Mary H. Sanders, Esq.
C. Williams Davis, Esq.
Huddleston, Bolen, Beatty, Porter & Copen Richardson & Davis
Charleston, West Virginia Bluefield, West Virginia
Attorney for Petitioner Attorney for Nationwide
Janet C. Williamson, Esq.
Sidney H. Bell, Esq.
Shott, Gurganus & Williamson McDowell County
Bluefield, West Virginia Prosecuting Attorney
Attorney for Lawlesses Welch, West Virginia
Attorney for the State
The Opinion of the Court was delivered PER CURIAM.
The petitioner, Ben Meadows (Meadows), has petitioned this Court for a writ
of prohibition seeking to prohibit the enforcement of an order of the Circuit Court of
McDowell County dated September 21, 1999. Meadows was involved in an automobile
accident with the respondent and plaintiff below, Phillip Lawless (Lawless). A jury trial
was conducted and the jury found Lawless to be 25 percent negligent; Meadows was found
to be 75 percent negligent. The jury awarded Lawless a total of $35,000.00 in damages. At
the conclusion of the trial, Lawless filed a motion for judgment as a matter of law and for a
new trial. By order dated September 21, 1999, the Honorable Booker T. Stephens granted
Lawless' motion for judgment as a matter of law on the issue of liability and held Meadows
100 percent liable for the accident. The judge also granted Lawless a new trial on the issue
of damages only.
Meadows requests that the circuit court be prohibited from enforcing this order and that the jury verdict be reinstated.
Following the jury's verdict, Lawless renewed his motion for a directed verdict
by filing a motion for judgment as a matter of lawSee footnote 2
and for a new trial.See footnote 3
By order dated
September 21, 1999, the circuit court granted Lawless' motion for judgment as a matter of
law on the issue of liability and granted Lawless a new trial on the issue of damages.
Meadows filed the present petition for a writ of prohibition seeking to prohibit the enforcement of the September 21, 1999 order. Meadows argues that the circuit court exceed its legitimate powers by granting judgment as a matter of law on the issue of liability and granting a new trial on the issue of damages and requests that the judgment of the jury be reinstated.
Syllabus Point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996). In accordance with Hoover, we must determine if the circuit court exceeded its legitimate powers.
In determining whether the circuit court did exceed its power, we first address the issue of the circuit court's granting of judgment as a matter of law on the issue of liability. In Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d 97 (1996), we stated:
On appeal, this court, after considering the evidence in the light most favorable to the nonmovant party, will sustain the granting of a directed verdict when only one reasonable conclusion as to the verdict can be reached. But if reasonable minds could differ as to the importance and sufficiency of the evidence, a circuit court's ruling granting a directed verdict will be reversed.
Syllabus Point 3, in part, Brannon v. Riffle, supra.
We have further stated that when a circuit court examines whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true. Syllabus Point 3, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963).
We established guidelines for circuit courts to utilize when determining whether to vacate a jury verdict:
In determining whether there is sufficient evidence to support a jury verdict the court should: (1) consider the evidence most favorable to the prevailing party; (2) assume that all conflicts in the evidence were resolved by the jury in favor of the prevailing party; (3) assume as proved all facts which the prevailing party's evidence tends to prove; and (4) give to the prevailing party the benefit of all favorable inference which reasonable may be drawn from the facts proved.
Syllabus Point 5, Orr v. Crowder, 173 W.Va. 335, 315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981, 105 S.Ct. 384, 83 L.Ed.2d 319 (1984).
A review of the record before us indicates that the judge did follow the guidelines established in Orr.See footnote 4 4 No evidence was presented by Meadows concerning Lawless' alleged negligence. The only evidence that was admitted concerning the automobile accident was undisputed and was given by Lawless and the two investigating officers. These three witnesses all testified to the fact that Meadows caused the accident and that Lawless had not performed any negligent act that contributed to the accident. After reviewing the evidence presented to the jury, we find that the circuit court did not exceed its legitimate powers. We therefore, deny the petition for a writ of prohibition on the issue of the circuit court's order granting judgment as a matter of law in favor of Lawless.
We turn next to the issue of the new trial granted on the issue of damages. We have often stated that a trial judge should rarely grant a new trial. In re State Public Building Asbestos Litigation, 193 W.Va. 119, 124, 454 S.E.2d 413, 418 (1994), cert. denied sub nom., W.R. Grace & Co. v. West Virginia, 515 U.S. 1160, 115 S.Ct. 2614, 132 L.Ed.2d 857 (1995). Furthermore, a new trial should not be granted unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done[.] Id. (citations omitted).
While not set forth in the September 21, 1999, order granting a new trial, it would appear that the judge granted the new trial because he believed that the damages awarded by the jury were clearly inadequate. See footnote 5 5
We have stated that [w]hen a case involving conflicting testimony and circumstances has been fairly tried, under proper instructions, the verdict of the jury will not be set aside unless plainly contrary to the weight of the evidence or without sufficient evidence to support it. Syllabus Point 4, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894 (1958). In accord Syllabus Point 2, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963). We have further stated that a circuit court should 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. Syllabus Point 2, Fullmer v. Swift Energy Co. Inc., 185 W.Va. 45, 404 S.E.2d 534 (1991).
A review of the record below does not indicate that the sum awarded by the jury was so low that it would result in substantial injustice, as required by In re State Public Building Asbestos Litigation. The jury in this case awarded the claimant his past medical bills, except for $58.12. The jury did not award damages for future medical bills, but the jury could have reasonably concluded that being seen once every 6 months to be evaluated was not a sufficient basis for an award of future medical expense damages.
Additionally, the jury awarded the claimant $3,000.00 for past pain and suffering. Regarding the quantifying of damages for pain and suffering, we have stated:
Compensation for pain and suffering is an indefinite and unliquidated item of damages, and there is no rule or measure upon which it can be based. The amount of compensation for such injuries is left to the sound discretion of the jury, and there is no authority for a court to substitute its opinion for that of the jury. A mere difference in opinion between the court and the jury as to the amount of recovery in such cases will not warrant the granting of a new trial on the ground of inadequacy unless the verdict is so small that it clearly indicates that the jury was influenced by improper motives.
Syllabus Point 2, Richmond v. Campbell, 148 W.Va. 595, 136 S.E.2d 877 (1964); Syllabus Point 2, Bennett v. Angus, 192 W.Va. 1, 449 S.E.2d 62 (1994). The evidence presented by Lawless indicates that as a result of the accident he had neck pain and headaches -- injuries that precluded him from fishing, gardening, and vacuuming. Lawless also testified that he had to hire someone to cut his grass.
Finally, the jury awarded $15,000.00 to Lawless for his past lost income, but did not grant damages for future loss of income. The testimony of Mr. Cornwell assumed that Lawless left his employment due to his injuries. However, the jury was presented conflicting medical testimony on whether Lawless could return to work, and if so to what degree. Dr. Orphanos, an orthopedic surgeon and one of Lawless' experts, testified that he examined Lawless on March 29, 1995, and determined that if no other problems arose, Lawless would be able to return to his normal work within 2 or 3 weeks. Consequently, the jury could have reasonably believed that Lawless took early retirement due to his employer going out of business, or because he wanted to retire early.
Based on our review of the record, no substantial injustice would have occurred if the judge had permitted the jury verdict as to damages to stand on the issue of damages. We therefore find that the circuit court exceeded its legitimate powers in ordering a new trial on the issue of damages.