Steele v. Dillard , 327 S.C. 340 ( 1997 )

GOOLSBY, Judge:

This is an automobile wreck case. Barbara Sue Dillard’s car rear-ended that of Arthur Steele. Steele sued Dillard, seeking damages for personal injuries, pain and suffering, and lost wages. The jury awarded Steele $6,662.88 in actual damages after the trial court granted Steele’s motion for a directed verdict in his favor “on the issue of [Dillard’s] liability” and left open the question of whether any negligence on Steele’s part exceeded Dillard’s. Steele appeals. The principal question on appeal concerns whether the trial court committed reversible error in not providing the jury with a special verdict form on the question of Steele’s own alleged negligence. We affirm.

At trial, Dillard and Steele differed about how the collision occurred. Dillard disputed Steele’s claim that Steele did not stop suddenly. Dillard also challenged Steele’s demand for damages by contesting his claim for lost wages and by pointing to an earlier accident in which Steele had been involved and had suffered personal injuries similar, if not identical, to those alleged in this case.

Before the trial court allowed the jury to begin deliberations, Steele asked the trial court, pursuant to Rule 49(a), SCRCP, to require the jury to return a special verdict in the form of special written findings regarding the degree, if any, of “contributory [sic] negligence” on Steele’s part. The trial court refused. After the jury rendered its verdict, Steele requested the trial court to examine the jurors under oath regarding whether they found “contributory [sic] negligence and, if so, then [by] what percentage.” The trial court also refused this request.

In a case like this, we think the better practice for the trial court would have been to require the jury to return a special verdict in the form of special written findings on the issue of whether Steele was himself negligent and, if he was so, on the issue of the extent of Steele’s negligence, especially because the trial court had directed a verdict on the question of Dillard’s liability. Without these findings, a comprehensive review of the jury’s verdict is undeniably more difficult. We cannot tell whether the jury found Steele also negligent and then offset his damages by some percentage, whether it found Steele free of negligence but disagreed with his evidence as to his damages, or whether it found Steele also negligent and disagreed with his evidence as to his damages. In brief, appellate review cannot be readily had here because we cannot discern the precise basis of the jury’s determination. Lawrence v. Florida East Coast Ry., 346 So.2d 1012 (Fla.1977); Russo v. Jess R. Rifkin, D.D.S., P.C., 113 A.D.2d 570, 497 N.Y.S.2d 41 (1985); William L. Prosser, Comparative Negligence, 51 MICH.L.REV. 465 (1953); see Roundtree Villas Ass’n v. 4701 Kings Corp., 282 S.C. 415, 423, 321 S.E.2d 46, 51 (1984) (wherein the supreme court discouraged the use of general verdicts, stating “it would be helpful in the administration of justice, particularly on appeal, if the trial court would require the jury to enunciate more distinctly the basis of its verdict”).

Having said that, the question of whether to require a jury to return a special verdict is one committed to the discretion of the trial court. See Rule 49(a), SCRCP (“The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact.”) (emphasis added); Butler v. Gamma Nu Chapter of Sigma Chi, 314 S.C. 477, 483, 445 S.E.2d 468, 471 (Ct.App.1994) (“The question of whether to grant a party’s request for a special verdict form is a matter committed to the sound discretion of the trial court.”); 9 MOORE’S FEDERAL PRACTICE 3D § 49.11[2][a], at 49-16 (1997) (“Rule 49 is a rule of discretionary implementation, solely in the control of the trial judge. No party has a right to the use of a special verdict.”). Although appellate review of the issues on appeal has been made more difficult by the trial court’s failure to require a special verdict, Steele, as the objecting party, has not demonstrated, as he was required to do, any prejudice. See 5A C.J.S. Appeal & Error § 1762(b), at 1136 (1958) (“Error in the refusal to submit special interrogatories or special issues to the jury will constitute ground for reversal only if prejudice results to the complaining party.”).

As we view the record, the evidence sustains the verdict, irrespective of how the jury may have arrived at it.

Regarding the issue of Steele’s damages, even if we accept Steele’s argument that the evidence shows he had at least $8,000.62 in uncontradicted damages, the jury was simply not required to believe that evidence. See Black v. Hodge, 306 S.C. 196, 198, 410 S.E.2d 595, 596 (Ct.App.1991) (a trier of fact must not always believe uncontradicted testimony because “[tjhere 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”).

