Jones v. WieseJones v. Wiese
for the Court:
STATEMENT OF CASE
On August 18, 1989, Linda Jones, while operating an automobile in Columbus, Mississippi, was stopped in an attempt to make a left turn at an intersection and was rear-ended by the automobile driven by Dane A. Wiese. Thereafter, Jones filed suit for personal injuries.
At the conclusion of the trial, the judge peremptorily instructed the jury that Wiese was negligent leaving only the question of damages for jury resolution. The jury rеturned a verdict for the plaintiff, awarding her damages in the sum of $7,500 for personal injury. Aggrieved, Jones perfected this appeal and raises the following four issues:
I. THE CIRCUIT COURT ERRED IN ORDERING THE PLAINTIFF TO PAY DEFENDANT’S ATTORNEY THE SUM OF $250.00 FOR ATTENDING DEPOSITION FOR TRIAL OF DR. JOHN W. MCFADDEN.
III. THE CIRCUIT COURT ERRED IN GIVING JURY INSTRUCTION D-4 WHICH USED THE WORD “POSSIBILITY” IN A MANNER IN WHICH WAS A COMMENT UPON THE WEIGHT OF THE EVIDENCE.
IV. THE CIRCUIT COURT ERRED IN FAILING TO GRANT PLAINTIFF’S MOTION FOR ADDITUR, OR IN THE ALTERNATIVE, MOTION FOR NEW TRIAL ON THE ISSUE OF DAMAGES. THAT THE VERDICT OF THE JURY WAS THE RESULT OF CONFUSION, PREJUDICE, BIAS OR PASSION AND IS A COMPLETE DISREGARD OF THE DAMAGE INSTRUCTION OF THE COURT AND APPLICABLE LAW, AND THE UNCONTRADICTED TESTIMONY PRESENTED AT THE TRIAL SHOWED THE EXTENT OF THE MEDICAL DAMAGES AND BILLS INCURRED BY THE PLAINTIFF AS A PROXIMATE RESULT OF THE AUTOMOBILE ACCIDENT THAT NEARLY EXCEED THE VERDICT.
We find these assigned errors to be meritorious. We conclude that the circuit court erred in imposing sanctions for the attendance of defense counsel at a deposition where the record does not reveal there was a violation of any discovery rule. Additionally, we find that the trial court erroneously admitted testimony regarding other settlement offers received by Jones. Such evidence was “substantially outweighed by the danger of unfair prejudice” and was error.
Because of our decision to reverse and remand for a new trial, our considerаtion of Issue IV is rendered moot. We, however, review Issues I, II and III.
I. THE CIRCUIT COURT ERRED IN ORDERING THE PLAINTIFF TO PAY DEFENDANT’S ATTORNEY THE SUM OF $250.00 FOR ATTENDING DEPOSITION FOR TRIAL OF DR. JOHN W. MCFADDEN.
On November 14, 1990, the court below entered an order setting this case for pre-trial conference on December 7, 1990.
' On appeal, Jones contends that the trial court erred in imposing the sanctions against Jones and in support relies upon
The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness is at a greater distance than one hundred miles from the place of trial or hearing, or is out of the state, unless- it appears that the absence of the witness was procured by the party offering the deposition; оr (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) that the party offering the deposition has been unable to procure the attendance of thе witness by sub*177 poena; or (E) that the witness is a medical doctor or (F) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be so used.
In rebuttal, Wiese relies on
Premised on what defense counsel viewed as a violation of pre-trial procedure, the trial court sanctioned Jones for the “late” taking of a medical doctor’s deposition for trial purposes. Apparently, the trial judge considered
It cannot be said from the facts in this casе that Wiese was unduly burdened. Nor do we find that Jones violated any discovery rules whereby discovery sanctions would be applicable. The court was without authority on these facts to impose sanctions; and therefore, the trial court abused its discretion. See Nationwide Mut. Ins. Co. v. Evans,
II. THE CIRCUIT COURT ERRED IN ALLOWING THE DEFENDANT’S ATTORNEY TO QUESTION PLAINTIFF ABOUT THE AMOUNT OF MONEY ($25,000.00) RECEIVED FROM THE SETTLEMENT OF AN UNRELATED PRIOR AUTOMOBILE ACCIDENT RESULTING IN PREJUDICING THE JURY.
