Coulthard v. Cossairt , 1990 Wyo. LEXIS 161 ( 1990 )

CARDINE, Justice.

Appellant Max Coulthard appeals a $1.7 million award to appellee Garth Cossairt for injuries Cossairt sustained when Coul-thard’s vehicle went off a mountain road in Albany County. Cossairt, joined by another plaintiff in the original proceeding, raises an issue concerning the computation of costs on cross-appeal.

We affirm in all respects.

Coulthard phrases the issues in the following way:

“A. Did the trial court err in directing the verdict regarding liability against defendant/appellant Coulthard and not allowing the jury to make a determination regarding the comparative negligence of plaintiff/appellee Cossairt?

“B. Did the trial court err in denying defendant/appellant Coulthard’s motion for new trial or amendment of judgment? “C. Was the verdict excessive and a result of the influence of passion or prejudice?

“D. Was the verdict supported by sufficient evidence?”

On cross-appeal, Cossairt and Finnerty raise the following issue:

“[Wjhether Wyoming should adopt a rule whereby the trial courts are allowed to review discovery activities and expenses and have the discretion to award discovery costs in appropriate cases.”

FACTS

On July 25, 1987, Coulthard, Cossairt, Kirk Schrawyer, Joe Finnerty, and Mike Chesnut went to Mountain Home to celebrate Schrawyer’s upcoming wedding with a bachelor party. They had decided to rent a cabin, celebrate and spend the night in order to avoid driving home following the planned drinking party. As one participant put it, “at the time that seemed like a great idea.” It did not turn out that way.

The original plan called for all five men to ride from Laramie to Mountain Home in Chesnut’s vehicle. Coulthard, however, also drove his truck for a reason not readily apparent from the record. Before leaving Laramie, they purchased beer and whiskey, which was kept in Coulthard’s truck. On the way to Mountain Home, both vehicles stopped, and the men smoked marijuana and drank whiskey. Coulthard was also drinking while driving to Mountain Home.

Although they had no specific agenda for this party, they intended to stay at the cabin they had rented the entire time. After spending a little time at the cabin, Coul-thard suggested they visit his uncle who lived across the highway. At his uncle’s, Coulthard, who was the only one who brought fishing gear, suggested they go fishing. Coulthard’s uncle recommended Pelton Creek as a good place to fish. They drove there in Coulthard’s truck with Coul-thard driving, Chestnut riding in the cab of the truck, and the other three riding in the back.

Coulthard had drunk at least eight cans of beer and half of a fifth of whiskey by the time they arrived at the fishing area. Instead of fishing all the time, Coulthard spent some time wrestling with Chesnut in piles of cattle droppings. When it came time to return to the cabin, no one, except for Coulthard himself, wanted Coulthard to drive because of his obvious intoxication. Cossairt got into the driver’s side of the vehicle and told Coulthard that he should not drive. Coulthard was an all-state football player with a reputation for being tough. Cossairt was a quiet person whose interest in sports leaned toward cross-country running and skiing. Coulthard responded to Cossairt’s suggestion by slapping Cossairt, pulling him from the driver’s seat, and throwing him into the back of the truck. Acting threatening and loud, Coul-thard declared, “I’m going to be the only one to drive that truck.” The others felt intimidated enough by this to get into the truck as well. As with the trip to the fishing area, Chesnut rode in the cab of the truck, and the other three rode in the back.

From the moment Coulthard took off, his driving scared the three riding in the back of the truck. Driving at about 40 miles per hour on a curvy, washboarded gravel road, Coulthard caused the truck to fishtail and slide around the turns. Cossairt banged his hands on the roof and rear window of the cab and yelled in an attempt to get Coulthard to slow down. Schrawyer joined him in the banging and yelling when Coul-thard did not respond to Cossairt’s pleas.

After going through six or seven curves in this manner, the truck become airborne as it went off the road. Cossairt, Coul-thard, Schrawyer and Finnerty were thrown from the truck.

Everyone was injured to some extent, with Cossairt sustaining the most serious injuries. Schrawyer, who attended to Coss-airt and Finnerty after the accident, observed a gash in Cossairt’s head and part of his calf missing. Cossairt was taken to Ivinson Memorial Hospital in Laramie, where it was feared he would not survive his injuries. He was then transported by helicopter to a Fort Collins, Colorado hospital. He remained hospitalized for 33 days, including five in intensive care.

Cossairt’s injuries left him with permanent brain damage and physical disabilities. His skull was fractured and part of his brain was removed. He has difficulty with speaking and forming sentences. He has difficulty in using his right arm. His knee is unstable and susceptible to osteoarthritis. Academic testing following the accident places him in the bottom percentile for language and mathematic skills. In August 1988, he underwent cranioplasty surgery to repair his skull. He had additional knee surgery in May 1989.

