Linville v. Moss, 21263

• Decision Date: 22 July 1993
• Docket Number: No. 21263,21263
• Citation: 189 W.Va. 570,433 S.E.2d 281
• Court: West Virginia Supreme Court
• Parties: Ellen Roxanna LINVILLE, Administratrix of the Estate of Jack K. Linville, Plaintiff Below, Appellant, v. John W. MOSS III, and Guest Trucking Company, Inc., Defendants Below, Appellees.

Page 281

433 S.E.2d 281

189 W.Va. 570

Ellen Roxanna LINVILLE, Administratrix of the Estate of Jack

K. Linville, Plaintiff Below, Appellant, v. John W. MOSS III, and Guest Trucking Company, Inc.,

Defendants Below, Appellees.

No. 21263.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 19, 1993.

Decided July 22, 1993.

Syllabus by the Court

1. "We will not find a jury verdict to be inadequate unless it is a sum so low that under the facts of the case reasonable men cannot differ about its inadequacy." Syl. Pt. 2, Fullmer v. Swift Energy Co., Inc., 185 W.Va. 45, 404 S.E.2d 534 (1991).

2. "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).

3. "A verdict of a jury will be set aside where the amount thereof is such that, when considered in the light of the proof, it is clearly shown that the jury was misled by a mistaken view of the case." Syl. Pt. 3, Raines v. Faulkner, 131 W.Va. 10, 48 S.E.2d 393 (1947).

4. "In a civil action for recovery of damages for personal injuries in which the jury returns a verdict for the plaintiff which is manifestly inadequate in amount and which, in that respect, is not supported by the evidence, a new trial may be granted to the plaintiff on the issue of damages on the ground of the inadequacy of the amount of the verdict." Syl. Pt. 3, Biddle v. Haddix, 154 W.Va. 748, 179 S.E.2d 215 (1971).

5. The viability of the Freshwater v. Booth, 160 W.Va. 156, 233 S.E.2d 312 (1977), analytical framework for types 2 and 3 cases is limited by the advent of comparative negligence, because it is no longer necessary to look behind the verdict form on appeal to determine the jury's view on liability. Freshwater types 1 and 4, which themselves are close siblings, continue to exist based on a court's inherent right to set aside a verdict when it is not supported by the evidence.

6. In categorizing future cases of alleged verdict inadequacy, the concepts which underlie Freshwater v. Booth, 160 W.Va. 156, 233 S.E.2d 312 (1977), types 1 and 4 remain viable. Where, despite precise assessment of fault by a jury, a type 2 situation still exists, in which it is clear to a reviewing court that under all the evidence the jury must have been confused on liability, a case may be remanded on all issues.

J. Timothy DiPiero, Franklin S. Fragale, Jr., Lonnie C. Simmons, DiTrapano & Jackson, Charleston, for appellant.

Charles E. Pettry, Jr., Goodwin & Pettry, Charleston, for appellee John Moss III.

Daniel R. Schuda, Steptoe & Johnson, Charleston, for appellee Guest Trucking Co., Inc.

WORKMAN, Chief Justice:

This is an appeal by Ellen Roxanna Linville, as administratrix of the estate of her deceased husband Jack K. Linville, from a November 5, 1991, order of the Circuit Court of Kanawha County denying the Appellant's motion to set aside the jury verdict and award a new trial on all issues, or, in the alternative, on the issue of damages. We affirm the decision of the jury regarding the allocation of fault, but we reverse and remand for a new trial on the issue of damages.

I.

On September 5, 1988, at approximately 8:00 p.m., Michael Brown, a truck driver for Appellee Guest Trucking Company, Inc., parked his tractor trailer on the berm of Route 60 in Hurricane, West Virginia, across the road from Kim's Quik Mart. After making inquiries in the store concerning directions to his destination, Mr. Brown attempted to make a U-turn by pulling the tractor trailer into Kim's Quik Mart. As Mr. Brown maneuvered his truck into the parking lot, Jack Linville exited Kim's Quik Mart and offered his assistance. According to testimony at trial, Mr. Linville stood on the driver's side of the truck, determined that there was no traffic coming, and motioned for Mr. Brown to back out onto Route 60. Mr. Linville was allegedly standing near the center line when Appellee John W. Moss, driving his vehicle west on Route 60, struck and fatally injured Mr. Linville.

Mr. Moss testified that he had consumed a "couple of beers" earlier in the day, and John Wageman, a Putnam County EMT Firefighter, testified that he noticed an odor of alcohol on Mr. Moss. Mr. Moss, contrary to the testimony of other witnesses to the accident, asserted that Mr. Linville was three to four feet over the center line and in the path of Mr. Moss' vehicle at the time of impact. Mr. Moss also testified that he had swerved to miss Mr. Linville but was unable to avoid the collision. Members of the Putnam County Sheriff's Department, however, testified that they discovered no evidence indicating any evasive action taken by Mr. Moss.