The accident in question occurred on August 18, 1989. Plaintiff Jones had been in a prior accident in Birmingham, Alabama, on October 21, 1988. During cross-examination of Jones, defense counsel for Wiese was allowed, over objection, to introduce into evidence the amount of money received by Jones in a settlement of a collateral claim. The following colloquy between Jones and defense counsel occurred as follows:
Q Thank you. And, Mrs. Jones, in fact of that accident in October twenty-one of nineteen eighty-eight, you got a significant amount of money out of that accident too, didn’t you?
BY MR. GRINDSTAFF: I object, Your Honor.
BY THE COURT: Overruled.
A No, I did not.
Q Did you not receive Twenty Five Thousand Dollars?
A Yes, I did.
Q And that’s not a significant amount of money?
A For a permanent right eye that’s gone, that I’ll never see out of again.
During a hearing on the motion for new triаl or alternatively for an additur, the trial court expressed that (1) he did not recall an objection and (2) if an objection had been made, he would still have allowed the testimony regarding the collateral settlement into evidence under
Jones admits in her brief that the extent of her prior injuries was relevant and a proper subject for cross-examination. However, the amоunt of a prior settlement for another injury clearly could do nothing but prejudice
The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused. Johnston v. State,567 So.2d 237 , 238 (Miss.1990). Prejudicial evidence that has no probative value is always inadmissible. McFee v. State,511 So.2d 130 , 134 (Miss.1987).
The amount Jones received in settlement for a prior injury is totally unconnected with the one sustained in the automobile collision being tried. Therefore, the issue is collateral and of questionable relevance at best. The balance was in favor of prejudice requiring the trial judge to exclude this information from the jury. “Evidence is unfairly prejudicial for purposes of
III. THE CIRCUIT COURT ERRED IN GIVING JURY INSTRUCTION D-4 WHICH USED THE WORD “POSSIBILITY” IN A MANNER IN WHICH WAS A COMMENT UPON THE WEIGHT OF THE EVIDENCE.
The circuit court, over Jones’ objection, allowed jury Instruction D-4 to bе given to the jury. Jury Instruction D^f states “you may not allow or award any damages to the Plaintiff for any alleged injuries that only possibly resulted from the happening of the accident.”
In Griffin v. Fletcher,
Appellant contends in her fifth assignment of error that the court should not have given appellee Instruction No. 7, which is as follows:
“The court instructs the jury that аny evidence which tends only to show a possibility is no evidence at all and must be disregarded by you in reaching your verdict.”
Appellee defends Instruction No. 7 with citations from Williams v. Lumpkin,169 Miss. 146 ,152 So. 842 (1934) and Teche Lines, Inc. v. Bounds,182 Miss. 638 ,179 So. 747 (1938). Those cases hold that the verdict must be based on probability rather than a mere possibility.
The vice of Instruction No. 7 is that it relates to parts of the evidence and not to the entire evidence which supports the verdict, and it is a comment upon the weight of thе evidence. Such an instruction conceivably could exclude circumstantial evidence (parts) and it should not be given on a retrial of the case.
A reading of Instruction D-4 with the other instructions given by the trial judge dеmonstrates that they did not cure the defect and did not present to the jury a clear statement of the law of the case. See Rester v. Lott,
Because of our decision with regard to the preceding issues, we find that a review of Issue TV, the trial court’s failure to grant an additur or a new trial, is now rendered moot.
CONCLUSION
We conclude that the trial court below was manifestly wrong in sanctioning Jones. The trial coui't incorrectly found that the plaintiff had connnitted a discovery violation. This error lead to the wrongful application of sanctions, and we reverse and render as to Issue I. We also hold that the trial court committed an abuse of discretion by allowing the defense to cross-examine Jones with regard to a collateral settlement. We find that under
Notes
.
. The record does not contain the motion for sanctions or the transcript of the motion hearing.