paul Gotses, his family physician. Gotses diagnosed the injuries as a cervical strain and a strain of the left wrist. He prescribed physical therapy and medication for the pain.
King returned to work a week after the accident but was unable to perform his duties. In the months following the accident, he was only able to work intermittently. He missed 50 days of work because of the stiffness and discomfort in his neck and back.
The medical bills incurred by King were stipulated to be $547.86, the exact amount of the jury verdict. The damages awarded Clarence King included no amount for pain and suffering and nothing for loss of wages. The jury returned a verdict in favor of the defendant and against Lillian B. King upon her claim of loss of consortium.
The central issue in this appeal relates to the denial of the plaintiffs' motions to set aside the verdicts and grant the plaintiffs a new trial. The motions were based upon the grounds that the damages awarded Clarence King were inadequate and the verdict adverse to his wife's claim was contrary to the law and the evidence. The plaintiffs also contend that a new trial is mandated because of the trial court's error in instructing the jury on the issue of contributory negligence. Resolution of the propriety of the trial court's action, therefore, involves a number of considerations: (A) the sufficiency of the evidence supporting an instruction on contributory negligence; (B) the adequacy of the damages reflected in the verdicts; and (C) the scope of a new trial if one is required.
The plaintiff testified that he had driven his vehicle completely off the highway onto the berm prior to the collision. It is undisputed that the mailbox to which he was making a delivery was located six inches outside the guardrail which paralleled the highway pavement. King stated that he had reached across the front seat of his car and had his hand in the mailbox when the collision occurred. The defendant does not controvert these facts, nor does he dispute that the plaintiff was stopped.
The defendant's sole explanation of the collision is that he applied his brakes in reaction to the flashing taillights of a vehicle preceding him and slid into the plaintiff's automobile. He admits that he did not see the plaintiff until the moment of the collision. Whether he failed to see King as a result of distraction or obstruction is not apparent from the record.
The only facts, therefore, upon which an instruction of contributory negligence could be based are those inferred from other evidence. The width of the King vehicle was four feet. King and the deputy, who investigated the accident, gave conflicting testimony concerning the width of the berm. The deputy testified the berm was three feet wide at a point 'ten to fifteen feet in front' of plaintiff's vehicle where it had been knocked along the guardrail, forty feet from the point of impact. King stated the berm was more than four feet wide at the Whinnie mailbox where he had stopped. The King vehicle could have been completely off the highway pavement or one foot of it could have extended onto the highway, depending upon the actual width of the berm.
The record in this case is similarly in conflict on the distance which the King vehicle may have been visible to drivers overtaking it from the rear. 1 The plaintiff testified that the road ahead was visible for six hundred feet and the defendant stated that his visibility was less than one hundred feet. Counsel referred to the course of the highway as 'a blind curve' or 'a sweeping curve to the left', depending upon the respective interest of their clients. No direct testimony on this point, save the content of counsel's questions, was adduced at the trial.
We have adhered to the principle that slight evidence will support an instruction of the defendants' theory of the case, even though a verdict if rendered thereon would have to be set aside. Skeen v. C and G Corp., 155 W.Va. 547, 185 S.E.2d 493 (1971); Moore v. Burriss, 132 W.Va. 757, 54 S.E.2d 23 (1949). In consonance with the rule we must uphold the trial court's action in giving the instruction on contributory negligence. The inference which could have been drawn from the conflicting evidence on the width of the berm, coupled with the location of the vehicle in a place where visibility might have been limited, provides a sufficient basis under our rule of 'slight evidence' to justify the instruction. 2
The plaintiff, Clarence King, predicates his right to a new trial upon the inadequacy of the damages awarded him and his wife maintains that her adverse verdict is contrary to the law and the evidence.
The defendant, however, urges that a new trial is unwarranted on these premises because the verdicts constitute a...
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