Moreover, and as we indicated above, Steele’s damages were not uncontested. There was evidence that Steele was involved in a previous accident that resulted in injuries similar to those that he claimed he sustained as a result of the accident in this case. Dillard disputed Steele’s lost-wages claim by showing Steele could have performed other jobs for his employer but never asked to be allowed to do them. Further, Steele’s personnel file showed his employer fired him because he failed to follow company policy regarding notification to the company of his reason for not returning to work.

Regarding the issue of Steele’s own negligence, the jury could have found Steele was also negligent. Dillard testified she was not going fast and Steele stopped so abruptly there was nothing she could do to prevent the accident. The jury could have therefore found Steele was also negligent because he suddenly stopped his vehicle.

In sum, the record provides adequate support for the jury's award because it could have found (1) Steele negligent and then offset his damages by some percentage; (2) Steele free of negligence but disagreed with his evidence as to his damages; or (3) Steele negligent and disagreed with his evidence as to his damages. Because Steele has failed to show any resulting prejudice, we conclude the trial court did not abuse its discretion in refusing to submit special verdict forms to the jury.

Steele also attacks the trial court’s submission of the issue of Steele’s own negligence to the jury. As we read the record, this issue is not properly before us, first because Steele’s directed verdict motion raised the broader issue of “liability” and not the more specific issue of Steele’s own negligence and second because Steele apparently withdrew the issue of Steele’s “contributory [sic] negligence” from further consideration when, following the trial court’s charge to the jury, his counsel stated, “Your Honor, I want to remove the earlier objection before you allowing ... the issue of contributory [sic] negligence to go to the jury____” (emphasis added). See Rule 50(a), SCRCP (“A motion for a directed verdict shall state the specific grounds therefor.”); Connolly v. People’s Life Ins. Co. of S.C., 299 S.C. 348, 384 S.E.2d 738 (1989) (the court of appeals is not to address any issue not specifically raised to the trial court); Marsh v. S.C. Dep’t of Highways and Pub. Transp., 298 S.C. 420, 380 S.E.2d 867 (Ct.App.1989) (a motion for a judgment notwithstanding the verdict is limited to the grounds stated in the motion for a directed verdict and where the defendant’s motion for a directed verdict did not specify the defense of assumption of the risk as a ground therefor, the court of appeals could not address the issue); Zant v. Moon, 264 Ga. 93, 440 S.E.2d 657, 659 (1994) (“One may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled upon by the trial court.”); cf. Stratton v. U.S. Bulk Carriers, Inc., 3 Wash.App. 790, 478 P.2d 253 (1970) (wherein the court sustained a judgment in favor of the plaintiff for injuries where the record showed an implied waiver of proof on an issue otherwise in contest).

We disagree with Steele’s final contention that the trial court erred in denying his post-trial motions. Steele moved for a judgment notwithstanding the verdict, new trial nisi additur or a new trial absolute on the grounds that the jury’s verdict was grossly inadequate.

Although the evidence indicates the jury could have awarded a verdict larger than $6,662.88, there is evidence in the record, as mentioned above, that supports the amount that the jury did award, irrespective of the manner in which it may have calculated its award. Thus, the jury’s verdict was neither so grossly inadequate that it shows the jury disregarded the facts or the trial court’s instructions nor was the verdict so shockingly disproportionate compared to the injuries Steele sustained as to show that some influence outside the evidence swayed the jury’s decision. See O’Neal v. Bowles, 314 S.C. 525, 527, 431 S.E.2d 555, 556 (1993) (if the amount of the jury’s verdict is either grossly inadequate or excessive “so as to be the result of passion, caprice, prejudice, or some other influence outside the evidence, the trial judge must grant a new trial absolute”); Craven v. Cunningham, 292 S.C. 441, 357 S.E.2d 23 (1987) (the trial court’s decision not to grant a new trial nisi will not be disturbed unless the amount of a verdict is either so grossly excessive or inadequate that it must be deemed the result of the jury’s disregard of the relevant facts and the trial court’s instructions); Easler v. Hejaz Temple, 285 S.C. 348, 329 S.E.2d 753 (1985) (the denial of a motion for a new trial nisi is within the trial court’s discretion and will not be disturbed on appeal absent an abuse of discretion); Kalchthaler v. Workman, 316 S.C. 499, 503, 450 S.E.2d 621, 623 (Ct.App.1994) (the trial court should not order a new trial absolute where the verdict is “not so shockingly disproportionate to the injuries ... sustained as to indicate ... some other influence outside the evidence motivated the jury’s decision”).

AFFIRMED.

HOWELL, C.J., concurs. ANDERSON, J., concurs in separate opinion.