Woodmansee v. Garrett

• Decision Date: 03 June 1963
• Docket Number: No. 42686,42686
• Citation: 153 So.2d 812,247 Miss. 148
• Parties: Johnnie WOODMANSEE v. Ronald B. GARRETT.
• Court: Mississippi Supreme Court

Page 812

153 So.2d 812

247 Miss. 148

Johnnie WOODMANSEE v. Ronald B. GARRETT.

No. 42686.

Supreme Court of Mississippi.

June 3, 1963.

White, Buntin & Martin, Gulfport, for appellant.

Rae Bryant, Gulfport, for appellee.

RODGERS, Justice.

Appellant, Johnnie Woodmansee, obtained a judgment against Ronald B. Garrett in the Circuit Court of Harrison County, Mississippi, for $365 for personal injuries. Plaintiff filed a motion for a new trial, and an order was entered sustaining the motion but provided therein 'Unless defendant add $1,000 to the judgment within ten days.' Defendant filed an acceptance agreement to the other of the court. Plaintiff refused to accept the offer of defendant to add to the judgment, as suggested by the trial judge, and promptly perfected an appeal to this Court.

The foregoing compensatory judgment grew out of the following facts: The United States Government maintains an Air Base near Biloxi, Harrison County, Mississippi. 2nd Street in Keesler Air Base extends in a northerly and southerly direction. It intersects D Street at a right angle, thus 'D Street' extends east and west. 2nd Street is a 'through street.' That is to say, all vehicular traffic is required to stop at traffic 'Stop' signs placed at the entrance of the various intersections of streets before entering 2nd Street. D Street had stop signs at the northeast and southwest corners of the intersection to 2nd Street.

Appellant was proceeding north along 2nd Street at 11:50 A.M., June 4, 1962. He was riding a motor bicycle, called a 'motor scooter', and was traveling at approximately fifteen miles per hour. The weather was clear and warm. He observed a detail of flight troops as they marched from the east on D Street and turned south, approaching appellant. Appellant proceeded toward the intersection of D Street and reached it at the time when the highway guard had been withdrawn, clearing the intersection of 2nd and D Streets.

Appellant continued his progress into the intersection and suddenly saw a car to his left, just as it struck his scooter, throwing him to the pavement on the northeast corner of the intersection.

Appellant, Ronald B. Garrett, came from the west, traveling east on D Street, at a time when marching soldiers were entering the intersection. He stopped at the stop sign at 2nd Street. He observed a woman in an automobile facing south, on the north side of the intersection on 2nd Street, and as the troops cleared the intersection, she motioned to him to proceed in front of her car, east, through the intersection. Appellee then looked south, down 2nd Street, but saw no automobiles approaching from that direction. He then drove into the intersection and as he reached the southeast quadrant, his automobile collided with appellant's motor scooter.

It is apparent from the foregoing circumstances that this is a typical intersection accident, similar to myriads of cases submitted to juries for factual determination under proper legal instructions, in all parts of this country. Although the judgment was against appellee, he made no cross-appeal and now insists that the judgment should be affirmed against him, including the additur.

We are of the opinion that the verdict of the jury insofar as it determined the cause of the accident should be affirmed, and that there is sufficient testimony in the record on which to base a verdict in favor of appellant.

On the other hand, we are of the opinion that the learned trial judge should have sustained appellant's motion for a new trial on the issue of damages only, and the acceptance by appellee of an added amount to the verdict of the jury by order of the trial judge is not binding upon appellant.

Appellant was seriously and permanently injured. His teeth were cracked and broken. He suffered a severe compound fracture of the tibia of his right leg. He had several cracked ribs, and contusions and abrasions of the right hip. His injury necessitated his staying in the hospital nine weeks, during which time pins or wires extended through his heel and tibia and were incorporated with the cast. These wires were kept in his leg for a period of six weeks. His doctor testified that it was a serious fracture. For many weeks, it was necessary for the appellant to take narcotics to relieve him of pain.

Appellant has not been able to pursue his studies. He claimed his motor bicycle was totally destroyed, but this was denied by defendant. The motor scooter was valued at $215.

The jury verdict was obviously grossly inadequate and palpably against the great weight of the evidence. It therefore became the duty of the trial judge to grant a new trial on motion of the plaintiff. Anno. 16 A.L.R.2d, pp. 257, 441; City of Biloxi v. Armistead, 226 Miss. 324, 84 So.2d 431; Vaughan v. Bollis, 221 Miss. 589, 73 So.2d 160; 25 C.J.S. Damages Sec. 198h(3), p. 958; 39 Am.Jur., New Trial, Sec. 145, p. 151.

Although at one time, new trials were not granted nor reversals had upon inadequacy of damages, it is now a generally accepted rule that a verdict may be set aside on such ground by the trial court or the appellate court upon appeal, under circumstances similar to those which justify the setting aside of an excessive verdict. See 15 Am.Jur., Damages, Sec. 231, p. 663; 39 Am.Jur., New Trial, supra; Vaughan v. Bollis, supra; Scovil v. City of Pascagoula, 233 Miss. 198, 102 So.2d 537; Barr v. G. M. & N. R. Co., 168 Miss. 863, 152 So. 294; Ozen v. Sperier, et al., 150 Miss. 458, 117 So. 117; Hicks v. Corso and Cefalu, 131 Miss. 659, 95 So. 636; Legler v. Kennington-Saenger Theatres, Inc., 5 Cir., 172 F.2d 982; Faulkner v. Middleton, 186 Miss. 355, 188 So. 568, 190 So. 910; Murray v. Murray, 239 Miss. 691, 125 So.2d 82, 83.

The learned trial judge recognized the inadequacy of the verdict in this case, but evidently in an effort to prevent the expense of a new trial, he overruled the motion therefor, conditioned upon the requirement that the defendant pay plaintiff an additional $1,000. This action of the trial judge was apparently based upon a consideration of that part of Sec. 1536, Miss.Code 1942, Rec., which is in the following language: 'Every new trial granted shall be on such terms as the court shall direct * * *'.

The general theory on which an addition may be made to a jury verdict is expressed in 5 Am.Jur., 2d, Appeal and Error, Sec. 946, p. 373, in the following language: 'In actions for liquidated damages, some courts will correct an insufficient verdict by increasing the amount of recovery and affirming the judgment as thus modified, as where, in a contract action, the plaintiff was denied interest or other liquidated amounts to which he was entitled. There is substantial controversy as to the power of the court, in actions for unliquidated damages, to increase the amount of an inadequate verdict. Some courts have taken the view that there is no such power. There are, however, numerous cases in which additur has been allowed on the same basis as a remittitur, that is, by allowing the party affected (the defendant in the case of additur) to accept a verdict for the added amount in lieu of the hazards of a new trial. Under the practice of the civil law, even in actions of tort where the only error is in the inadequacy of damages, the appellate court may increase damages to the amount deemed proper, and, as thus increased, affirm the judgment.' See also 39 Am.Jur., New Trial, Sec. 211, p. 205.

There are several cases heretofore reported from this Court in which ...