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Burge v. Spiers6/3/2003
41 So. 2d 1203, 1208 (Miss. 1994) (quoting Leach v. Leach, 597 So. 2d 1295, 1297 (Miss. 1992)).
. The scope of review that this Court employs in considering an appeal of a denial of additur is limited to "determining whether the trial court abused its discretion." Rodgers, 611 So. 2d at 945. The court, in Rodgers, further stated that the party seeking the additur has the burden of proving his injuries, damages and loss of income. In determining whether this burden is met, this Court must view the evidence in the light most favorable to the defendant, giving that party all favorable inferences that reasonably may be drawn therefrom. Id. An additur should never be applied without taking great caution, for an additur represents "a judicial incursion into the traditional habitat of the jury." Gibbs v. Banks, 527 So. 2d 658, 659 (Miss. 1988). Further, " wards fixed by jury determination are not merely advisory and will not under the general rule be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous." Rodgers, 611 So. 2d at 945.
. In the case at bar, Spiers admitted negligence but contested the damages claimed by Burge. Burge placed into evidence his medical bills and the testimony of his treating physician, Dr. Bruce McCarthy, who testified that Burge suffered from back and neck injuries and would need surgery in the future. On cross-examination, Spiers impeached Burge with a history of prior spinal surgery, prior diagnosis of physical disability, chronic lower back problems, and contradictory sworn statements made in another court case in Louisiana. Burge had been diagnosed previously with an inability to lift more than 5-10 pounds, inability to bend, limited range of motion, complications in his back from diabetes, and had several prior injury events and at least one subsequent injury event.
. Burge had previously testified on direct examination that he was fine until the accident in question. In an unrelated deposition given in Louisiana the year prior to his accident with Spiers, however, Burge had testified that he still had back problems from the injury in question. Also, on cross-examination, Dr. McCarthy testified that his expert opinion was made without a complete review of Burge's medical history including no knowledge of Burge's back injuries and history of problems from 1980 until Burge was referred to him in 1996. According to Dr. McCarthy, he was told by Burge that other than prior back surgeries in 1979 or 1980, he had no complications or problems with his back until the accident with Spiers. This was directly contradictory to Burge's testimony where he admitted problems in the late 1980s.
. It is the jury that determines "the weight and worth of testimony and the credibility of the witness at trial." Odom v. Roberts, 606 So. 2d 114, 118 (Miss. 1992). As stated above, this Court applies the abuse of discretion standard of review when determining whether a trial court erred in refusing an additur or a new trial. "It is primarily the province of the jury to determine the amount of damages to be awarded and the award will normally not 'be set aside unless so unreasonable in amount as to strike mankind at first blush as being beyond all measure, unreasonable in amount and outrageous.'" Harvey v. Wall, 649 So. 2d 184, 187 (Miss. 1995) (quoting Rodgers, 611 So. 2d at 945)).
. Like the case in Haywood v. Collier, 724 So. 2d 1105 (Miss. Ct. App. 1998), the jury was presented with evidence that showed conflicting sworn testimony of the appellant concerning his prior medical condition and previous injuries and evidence that called into question the credibilit
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