PAYNE v. WHITTEN

MYERS, P.J., for the Court.

¶ 1. On April 13, 2004, the Circuit Court of Tate County returned a verdict in favor of Payne, but found her guilty of contributory negligence and assigned her thirty percent of fault and awarded her damages in the amount of $20,000. On June 14, 2004, the circuit court entered the judgement on the jury verdict. On June 24, 2004, Payne filed her motion for new trial and/or, in the alternative, an additur. The circuit court overruled this motion on September 17, 2004. Aggrieved by the trial court's ruling, Payne appeals to this Court raising the following three issues:

I. WHETHER OR NOT THE AMOUNT OF THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND AN ADDITUR SHOULD HAVE BEEN AWARDED.

II. WHETHER OR NOT THE TRIAL COURT ERRED IN NOT AWARDING PAYNE A MISTRIAL BASED ON THE ANSWERS OF WHITTEN ON CROSS-EXAMINATION AND IN NOT AWARDING SANCTIONS FOR WILLFUL VIOLATION OF DISCOVERY RULES.

III. WHETHER OR NOT THE TRIAL COURT ERRED IN NOT INSTRUCTING THE JURY TO DISREGARD THE TESTIMONY OF WHITTEN CONCERNING THE CAUSE OF THE ACCIDENT OUTSIDE OF THE INTERROGATORY AND DEPOSITION ANSWERS.

¶ 2. On March 17, 2001, Max Whitten was driving a Chevrolet truck down Veazey Road in Tate County, Mississippi. Whitten overcompensated in turning the truck to the right, and as a result the truck went off the edge of the road and rolled approximately three times. Penelope Ann Payne was a passenger in Whitten's truck when the accident occurred. On December 14, 2002, Payne filed a complaint against Whitten regarding this accident. Normal discovery occurred such as interrogatories and depositions. Whitten was called as an adverse witness by Payne at the trial. He testified that neither he nor Payne were wearing a seatbelt at the time of the accident, and when asked what Payne was doing prior to the accident he testified that Payne was not in her seat just prior to the accident. Whitten testified that he and Payne were kissing/"necking" a few seconds before the accident. Payne asserts that Whitten did not mention this in either the interrogatories or at his deposition. Whitten contends that the trial was the first time Payne's attorney had asked him what Payne was doing just prior to the accident. Payne's attorney introduces both Whitten's deposition and interrogatories, over counsel's objections, into evidence for the jury to examine.

¶ 3. Payne's attorney requested a mistrial along with sanctions against Whitten's attorneys for violation of discovery matters. Whitten's attorney argued that Payne's attorney failed to ask Whitten direct questions regarding the actions of Payne prior to the accident. After hearing these arguments, the trial court denied Payne's motion for a mistrial and for sanctions. On April 13, 2004, the jury returned a verdict with Whitten seventy percent at fault and Payne thirty percent at fault and awarding Payne damages in the amount of $20,000.

¶ 4. We have decided it is sufficient to discuss all three issues together, since the analysis tends to overlap. Payne contends that the jury returned an inadequate verdict based upon the facts presented during trial. She goes further to state that the trial court should have granted a mistrial as a result of Whitten's testimony which was allegedly different than his previous testimony during discovery, and that the trial court should have instructed the jury to disregard Whitten's testimony concerning the cause of the accident. Whitten argues that the jury's verdict was based upon the totality of the evidence presented, and goes further to state that Payne's credibility was severely impeached as to the severity of her injuries since most were reflected by her subjective complaints with no objective findings to support this. Whitten takes the position that his testimony did not change at trial; however, at trial was the first time Payne's attorney asked a direct question regarding the location of Payne prior to the accident.

¶ 5. This Court's standard of review regarding a trial court's grant or denial of an additur, the denial of a motion for mistrial and the admission or exclusion of evidence is abuse of discretion. Illinois Cent. R. Co. v. Hawkins, 830 So.2d 1162, 1181 (¶ 54) (Miss. 2002); Yoste v. Wal-Mart Stores, Inc., 822 So.2d 935, 936 (¶ 7) (Miss. 2002); Maddox v. Muirhead, 738 So.2d 742, 743 (¶ 5) (Miss. 1999); Rodgers v. Pascagoula Public School Dist., 611 So.2d 942, 945 (Miss. 1992);

¶ 6. The Mississippi Code Annotated grants all courts of record the authority to overrule a motion for new trial or affirm on direct or cross appeal upon the condition of an additur, if the court finds that the damages are inadequate and are against the overwhelming weight of the credible evidence. Mississippi Code Annotated §§ 11-1-55 (Rev. 2002). The party seeking the additur has the burden of proving his injuries, loss of wages and all other damages. Maddox, 738 So.2d at 743 (¶ 5). The evidence is viewed in the light most favorable to the defendant. Id. Awards which are set by juries are not merely advisory and usually will not be set aside unless the award is so unreasonable as to strike mankind as being beyond all measure, unreasonable in amount and outrageous. Rodgers, 611 So.2d at 945. The amount of damages awarded is a question for the jury. South Cent. Bell Telephone Co. Inc. v. Parker, 491 So.2d 212, 217 (Miss. 1986). "Additurs represent a judicial incursion into the traditional habitat of the jury, and therefore should never be employed without great caution." Gibbs v. Banks, 527 So.2d 658, 659 (Miss. 1988).

