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2004-UP-020 - Simpkins v. Bennett

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Carmilla C. Simpkins,        Appellant,

v.

Joshua Bennett,        Respondent.


Appeal From Anderson County
Alexander S. Macaulay, Circuit Court Judge


Unpublished Opinion No. 2004-UP-020
Submitted November 19, 2003 – Filed January 15, 2004


AFFIRMED


Theo W. Mitchell, of Greenville, for Appellant.

John P. Riordan, of Greenville, for Respondent.

PER CURIAM:  Carmilla C. Simpkins sued Joshua Bennett for damages allegedly arising from an automobile accident.  The jury awarded Simpkins $14,000.00.  Simpkins appeals.  We affirm. 

FACTUAL/PROCEDURAL BACKGROUND

On February 18, 1998, the Corvette Bennett was driving rear-ended the Pontiac Bonneville driven by Simpkins.  Bennett was issued a ticket for the accident.  At the accident scene neither party complained of injuries or requested an ambulance.  That night, Simpkins went to the emergency room at Easley Medical Center.  She later sought treatment with Stephenson Chiropractic Offices and Dr. Downey with Augusta Pain Management.  She also received physical therapy and consulted with a surgeon.  At trial she submitted medical bills totaling $10,272.00.  She also claimed $10,810.00 in lost wages from the date of the accident until January 1999. 

After the jury returned a verdict in favor of Simpkins in the amount of $14,000.00, she moved for a new trial or new trial nisi additur.  The court denied these motions.  This appeal followed.  

DISCUSSION

Simpkins argues the trial court should have granted her a new trial under the thirteenth juror doctrine because the jury disregarded the trial court’s instructions and did not properly include all of her damages in its verdict. 

Under the thirteenth juror doctrine, the trial court may grant a new trial if the court believes the evidence does not justify the verdict.  Folkens v. Hunt, 300 S.C. 251, 254, 387 S.E.2d 265, 267 (1990).  “This ruling has been termed a granting of a new trial on the facts.”  Id. at 254, 387 S.E.2d at 267.  In addition, the court may grant a new trial if the verdict is inconsistent and reflects the jury’s confusion.  Sorin Equip. Co. v. The Firm, 323 S.C. 359, 364, 474 S.E.2d 819, 822 (Ct. App. 1996).  In ruling on a new trial motion as the thirteenth juror, the trial court may weigh the evidence and rely on his or her view of the circumstances.  Id.  Basically, the doctrine permits the judge as the thirteenth juror to hang the jury.  Folkens, 300 S.C. at 254, 387 S.E.2d at 267. 

When reviewing the denial of a motion for a new trial under the thirteenth juror doctrine, this court considers only whether there is any evidence to support the trial court’s decision.  Haselden v. Davis, 341 S.C. 486, 506, 534 S.E.2d 295, 306 (Ct. App. 2000).  In order to reverse the trial court when it denies a new trial under the thirteenth juror doctrine, we must find the moving party was entitled to a directed verdict during the trial.  Id.  Thus, this court must affirm the denial of the new trial when viewing the evidence, and the inferences that can be drawn therefrom in the light most favorable to the nonmoving party, we find the evidence yields more than one inference or its inference is in doubt.  Sabb v. South Carolina State Univ., 350 S.C. 416, 427, 567 S.E.2d 231, 236 (2002).  Neither the trial court nor the appellate court has authority to decide credibility issues or to resolve conflicts in the testimony or evidence.  Harvey v. Strickland, 350 S.C. 303, 308, 566 S.E.2d 529, 532 (2002).

Simpkins argues that because she submitted evidence of medical bills and lost wages incurred totaling $21,082.00, the verdict should have been at a minimum that amount.  She asserts the jury’s failure to award her at least that amount demonstrates its failure to follow the trial court’s instruction on the calculation of damages. 

While Simpkins did submit evidence of damages totaling over $21,000.00, it was within the jury’s province to determine that not all of the claimed damages were proximately caused by the accident.  Simpkins acknowledged Bennett’s Corvette was smaller than the Pontiac Bonneville she was driving.  Corporal Page, the reporting officer, testified the accident caused at the most minimal damage to either automobile and neither car was towed from the scene.  Simpkins did not complain of any injuries at the scene of the accident and did not request an ambulance. 

Simpkins had been involved in two prior automobile accidents in which she had sustained severe whiplash.  The more recent one occurred in July of 1997.  As a result of that accident, her doctor assigned her a six percent impairment rating to the entire body.  Simpkins’ discharge sheet from the Easley Baptist Medical Center emergency room instructed her to see her family doctor if she had any problems.  Rather than returning to the doctor who treated her for the prior accidents, Simpkins sought treatment from a chiropractor.  After the chiropractor released her in May of 1998, Simpkins sought treatment from Dr. Downey with the Augusta Pain Management Center.  In reporting her prior health history, she failed to disclose the prior accidents.  She also failed to disclose the 1997 accident to her physical therapist. 

