552 So. 2d 814
Miss.
1989

Lead Opinion

DAN M. LEE, Presiding Justice,

for the Court:

Today’s appeal is from an adverse ruling of the Circuit Court of the First Judicial District of Hinds County, Mississippi, in the June 1986 term of court. The complaint by Henry Elam, Jr., and wife Connie for and on behalf of Henry Elam III sought damages arising out of a one-car accident in which Henry E. Elam III, a passenger in the vehicle owned by Billy M. Lee and driven by David Pilcher, was severely injured. The jury returned a verdict for the Elams in the sum of $37,500. The trial court, acting on a previous ruling dated September 25,1985, allowed credit of $100,-000 paid earlier by Commercial Union Insurance Company to the Elams for an on behalf of Billy M. Lee as satisfaction of the judgment.

Aggrieved by the lower court’s final order, the Elams appeal and assign as error:

I.Did the Trial Court Err in Not Adding an Additur or in the Alternative Granting Appellants a New Trial on the Issue of Damages where the Verdict was Grossly Inadequate and Insufficient to Compensate Appellants for the Damage Established by the Evidence?
II.Did the Trial Court Err in Granting Appellee’s Instruction on the Issue of Contributory Negligence when the Instruction did not Correctly State the Law and was not Supported by the Evidence and Refusing Appellant’s Instruction on the Issue of Drinking Alcohol when the Instruction was a Correct Statement of the Law and Warranted by the Evidence?
III. Did the Trial Court Err in Granting Clearly Conflicting Instructions Requiring Appellant to Prove Negligence by a Preponderance of the Evidence after Peremptorily Instructing the Jury that the Appellee was Negligent as a Matter of Law?
IV. Did the Trial Court Err in Granting Appellee Credit for Payments Made to Appellants by a Collateral Source and Not a Joint Tortfeasor?

In addition to the errors assigned by the Elams, appellee David D. Pilcher files the following assignments of error, to-wit:

I.The Trial Court Erred in Denying Appellee’s Instruction D-14 and D-13 on Assumption of the Risk Because said Instructions were Warranted by the Evidence and Correct Statements of Law.
II.The Trial Court Erred in Refusing to Allow Evidence before the Jury of the $101,000 payment by Commercial Union Company to Appellants on behalf of the Appellee.
III. The Trial Court Erred in Refusing to Allow Dr. Arthur Hume, Qualified in Toxicology and Pharmacology, to Testify as to the Effects of a Blood/Alcohol Level of .20 on Ap-pellee.
IV. The Trial Court Erred in Refusing to Allow into Evidence the Testimony of Richard Cooper.

Finding merit in Appellants’ assignment of error number three, we reverse and remand for a new trial. We do not address the other errors assigned on direct appeal and affirm as to the cross-appeal.

STATEMENT OF THE FACTS

On the afternoon of Saturday, June 4, 1984, Henry E. Elam III (hereinafter Elam) telephoned David W. Pilcher (hereinafter Pilcher) at his parents’ home in Jackson, Mississippi, and suggested the two of them get together. Elam then talked with a girl named Denise Schaeffer.

At 8:00 o’clock p.m., Elam picked Pilcher up at his parents’ house and proceeded to the Super D Drug Store in Highland Village in Jackson, Mississippi. At the drug store, Elam purchased an unknown quantity of beer. The boys immediately began drinking the beer and proceeded to Pilcher’s apartment in Clinton.

Arriving at the apartment, Elam and Pilcher drank a few beers and watched television for about 30 minutes. At this time, Julie Lee (hereinafter Lee) and Denise Schaeffer (hereinafter Schaeffer) dropped by Pilcher’s apartment. Pilcher claims he did not know the girls were coming to his apartment. Each girl brought a partial bottle of intoxicating liquor, along with a cup containing some sort of mixed drink. The girls, needing something to mix their liquor with, wanted Elam and Pilcher to go with them to the Tote-Sum store to buy some Coke.

Upon returning from the store, Elam, Pilcher, Lee and Schaeffer began playing the game “quarters.” The game of “quarters” was played by placing liquor or beer in a cup on the coffee table and taking turns trying to bounce a quarter into the cup. If anyone missed the cup, they had to drink what was in the cup. If they bounced the quarter in the cup, they could make anyone else drink the liquor from the cup.

