King v. Ferguson

Decision Date15 November 1996
Docket NumberNo. 23170,23170
Citation198 W.Va. 307,480 S.E.2d 516
CourtWest Virginia Supreme Court
PartiesMelody A. KING, Plaintiff Below, Appellant, v. Amy Danielle FERGUSON and Frank Sisson, Defendants Below, Appellees.

Raymond G. Musgrave, Musgrave & Musgrave, Point Pleasant, for Appellant.

Randall L. Trautwein, Levy, Trautwein & Pancake, Huntington, for Appellees.


This is an appeal 1 by plaintiff below and appellant herein, Melody A. King, from a denial of her motion for a new trial. The plaintiff filed suit against the defendants, Amy Danielle Ferguson and Frank Sisson, for damages incurred as a result of an automobile accident. The case was tried before a jury in the Circuit Court of Mason County. The jury returned a verdict for the plaintiff in the amount of $2,025.05. The trial court assessed jury costs against the plaintiff, as a result of the jury award being substantially less than the last settlement offer by the defendants. The plaintiff moved for a new trial which was denied. The plaintiff now appeals the denial of her motion for a new trial and the assessment of jury costs against her.


The plaintiff was driving along a highway in Mason County on June 27, 1991, when her vehicle was rear-ended by a car being driven by Amy Danielle Ferguson. 2 The plaintiff was treated for minor injuries in the emergency room at Pleasant Valley Hospital and released. The record indicates the plaintiff was able to immediately return to her employment as a home health care aide, and she regularly worked sixty hours a week. In 1992, the plaintiff filed the instant lawsuit seeking to recover damages stemming from the accident with Ms. Ferguson. The case was tried before a jury on February 27, 1995. The defendants admitted liability for the accident, but challenged most of the damages attributed to the same. The jury returned a verdict for the plaintiff, awarding her $2,025.05. 3 The plaintiff moved for a new trial on the grounds that the verdict award was manifestly inadequate. The trial court denied the motion for a new trial. The trial court also assessed jury costs against the plaintiff after finding the defendants made a final settlement offer of $24,000, which was rejected by the plaintiff. The plaintiff now asks this Court to reverse the trial court's order denying her a new trial and assessing jury costs against her.


As a general matter, we review a trial court's rulings on a motion for a new trial under an abuse of discretion standard. In re State Public Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994) (Cleckley, J., concurring), cert. denied, --- U.S. ----, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995). Nevertheless, questions of law are subject to a de novo review. Tennant v. Marion Health Care Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995). We held in Syllabus Point 1 of Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983) that "[i]n an appeal from an allegedly inadequate damage award, the evidence concerning damages is to be viewed most strongly in favor of the defendant." However, in Syllabus Point 3 of Kaiser, supra, we held that:

" '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.' " (Citations omitted).

We indicated in Syllabus Point 3 of Walker v. Monongahela Power Company, 147 W.Va. 825, 131 S.E.2d 736 (1963):

"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."

See also In re State Public Bldg. Asbestos Litigation, 193 W.Va. at 125, 454 S.E.2d at 419. Additionally, in Syllabus Point 2 of Young v. Duffield, 152 W.Va. 283, 162 S.E.2d 285 (1968), overruled on other grounds, Tennant, supra, this Court further provided that "[i]t 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."


The first issue to be taken up is the plaintiff's contention that evidence proffered by her regarding three injuries allegedly attributed to the accident was uncontroverted. The injuries were: (1) migraine headaches, (2) temporomandibular joint dysfunction, and (3) cervical strain. We discuss each injury separately.

A. Migraine Headaches

The plaintiff introduced the videotaped deposition of Daniel R. Black, D.O., who testified the plaintiff complained of having migraine headaches associated with the accident. The defendants countered this testimony with the videotaped deposition of Robert J. Thompson, M.D., a neurologist, who testified it was his opinion that the plaintiff's migraine headaches were not attributed to the automobile accident. We fail to comprehend the plaintiff's argument on appeal that the issue of her migraine headaches was not contested. The jurors were confronted with the testimony of Dr. Black, who indicated the accident caused the migraine headaches; on the other hand, they were given compelling testimony by Dr. Thompson that the accident had no connection whatsoever with the migraine headaches. This issue presented a classic factual dispute that had to be resolved by the jury. In Syllabus Point 1 of Evans v. Farmer, 148 W.Va. 142, 133 S.E.2d 710 (1963), we stated that "[i]t is the peculiar and exclusive province of the jury to weigh the evidence and resolve questions of fact when the testimony of witnesses is conflicting[.]" See Syl. Pt. 1, Ashland Oil, Inc. v. Donahue, 164 W.Va. 409, 264 S.E.2d 466 (1980). In view of the character of the evidence presented on the issue of the plaintiff's migraine headaches and the latter rule, we cannot conclude that the jury improperly considered this issue. 4 The trial court, in other words, was absolutely correct in not disturbing the jury's resolution of this issue on the motion for new trial by the plaintiff.

B. Temporomandibular Joint Dysfunction

Next, the videotaped deposition of Winfield C. John, III, M.D., oral and maxillofacial surgeon, was presented by the plaintiff to address the issue of her temporomandibular joint dysfunction. Dr. John testified the plaintiff was suffering pain associated with temporomandibular joint dysfunction. However, during cross-examination of Dr. John, it was brought out that the plaintiff did not complain of jaw pain until August of 1994. Dr. John concluded he would have expected complaints before that time and, therefore, the exact cause of the problem was "more unclear." The defendants introduced the videotaped deposition of John A. Cheek, M.D., an oral surgeon, who testified that the plaintiff was suffering from temporomandibular internal derangement with secondary masticatory myofascial pain. However, Dr Cheek...

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6 cases
  • Carper v. Watson
    • United States
    • West Virginia Supreme Court
    • June 8, 2010
    ...costs incurred after a settlement offer wherein a verdict is less favorable than the settlement offer.” King v. Ferguson, 198 W.Va. 307, 315, 480 S.E.2d 516, 524 (1996). Thus, contrary to the Appellant's position, the circuit court in this action did not err in awarding costs; indeed, it wa......
  • State v. Myers
    • United States
    • West Virginia Supreme Court
    • June 16, 2004
    ...previously included "jury costs" within the general meaning of "costs" in other contexts. For example, in King v. Ferguson, 198 W.Va. 307, 315, 480 S.E.2d 516, 524 (1996) (per curiam), this Court, concluded that a trial court had properly assessed jury costs against a plaintiff under the au......
  • Shiel v. Ryu
    • United States
    • West Virginia Supreme Court
    • July 10, 1998
    ...jury to resolve the conflict, and its verdict thereon will not be disturbed unless believed to be plainly wrong." See King v. Ferguson, 198 W.Va. 307, 480 S.E.2d 516 (1996); Laney v. State Farm Mut. Auto. Ins. Co., 198 W.Va. 241, 479 S.E.2d 902 In syllabus point fourteen of Abdulla v. Pitts......
  • Dawson v. United States
    • United States
    • U.S. District Court — Northern District of West Virginia
    • March 31, 2014 Wade's pain and suffering, the parties contested Wade's overall mental status while a patient at the CLC. See King v. Ferguson, 198 W.Va. 307, 480 S.E.2d 516, 522 (1996) (recognizing “mental anguish” and “mental distress” as types of non-economic losses). On direct examination, Dr. Moxle......
  • Request a trial to view additional results

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