Sullivan v. Davis

• Decision Date: 07 December 1994
• Docket Number: No. 2295,2295
• Citation: Sullivan v. Davis, 317 S.C. 462, 454 S.E.2d 907 (S.C. App. 1994)
• Court: South Carolina Court of Appeals
• Parties: Albert V. SULLIVAN and Dorothy Sullivan, Appellants-Respondents, v. Cornel R. DAVIS, Mid-Carolina Electric Cooperative, Inc., and Hazel D. Porter, Respondents, of whom Hazel D. Porter is also Respondent-Appellant. . Heard

Page 907

454 S.E.2d 907

317 S.C. 462

Albert V. SULLIVAN and Dorothy Sullivan, Appellants-Respondents, v. Cornel R. DAVIS, Mid-Carolina Electric Cooperative, Inc. and Hazel D. Porter, Respondents of whom Hazel D. Porter is also Respondent-Appellant.

No. 2295.

Court of Appeals of South Carolina.

Heard Dec. 7, 1994.

Decided Jan. 30, 1995.

Richard J. Breibart, Lexington, and Leigh J. Leventis, Columbia, for appellants-respondents.

Charles E. Carpenter, Jr., Charles N. Plowden, Jr., and Deborah Harrison Sheffield; and James B. Lybrand, Jr., Columbia, for respondent-appellant.

Robert C. Brown and Donna M. Seegars, Columbia, for respondents.

CONNOR, Judge:

These are negligence actions. While passing an eighteen wheeler on a two-lane road, Hazel Porter struck a utility truck which was attempting to turn left. Albert Sullivan was a passenger in Porter's car.

Albert brought an action for his injuries, and Dorothy, his wife, sued for loss of consortium. Defendants included Hazel Porter (the automobile driver), Cornel Davis (the utility truck driver), and Mid-Carolina Electric Cooperative (Davis' employer).

In Albert's case the jury returned a verdict for Albert for $20,000 against only Hazel Porter and found for Davis and Mid-Carolina. They found for all three defendants in Dorothy's consortium case.

After post-trial motions, the trial judge granted Albert a new trial nisi additur to $44,022.38. He denied all other post-trial motions.

The Sullivans and Hazel Porter appeal on various grounds. We affirm the jury's verdicts for Davis and Mid-Carolina. We reverse the verdict against Porter and remand for new trials for both Albert and Dorothy Sullivan.

I. Sullivans' Alleged Errors Concerning Davis and Mid-Carolina

The Sullivans first argue they are entitled to new trials against Davis and Mid-Carolina because the trial judge erred in not allowing them to use recorded statements to impeach three witnesses.

Shortly after the accident, the insurance carrier for Mid-Carolina obtained statements from Cornel Davis, the driver of the utility truck; Raiford Kirkland, Davis' supervisor who witnessed the accident; and William Joyner, a motorist who also observed the accident. The statements, which were recorded over the telephone by Dwayne Singleton, a representative of the insurance carrier, were not signed. All three witnesses testified. The Sullivans argued they should have been allowed to impeach the witnesses by introducing transcripts of the statements into evidence.

We have reviewed the testimony and the recorded statements of the three witnesses and find no prejudice to the Sullivans. The Sullivans' attorney cross-examined all three witnesses. Davis had already testified consistently concerning the disputed matters. The Sullivans impeached Kirkland and Joyner with their depositions. Furthermore, Kirkland admitted a possible discrepancy between another statement and the recorded statement.

The trial court has sound discretion in deciding whether to admit or exclude evidence; the court's decision will not be disturbed on appeal absent clear showings of both abuse and prejudice. JKT Co. v. Hardwick, 274 S.C. 413, 265 S.E.2d 510 (1980); Blackwell v. Paccar, Inc., 302 S.C. 294, 395 S.E.2d 736 (Ct.App.1990). Here, even if the court erred in excluding the statements for impeachment purposes, we see no prejudice.

II. Sullivans' Alleged Errors Concerning Hazel Porter

The Sullivans next appeal the denial of their post-trial motions for new trial against Hazel Porter. The judge denied Albert and Dorothy's new trial absolute motions but granted Albert a new trial nisi additur to $44,022.38. Porter consented to this amount.