After playing the game of quarters, the group got into Julie Lee’s car, a 1981 Cutlass, and rode to the Margie Mart. At this time, Julie Lee was driving the automobile. When Pilcher and Lee came out of the Margie Mart, Pilcher, apparently at Lee’s request, got in the driver’s seat and the group headed back to Pilcher’s apartment. Travelling in an easterly direction on Arlington Street, Pilcher attempted to pass an automobile at an excessive rate of speed, and the Cutlass went out of control, left the road, and struck a tree. One of the occupants was killed and Henry Elam III was seriously injured.

The initial investigating officer, Charles Bullock, arrived at the scene before the occupants were pulled from the car and testified that he smelled a strong odor of alcohol upon initially looking in the car. Officer Bullock, seeing numerous Budweiser cans on the floorboard of the car, requested that a blood sample be taken from Pilcher. The sample was taken within approximately one hour of the accident, and was tested by the Jackson Crime Lab. The test results revealed that Pilcher had .20 grams ethyl alcohol per 100 milliliters or cubic centimeters of blood, or simply stated, a blood/alcohol reading of .20.

At the time of the accident, Billy Lee, father of Julie Lee and owner of the 1981 Cutlass, had in effect a master automobile policy with Commercial Union Insurance Company (hereinafter Commercial Union). The policy provided $100,000 liability limits per person and a medical payment provision of $1,000. Commercial Union paid the Elams the policy limit for $100,000 on behalf of Billy Lee without suit being filed. An “Absolute Release with Covenants” was executed by the Elams with the express agreement, understanding and stipulation that the payment of this sum did not release or discharge Pilcher from any claims, right, demands or causes of action which the Elams had against Pilcher or any other persons, firms or corporations other than Billy Lee and Commercial Union.

The Elams filed suit against Pilcher seeking an award for personal injuries, expenses related to personal injuries and pain and suffering sustained in the. wreck. In due time a trial ensued and the jury returned a verdict for the Elams in the sum of $37,500. The trial court entered judgment for the plaintiff in the amount of $37,500, but allowed the $100,000 paid by Commercial Union to be credited against the judgment, thereby satisfying it in full. The Elams filed a motion for a new trial alleging error in the instruction of the jury and inadequacy of the damages awarded. Additionally, the Elams filed a motion for an additur or in the alternative a motion for a new trial on the issue of damages, and a motion for the court to vacate its ruling allowing Pilcher credit for the sum of $100,000 paid by Commercial Union under Billy Lee’s policy. All motions were overruled by the court and Elam perfected this appeal.

ANALYSIS

Did the Trial Court Err in Granting Clearly Conflicting Instructions Requiring Appellant to Prove Negligence by a Preponderance of the Evidence After Peremptorily Instructing the Jury that the Appellee was Negligent as a Matter of Law?

Pilcher requested and was granted the following instructions:

You are instructed by the court that the charged [sic] laid by the Plaintiffs against the Defendant in this case is one of negligence. You may not presume that the Defendant was negligent. In other words, the Plaintiffs may recover on his charge of negligence against Defendant only if such charge is sustained by a preponderance, or greater weight, of the credible evidence, and it is not the duty of the Defendant to disprove the charge, but, rather, the law casts the burden of proof in respect thereto upon the Plaintiff; and such charge of negligence must be sustained by a preponderance of the credible evidence, and if the Plaintiffs have failed to make such proof against Defendant, then it is your sworn duty to return a verdict for the Defendant, David W. Pilcher. Emphasis supplied.

and

You are instructed by the court that in passing upon such questions as are submitted to you for your decision, the jury must not be swayed or influenced by the natural sympathy all men instinctively feel for one who has been injured. Sympathy should not enter into your verdict, for your verdict should be based solely on the evidence presented to you and the instructions of this court, and the burden of proof at all times rests upon plaintiffs to prove to you by a preponderance of the credible evidence that David W. Pilcher was guilty of negligence and, further, that such negligence, if any you find, was a proximate or contributing cause of the injury complained of, and, unless Plaintiff has so proven, then it is your sworn duty to return a verdict for the Defendant, David W. Pilcher. Emphasis supplied.

These instructions were granted notwithstanding the fact that the trial court had granted the Elams the following instruction on the issue of Pilcher’s negligence in this matter.

You are instructed by the court that under the law, the Defendant, David W. Pilcher, was negligent in the operation of the 1981 Oldsmobile and that such negligence was a proximate cause of proxi mate contributing cause to the damages of the Plaintiff.

