WALKER, Justice, for the Court.
The petition for rehearing in this cause is sustained, the opinion entered on a former day of this Court is withdrawn, and this opinion substituted in the place thereof.
Appellee, Donna M. Brown, on March 10, 1977, filed suit in the Circuit Court of the Second Judicial District of Harrison County, against appellant, Herbert A. Cortez, for damages allegedly suffered by her when, on April 30, 1976, the Toyota, in which she was a passenger, was hit in the rear by a Ford station wagon, owned and driven by Cortez.
This cause was first tried on November 27 and 28, 1978, and resulted in a jury verdict for the plaintiff on liability, but the jury assessed her damages at $0. The motion for additur was overruled, but the motion for a new trial was sustained.
The second trial began on May 24, 1979, and was concluded on May 25, 1979, when the jury returned their verdict: "We, the jury, find for the plaintiff and assess her damages at $0."
On plaintiff's motion for additur or new trial, the court granted an additur of $16,000, or a new trial for damages only. Cortez declined to accept the additur and elected to appeal from the order granting a new trial, as authorized by Mississippi Code Annotated section 11-7-213 (1972).
Approximately three months before the rear-end collision (the basis of this suit), on February 6, 1976, the appellee, while employed by the City of Biloxi, slipped on the wet floor of the municipal building and landed on her tailbone. She suffered pain in her lower back and in her left leg. Four or five days later she consulted Dr. M.F. Longnecker, Jr., orthopedic surgeon, who admitted her to the emergency room of Howard Memorial Hospital "because I had a severe backache and I could hardly stand up." Donna testified: "I stayed in the hospital approximately a week to ten days in traction, on heavy medication for muscle spasms in my back." Her back pains persisted, so about the third week in April Dr. Longnecker put her back in the hospital for a myelogram, which was performed on April 21, 1976, by Dr. Richard E. Buckley, a neurosurgeon. At both trials, Dr. Buckley, by deposition, testified:
[T]he myelogram which I performed showed asymmetry at the L5-S1 area, which is the last disc space down in the low back, in that the nerve root on the right side at that level did not fill out like the nerve root on the left side filled out. I felt that this was not of clinical significance, since she had no symptoms referable to the right side. My diagnosis at that time continued to be that of acute chronic lumbosacral strain, and I so advised Dr. Longnecker.
Continuing to complain of lower back pains, Donna was readmitted to the hospital by Dr. Longnecker where, on April 30, 1976, a tomogram was performed. After the completion of this intensive and complicated test, Donna's friend, Debbie Miller, picked her up at the hospital in her Toyota, and Debbie and Donna proceeded about 8:30 that night to a musical concert at Gulfport Harbor. Traffic was heavy, and after Debbie had turned west off of 20th Avenue and had stopped behind a car which was backing out, appellant Cortez, who was going to pick up his son at the Little League ballpark and, while observing the traffic policeman directing traffic, turned right at about 8 to 10 miles per hour and ran into the rear of Debbie's Toyota. Cortez was driving a Ford LTD station wagon. The headlights on Cortez' car were not broken, neither were the taillights on Debbie's Toyota. The damage to the Toyota was stipulated to be $233.18.
There were no complaints of injury by anybody at that time. Debbie took Donna to her mother's home and later that night Donna went with her mother and younger sister to a restaurant to celebrate her sister's birthday. She developed a severe headache and nausea, and had to be carried to her mother's home. Not being able to reach Dr. Longnecker that night, she called his office the next day and talked to his assistant, who suggested increasing the dosage of pain pills that she was already taking for her previous back injury at the City Hall. Donna did not go to see Dr. Longnecker again until the latter part of June, 1976, when her prescription for pain pills was exhausted.
She continued to work for the city, but gave up her night work as hostess at Mary Mahoney's restaurant. Later, she quit her job with the city and went to work at Howard Johnson's at an increased salary.
In her declaration filed against Cortez on May 10, 1977, she alleged that because of the rear-end collision:
[She] was thrown in and about the vehicle and suffered injuries to her head, neck, and back. That as a result of such collision, the Plaintiff herein suffered excruciating pain and mental anguish. Plaintiff further was unable to work for a period of time and suffered a loss of wages and has incurred medical expenses.
That all injuries and damages suffered by the Plaintiff were the direct and proximate result of negligence on the part of the Defendant herein, Herbert A. Cortez.
