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McNeil v. Bourne

August 04, 1998

MCNEIL
v.
BOURNE



Before Thomas, P.j., Diaz, And Herring, JJ.

The opinion of the court was delivered by: Herring, J.

CHARLES MCNEIL, APPELLANT v. VERLON R. BOURN, SR., APPELLEE

DATE OF JUDGMENT: 08/29/96

TRIAL JUDGE: HON. RICHARD WAYNE MCKENZIE

COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

TRIAL COURT DISPOSITION: JURY VERDICT IN FAVOR OF, APPELLEE FOR $121,000

DISPOSITION AFFIRMED - 8/4/98

¶1. Charles McNeil appeals from the jury verdict and an award of $121,000 to the Appellee, Verlon R. Bourn, Sr., in a personal injury lawsuit which was conducted in the Circuit Court of Forrest County, Mississippi. McNeil admitted liability and the issues at trial were limited to the damages suffered by Bourn as a result of a traffic accident. We affirm.

I. THE FACTS

¶2. On January 7, 1992, an eighteen-wheeler tractor and trailer loaded with pulpwood and driven by Charles McNeil collided into the driver's side of a 1979 GMC van driven by Verlon Bourn. Bourn was unable to avoid the accident by steering his vehicle out of the path of the eighteen-wheeler. McNeil admitted liability prior to trial, and the only issue for the jury in this case involved damages. Bourn, who was forty-seven years old in 1992, testified that he had experienced back, neck, and leg pain for a number of years prior to the accident. However, the pain in his neck, back, and legs intensified after the collision on January 7, 1992.

¶3. Bourn testified that during the accident he lunged toward the passenger seat in his vehicle, and when he did so, he tore a muscle in one of his arms. Immediately following the accident, Bourn complained only of stinging pain in his arm. The next day, however, he experienced lower back pain, numbness, and radiating pain in his heel and in the back of his legs, as well as tenderness in his buttocks. Due to his pain following the accident, Bourn went to see Dr. Ruth Gillespie, his family physician, who admitted Bourn to Forrest General Hospital in Hattiesburg, Mississippi, for tests. The Appellee was hospitalized for two weeks following the accident and received treatment in the form of traction, therapy, and medication. He was also referred to a neurologist for examination and treatment.

¶4. At trial, Bourn testified that prior to the accident he had been seeing Dr. Gillespie for at least nine years, not for any particular injury, but for general pain in his neck, back, and legs. Since 1980, Bourn had worked in a liquor store which he also owned. He stated that prior to his accident in 1992, he engaged in all sorts of activities involving his business, which involved standing for long periods of time; loading and unloading liquor from delivery trucks; stocking his shelves; repairing broken pieces of equipment; and attending generally to his customers. During the time prior to the 1992 accident, Bourn stated that Dr. Gillespie would prescribe various pain medications and muscle relaxers for him. Furthermore, because of a college football injury in which he lost a kidney, his doctor was also required to closely monitor his medications in order to protect his one remaining kidney. The record also indicates that at some point in his life, Bourn sustained a gunshot wound. However, the record does not reflect the nature of Bourn's injury as a result of the gunshot wound or any effect it may have had upon his health at the time of the accident in 1992.

¶5. According to the testimony, Bourn injured his back in 1967 while working for Amerada Hess, *fn1 and the company doctor admitted him to the hospital at that time for the back injury. He also testified that he sustained a whiplash injury as a result of a car accident in the early 1970's. Later, in 1989, when Dr. Gillespie admitted Bourn into a hospital because of chest pain, she also treated Bourn for back pain at that time, because he was complaining of pain in his neck and back.

¶6. As stated, Bourn testified that he was able to perform many physical tasks associated with running his liquor store prior to the 1992 accident, although he took medication for back-related pain. After the accident, however, he was no longer able to perform the same tasks. Because of his pain, Bourn testified that he was forced to hire others to operate his business. Dr. Gary Jackson, an orthopedic surgeon from Hattiesburg, examined and treated Bourn for approximately one and a half years after the accident. Dr. Jackson's diagnosis was that Bourn had a lumbar sprain, superimposed upon a pre-existing condition of degenerative disc disease with arthritis. Dr. Jackson also stated that approximately five percent of individuals diagnosed with a lumbar sprain suffer from chronic pain and never fully recover. Finally, Dr. Jackson testified that in his opinion the lumbar sprain suffered by Bourn was proximately caused by the 1992 truck accident in which he was involved.

¶7. At the end of the trial, McNeil moved for a directed verdict on the grounds that the jury should be prohibited from considering Bourn's claims for future medical bills and loss of future earning capacity because Bourn had failed to meet his burden in establishing these claims by a preponderance of the evidence. The trial court agreed and granted McNeil's motion for directed verdict on the issues of future medical payments and loss of future earning capacity. Whether or not Bourn would be allowed to recover for past medical bills incurred as a result of the accident, as well as, present, past, and future pain and suffering, and mental anguish was left to be considered by the jury. Written jury instructions were then presented and read to the members of the jury which informed them of the legal issues involved and the guidelines to use in interpreting the evidence presented in the case. Among the instructions given included Jury Instruction No. 5 which reads as follows: The court instructs the jury that damages is the word which expresses in dollars and cents the injuries sustained by a plaintiff. The damages to be assessed by a jury for personal injury cannot be assessed by any fixed rule, but you are the sole Judges as to the measure of damages in any case.

Should your verdict be for Verlon Bourn *fn2 , you may consider the following factors in determining the amount of damages to be awarded as may be shown by a preponderance of the evidence:

1. The type of injuries to the plaintiff, if any, and the length of their duration, and its effect, if any, on the Plaintiff's, ...


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