Rains v. Herrell, 21058
| Decision Date | 11 July 1997 |
| Docket Number | No. 21058,21058 |
| Parties | James Thomas RAINS and Sharon R. Rains, Plaintiffs-Appellants, v. Justin Lee HERRELL, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Steven E. Marsh, Hulston, Jones, Gammon & Marsh, Springfield, for plaintiffs-appellants.
Tamara F. deWild, Newberry, Haden, Cowherd, Bullock & Keck, L.L.C., Springfield, for defendant-respondent.
This is an appeal of a judgment in an action for personal injuries and for loss of consortium arising from an automobile accident. Judgment was entered, following a jury trial, in favor of plaintiff James Thomas Rains for personal injuries. Judgment was entered in favor of defendant Justin Lee Herrell on plaintiff Sharon R. Rains' claim for loss of consortium. By this appeal plaintiff James Thomas Rains seeks a new trial as to damages in his personal injury claim. This court affirms.
On March 3, 1993, James Thomas Rains was involved in a motor vehicle accident in Christian County when the vehicle he was operating collided with a vehicle driven by Justin Lee Herrell. Herrell's vehicle was meeting Mr. Rains' vehicle. The Herrell vehicle left 58 feet of skid marks starting in its lane of travel and ending in Rains' lane of travel where the accident occurred.
Mr. Rains testified that he experienced headaches, backaches and stiffness the evening following the accident. He was asked how he felt the day after the accident. He answered, He was treated by a chiropractor, Dr. Dinwiddie, for about six months after the injury and missed work "right at two months, just a few days short."
Mr. Rains received additional treatments from Dr. Dinwiddie after the initial six-month treatment period. Dr. Dinwiddie referred him to Dr. McMillin, a spinal orthopedist. Dr. McMillin did not believe further diagnostic testing was necessary. He recommended physical therapy and injections of Marcaine and cortisone. Defendant underwent physical therapy but did not follow through on the injections recommended by Dr. McMillin.
Mr. Rains was also referred to a neurosurgeon, Dr. Briggs, who recommended "trigger-point-release techniques and maybe injections." Dr. Briggs suggested that Mr. Rains consult with Dr. Winkler, another medical doctor, for those measures.
Dr. Winkler prescribed pain medication and physical therapy. Mr. Rains underwent physical therapy three times a week for about a month. His report at the time of discharge stated he was essentially pain free.
Mr. Rains testified he lost wages of approximately $4,400. There was evidence of medical bills in excess of $7,500, over $5,000 of which were charges for Dr. Dinwiddie's services. The jury awarded damages in the amount of $1,190.
Plaintiff James Thomas Rains presents three claims of trial court error. He contends the trial court erred in denying the motion for new trial because the amount of damages the jury awarded "was against the weight of the evidence, not supported by substantial evidence, contrary to the uncontroverted and undisputed evidence, contrary to the defendant's own evidence and concessions, inadequate, and grossly and shockingly inadequate," (Point I) and because of defense counsel's "disparaging and inflammatory remarks about plaintiffs' counsel" during closing argument (Point III); and the trial court erred in refusing a jury instruction tendered by plaintiff "based on 'per se' negligence of being on the wrong side of the road pursuant to MAI 17.13 and 17.17," (Point II).
Point II will be addressed first. The petition on which this case was tried includes the allegation that Justin Lee Herrell "operated and drove his vehicle on the wrong side of the road and failed to drive his vehicle upon the right half of the roadway in violation of § 304.015, RSMo." There was testimony that the collision between the Rains' vehicle and the Herrell vehicle occurred on Rains' side of the roadway. Relying on the requirement of § 304.015, RSMo 1986, that "[u]pon all public roads or highways of sufficient width a vehicle shall be driven upon the right half of the roadway, ...," Rains submitted the following proposed verdict-directing instruction, patterned after MAI 17.13 and 17.17 [1978 Revision], on the theory that Mr. Herrell was negligent per se:
Your verdict must be for plaintiff James Thomas Rains if you believe:
First, defendant's automobile was on the wrong side of the road, and Second, as a direct result of such conduct, plaintiff James Thomas Rains sustained damaged.
The trial court refused the proposed instruction. It gave the following verdict director patterned after MAI 17.01 [1980 Revision], MAI 17.13 and 17.17 [1980 Revision] and MAI 11.02 [1978 Revision].
Your verdict must be for plaintiff James Thomas Rains if you believe:
First, defendant's automobile was on the wrong side of the road, and
Second, defendant was thereby negligent, and
Third, as a direct result of such negligence, plaintiff James Thomas Rains sustained damage.
