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Waring v. Johnson6/12/2000
y the accident, but her pain and suffering arose solely from her pre-existing condition; and (3) granted an excessive additur, if in fact one was warranted.
New Trial Nisi Additur
When the jury's verdict is inadequate or excessive, the trial judge has the discretionary power to grant a new trial nisi. Bailey v. Peacock, 318 S.C. 13, 455 S.E.2d 690 (1995). See also McCourt by and through McCourt v. Abernathy, 318 S.C. 301, 457 S.E.2d 603 (1995)(trial judge alone has power to grant new trial nisi when he finds amount of verdict to be merely inadequate or excessive). Compelling reasons, however, must be given to justify invading the jury's province in this manner. Bailey, supra. The grant or denial of a motion for a new trial nisi rests within the discretion of the trial judge and his decision will not be disturbed on appeal unless his findings are wholly unsupported by the evidence or the conclusions reached are controlled by error of law. See Krepps by Krepps v. Ausen, 324 S.C. 597, 479 S.E.2d 290 (Ct. App. 1996). See also Vinson v. Hartley, 324 S.C. 389, 477 S.E.2d 715 (Ct. App. 1996)(grant of motion for new trial nisi is within trial judge's discretion and will not be reversed on appeal absent abuse of discretion). Yet, such discretion is not absolute. Pelican Bldg. Ctrs. of Horry-Georgetown, Inc. v. Dutton, 311 S.C. 56, 427 S.E.2d 673 (1993). This Court has the duty to review the record and determine whether there has been an abuse of discretion amounting to an error of law. Vinson, supra.
A new trial nisi is one in which a new trial will be granted unless the party opposing it complies with a condition set by the court. Elliott v. Black River Elec. Coop., 233 S.C. 233, 104 S.E.2d 357 (1958). When a party moves for a new trial based on a challenge that the verdict is either excessive or inadequate, the trial judge must distinguish between awards that are merely unduly liberal or conservative and awards that are actuated by passion, caprice or prejudice. Allstate Ins. Co. v. Durham, 314 S.C. 529, 431 S.E.2d 557 (1993). If the amount of the verdict is so grossly inadequate or excessive that it shocks the conscience of the court and clearly indicates the amount was the result of passion, caprice, prejudice, partiality, corruption or some other improper motives, the trial judge is required to grant a new trial absolute. See Cock-N-Bull Steak House, Inc. v. Generali Ins. Co., 321 S.C. 1, 466 S.E.2d 727 (1996); Krepps, supra.
While the trial court may not impose its will on a party by substituting its judgment for that of the jury, the court may give the party an option in the way of additur or, in the alternative, a new trial. Vinson, supra. The consideration of a motion for a new trial nisi additur requires the court to consider the adequacy of the verdict in light of the evidence presented. Krepps, supra. A new trial nisi additur may be ordered when the verdict is merely insufficient based on the evidence. Pelican, supra. The trial judge who heard the evidence and is more familiar with the evidentiary atmosphere at trial possesses a better-informed view of the damages than this Court. Vinson, supra. Accordingly, great deference is given to the trial judge. Id.
The import of a new trial nisi additur is a suggestion on the part of the judge of a settlement figure. Graham v. Whitaker, 282 S.C. 393, 321 S.E.2d 40 (1984); Estes v. Grav, 319 S.C. 551, 462 S.E.2d 561 (Ct. App. 1995). If the party opposing the motion for a new trial nisi additur later agrees to pay the amount suggested by the trial court, the opposing party cannot thereafter complain. Graham, supra. The prevailing party having asked for the relief must likewise be content with the determination. Id.
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