Cossairt brought suit on November 12, 1987. Coulthard answered, admitting the accident and the injuries. He raised defenses of contributory and comparative negligence. He claimed that his actions were not the proximate cause of the injury. He claimed that Cossairt’s injuries resulted from a joint venture in which Cossairt participated with knowledge of the obvious and apparent danger. Cossairt’s case was consolidated for trial with the cases of the three other passengers. Chesnut settled with Coulthard before trial. Schrawyer originally joined in the cross-appeal but was dismissed upon his own motion on February 9, 1990.

A five-day trial was held in July 1989. The three plaintiff’s testified and offered evidence from other witnesses. At the close of the plaintiffs’ case, Coulthard rested without presenting a defense. Upon the plaintiffs’ motion, the court granted a directed verdict finding Coulthard negligent with no comparative negligence on the part of the plaintiffs. See W.R.C.P. 50(a). The case went to the jury on the question of damages, including whether punitive damages should be awarded. The jury awarded Cossairt $1.7 million, Finnerty $20,100 and Schrawyer $6,500. It found that punitive damages should be awarded and, following testimony by Coulthard on his financial status, awarded $500 in punitive damages.

Coulthard moved for a new trial or amendment of judgment in Cossairt’s case. Coulthard claimed the $1.7 million award appeared to be the result of passion or prejudice on the part of the jury and not supported by sufficient evidence. See W.R.C.P. 59(a)(4) and (6). The court admitted it was surprised at the size of the award but recognized that the court’s surprise is no basis to amend the judgment or grant a new trial. Finding the damage award to be supported by sufficient evidence and not the result of passion or prejudice, the court refused “to interfere with the collective wisdom” of the jurors and denied the motion. Coulthard does not contest the awards to Finnerty and Schraw-yer.

In October 1989, the court awarded costs to the three plaintiffs. Cossairt requested $4,831.19, but the court disallowed some expenditures for discovery and expert witness expenses, save for the time the experts spent testifying. The court awarded him $2,268.76 in costs. Finnerty requested $538.00 and was awarded $205.50. Schrawyer requested $548.42 and was awarded $70.00.

DISCUSSION

A. Directed Verdict

As a preliminary matter, we address Cossairt’s contention that Coulthard failed to preserve the matters decided on directed verdict by not raising those issues on his motion for a new trial. While we continue to recognize the value of allowing the trial court to correct asserted errors of law through a motion for a new trial, such a motion is not necessary to preserve the issue of a directed verdict on appeal. Cf. Harden v. Gregory Motors, 697 P.2d 283 (Wyo.1985).

The rules in existence prior to the promulgation of the Wyoming Rules of Civil Procedure and Wyoming Rules of Appellate Procedure required a motion for a new trial be made before bringing an assignment of error before this court. E.g. Schmidt v. First National Bank, 29 Wyo. 260, 262, 212 P. 651, 652 (1923). However, a motion for a new trial was required as a condition for appeal only for grounds for which a new trial could be granted. In re Austin’s Estate, 35 Wyo. 176, 181, 246 P. 459, 460 (1926).

The Wyoming Rules of Civil Procedure enumerate the grounds for which a court may grant a new trial. W.R.C.P. 59(a)(1) through (8). The enumerated ground relating most closely to a directed verdict is W.R.C.P. 59(a)(6), which concerns sufficiency of the evidence to support the verdict. The standard which must be met for granting a directed verdict is greater than that for granting a new trial. Cody v. Atkins, 658 P.2d 59, 64 (Wyo.1983). See also 11 Wright & Miller, Federal Practice and Procedure: Civil § 2806 (1973).

“ When the evidence is wholly insufficient to support a verdict, it is the duty of the trial court to direct a verdict or enter a judgment n.o.v., and the court has no discretion in that respect. But, the granting of a new trial involves an element of discretion which goes further than the mere sufficiency of the evidence. It embraces all the reasons which inhere in the integrity of the jury system itself.’ ” 658 P.2d at 64 (quoting Tidewater Oil Co. v. Waller, 302 F.2d 638, 643 (10th Cir.1962).

This higher standard eliminates the allegation of an erroneous grant of a directed verdict as a ground for motion for a new trial. To require that the issue be raised in a motion for a new trial would have no reasonable basis and would needlessly delay and prolong litigation. See Crosslin v. Alsup, 594 S.W.2d 379 (Tenn.1980). We will decide the issue of the directed verdict on its merits.

In reviewing the grant of a directed verdict, we consider the evidence favorable to the party against whom the motion is directed, giving to it all reasonable inferences. Carey v. Jackson, 603 P.2d 868, 877 (Wyo.1979). A grant of a directed verdict is proper when, without weighing the evidence or considering the credibility of witnesses, the evidence is such that there is but one conclusion which reasonable jurors could reach. Town of Jackson v. Shaw, 569 P.2d 1246, 1250 (Wyo.1977). This court makes its determination without deference to the view of the trial court. Danculovich v. Brown, 593 P.2d 187, 190 (Wyo.1979). Since a directed verdict deprives the parties of a determination of the facts by a jury, such a motion should be cautiously and sparingly granted. Cody, 658 P.2d at 61.

