SYX v. Britton

• Decision Date: 25 June 2004
• Parties: Roger Dale SYX and S.P. Richards Company v. Lowell Thomas BRITTON.
• Court: Alabama Court of Civil Appeals

894 So.2d 715

Roger Dale SYX and S.P. Richards Company v. Lowell Thomas BRITTON.

2020688.

Court of Civil Appeals of Alabama.

June 25, 2004.

Judith E. Dolan and Lucy W. Jordan of Clark & Scott, P.C., Birmingham, for appellants.

Donald R. Harrison, Dadeville, for appellee.

YATES, Presiding Judge.

Roger Dale Syx and S.P. Richards Company appeal from the trial court's grant of a motion for a new trial.

On December 22, 1999, Lowell Thomas Britton sued Syx, S.P. Richards Company, and Genuine Auto Parts, Inc., alleging negligence and wantonness arising out of an automobile accident occurring on January 5, 1998. At the time of the accident, Syx was employed by S.P. Richards Company, and Britton alleged in his complaint that S.P. Richards Company was owned by Genuine Auto Parts. The defendants answered, denying the allegations and asserting the affirmative defense of contributory negligence. The case was tried before a jury on August 5, 6, and 7, 2002.¹ At the close of Britton's case-in-chief, the trial court dismissed the claims against Genuine Auto Parts. At that time, Britton withdrew his wantonness claim against Syx and S.P. Richards Company. At the close of all the evidence, the trial court determined that the defendants had not proved contributory negligence, and it refused to charge the jury on that defense. Subsequently, the jury returned a verdict in favor of Syx and S.P. Richards Company and a judgment was entered on that verdict.

On August 30, 2002, Britton moved for a new trial, arguing that the jury's verdict and the judgment entered upon that verdict was against the great weight of the evidence. He also argued that the verdict was erroneous as a matter of law because, he asserted, the trial court's finding that there was no contributory negligence precluded the jury from rendering a verdict for the defendants. The parties filed a joint motion to allow Britton's motion for a new trial to remain pending for more than 90 days. On March 25, 2003, the trial court granted Britton's motion for a new trial on the grounds that the verdict was against the great weight of the evidence, stating:

"The facts of this case show that [Britton], while sitting in his vehicle at a red light at the .... intersection, was rear ended by Defendant Roger Dale Syx. Mr. Syx was driving a large transport-type truck at the time. There was no contributory negligence charge submitted to the jury, for, under the facts presented, [Britton] could not have been guilty of contributory negligence. Evidence including medical testimony was submitted relative to [Britton's] injuries sustained in this collision. The evidence supporting a finding of significant monetary medical expenses is likewise not overwhelming. However, the evidence showing injury proximately caused by [Syx's] negligence is overwhelming.

"The verdict of the jury was simply for [Syx and S.P. Richards Company] and the Court is struck with a sense of manifest injustice in the fact that absolutely no damages were assessed by the jury. While the amount of damages should of course be left to the jury, a finding in favor of [Syx and S.P. Richards Company] goes contrary to the weight of the evidence."

Syx and S.P. Richards Company appeal.

Our supreme court, in Richardson v. Joines, 574 So.2d 787, 787 (Ala.1991), stated:

"The standard of review to be applied by this Court in reviewing the granting of a motion for a new trial is set out in Jawad v. Granade, 497 So.2d 471, at 477 (Ala.1986):

"`[A]n order granting a motion for new trial on the sole ground that the verdict is against the great weight or preponderance of the evidence will be reversed for abuse of discretion where on review it is easily perceivable from the record that the jury verdict is supported by the evidence.'"

With regard to the standard set forth in Jawad v. Granade, 497 So.2d 471 (Ala.1986), our supreme court has stated that "the trial court is left with no discretion to grant a new trial on a `weight of the evidence' ground, except when the verdict and the judgment entered thereon are so against the great weight and preponderance of the evidence as to be `plainly and palpably' wrong, i.e., `manifestly unjust.'" Richardson, 574 So.2d at 788. Additionally, this court must "review the evidence in the light most favorable to the prevailing party and must indulge all reasonable inferences that the jury was free to draw." Floyd v. Broughton, 664 So.2d 897, 900 (Ala.1995).