Albert Sullivan

When the accident occurred, Albert Sullivan, who was almost seventy-eight years old, was retired. Prior to retirement he had worked in construction. Since retiring he did odd jobs and helped around the house. The accident caused internal injuries which in turn caused severe internal bleeding. In fact, Albert suffers from a 75 percent impairment of his whole body. Dr. Daniel Davis, a board-certified surgeon, characterized Albert's internal injuries as the worst he had ever seen from a person who survived an accident. He also indicated he thought Albert would die from these injuries. While hospitalized for nearly two months, Albert received over forty pints of blood. After his release he convalesced at a nursing home for two additional months. When Albert finally returned home, he had a temporary colostomy. His medical bills totalled $131,157.61. Additionally, Dr. Oliver Wood, an economic loss expert, estimated a total economic loss of approximately $100,000. ¹

After hearing all the testimony, the jury began deliberating. While they were deliberating, they sent the trial judge two inquiries:

1. We would like the exhibit of Mr. Sullivan's medical expenses.

2. The jury requests information pertaining to what medical expenses incurred by Mr. Sullivan that have not been paid and which are not covered under existing insurance.

The Record on Appeal does not contain the court's responses to the inquiries. Therefore, we assume the court correctly advised the jury it should not consider insurance in its deliberations. State v. Vanderhorst, 257 S.C. 114, 184 S.E.2d 540 (1971) (where the trial judge's instructions are not printed in the record, the appellate court must presume the judge correctly charged the jury); see also Dunn v. Charleston Coca-Cola Bottling Co., --- S.C. ----, 426 S.E.2d 756 (1993) (voir dire question on whether any members of the venire believed damages should be limited in order to reduce insurance rates was inherently prejudicial); cf. Landry v. Hilton Head Plantation Property Owners Ass'n, Inc., 452 S.E.2d 619 (S.C.Ct.1994) (Davis Adv.Sh. No. 27 at 66) (neither the existence nor the contents of a defendant's liability policy may be disclosed to the jury); Norris v. Ferre, --- S.C. ----, ----, 432 S.E.2d 491, 493 (Ct.App.1993), cert. denied, (Mar. 4, 1994) ("[T]he Supreme Court has been meticulous in keeping the issue of insurance coverage away from the jury.")

The jury returned a verdict of only $20,000 in Albert's case. The judge granted a new trial nisi to $44,022.38, the amount of Medicare's allowed charges. Albert argues first the trial judge erred in not granting Albert a new trial. In the alternative he alleges the trial judge improperly calculated the additur. Porter contends his liability for medical expenses, if any, should be limited to compensating Albert for the reasonable costs which Medicare paid, together with miscellaneous coinsurance, deductible, and non-Medicare covered expenses.

Under the circumstances the trial court should not have granted a new trial nisi. The jurors obviously did not follow the court's instructions to disregard insurance. Toole v. Toole, 260 S.C. 235, 195 S.E.2d 389 (1973). The verdict is not rationally supported by the evidence in this case. Because the verdict here was grossly inadequate, not merely inadequate, the court should have granted Sullivan's new trial absolute motion. O'Neal v. Bowles, --- S.C. ----, 431 S.E.2d 555 (1993). Therefore, we must set it aside and grant a new trial absolute. Allstate Ins. Co. v. Durham, --- S.C. ----, 431 S.E.2d 557 (1993).

Porter further argues Albert cannot challenge the additur because, having requested an additur, and gotten it, he cannot now complain about the amount. Kalchthaler v. Workman, 450 S.E.2d 621 (S.C.Ct.App.1994) (Davis Adv.Sh. No. 24); Stroud v. Stroud, 299 S.C. 394, 385 S.E.2d 205 (Ct.App.1989). In Stroud the jury awarded the plaintiff $4,765.17, the amount of his medical bills, and the judge granted a new trial nisi additur of $4,000. We affirmed that amount, but noted:

Motions for a new trial on the ground of either excessiveness or inadequacy are addressed to the sound discretion of the trial judge. His exercise of such discretion, however, is not absolute and it is the duty of this Court in a proper case to review and determine whether there has been an abuse of discretion amounting to an error of law.

Id. at 397, 385 S.E.2d at 206 (citation omitted). Kalchthaler also involved the adequacy of a new trial nisi. In that case we specifically found the amount of the verdict "not so shockingly disproportionate to the injuries Kalchthaler sustained as to indicate 'passion, caprice, prejudice, or some other influence outside the evidence' motivated the jury's decision." Kalchthaler, Davis Adv.Sh. No. 24 at 39. In this case, however, the judge abused his...