We find that these instructions placed before the jury directly conflicting statements of law. It is well settled that it is reversible error to give contradictory or conflicting jury instructions. In Griffin v. Fletcher, 362 So.2d 594 (Miss.1978), we said:

As stated, the trial court granted a peremptory instruction on liability to the appellant and, in additional instructions to the appellant and appellee, submitted the issue of liability to the jury. The effect of those instructions was to countermand the peremptory instruction and the jury was obviously confused. In this situation, we are of the opinion that the motion for a new trial should have been sustained and that the case should be reversed and remanded for a new trial on both issues of liability and damages.

Id. at 594. See also Kennedy v. State, 393 So.2d 480 (Miss.1981).

Having given a peremptory instruction on the issue of Pilcher’s negligence, we find the trial court committed reversible error in instructing the jury that the Elams were still required to prove Pilcher was negligent by a preponderance of the evidence.

CONCLUSION

This Court finds that the verdict was the result of an improperly instructed jury. The instructions granted were contradictory as well as confusing. Accordingly, the final judgment of the Circuit Court of the First Judicial District of Hinds County, Mississippi, dated June 20, 1986, is reversed and the case remanded for a new trial or other disposition not inconsistent with this opinion.

REVERSED AND REMANDED.

ROY NOBLE LEE, C.J., HAWKINS, P.J., and ROBERTSON, SULLIVAN, ANDERSON and ZUCCARO, JJ., concur. PRATHER, J., not participating.



Dissenting Opinion

ROBERTSON, Justice,

dissenting from denial of Petition for Rehearing:

I.

With respect, I suggest that the Court erred in its decision of January 4, 1989, when it found merit in Henry E. Elam, Ill’s Assignment of Error No. 3 and reversed and remanded for a new trial. The conflict in the instructions on liability could not in any legally cognizable way have prejudiced the jury, for on the issue at bar the jury nevertheless gave Elam the most favorable result possible: it found Pilcher liable. Under the long standing rule of this Court, any error in such context is harmless as a matter of law.

Nor do I find any error in Assignment of Error No. 1, the Circuit Court’s refusal to order an additur. Considering the nature and extent of Elam’s personal injuries and the fact that the jury was well within its prerogatives in finding him guilty of substantial contributory negligence, the jury’s verdict awarding damages in the sum of $37,500 was not so inadequate as to require an additur or, in the alternative, a new trial on the issue of damages. To the contrary, the verdicts was quite responsive to the evidence.

II.

The Court’s opinion states fairly the facts on the liability phase of the case. By way of contrast, the brief summary of Elam’s damages found on page seven violates a fundamental rule of appellate review, for it fails to consider the facts in the light most (reasonably) consistent with the verdict. See Payne v. Rain Forest Nurseries, Inc., 540 So.2d 35, 37 (Miss.1989). Hence, I add a word on the point.

The evidence reflects that Elam sustained several broken bones, was hospitalized and required to wear a cast for a short period of time. The treating physicians testified that he recovered extremely well and is able to live a normal day-to-day life. In addition, there is no question that the jury readily saw that Elam’s own actions in getting the “party” together and voluntar ily riding with a driver under the influence was a contributing cause of his injuries.

Several physicians testified for Elam at trial, including Dr. John Purvis, an orthopedist, Dr. Terrell D. Blanton, an ear, nose and throat specialist, and Dr. James Baugh, a clinical psychologist. Dr. Purvis stated that while Elam sustained a broken arm, fractured pelvis, fractured wrist and broken tibia, he made excellent progress in recovery and ambulated early. Dr. Purvis stated that the only disability which resulted from the injuries sustained in the accident was the healing of the tibia which caused a turned-in gait. Dr. Purvis stated that this disability was “cosmetic” and that his rating of ten percent (10%) impairment to the lower extremity was based on the fact that this was a purely anatomical problem with absolutely no effect on Elam’s ability to earn a living or live a normal day-to-day life.

Dr. Baugh conducted a psychological evaluation of Elam and found a “chronic psychological maladjustment.” Dr. Baugh acknowledged that he could not rule out the possibility this was due to preexisting conditions or factors or causes other than the accident in question.

Dr. Blanton stated that in his opinion, Elam had suffered a thirty percent (30%) to thirty-five percent (35%) conducive hearing loss in his right ear, but he would not be affected in normal conversation. Elam has since had no significant problems with his ear and does not wear a hearing aid. Elam has taken no prescription drugs since leaving the hospital and was having no significant problems at the time of trial.