In May of 1977, another myelogram was performed. Dr. Buckley, by deposition, testified:
I didn't see her at all until sometime in May of 1977, the latter part of May. Again, Dr. Longnecker had seen her off and on with complaints. He asked me to see her in order to assist him in surgery. He had done testing on her which to him indicated that she had mechanical instability of her low back, and she continued to complain of low back pain, and complained of pain in her right leg. He had repeated the myelogram and noted some abnormality and had asked me to see her and assist him in the surgery for the fusion, and my opinion as to whether or not we should explore the right L5-S1 at the same time as the fusion was done. We reviewed the myelogram and talked to Donna, and she did complain of low back pain and stiffness, and complained of pain in her right leg. The myelogram, which I reviewed at that time and have reviewed very recently, was indentical to the myelogram which had been performed by me in 1976; that is, there was minor asymmetry at L5-S1, with the nerve root on the right side, not filling out as compared to the left side, and I agreed with Dr. Longnecker that the L5-S1 disc should be explored in conjunction with the fusion operation, since she was complaining of radicular pain in the right leg.
Drs. Longnecker and Buckley operated on Donna on June 1, 1977, removed a ruptured disc and fused the spine. Donna was in the hospital for about a month recovering from this operation. Dr. Buckley testified:
Based on the history of the accident occurring, with increased back pain, progressing
and radiating pain in the right leg, my opinion would be that in all medical probability the automobile accident did contribute to the necessity of her having surgery in 1977.
Q. You think that surgery, in your opinion and in all medical probability, would that surgery have been necessary had the automobile accident not occurred?
A. I don't know how to answer that question. Obviously
the automobile accident occurred, and it did hurt her back and her pain worsened thereafter, with pain in her right leg, and in my opinion it did produce the need for surgery. She did have a pre-existing problem on that date as shown in the myelogram. (Emphasis added).
After her operation in June, 1977, Donna and her attorney continued to press her claim against the City of Biloxi for all hospital, doctors and medical expenses and for loss of wages since her fall on February 6, 1976, while working for the City of Biloxi.
On October 31, 1977, after extended negotiations with the city attorney, a settlement with the City of Biloxi was agreed to and a release executed. According to the terms of the settlement, the City of Biloxi paid all hospital, doctors and medical expenses to and including October 31, 1977, totaling $9,000. This $9,000, of course, included all hospital, doctors and medical expenses for the operation for ruptured disc on June 1, 1977, and her thirty-day recovery period in the hospital. In addition, the City of Biloxi paid Donna $2,500 in cash, and agreed to pay her $500 per month for thirty-six months beginning October 1, 1977. Thus, the City of Biloxi paid approximately $30,000 to settle all of Donna's claims against the city.
After effecting this settlement with the City of Biloxi, plaintiff Donna, amended her declaration against defendant Cortez on January 10, 1978. The amended declaration recites:
COMES NOW Donna M. Brown, Plaintiff, by and through the undersigned attorney, and presents this, her Amended Declaration, amending Paragraph V and the Prayer in such Declaration to read as follows, to-wit:
V
That as a direct and proximate result of the collision hereinabove described, the Plaintiff herein was thrown in and about the vehicle and suffered serious and permanent injuries to her head, neck and back. That as a result of such collision, the Plaintiff herein suffered a back injury, requiring extensive hospitalization for removal of a ruptured disc and for fusion of the spine. That as a result of such operation, the Plaintiff herein has incurred substantial loss of wages, hospital expenses and doctor bills. That as a result of such injuries, she has suffered excruciating and mental anguish and will continue to experience pain in the future as a direct and proximate result of the accident and injuries sustained therein. That the Plaintiff herein has suffered a permanent disability of her body. That all such damages set forth hereinabove were the direct and proximate result of negligence on the part of the Defendant herein.
WHEREFORE, premises considered, your Plaintiff demands judgment of and against the Defendant in the sum and amount of $250,000.00, plus all costs of this Court.
The first trial was on November 27-28, 1978. The jury returned a verdict for the plaintiff but assessed her damages at $0. A special circuit judge entered judgment based on the jury verdict. Plaintiff filed a motion for an additur or, in the alternative, for a new trial. The court, after carefully considering the matter and hearing argument, overruled the motion for an additur but did sustain the motion for a new trial on the issue of damages only.
The second trial took place on May 24 and 25, 1979. Cono A. Caranna II testified outside the presence of the jury that he was Biloxi's City Attorney and negotiated the settlement of Donna's claim against the City with her attorney Eldon L. Bolton, Jr. The first official notice that he had of Donna's claim was a letter, dated August 31, 1976, from Bolton. That letter stated:
Honorable Cono A. Caranna, III Vlahos and Caranna Attorneys at Law
Post Office Box 36 Biloxi, Mississippi 39533
Re: Donna Brown vs. City of Biloxi
Dear Cono:
This is to notify you that I represent Donna Brown, who was involved in an accident while working in the City Hall in Biloxi.