Dr. Downey acknowledged that when considering Simpkins’ medical records, which Bennett’s attorney provided him on the day of his deposition, he could not determine whether Simpkins cervical nerve root problem came from the most recent accident or was preexisting.  Dr. Downey also stated hypothyroidism, a condition from which Simpkins suffers, could cause some of the symptoms Simpkins experiences such as muscle aches and headaches.  In addition, Dr. Downey stated chiropractic treatment could cause problems like Simpkins experiences.

A surgeon, Dr. Estes, to whom Dr. Downey referred Simpkins wrote back that it was difficult to tell whether Simpkins was using full effort with her right arm and leg.  He stated that although she gave the impression of generalized right-sided weakness, this did not fit her history.  Bennett testified that in his previous meetings with Simpkins, she had not used a cane when she walked. 

The record reveals no evidence to support Simpkins’ claim for lost wages other than her testimony.  Prior to the accident, Simpkins had lost her job with the post office.  She stated in her deposition that she would return to that job if her pending claim with the Equal Employment Opportunity Commission was resolved in her favor.  She claimed that after she lost her job, she performed housekeeping services for two people earning $250.00 a week.  Although she testified her chiropractor released her to return to work in May of 1998, Simpkins claimed lost wages through January of 1999.  There is no other evidence of a medical excuse from work in the record.   

The fact that testimony is not contradicted directly does not render it undisputed.  There remains the question of the inherent probability of the testimony and the credibility of the witness or the interests of the witness in the result of the litigation.  If there is anything tending to create distrust in his or her truthfulness, the question must be left to the jury. 

Black v. Hodge, 306 S.C. 196, 198, 410 S.E.2d 595, 596 (Ct. App. 1991) (internal citations and quotation marks omitted). 

It was the right of the jury to consider the witnesses’ testimonies and determine that not all of the damages Simpkins claimed were attributable to what was described by the reporting officer and Bennett as a minor accident.  We cannot find from the jury’s verdict, which was lower than Simpkins expected, that the jury disregarded the trial court’s charge on damages.  Accordingly, we find the trial court did not err in denying Simpkins’ motion for a new trial under the thirteenth juror doctrine. 

Simpkins also argues the trial court erred in denying her motions for new trial nisi additur or new trial absolute.  She asserts the verdict was unreasonably low and that the jury was acting out of prejudice or caprice.

The trial court alone has the power to grant a new trial nisi when it finds the amount of the verdict to be merely inadequate or excessive.  O’Neal v. Bowles, 314 S.C. 525, 526, 431 S.E.2d 555, 557 (1993). The denial of a motion for a new trial nisi is within the trial court’s discretion and will not be reversed on appeal absent an abuse of discretion.  Id.  On appeal of the denial of a motion for a new trial nisi, this court will reverse only when the verdict is grossly inadequate or excessive requiring the granting of a new trial absolute.  Id. 

The trial court’s decision to deny a motion for new trial absolute is within its discretion and will not be reversed absent an abuse of discretion.  Cock-N-Bull Steak House, Inc. v. Generali Ins. Co., 321 S.C. 1, 9, 466 S.E.2d 727, 731 (1996).  When deciding a motion to grant a new trial, the court must look at the testimony and inferences raised in favor of the nonmoving party.  Welch v. Epstein, 342 S.C. 279, 302-03, 536 S.E.2d 408, 420 (Ct. App. 2000).  “The trial court must set aside a verdict only when it is shockingly disproportionate to the injuries suffered and thus indicates that passion, caprice, prejudice, or other considerations not reflected by the evidence affected the amount awarded.”  Id. at 302, 536 S.E.2d at 420.  A jury’s determination of damages is entitled to substantial deference by this court.  Knoke v. S.C. Dep’t. of Parks, Recreation & Tourism, 324 S.C. 136, 141, 478 S.E.2d 256, 258 (1996). 

As stated above, the jury had the right to weigh the evidence and the credibility of the witnesses and determine that not all of the damages Simpkins claimed were proximately caused by the 1999 accident.  We find the verdict was not grossly inadequate or the result of passion, caprice, prejudice, or some other influence.  Accordingly, we find the trial court did not abuse its discretion in denying Simpkins’ motions for new trial nisi and new trial absolute. 

AFFIRMED.

HUFF, STILWELL, and BEATTY, JJ., concur.