¶ 7. Payne states that she did prove her damages, and that the jury relied upon evidence which was not credible. Payne claims that the testimony of Whitten regarding the "kissing incident" should have been excluded, since he did not mention this in his responses to interrogatories or in his deposition. The following was included in these interrogatories:

Interrogatory No. 10: Describe in your own words how the collision occurred and state specifically and in detail what the claim or contention of the defendant will be regarding any cause or contributing cause of the collision, including a statement in detail of the facts or information upon which this contention is based.

Response: The accident happened when I was headed east on Veazey-Smith Road which is a 2-lane road made of white rock and tar. As I started up a hill, I got over to the left, and then overcorrected my position in the road and went onto the right shoulder of the road which gave way causing the right front of my vehicle to drop.

Whitten never mentioned anything about the "kissing incident" or Payne contributing to the cause of the collision even though he pleaded contributory negligence in his answer. Also through numerous questions at his deposition, Whitten did not mention the "kissing incident" or Payne's contribution. However, at trial after Whitten was asked what Payne was doing immediately prior to the accident, he testified that Payne was not in her seat at the time of the incident, and that immediately before the accident Payne was kissing Whitten.

¶ 8. Mississippi Rules of Civil Procedure 37 deals with sanctions imposed for discovery violations. M.R.C.P. 37(e) goes further to say that the court may impose such sanctions as may be just. Payne argues that Whitten's responses were wilfully false and misleading, and Whitten takes the position that he was never asked, prior to the trial, what Payne was doing before the accident.

¶ 9. When this Court reviews a decision that is within the trial court's discretion, it first must decide if the court below applied the correct legal standard. Wood ex rel. Wood v. Biloxi Public Sch., 757 So.2d 190, 192(118) (Miss. 2000). If the trial court applied the correct legal standard, then this Court will affirm the ruling of the trial court unless there is a firm conviction that the court below committed a clear error of judgment in reaching its conclusion. Scoggins v. Ellzey Beverages, Inc., 743 So.2d 990, 996(1127) (Miss. 1999).

¶ 10. In the most extreme circumstances regarding discovery violations, the court sanctions the violating party by dismissing the case. However that would be an insufficient remedy in the present case, since the defendant is the violating party. Therefore, Payne has requested an additur. In Pierce, the Mississippi Supreme Court adopted the Fifth Circuit's holding in Batson v. Neal Spelce Associates. Inc., 765 F.2d 511, 514 (5th Cir. 1985) in evaluating the appropriateness of dismissal as a sanction for discovery violations. Pierce v. Heritage Properties Inc., 688 So.2d 1385, 1389 (Miss. 1997). Basically dismissal is only authorized when a party wilfully or in bad faith fails to comply with the court's order, and it is only proper in situations where the deterrent value of M.R.C.P. 37 cannot be achieved by a less drastic sanction. Id. Another consideration is whether or not the other party's preparation for trial was substantially prejudiced. Id. Dismissal may not be appropriate when the neglect is attributable to the attorney, or when a party's negligence is based upon confusion or sincere misunderstanding. Id. The court noted in Pierce that the plaintiff repeatedly was untruthful in her sworn discovery statements. Id. The court must focus on the intentional nature, and pattern of the plaintiffs conduct. Id. at 1389.

¶ 11. Dismissing this case would not be a deterrent since the defendant's untruthful conduct is the one in question. However, we do not find that Whitten's actions require granting Payne an additur. Damage awards are within the domain of the jury, we will only order an additur with great caution, when the jury award is so unreasonable in amount and is outrageous. Renfroe v. Berryhill, 910 So.2d 624, 630(1128) (Miss.Ct.App. 2005). In the present case, the trial judge stated that this situation was not unusual or severe, and went further to assert that this simply could be a variation in testimony. There was no pattern of misrepresentations throughout discovery. Whitten did plead contributory negligence, in both his answer to the complaint and responses to interrogatories. In his answer, Whitten states that he was partially or even mostly at fault. However, Whitten never elaborates on his contributory negligence claim during discovery even though he was asked about his claim. Whitten waits until he is testifying at trial before he asserts that Payne was partially negligent as a result of her actions prior to the accident, and this testimony resulted in a discovery violation.

¶ 12. Payne asserts that it was in error for the trial court to present a jury instruction regarding comparative negligence. However, both parties have a right to jury instructions on all material issues presented in the pleadings and into evidence. Glorioso v. Young Mens Christian Ass'n of Jackson, 556 So.2d 293, 295 (Miss. 1989). Whitten pleaded to comparative negligence in his answer, and evidence was presented at trial for the jury to determine the division of the negligence. The trial judge even stated that Whitten said he was liable but not one hundred percent. However, we do find that the untruthfulness in Whitten's interrogatories is sufficient to warrant a new trial. Therefore, the judgment of the Tate County Circuit Court is reversed, and the present case is remanded to the trial court for trial.

¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY IS REVERSED AND REMANDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLEE.

KING, C.J., CHANDLER, BARNES AND ISHEE, JJ., CONCUR. GRIFFIS, J. DISSENTING WITH SEPARATE WRITTEN OPINION JOINED BY LEE, P.J. AND IRVING, J. SOUTHWICK AND ROBERTS, JJ., NOT PARTICIPATING.