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DIXON v. PROTHRO10/30/1992
The opinion of the court was delivered by
Dasie M. Dixon sued David L. Prothro for damages caused by an automobile accident. After the second trial, Dixon moved for a new trial, contending the damages verdict was inadequate. The trial court, sua sponte, proposed an additur. Defendant agreed to the additur. Over plaintiff's objection, the trial court entered judgment for plaintiff in accordance with the proposed additur. Dixon appealed, claiming the trial court denied plaintiff her right to a new jury trial by entering an additur judgment over her objection. The Court of Appeals affirmed the district court. Dixon v. Prothro, 17 Kan. App. 2d 19, 830 P.2d 1221 (1992). We granted plaintiff's petition for review.
Cars driven by Dixon and Prothro were involved in an automobile accident in Wichita, Kansas. Dixon filed suit against Prothro for damages caused by the accident.
At trial, the jury found that Dixon was 49 percent at fault for the accident and Prothro was 51 percent at fault. The jury found that Dixon sustained the following damages:
Past and Present Damages:
Pain and Suffering 0 Disability 0 Mental Anguish 0 Necessary Medical Care, Hospitalization, and Treatment $2,900 Lost Time or Earnings $7,600
Damages Reasonably Expected To Be Sustained in The Future:
Pain and Suffering 0 Disability 0 Mental Anguish 0 Necessary Medical Care, Hospitalization, and Treatment $500 Lost Time or Earnings 0 _______ TOTAL $11,000 Using the jury's apportionment of fault, the court awarded Dixon $5,610.
Dixon filed a motion for a new trial, claiming the jury's failure to award damages for pain, suffering, disability, and mental anguish was inconsistent with its award of medical expenses and lost earnings damages. The district court denied Dixon's motion
for a new trial and Dixon appealed. The Court of Appeals, in an unpublished opinion No. 62,678 filed September 29, 1989, found based on the evidence it was inconsistent for the jury to award damages for past and future medical expenses and not award damages for pain and suffering. It affirmed the lower court on fault apportionment and reversed and remanded for a new trial on damages.
At the second jury trial to determine the damages, evidence was presented as to Dixon's injury, the cause of the injury, medical expenses, pain and suffering, and her economic loss due to the injury. The second jury found Dixon sustained total damages of $1,741.12, a sum less than awarded by the first jury. The damages awarded were:
Noneconomic Loss to Date $101.92 Future Noneconomic Loss 0 Medical Expenses to Date $518.20 Future Medical Expenses 0 Economic Loss to Date $1,121.00 Future Economic Loss 0 _________ TOTAL $1,741.12 Using the previously determined fault percentages, the district court granted judgment for Dixon for $887.97.
Dixon moved for a new trial, claiming the verdict was contrary to the evidence, the verdict was given under the influence of passion or prejudice, and there was jury misconduct. The trial court found based on the uncontroverted evidence the jury's verdict was inadequate. Rather than granting the plaintiff a new trial, the district court, sua sponte, proposed an additur of increased medical expenses to $1,278.70, economic losses to $6,828.64, and noneconomic loss to remain at $101.92. The trial court required its proposed additur to be accepted by both parties within 10 days. If the additur was not accepted by both parties, a new trial would be granted.
Prothro filed a motion to reconsider, claiming under Rood v. Kans
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