Coulthard contends that Cossairt was comparatively negligent, and the percentage of that negligence should have been submitted to the jury. The evidence he offers to support this contention is testimony that Cossairt had been drinking before the accident. The evidence is undisputed, however, that Coulthard refused to let anyone else drive his truck; he physically removed Cossairt from the driver’s seat; struck Cossairt; and threw Cossairt in the back of the truck. No evidence shows that, of his own volition, Cossairt took that fateful ride. Even if we consider the testimony of Cossairt’s drinking to amount to a scintilla of evidence to support Coulthard’s contention, a scintilla is not enough. Carey, 603 P.2d at 877. The question is not whether there is no evidence supporting the party against whom the motion is directed, but rather whether there is evidence upon which the jury properly could find a verdict for that party. Id.

Our examination of the record reveals nothing that would allow the jury to find for Coulthard on the negligence issue. Coulthard directs us to nothing, save Coss-airt’s drinking. That evidence does not counter the conclusion that Cossairt, drunk or sober, was riding in the truck against his will. Appellant cross-examined some of the witnesses. He presented no evidence of his own. Whether Coulthard successfully attacked the credibility of any of those witnesses is a matter we do not consider, it being readily apparent that a reasonable jury could arrive at but one conclusion in this case. Town of Jackson, 569 P.2d at 1250. We hold, therefore, that the trial court properly granted a directed verdict on the question of negligence.

B. Motion for New Trial

A trial court has broad discretion when ruling upon a motion for new trial, and we will not disturb its decision absent an abuse of discretion. Medlock v. Merrick, 786 P.2d 881, 883 (Wyo.1990). An abuse of discretion occurs when the court commits an error of law under the circumstances. Waggoner v. General Motors Corp., 771 P.2d 1195, 1201 (Wyo.1989). Coulthard contends that a new trial was warranted because the verdict was so excessive as to be the result of prejudice or passion on the part of the jury, and it was not supported by the evidence.

When applied to the action of a jury, “passion or prejudice” means “anger, resentment, hate, absence of reflection, disregard of the rights of others, and kindred motives.” Ries v. Cheyenne Cab & Transfer Co., 53 Wyo. 104, 79 P.2d 468, 474 (1938). We have further construed these terms by stating “passion” means “moved by feelings or emotions, or may include sympathy as a moving influence without conscious violation of duty,” and by stating “prejudice” to include “the forming of an opinion without due knowledge or examination.” Valdez v. Glenn, 79 Wyo. 53, 330 P.2d 309, 312 (Wyo.1958).

The jury’s determination of the amount of damages is inviolate absent an award so excessive or inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, or other improper cause had invaded the trial. Brittain v. Booth, 601 P.2d 532, 536 (Wyo.1979). See also Union Pacific Railroad Co. v. Richards, 702 P.2d 1272, 1278 (Wyo.1985). The amount of damages “ ‘must be so excessive as to strike mankind, at the first blush, as being beyond all measure unreasonable and outrageous.’ ” Town of Jackson, 569 P.2d at 1252 (quoting Coleman v. Southwick, 9 Johnson 45, 6 Am.Dec. 253, 258 (1812)). This standard recognizes a range within which the verdict must fall and recognizes the judge, who has observed, tried, and compared numerous cases of this kind, as knowledgeable in determining a reasonable value of damages to be awarded. The substantial evidence test was considered by us, but we concluded it was too vague to be workable. What is substantial evidence to one judge may be not substantial to another. On the other hand, the test of when the judicial conscience is shocked is one which has been found workable for decades, and we continue to apply the test in this type of ease.

Under this standard, we cannot conclude that passion or prejudice led the jury to award Cossairt $1.7 million in damages. The jury spent some six hours deliberating the verdict. As discussed below, Cossairt presented sufficient evidence to prove his damages, eliminating any contention of prejudice. We find no evidence that leads to a conclusion that passion influenced this award, and Coulthard points us to none. The record leads us to the conclusion that the verdict is nothing but “the well-reasoned work product of twelve intelligent and caring jurors.” Union Pacific Railroad Co., 702 P.2d at 1279.

When reviewing the sufficiency of the evidence to support a jury verdict, our approach is the opposite of that when we review the evidence to determine the propriety of a directed verdict. When determining whether a verdict is supported by the evidence, we assume the evidence in favor of the successful party to be true, leaving out of consideration entirely the evidence in conflict, and assigning every favorable inference to the evidence of the successful party that can be reasonably and fairly drawn from it. Medlock, 786 P.2d at 883.