I am sure you are aware of the case in that Donna informs me that you have spoken with her about it. She has incurred both medical expenses and loss of wages.
I would like very much for you to call me upon receipt of this letter so that we may discuss the intentions of the City in regard to settlement of any possible claims that Donna might have.
The City Attorney testified that the following medical report, dated September 7, 1977, from Dr. Longnecker was furnished him by Donna's attorney, Eldon L. Bolton, Jr.:
Re: Donna M. Brown
Dear Mr. Bolton:
Per our conversation, the following information is submitted on Donna Brown.
As you know, Donna Brown injured her back while working for the City of Biloxi several months ago, in approximately February, 1976. Following her injury we saw her in my office at which time she demonstrated positive straight leg raising and stocking numbness of the first sacral distribution of the left leg and was admitted to the hospital for observation. She underwent myelography, which was essentially normal. She was treated conservatively for several months without improvement. She has recurrent episodes of the problem related to the back and leg.
In May or June of this year a myelography was again performed and revealed nerve root compromise of the L5-S1 level on the left side, consistent with a ruptured disc. Surgery was advised and exploration by Dr. Buckley and myself revealed a ruptured disc at the L5-S1 level. Also, she had marked instability of her back. Removal of the ruptured disc was accomplished as well as nerve root foraminotomy and lateral spine fusion to stabilize the area. Her postoperative course initially was quite good. She noted immediate relief of pain in her left leg and was discharged from the hospital approximately three weeks postoperatively.
She has been seen in my office in follow-up and x-rays revealed the fusion to be solidifying satisfactorily. She continues to be on limited activity and I have advised her against bending and/or lifting and driving in a car for any length of time.
In summary, it is my opinion that Ms. Brown has progressed quite satisfactorily from surgery, however, I do not feel that maximum benefits of treatment have been obtained. If her progress continues as is, we hope that she will have no serious setback in the future that would necessitate treatment. Ms. Brown will have a permanent disability
as a result of the injury which, if no complications arise, should be 15% of the body as a whole. (Emphasis added)
I hope this information will be of help to you. If I can be of further service, please contact me.
The bills which the city was called on to pay, and did pay, are specifically listed in a letter from Bolton to Caranna, dated October 17, 1977, as follows:
RE: Donna M. Brown
Dear Cono:
Enclosed please find a copy of a proposed release. If the release meets with your approval, then let me know and I shall send the original to Donna for her signature.
I am enclosing copies of medical bills which I have in my file. Gulf Coast
Community Hospital is due $5,902.31. Richard Buckley is due $900.00. Dr. Longnecker's bill, a copy of which you have, totals $941.00. The First Mississippi National Bank is due $216.80. This amount is due because of the injury. The First Mississippi National Bank took over all accounts receivable from the Coastal Medical Center, and, therefore, payment of that account should be made directly to them. In addition to these bills, Dr. Longnecker is due $46.00 for previous medical services under account No. 70-24758. That amount was not included on the bill forwarded to you. In addition, Dr. Longnecker is due an additional $100.00 for the brace which Donna wore. When it became necessary to purchase the brace, Donna did not have enough money to pay for it. Dr. Longnecker advanced her the $100.00 for the brace, and, therefore, he should be reimbursed. In addition to the Community Hospital bill of $5,902.31, there is another account which shows an additional $145.00 due. That account is No. 5036132. That is for previous medical expenses arising out of the injury. To keep all this straight, Gulf Coast Community Hospital is owed $6,047.31. Dr. Longnecker is owed $1,087.00. Dr. Buckley is owed $900.00. The First Mississippi National Bank is owed $216.80. In addition, there should be one check forthcoming for Donna's October 1st payment in the amount of $500.00. That check can be made payable to Donna M. Brown and forwarded to Charles Ponder at the First Mississippi National Bank. All subsequent $500.00 checks should be forwarded to Mr. Ponder, who will deposit same in Donna's account. The remaining check in the amount of $2,500.00 shall be made payable to Donna M. Brown and myself, as her attorney.
In addition to the above, I have paid Dr. Longnecker $50.00 for a medical report. The medical report was furnished at your request. Donna has not reimbursed me for that and I would appreciate it if you would do so.
