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TAN MINH PHAM v. ANDREW W. WELTER

FEBRUARY 27, 1989

TAN MINH PHAM
v.
ANDREW W. WELTER



BEFORE DAN LEE, P.J., ROBERTSON and ZUCCARO, JJ.

ZUCCARO, JUSTICE, FOR THE COURT:

Andrew Welter (Welter) filed suit against Thua Van Tran and Tan Minh Pham (Pham) for his damages in connection with an automobile accident between his vehicle and a vehicle which Pham was driving owned by Thua Van Tran. Pham counter-claimed for his damages and Thua Van Tran counter-claimed for the damages to his automobile.

In the court below, the jury returned the following verdict: We, the jury, find plaintiff/driver Welter negligent by 40% and the defendant/driver Pham negligent by 60%; we find that the total damage suffered by Welter to be $40,000, the total damages suffered by defendant/driver Pham to be $30,000 and the total damages suffered by the defendant/owner Tran to be $0.

 Upon entry of the judgment, Thu Van Tran and Pham each filed a motion for additur, or in the alternative, a new trial on the issue of their respective damages. Tran based his motion on the uncontradicted testimony as to the value of his destroyed car, while Pham asserted his undisputed damages including pain and suffering. Pham also moved for a remittitur or in the alternative a new trial as to the $40,000 in damages awarded to Welter and asserted as his grounds therefor that the jury verdict was against the overwhelming weight of the evidence and was so grossly excessive as to evidence bias and prejudice on the part of the jury. Upon hearing the motions, the trial court ordered an additur of $2,500 for Thu Van Tran for damages to his vehicle reduced by 60% for Pham's contributory negligence, but overruled both Pham's motions (remittitur as to Welter's damages and additur as to his damages). From that ruling Pham appeals and Welter cross-appeals and the following assignments of error are alleged: AS TO PHAM'S APPEAL

 I. The Trial Court Erred in Overruling

 Appellant's Motion for Additur or in the Alternative for a New Trial as to Damages.

 II. The Trial Court Erred in Overruling Appellant's Motion for Remittitur or in the Alternative for a New Trial as to Appellee's Damages.

 AS TO WELTER'S CROSS APPEAL

 III. The Lower Court Erred in Granting a Comparative Negligence Instruction.

 IV. The Verdict of the Jury was Contrary to the Overwhelming Weight of the Evidence.

 V. The Lower Court Erred in Refusing to Grant Jury Instructions P-9, P-10 and P-11 Concerning the Agency of Pham.

 VI-A. *fn1 The Trial Court Judge Erred in Overruling the Motion to Correct Judgment.

 VI-B. *fn2 The Trial Court Correctly Overruled the Motion to Correct Judgment.

 Finding error, we grant an additur of $30,000 to Pham or, in the alternative, a new trial on the sole issue of damages. We also address the issues raised in assignments III, and VI-A *fn3 and VI-B. *fn4

 FACTS

 On July 16, 1984, on a rainy afternoon, Andrew Welter and Tan Minh Pham were involved in a head-on collision on Howard Avenue in Biloxi, Mississippi. The accident occurred near the intersection of Howard and Claiborne Street. The versions of how the accident occurred from plaintiff's viewpoint and testimony and from defendant's testimony and viewpoint are poles and light years apart.

 It is Welter's contention that he and Larry Gilbert, a co-worker, were travelling east in a 1966 station wagon on Howard Avenue in Biloxi, that while beginning to negotiate the second curve of an" S "curve on Howard Avenue, a 1978 Cutlass driven by Pham in a westerly direction careened across

 the center line and collided head-on with Welter's vehicle in the east-bound lane against the curb. According to Welter, the Cutlass, which was owned by Pham's employer, had balding tires. Welter, Gilbert and Randall Broussard, a disinterested party travelling behind Welter, attested to this version of how the collision occurred. These facts, as pointed out by Welter, were corroborated by Biloxi Police officers James Beese and Terry Tirrell, both of whom were on the scene of the accident soon after the collision occurred. Officers Beese and Tirrell testified that the debris was situated in the east-bound lane, and Tirrell observed skid marks going from the west-bound land of Howard into the east-bound lane. Photographic evidence established that the vehicles hit directly head-on.