In the present case, our review of the record indicates that on the morning of January 5, 1998, Syx was driving a truck owned by S.P. Richards Company when he struck Britton's truck in the rear while Britton was stopped at a traffic light. Syx testified that at the time of the accident he was traveling approximately 30 to 35 miles per hour when he struck Britton.

Syx and S.P. Richards Company contend that the jury could have determined that Syx "did not act unreasonably" when he struck Britton because the roads were wet and the traffic light had changed to green before the accident occurred. However, they cite no cases other than general propositions of law in support of their argument that Syx's actions were reasonable. See Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251 (Ala.1994)(it is not for the appellate court "to make and address legal arguments for a party based on undelineated general propositions not supported by sufficient authority or argument"). Even if Syx and S.P. Richards Company had properly supported their argument, Syx's testimony does not support an inference that Syx acted reasonably under the circumstances. Syx's own testimony is as follows:

"[Syx]: Well, as I got in view of the intersection, I saw there were two vehicles sitting there. And, Mr. Britton was the second vehicle. I saw the light was red. As I got closer the light turned green. And, the first car [in front of Britton] started to pull off. And, as I noticed that Mr. Britton didn't pull off, I started stopping, and as I started to stop, the truck slid and I slid into the rear end of Mr. Britton."

Syx's testimony indicates that he approached an intersection where the traffic light was red and where there were two vehicles stopped in front of him. Although the light changed to green and the first car had started to proceed through the intersection, Syx struck Britton while traveling approximately 30 to 35 miles per hour. There is nothing in the record from which a jury could reasonably infer that Syx acted reasonably under these circumstances. Cf. Jones v. Baltazar, 658 So.2d 420 (Ala.1995)(defendant acted as a reasonable person under circumstances where defendant was attempting to pass another motorist who deliberately accelerated and, in order to avoid a head-on collision, the defendant had to reenter the right traffic lane and, because the road was wet, could not stop in time to avoid rear-end collision with plaintiff). Additionally, if Syx and S.P. Richards Company are attempting to argue that a sudden emergency existed, they did not raise that argument at the trial court level; moreover, we note that the sudden emergency doctrine is not available if the sudden-emergency was the fault of the one seeking to invoke the doctrine. See Waters v. Williams, 821 So.2d 1000 (Ala.Civ.App.2001)(sudden-emergency doctrine not available in action arising out of rear-end collision where defendant saw plaintiff's brake lights three car lengths in front of her but failed to stop).

Syx and S.P. Richards Company also argue that, even if the jury determined that Syx was negligent, there was conflicting evidence regarding the proximate cause of Britton's injuries and that the jury resolved those conflicts in their favor. We must now review the evidence in a light most favorable to Syx and S.P. Richards Company, and apply the standard set out in Jawad. Britton was not transported to the hospital after the accident. However, on the afternoon of the accident, Britton felt pain in his neck and went to Dr. Andy Middleton, a chiropractor. Dr. Middleton did not testify at trial and his records were not reviewed by any of the expert witnesses.

Britton testified that he has had worsening pain in his neck and back since the accident. Dr. John Hackman, a neurologist, testified that he first saw Britton in December 2000 and that he believed Britton's major problem was bone spurs pinching nerves. He further testified that Britton had a two- or three-year history of neck, arm, and shoulder pain. Dr. Hackman testified that he did not know what caused Britton's bone spurs and pinched nerves. He stated that it was possible that trauma from the automobile accident was the cause, but that bone spurs were generally caused by degenerative changes in the disc.

Dr. Teresa Allen originally began treating Britton in November 2000 with "chelation" therapy. Chelation therapy is used to remove heavy metals from the body, such as when a child has lead poisoning. Dr. Allen used chelation therapy to treat Britton for vascular disease, which was unrelated to the car accident. In January 2001, she began treating Britton with "prolo" therapy. Prolo therapy is a form of...