Tappan v. Higgins12/1/1989
Submitted on Briefs August 31, 1989
Defendant, Jeffery C. Higgins, appeals an order of the Flathead County District Court granting a new trial to the plaintiff, Sherri Lenore Tappan. In a personal injury action, the jury found in favor of the plaintiff in the amount of $3,450.00. Plaintiff moved for a new trial on the ground of inadequacy of damages and the trial court granted the motion. Defendant now appeals the District Court order. We affirm
The sole issue on appeal is: Whether the District Court abused its discretion in granting Tappan's motion for a new trial
On July 29, 1986, Tappan and Higgins were involved in an automobile accident on Highway 93 near Whitefish, Montana Tappan's vehicle was struck from behind by Higgins' vehicle while Tappan attempted to make a left hand turn. Tappan's vehicle sustained approximately $5,000.00 in damages and was totaled. In addition, Tappan sustained neck injuries
Tappan sued Higgins in District Court for damages consisting of medical expenses, lost past and future income, and general damages. In the pretrial order, defendant Higgins admitted negligence. The case went to trial on the issues of proximate cause and plaintiff's damages
In closing argument, Tappan's counsel asked the jury to award $15,118.53 in past wage loss, $400.00 in miscellaneous expenses, $51,870.00 in future wage loss, $4,385.59 in past medical expenses, and $15,000.00 each for pain and suffering and loss of enjoyment of life, for an approximate total of $100,000.00 Higgin's counsel advised the jury to award $6,300,00 of past wage loss, nothing for future wage loss, $400.00 for miscellaneous expenses, and an unspecified amount for pain and suffering and loss of enjoyment of life
The jury returned the verdict for Tappan in the amount of $3,450.00, allocating $2,400.00 to past wage loss, $200.00 for miscellaneous expenses, and $850.00 for past medical expenses
Tappan moved the court for a new trial pursuant to § 25-11-102(6), MCA, for insufficiency of the evidence to justify the verdict. The District Court granted Tappan's motion
Higgins argues on appeal that the District Court abused its discretion in ordering a new trial because there was substantial credible evidence in the record supporting the jury's verdict Tappan contends that the jury overlooked the overwhelming evidence of her damages, and the judge properly granted her a new trial
In granting Tappan's motion for a new trial, the District Court found the verdict was not supported by the evidence pursuant to Rule 59(a), M.R.Civ.P., and § 25-11-102(6), MCA
The decision to grant or deny a new trial is within the sound discretion of the trial court, Fredericksen v. Fredericksen (1980), 185 Mont. 548, 605 P.2d 1135, 1137, and will not be overturned absent a showing of manifest abuse of that discretion Giles v. Flint Val. Forest Products (1979), 179 Mont. 382, 387, 588 P.2d 535, 538; Walter v. Evans Products Company (1983), 207 Mont. 26, 31, 672 P.2d 613, 616. This Court recognizes that only in rare cases should a jury verdict be set aside and a new trial granted. Nevertheless, though the amount is solely within the province of the jury, the jury is not given carte blanche Sanders v. Mount Haggin Livestock Co. (1972), 160 Mont. 73, 89, 500 P.2d 397, 406. Some substantial evidence must exist to support the jury verdict. Maykuth v. Eaton (1984), 212 Mont. 370, 373, 687 P.2d 726, 727
In Maykuth, the District Court held insufficient as a matter of law a $700.00 award for pain and suffering. We reversed the holding:
"To permit the undoing of this verdict by affirming the trial
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