With regard to normal truck safety practices, Mr. Gary Huey testified that Mr. Brown should not have attempted to back onto the highway. Moreover, Mr. Huey explained that Mr. Brown had a duty to seek out information regarding a safe turning area and to avoid making a U-turn or backing out onto Route 60.

With regard to damages, the Appellant testified that Mr. Linville, age forty-one at the time of his death, had been unemployed and had assumed most of the responsibilities of the household and the care of his and his wife's son, Teddy, twelve years of age at the time of the accident. The Appellant testified to $3,719 in funeral expenses and presented the testimony of professor of economics Donald R. Adams, Jr., regarding the replacement loss of Mr. Linville's household services. Mr. Adams explained that the value of replacement services was $367,692, or $240,180 after reduction to present value. Mr. Adams also explained that Mr. Linville was incapable of sustaining gainful employment due to his learning disability and his fifth grade education.

The jury returned a verdict of $4,000 for reasonable funeral expenses, assessing forty-nine percent negligence to Mr. Linville, twenty-six percent negligence to Mr. Moss as the driver of the car, and twenty-five percent negligence to Guest Trucking Company. ¹ The jury awarded nothing to decedent's wife and son for loss of services, sorrow, mental anguish, or companionship. Subsequent to trial, the Appellant moved to set aside the verdict and to award a new trial on all issues or simply on the issue of damages. The lower court denied that motion, holding that under Freshwater v. Booth, 160 W.Va. 156, 233 S.E.2d 312 (1977), the jury's verdict was a defendant's verdict perversely expressed and therefore should be affirmed.

II.

Under the Freshwater framework for analysis of inadequate jury awards of damages, it must first be determined whether a verdict is indeed inadequate. Then it must be determined whether a new trial should be granted on liability and/or damages or whether the verdict should be upheld as a defendant's verdict perversely expressed.

The lower court classified this case as a type 3 Freshwater case. To have satisfied the definition of a type 3 case pursuant to the Freshwater analysis, damages must have been "so inadequate as to be nominal under the evidence in the case." 160 W.Va. at 163, 233 S.E.2d at 316. By classifying this verdict as a type 3 case, therefore, the lower court implicitly held that the award of damages was inadequate.

We agree with the lower court's apparent conclusion regarding the inadequacy of the damages. In syllabus point 2 of Fullmer v. Swift Energy Co., 185 W.Va. 45, 404 S.E.2d 534 (1991), we set forth the general standard for assessing the adequacy of an award. "We will not find a jury verdict to be inadequate unless it is a sum so low that under the facts of the case reasonable men cannot differ about its inadequacy." Id. at 46, 404 S.E.2d at 535. In the present case, the jury awarded only $4,000 for funeral expenses. It awarded nothing for mental anguish, nothing for sorrow or loss of companionship to either the decedent's wife or son, and nothing for the loss of services which were valued by the Appellant's expert to be in excess of $200,000. ²

In syllabus point 1 of Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983), we explained 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." Accord, Syl. Pt. 6, Dowey v. Bonnell, 181 W.Va. 101, 380 S.E.2d 453 (1989); Syl. Pt. 1, Maynard v. Napier, 180 W.Va. 591, 378 S.E.2d 456 (1989). Even when so viewed, the evidence in this matter still establishes that the decedent had made significant contributions to his family's household responsibilities. Mr. Linville's immediate family consisted of his wife and son Teddy, twelve years of age at the time of his father's death. The Appellant testified extensively about the close relationship between Mr. Linville and Teddy. Although Mr. Linville was not employed outside the home, Mr. Adams, as the Appellant's economic expert, testified that the replacement loss of Mr. Linville's household services was $367,692, or $240,180 after reduction to present value. Despite this testimony, the jury awarded no damages for mental anguish, sorrow and loss of companionship, or loss of services. The Appellant was awarded only $4,000 in funeral expenses.

The Appellees contend that the $4,000 award was adequate in view of the testimony from the Appellant which indicated that prior to her husband's death, he had spent a significant portion of many days at Kim's Quik Mart. The Appellees believe that such testimony, despite other testimony regarding the decedent's activities of cleaning, preparing meals, and caring for Teddy, justifies the jury's conclusion of no economic loss for household services. The Appellees presented no independent economic evidence regarding the replacement value of the decedent's services. The Appellees did, however, challenge Mr. Adams' conclusions based upon his reliance upon figures contained in a survey conducted in 1982 and based upon his failure to speak with neighbors or...