Rosetti v. SteinRosetti v. Stein
On July 6, 1969, Gladys, Leslie and Mary Marguerite Stein, plaintiffs below, received personal injuries as the result of a car-truck collision on U.S. Highway 90 in Hancock Cоunty. The evidence reflects that John Edward Nelson was driving his truck in the eastbound lane of Highway 90 and either turned his truck into, or nearly into, the neutral lane in order tо change his direction of travel when a Mustang automobile, also proceeding in an easterly direction, struck the right rear of his vehicle. The autоmobile then careened off the truck and crashed into the Roadview Restaurant wherein the plaintiffs were situated. As the result of the crash the driver оf the automobile, Gordon Treuil, was killed and the Steins received various injuries.
The trial resulted in a peremptory instruction being granted the co-defendant Nelson at the conclusion of the plaintiffs’ cases. Each of the plaintiffs recovered a judgment against Scotty R. Rosetti, the administrator of the estate of Gordon M. Treuil. The judgment obtained by Mrs. Gladys Stein was set aside by the trial court due to the inadequacy of the award though liability was established against the estate. From the order granting a peremptory instruction to Nelson all of the Steins appeal. The administrator of the estate of Gordon M. Treuil appeals from the judgment setting the jury verdict in favor of Mrs. Gladys Stein aside due to the inadequacy оf damages.
A.
On trial of the causes the plaintiffs called John Edward Nelson, co-defendant, as an adverse witness. The plaintiffs sought to question him concerning his version of the accident since he was the only eye witness to it and to introduce interrogatories theretofore directed to him and his response thereto. An objection was interposed by the co-defendant Rosetti to this testimony under the theory that it violated the provisions of
The appellants assign as error the action of the trial court in sustaining the objection to the testimony of Nelson and in directing a verdict for him.
The issue to be decided is whether the testimony of the co-defendant Nelson, including statements against interest made by him tо others and the answers to the interrogatories, constitute a direct action against the estate of the deceased so as to be prohibited by the “dead man‘s statute.” We conclude that Nelson, a co-defendant, does not have claim against the estate of Treuil nor could he bе awarded any affirmative benefit merely upon his answer. Neither does the estate, as co-defendant, have a claim against Nelson nor could it be awarded any benefit merely upon its answer. These defendants are not adversaries to each other in this proceeding and any effect that Nelson‘s testimony might have had upon the estate would be indirect and consequential. The right of a defendant by way of counterclaim is limited by
B.
The jury returned a vеrdict in favor of Mrs. Gladys Stein for $2700. This figure does not include medical expenses since such items were recovered by her husband. The award is limited to pain, suffering and disabilities resulting from the crash. The appellant contends for reversal that the award is not so inadequate as to require its being set aside. He сontends that by giving consideration to all of the facts and circumstances of this particular case the granting of the motion for a new trial on the bаsis of inadequate damages constituted manifest error and was a clear abuse of judicial discretion on the part of the trial judge. He conсedes that the action of a trial judge in granting a new trial based upon the excessiveness or inadequacy of a verdict will be upheld by this Court unless manifеst error appears or unless this Court can say that the trial court abused its discretion, citing Long v. Sledge, 209 So.2d 814 (Miss. 1968).
A brief review of the record indicates that the plaintiff is 64 yeаrs of age and prior to the accident was in all respects of normal health for a woman of her years. At the time of the trial there was testimony that she has aged very much since the accident, is extremely nervous and walks with a slight limp. Additionally, the evidence indicates that she suffered much pain whilе waiting to be extricated from the restaurant, the exit to which was blocked by the automobile which had crashed into it and suffered greatly thereafter while awaiting treatment and being treated for a broken right leg. This treatment required surgery, including the insertion of a Lottes nail 12 inches in length, of medium size, in the bone of this extremity. It also included the surgical fastening of butterfly fragments of the bone with stainless wire, debriding the wound, as well as pain and suffering caused by several fractured ribs.
The evidence further reflects that it was necessary for this plaintiff to wear a cast upon her leg for several months and that the point of the Lottes nail protrudes into the flesh when the plaintiff assumes a kneeling position which will probably necessitate additional surgery in the future. In view of this testimony we clearly cannot state that the trial judge abused his discretion in granting a new trial based upon an inadequate award to this plaintiff for her pain, suffering and resulting disabilities. We therefore find no merit in this assignment of error.
The cause will be reversed and remanded for a new trial against John Edward Nelson on the appеals of Leslie and Mary Marguerite Stein. It is reversed and remanded for a new trial against John Edward Nelson on the appeal of Mrs. Gladys Stein and affirmed on the appeal of the Treuil estate as to the action of the trial court in setting aside the jury verdict as being inadequate and establishing liability against the estate.
Reversed in part and affirmed in part and remanded.
RODGERS, P.J., and SMITH, ROBERTSON and SUGG, JJ., concur.