Elam’s parents, Plaintiffs as well, claim monetary damages of $23,143.36 as a proximate result of the accident in question. Some $4,500.00 of the total $23,143.36 claimed by Elam were losses resulting from attending Mississippi State University and Hinds Junior College following the accident. At the time of trial, Elam had switched majors and pulled his average up to 2.4 at Mississippi State University and was getting married in August, 1986. It is reasonable to assume that the jury felt that Elam made an excellent recovery and had no significant permanent injury.

III.

It is true that at trial the Circuit Court instructed the jury to find for Elam on the question of liability1 and immediately thereafter granted two instructions which submitted to the jury the question of Pilcher’s negligence.2 It is true that this was error. What is critical to keep in mind in considering the legal effect of this error is (1) the conflicting instructions concerned the issue of Pilcher’s liability and (2) the jury’s verdict resolved that issue in the way most favorable to Elam and most unfavorable to Pilcher. As a verdict on liability is all that Elam could possibly have acquired — and what in the end he did acquire, where is the harm?

A host of closely related points appear in our cases. Where at trial — over the objection of the party later taking the appeal— the court erroneously instructs the jury on a liability issue, we have in a variety of contexts held the error harmless where the jury nevertheless resolved THAT issue in favor of the appealing party. Illinois Central Railroad Company v. Paxton, 187 Miss. 858, 865, 193 So. 915, 917 (1940); Dicus v. Republic Paint & Varnish Works, 128 Miss. 189, 192, 90 So. 729, 730 (1922); Hoover Commercial Co. v. Humphrey, 107 Miss. 810, 820-21, 66 So. 214, 216 (1914). Closer to the mark are our cases where on the evidence a party was entitled to a directed verdict but did not get one. Where the jury found for that party anyway, errors in jury instructions on liability are deemed harmless, moot or immaterial. See, e.g., Dunn v. Jack Walker’s Audio Visual Center, 544 So.2d 829, 833 (Miss.1989); Griffin v. Gladden, 197 So.2d 891, 894 (Miss.1967); Wallace v. J.C. Penney Co., 236 Miss. 367, 373-74, 109 So.2d 876, 878 (1959); Horton v. Jones, 208 Miss. 257, 263, 44 So.2d 397, 400 (1950). The common rationale undergirding the holdings of these cases is that the jury verdict on the point at issue gave the appealing party the most favorable result he could have received on that issue had the trial court handled the point correctly.

Scott v. K-B Photo Service, Inc., 260 So.2d 842 (Miss.1972) supports affirmance. In a wrongful death action the jury found for plaintiff for $6,718.00. Plaintiff appealed, arguing that the damage award was inadequate and specifically assigned as error the trial court’s refusal to direct a verdict for plaintiff on liability. Scott holds the point moot in that the jury found for plaintiff on liability anyway.

The majority relies upon Griffin v. Fletcher, 362 So.2d 594 (Miss.1978). In Griffin, the trial court had submitted to the jury two contradictory instructions, one directing a verdict for plaintiff on liability and the other submitting to the jury all issues on liability. The two instructions flatly contradicted each other, and, in the context of a result at trial of a jury verdict for the defendant, the Court ordered a new trial. The point to be emphasized here is that the jury verdict in Griffin was the least favorable and most adverse to the party against whom the error was committed. Today’s case presents the precisely opposite situation. The ultimate verdict on the issue where the error was made was the most favorable result Elam could have received. Only by ignoring both juridical logic and common sense may we suggest that Griffin constitutes authority of any relevance whatsoever today.

We considered an analogous point only recently in Dunn v. Jack Walker’s Audio Visual Center, 544 So.2d 829 (Miss.1989). Dunn recognized that an “unreasonably low” damage award may suggest a compromise verdict, 544 So.2d at 833. Concurring, Presiding Justices Hawkins and Dan M. Lee said the same thing, viz. “a patently modest verdict should be a factor in determining whether the error was prejudicial.” 544 So.2d at 834 [Hawkins, J., concurring]. But a $37,500.00 verdict may hardly be said patently modest where, as here, the evidence suggests near complete physical recovery, the likelihood of no permanent loss of wage earning capacity, and substantial contributory negligence. See George v. Perkins, 221 So.2d 717, 718 (Miss.1969) (“the jury no doubt adjusted its verdict consistent with the law and facts on the question of contributory negligence”).

IV.