 In a version totally contrary to Welter's story, Pham asserts that he was travelling west on Howard when he saw a station wagon run a stop sign on Claiborne Street. Pham stated that the station wagon hit him on the right side and" pulled "his car over into the east-bound lane. Mui No, a Vietnamese lady from Chicago, testified that she was standing in front of her house when she saw a station wagon go through the stop sign and collide with Pham. Barbara Adams of Pensacola, Florida, also testified on behalf of Pham and she, too, testified that she saw a station wagon go through the stop sign and collide with Pham; however, on cross-examination she admitted that she was not wearing glasses as required, and that she had been under anti-psychotic medication at the time of the accident.

 At trial, Welter's case-in-chief also consisted of a variety of witnesses who testified concerning the pain and suffering he had endured as a result of the collision. Likewise, Pham and his medical experts gave testimony about the pain and suffering which Pham had endured.

 At the close of all of this evidence, the trial judge said that the case was" straight up and down and there is no in between "and that the facts did not support the giving of a comparative negligence instruction. Although by the lower court's comments it seemed to have ruled out comparative negligence, the next day the trial judge changed his mind and gave Instruction C-20, which reads, in pertinent part, as follows:

 If you find from a preponderance of the evidence that both Welter and Pham were negligent in the operation of the automobiles involved in this accident as defined in Instructions

 P-4 A and D-5 A, and that the negligence of each was a proximate contributing cause of the accident in this case and that each party suffered damages as a direct proximate result of the accident then you shall proceed as follows:

 1.Determine the total damages, if any, that Welter, Pham and Tran sustained as a direct proximate result of the accident, then

 2.Determine percentage or degree of negligence of the two drivers, Welter and Pham; for example, 50% versus 50% or for example 75% versus 25%, etc. (the combined percentages must equal 100%).

 When you have completed steps 1 and 2 above, complete the following form return same into court:

 " We, the jury find Plaintiff/Driver Welter negligent by ___ % and the Defendant/Driver Pham negligent by ___ %; we find that the total damages suffered by Welter to be $ ___ ___, the total damages suffered by Defendant/Driver Pham to be $ ___ and the total damages suffered by Defendant/Owner Tran to be $ ___. "*fn5

 Following the reasoning set out in this instruction, the jury found that Welter suffered $40,000 in damages and that Pham suffered $30,000 in damages. The jury further found Pham 60% negligent and Welter 40% negligent.

 Welter's liability carrier, State Farm Mutual Automobile Insurance Company, moved the lower court to correct its judgment pursuant to Miss. Code Ann. 11-7-69 (Supp. 1986) which requires that there be but one judgment. Pham moved for an additur of his damages and a remittitur of Welter's damages. These motions were overruled by the trial court. Thereafter, Pham filed an appeal to this Court and Welter has cross-appealed. The same law firm which abandoned Welter during trial filed assignment of error VI-A which was totally contrary to Assignment VI-B and which was obviously to

 protect State Farm to the detriment of Welter. Welter's other attorney objected to this procedure and he filed Assignment of error VI-A.

 I

 Pham assigns as error that:

 Trial Court Erred in Overruling Appellant's Motion for Additur or in the Alternative for a New Trial as to Damages.

 Pham argues that he proved actual special damages in the amount of $28,682.70. The jury assessed his damages at $30,000, which converts to $1,327.30 for pain and suffering as a result of his injuries. In this connection, it bears emphasis that the $30,000 figure represents the jury's finding of Pham's damages before reduction for his 60% negligence. Consequently, Pham urges this Court that such an amount in compensation for pain and suffering is wholly inadequate.

 Before this Court can address Pham's claim of inadequate compensation for pain and suffering, we must review the precedent set out in Miss. Code Ann. 11-1-55 (Supp. 1986). This code section, providing a statutory constraint to altering a jury's verdict, reads as follows:

 11-1-55. Authority to impose condition of additur or remittitur

 The supreme court or any other court of record in a case in which money damages were awarded may overrule a motion for new trial or affirm on direct or cross appeal, upon condition of an additur or remittitur, if the court finds that the damages are excessive or inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion, or that the damages awarded were contrary to the overwhelming weight of credible evidence. If such additur or remittitur be not accepted then the court may direct a new trial on damages only. If the additur or remittitur is accepted and the other party perfects a ...


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