The term "Negligent" [sic] or "negligence" as used in this instruction means the failure to use that degree of care that a very careful and prudent person would use under the same or similar circumstances.
Mr. Rains correctly asserts that his petition pleaded an action for negligence per se and that there was evidence to support submission of his personal injury claim on that basis. See King v. Morgan, 873 S.W.2d 272, 275 (Mo.App.1994). However, for instructional error to constitute reversible error there must be a showing of prejudice. Reversible error exists only if the merits of the action were affected by the erroneous instruction. "[I]n order to reverse a jury verdict on grounds of instructional error, the instruction in question must have misdirected, misled, or confused the jury." DeLaporte v. Robey Building Supply, Inc., 812 S.W.2d 526, 530 (Mo.App.1991).
Rains' allegation of instructional error is directed to the jury being required to find negligence rather than being directed that negligence occurred. The jury found Herrell was negligent. The jury was not misdirected, misled or confused with respect to the question of liability.
Rains further argues that the instruction "effectively allowed [Herrell] to argue contributory negligence, thereby confusing and misleading the jury and resulting in a compromise verdict as to the amount of damages awarded." That argument is likewise without merit. There was no claim of comparative fault. No contributory negligence instruction was given. The jury was instructed with respect to damages according to MAI 4.18 [1991 New]:
If you find in favor of plaintiff James Thomas Rains, then you must award plaintiff James Thomas Rains such sum as you believe will fairly and justly compensate plaintiff James Thomas Rains for any damages you believe he sustained and is reasonably certain to sustain in the future as a direct result of the occurrence mentioned in the evidence.
The jury is presumed to have followed the court's instructions. Alack v. Vic Tanny Int'l. of Missouri, Inc., 923 S.W.2d 330, 338 (Mo. banc 1996); Kohler v. McNeary, 498 S.W.2d 796, 797 (Mo.1973). The error in failing to instruct on the basis of negligence per se was harmless. Id. Point II is denied.
Point I is directed to the trial court's denial of Rains' motion for new trial. It asserts abuse of discretion in denying the motion because of the "amount of damages awarded, only $1,190.00." Point I includes three subparagraphs summarizing evidence and arguments by Mr. Herrell's trial counsel. Mr. Rains contends that the evidence and arguments support his claim that the verdict was against the weight of the evidence and was not supported by substantial evidence; that the amount of damages was "grossly and shockingly inadequate."
To the extent Point I alleges the amount of damages was inadequate in that it was against the weight of the evidence, it presents nothing for appellate review. Christ v. Tice, 578 S.W.2d 319, 322 (Mo.App.1979); Picone v. DeStefano, 453 S.W.2d 671, 672 (Mo.App.1970); Parks v. Midland Ford Tractor Co., 416 S.W.2d 22, 26 (Mo.App.1967); Schneider v. Southwestern Bell Telephone Co., 413 S.W.2d 16, 18-19 (Mo.App.1967). As explained in Homeyer v. Wyandotte Chemical Corp., 421 S.W.2d 306 (Mo.1967):
In a tort action the determination of the amount to be awarded for personal injuries is a matter resting primarily in the discretion of the jury in that it involves the credibility of witnesses and the weight and value to be given their testimony on a fact issue. Pinkston v. McClanahan, Mo., 350 S.W.2d 724, 729 [ (1961) ]; Combs v. Combs, Mo., 284 S.W.2d 423, 425 [ (1955) ]; Coghlan v. Trumbo, Mo., 179 S.W.2d 705-706 [ (1944) ]. The trial court has a wide discretion in ruling a motion for new trial which alleges that the damages awarded are inadequate since that court may take into consideration the credibility of the witnesses and may weigh the evidence. Boehmer v. Boggiano, Mo., 412 S.W.2d 103, 110 [ (1967) ]. The appellate court, however, may not pass on the weight of the evidence in reviewing the action of the trial court. Coghlan v. Trumbo, Mo., 179 S.W.2d 705, 707.
Rains further asserts, however, in the first subparagraph of Point I, as was asserted in his motion for new trial, that the amount of damages was inadequate to an extent that it demonstrates juror prejudice and passion. He contends the amount of damages indicates "the verdict resulted from the bias, prejudice, passion and misconduct of the jury." A claim that the amount of damages is so shocking and grossly inadequate as to indicate the damages portion of a verdict was due to passion and prejudice is...
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