If the enclosed release meets with your approval, then I shall forward same immediately to Donna, and when it returns, I will exchange the release for the checks. Donna informs me that she has had some additional medical treatment. She is to forward the bills to me. I shall forward same to you when received. I do not think they amount to very much at this point.
If you have any further questions, please call me upon receipt. Donna is very anxious to have this matter resolved.
City Attorney Caranna answered questions asked by defendant Cortez's attorney in this way:
Q Now, in the process of making this claim, did, did, uh, Mr. Bolton ever advise you or did the Plaintiff ever advise anyone you know of in the City that, uh, that she had been in an automobile accident in which she claimed her back was injured?
A No.
Q Uh, when did you first learn of that?
A I believe I learned of it from you office . . .
Q All right. In the process of the claim negotiations, was it asserted by Mr. Bolton that the City had any legal responsibility, a tort responsibility, as a result of that accident?
A That was the basis of us proceeding with this. . . .
. . . .
A
Payment of all of the, uh, medical expenses that the City has made was based on the fact that, uh, that their representation, as well as that of the attending Physician, was that it arose from the fall on the third floor of City Hall. (Emphasis added).
Other claims predating the fall at City Hall were paid by the city's insurance carrier. One claim dated March 19, 1975, where Dr. John B. O'Keefe filled out the claim form recites:
Acute Lumbosacral Strain
3-17-75 Examination of back, patient fell down steps of trailer 9 months ago. 25.00
3-17-75 X-Rays Lumbar Spine 35.00
The city was still paying doctors' and medical expenses on July 21, 1978. The record reflects a payment of $106.14 to Donna to cover this item, among others:
Dr. Irwin, Baton Rouge, La.
Lumbo-Sacral Sp Multi 55.00
Cortez's counsel moved that the terms of the October 31, 1977, settlement with the city and the general release to the city be admitted into evidence before the jury. This motion was overruled.
In ruling on whether the terms of $30,000 settlement with the City of Biloxi and the release executed pursuant thereto to the City of Biloxi dated October 31, 1977, should be allowed in evidence, the court stated it "looks like the city was a volunteer to me," basing his reason on the case of Clary v. Global Marine, Inc., 369 So.2d 507 (Miss. 1979).
At the completion of this second trial, which was presided over by a regular circuit judge, the jury returned the following verdict: "We, the Jury, find for the Plaintiff and assess her damages at $0." The court entered a final judgment based on the jury verdict of May 25, 1979. Again a motion for an additur or, in the alternative, for a new trial was filed. Thereafter, the court rendered an opinion granting an additur of $16,000 or, in the alternative, a new trial for damages only in the event defendant Cortez declined to accept the additur.
I.
THE COURT ERRED IN NOT ALLOWING THE JURY TO HEAR THE TESTIMONY WITH REGARD TO THE PRIOR CLAIM AGAINST THE CITY OF BILOXI AND THE AMOUNT OF COMPENSATION RECEIVED BY THE PLAINTIFF BECAUSE OF THAT CLAIM.
II.
THE COURT ERRED IN GRANTING A NEW TRIAL ON THE ISSUE OF DAMAGES AS THE JURY VERDICT WAS RESPONSIVE TO THE EVIDENCE AS THERE WAS NO DAMAGES PROVEN BY COMPETENT MEDICAL TESTIMONY BY THE PLAINTIFF; AND FURTHER, THAT CONSIDERING THE COMPENSATION RECEIVED BY THE PLAINTIFF IN HER CLAIM AGAINST THE CITY OF BILOXI, THE JURY VERDICT WAS ADEQUATE.
In our original opinion we distinguished Clary v. Global Marine, Inc., supra, from the facts presented in this case and held that unlike Exxon in Clary, the City of Biloxi was clearly not a volunteer, nor did it gratuitously pay any part of the $30,000 settlement finally effected on October 31, 1977, and implicitly held that the court erred in not allowing the settlement and subsequent release to be admitted in evidence. We were also of the opinion that there was a lack of apportionment of injuries and damages attributable to the automobile accident as distinguished from her slip and fall at the City Hall under the holding of Dennis, et al. v. Prisock, 254 Miss. 575, 181 So.2d 125 (1965). Thus, in our opinion, the zero dollar verdict was justified and we held that the trial court had erred in granting a new trial conditioned upon Cortez accepting an additur of $16,000. We reversed and reinstated the $0. verdict.
On petition for rehearing the appellee, Donna M. Brown, strongly argues that "The majority was in error in allowing an appeal to be taken under Mississippi Code Annotated section 11-7-213 (1972) on issues other than the amount of verdict."