Damages must be proven with a reasonable degree of certainty; however, proof of exact damages is not required. Reposa v. Buhler, 770 P.2d 235, 238 (Wyo.1989). Cossairt met that burden. Cossairt claimed damages for past and future expenses for medical care and treatment; emotional and physical pain and suffering; disability or the inability to live with a normal body; loss of the enjoyment of life; loss of income; and loss of earning capacity. His proof included testimony from himself, other lay witnesses, and experts. The experts included medical doctors, a psychologist, a vocational rehabilitation expert, and an economist. Coulthard, in his brief, lists eight different areas which he contends are unsupported by the evidence. To support his argument, he asks us at the very least to characterize the evidence in a light most favorable to him. We cannot, and will not, view the evidence in that manner. Cossairt’s life has been changed dramatically as a result of this accident. Cf. Buttrey Food Stores Div. v. Coulson, 620 P.2d 549, 555, 20 A.L.R.4th 419 (1980). The evidence is sufficient to support the verdict when viewed in the proper light.

C. Award of Costs

Two of the plaintiffs below, Cossairt and Finnerty, center their cross-appeal on the assertion that the standards for awarding costs are unfair. They contend that the guidelines for recovery of expert witness and discovery costs lead to inequities between litigants.

The matter of costs is purely statutory. Weaver v. Mitchell, 715 P.2d 1361, 1373 (Wyo.1986). Two statutes are relevant to the award of the costs in this matter. Wyoming Statute l-14-102(b) allows for the payment of expert witness fees and the charging of those costs against a party. That statute states:

“In any civil or criminal case, any party may call expert witnesses to testify and if the court finds any witness to be a qualified expert and the expert gives expert testimony which is admitted as evidence in the case, the expert witness shall be allowed witness fees of twenty-five dollars ($25.00) per day or such other amount as the court allows according to the circumstances of the case. Expert 'witness fees may be charged as costs against any party or be apportioned among some or all parties in the discretion of the court.”

The phrase “such other amount as the court allows according to the circumstances of the case” gives the court discretion in determining the amount to award. Stauffer Chemical Co. v. Curry, 778 P.2d 1083, 1105 (Wyo.1989). This amount should be limited only to time spent actually testifying and should not include charges for pretrial conferences or time spent during trial while waiting to testify. Hashimoto v. Marathon Pipe Line Co., 767 P.2d 158, 169 (Wyo.1989). Wyoming Statute 1-14-126 grants further discretion to the court in awarding, and taxing costs. See also W.R. C.P. 54(d). Although we delineated some examples showing when awarding costs for discovery expenditures is warranted, Weaver, 715 P.2d at 1373, the court has discretion in making the award provided the expenditures are “reasonably required for trial preparation.” Hashimoto, 767 P.2d at 169.

Because the award of costs is within the discretion of the trial court, we will not disturb the court’s decision in this matter absent a showing of an abuse of discretion. Stauffer Chemical Co., 778 P.2d at 1105. Whether the court abused its discretion must be determined by the particular facts of the case. England v. Simmons, 728 P.2d 1137, 1140 (Wyo.1986) Cossairt and Finnerty contend the court awarded costs based on a somewhat mechanical application of the guidelines cited above. They fail, however, to cite the record to support the contention that such an application would amount to an abuse of discretion and establish that the discovery expenditures not awarded as costs were reasonably necessary. We have repeatedly cautioned litigants to comply with the record citation requirements of W.R.A.P. 5.01. See, e.g., Jung-Leonczynska v. Steup, 782 P.2d 578, 581 (Wyo.1989); Condict v. Condict, No. 89-51, Order dismissing appeal (Wyo., Jan. 24, 1990). Without support from the record, we are unable to find any abuse of discretion.

The plaintiffs further argue that some litigants use discovery needlessly for the purpose of causing the opposition to spend so much money participating in the discovery process that the cost of litigation becomes prohibitively expensive. They urge adoption of a rule that would allow recovery for many discovery expenses to prevent this. The plaintiffs do not claim they were prejudiced by the amount of discovery conducted in preparation for this trial. Thus, to discuss this issue would amount to an advisory opinion which we ordinarily eschew. Wyoming Health Services, Inc. v. Deatherage, 773 P.2d 156, 158 (Wyo.1989). We deviate slightly from this rule, however, to note that abusive discovery tactics can and should be brought to the attention of the court which has the power to control discovery. W.R.C.P. 26(c). See 8 Wright & Miller, Federal Practice and Procedure: Civil § 2036 (1970). See also Pollack, Discovery — Its Abuse and Correction, 80 F.R.D. 219 (1979).

We find no error committed by the trial court in directing the verdict on the issue of Coulthard’s negligence, in denying the new trial motion, and in awarding costs. This ease is affirmed in all respects.

URBIGKIT, C.J., files a specially concurring opinion.