A similar result follows when we consider the majority’s suggestion that the Circuit Court erred when it refused to grant Elam an additur. In considering the jury’s $37,000.00 damage award, we must look both to the damages experienced by Elam and, as well, his own negligence. Our law for years has recognized that a guest passenger who voluntarily rides in an automo bile with a driver who is visibly intoxicated may be held negligent and thus his personal injury recovery reduced in proportion to his negligence. Indeed, in extreme circumstances, such action on the part of a voluntary passenger can constitute assumption of risk. Morris v. Lammons, 243 Miss. 684, 139 So.2d 867 (1962); Saxton v. Rose, 201 Miss. 814, 29 So.2d 646 (1947); Chapman v. Powers, 150 Miss. 687, 116 So. 609 (1928).

Our most recent case on the point is Hill v. Dunaway, 487 So.2d 807 (Miss.1986) which presented a fact situation quite similar to today’s. The plaintiff, a guest passenger, voluntarily rode in a vehicle with a driver with whom he had jointly consumed at least a six-pack of beer. Although there was evidence that Dunaway, the defendant driver, had not had anything to drink during the hour immediately preceding the wreck, he admitted on cross-examination that he was “under the influence” at the time of the accident. There was also evidence that defendant almost ran off the side of the road shortly before the accident. Plaintiff Hill suffered serious injuries necessitating several operations and total medical and hospitalization expenses were $30,782.61. Also, Hill claimed loss of wages in the amount of $10,660.00. Hill appealed from a jury verdict in his favor in the amount of $50,000.00 on the basis that the verdict was grossly inadequate. The Court upheld the granting of the comparative negligence instruction and then refused to reverse the Circuit Court for its denial of plaintiffs motion for an additur or for a new trial. Considering both the fact of Plaintiff Hill’s negligence and, as well, the most favorable view of Hill’s damages from the point of view of the defendant, the $50,000.00 verdict was not so grossly inadequate as to require appellate intervention.

The Circuit Court in the case at bar had authority to grant an additur only if it found the jury’s damage award so shockingly low that it evinced bias, passion or prejudice or was contrary to the overwhelming weight of the evidence. Miss.Code Ann. § 11-1-55 (Supp.1988); Gibbs v. Banks, 527 So.2d 658, 660 (Miss.1988); Trustees of Wade Baptist Church v. Mississippi State Highway Commission, 469 So.2d 1241, 1245 (Miss.1985); Hynum v. Smith, 447 So.2d 1288, 1290 (Miss.1984). This twin standard necessarily vests a certain discretion in the Circuit Court. Having in mind the evidence of Elam’s negligence and, as well, the evidence of Elam’s •damages when viewed most favorably to the defendant, Pilcher, we may not say that the Circuit Court abused its discretion when it refused to order an additur. Dunn v. Jack Walker’s Audio-Visual Center, 544 So.2d at 833; Hill v. Dunaway, 487 So.2d at 811; compare Pham v. Welter, 542 So.2d 884, 888-89 (Miss.1989).

I would grant the petition for rehearing and affirm the judgment of the Circuit Court.

ROY NOBLE LEE, C.J., and ANDERSON, J., join in this opinion.

Notes

. The peremptory instruction on liability as presented to the jury reads:

You are instructed by the court that under the law, the Defendant, David W. Pilcher, was negligent in the operation of the 1981 Oldsmobile and that such negligence was a proximate cause or proximate contributing cause to the damages of the Plaintiff.

. Pilcher requested and was granted the following instructions:

You are instructed by the court that the charged [sic] laid by the Plaintiffs against the Defendant in this case is one of negligence. You may not presume that the Defendant was negligent. In other words, the Plaintiffs may recover on his charge of negligence against Defendant only if such charge is sustained by a preponderance, or greater weight, of the credible evidence, and it is not the duty of the Defendant to disprove the charge, but, rather, the law casts the burden of proof in respect thereto upon the Plaintiff; and such charge of negligence must be sustained by a preponderance of the credible evidence, and if the Plaintiffs have failed to make such proof against Defendant, then it is your sworn duty to return a verdict for the Defendant, David W. Pilcher. Emphasis supplied.

and

You are instructed by the court that in passing upon such questions as are submitted to you for your decision, the jury must not be swayed or influenced by the natural sympathy all men instinctively feel for one who has been injured. Sympathy should not enter into your verdict, for your verdict should be based solely on the evidence presented to you and the instructions of this court, and the burden of proof at all times rests upon plaintiffs to prove to you by a preponderance of the credible evidence that David W. Pilcher was guilty of negligence and, further, that such negligence, if any you find, was a proximate and contributing cause of the injury complained of, and, unless Plaintiff has so proven, then it is your sworn duty to return a verdict for the Defendant, David W. Pilcher. Emphasis supplied.