Section 11-7-213. Every new trial granted shall be on such terms as the court shall direct; and no more than two new trials shall be granted to the same party in any cause. Provided, however, that when the sole ground for a new trial is the excessiveness or inadequacy of damages assessed, the party aggrieved may elect to appeal from the order granting a new trial.
We concede that the court erred in allowing the appellant to raise issues other than the "excessiveness or inadequacy of the verdict."
It is well settled that when a defendant does not accept an additur and appeals from an order granting a new trial because of inadequate damages, the scope of review on appeal is limited to the question of whether the trial court abused its discretion in granting a new trial. City of Meridian v. Dickson, 266 So.2d 143 (Miss. 1972); Biloxi Electric Company, Inc. v. Thorn, 264 So.2d 404 (Miss. 1972) and Screws v. Parker, 365 So.2d 633 (Miss. 1978).
In the Screws' case, the Court said:
In this case the defendants seek to have us review the action of the trial court in directing a verdict against them on the issue of liability and the refusal of an instruction requested by one of them.
These questions are beyond the scope of review in this appeal; therefore, we will review the evidence to determine if the trial court abused its discretion by granting a new trial on damages only. (
365 So.2d at 634).
Therefore, since all questions except the sufficiency or insufficiency of the evidence to support the verdict with respect to damages is the only question that comes within the scope of review on appeal under section 11-7-213, we must look to the evidence as we find it in the record as though all of the rulings of the trial judge were correct. By the very act of appealing, under section 11-7-213, an appellant, under the facts presented here, must be willing to accept the verdict in all other respects, including the determination of liability. City of Meridian, supra. This acceptance includes all rulings of the trial court on the admissibility of evidence, rulings on instructions to the jury, motions for a directed verdict, peremptory instructions and other errors. In short, by appealing under section 11-7-213, Cortez says to this Court that for the purpose of this limited appeal, he is liable and that he accepts the evidence as admitted and other rulings of the court. He may only complain that the verdict was not against the overwhelming weight of the evidence and that the trial court erred in granting a new trial conditioned upon an additur.
This Court is equally bound to look only to the evidence admitted and must consider all rulings of the trial court as correct in determining whether the trial court erred in granting a new trial because of the inadequacy of the verdict. This is true even though there appears to be error with respect to the admission or exclusion of evidence properly objected to, because what appears to be glaring error is not so glaring or error when properly briefed. Thus, it cannot be considered by this Court.
The majority is of the opinion that there was evidence upon which the jury could base an apportionment of damages arising out of the automobile collision as opposed to the slip and fall at City Hall.
Having determined that the petition for rehearing should be granted, we must now review the record with the above rule in mind to determine whether the trial judge erred in granting a new trial, conditioned upon an additur because the jury verdict was inadequate and against the overwhelming weight of the evidence.
When the record is viewed in this light, there being no evidence before the jury from which it could justifiably find that all of her injuries and damages had been compensated for by the settlement and release executed by her to the City of Biloxi, such evidence not having been admitted in evidence, and in view of the court's peremptory instruction to the jury to find for the plaintiff, it is readily evident that the jury wholly failed to give any consideration whatsoever to the hospital and medical expenses, which the court ruled, we think, erroneously, were voluntarily paid by the City of Biloxi. Further, in view of the court's instruction to the jury to find for the plaintiff, it is evident that they failed to give any consideration whatsoever to the appellee's testimony as to pain that she suffered or the doctors' testimony that her back surgery was necessitated by the automobile collision even though she did have a preexisting back injury. We would point out, however, that when a peremptory instruction to find for a plaintiff is granted, the jury is still the judge of the weight and worth to be given evidence in response to the court's instructions, but they must demonstrate by their verdict in some manner, such as a verdict expressed in terms of dollars and cents or an appropriate finding why they have not returned a compensatory verdict and should be so instructed.
The next question for determination is whether the trial court was manifestly wrong in conditioning the order for a new trial on the acceptance by Cortez of an additur of $16,000. We have carefully considered the record in this regard and are unable to say that fixing the additur at $16,000 was not supported by the evidence to the extent that he committed manifest error.
For the reasons given above, the judgment of the circuit court is affirmed, and the appellant is granted fifteen (15) days in which to signify his acceptance of the additur of $16,000. Upon his failure to accept the additur within fifteen (15) days, a new trial shall be had on the question of damages only.
AFFIRMED.
PATTERSON, C.J., and LEE, BOWLING and HAWKINS, JJ., concur.
ROBERTSON and SMITH, P. JJ., and SUGG and BROOM, JJ., dissent.