         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2015-CA-00903-COA

MARK WETZEL                                                                  APPELLANT

v.

RICHARD H. SEARS                                                               APPELLEE

DATE OF JUDGMENT:                          05/27/2015
TRIAL JUDGE:                               HON. ROGER T. CLARK
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT,
                                           SECOND JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:                   JAMES KENNETH WETZEL
                                           GARNER JAMES WETZEL
ATTORNEYS FOR APPELLEE:                    DONALD C. DORNAN JR.
                                           LAUREN RUTH HILLERY
NATURE OF THE CASE:                        CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION:                   JUDGMENT IN FAVOR OF PLAINTIFF IN
                                           THE AMOUNT OF $31,180.45
DISPOSITION:                               AFFIRMED: 05/10/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., CARLTON AND JAMES, JJ.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Mark Wetzel brought a personal-injury lawsuit against Richard Sears for damages he

sustained in an automobile accident that occurred in Biloxi, Mississippi. The complaint was

filed in the County Court of Harrison County. After a jury verdict in Wetzel’s favor, Wetzel

filed a motion for a judgment notwithstanding the verdict or, alternatively, for an additur or

a new trial. The motion was denied. Wetzel appealed the case to the Circuit Court of

Harrison County, where the appeal was affirmed. Wetzel’s appeal has now been deflected

to this Court.
                                          FACTS

¶2.    On March 21, 2012, Mark Wetzel was rear-ended. When the accident occurred, he

was driving to his workplace, O’Reilly Auto Parts in Biloxi, Mississippi. As he prepared to

turn into O’Reilly’s parking lot, he attempted to merge into the middle turn lane. The turn

lane was occupied, so he stopped in the travel lane to wait for the turn lane to clear. As

Wetzel was stopped, he was struck from behind by a taxi driven by Richard Sears.

¶3.    After the accident, Wetzel was transported by an ambulance to Biloxi Regional

Medical Center. He complained of pain in his neck, back, and left side. He was treated for

pain in his back and neck until January 24, 2013.

¶4.    Wetzel’s complaint asked for damages of $34,195.68; this included damages for his

medical expenses, lost wages, a towing bill, and mileage expenses. After a jury trial, a

verdict for Wetzel awarded him $31,180.45. His post-trial motions were denied.

                                        ANALYSIS

       I.      Post-Trial Motions

¶5.    Wetzel argues that his motion for a judgment notwithstanding the verdict or,

alternatively, for an additur or a new trial should have been granted.

               A.    Motion for Additur

¶6.     Mississippi Code Annotated section 11-1-55 (Rev. 2014), which provides for an

additur, states:

       The supreme court or any other court of record in a case in which money
       damages were awarded may overrule a motion for new trial or affirm on direct
       or cross appeal, upon condition of an additur or remittitur, if the court finds
       that the damages are excessive or inadequate for the reason that the jury or


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       trier of the facts was influenced by bias, prejudice, or passion, or that the
       damages awarded were contrary to the overwhelming weight of credible
       evidence. If such additur or remittitur be not accepted then the court may
       direct a new trial on damages only. If the additur or remittitur is accepted and
       the other party perfects a direct appeal, then the party accepting the additur or
       remittitur shall have the right to cross appeal for the purpose of reversing the
       action of the court in regard to the additur or remittitur.

“In reviewing a trial court's grant or denial of an additur, this Court's standard of review is

limited to an abuse of discretion.” Maddox v. Muirhead, 738 So. 2d 742, 743 (¶5) (Miss.

1999). “Generally the jury's decision will be upheld unless it was so unreasonable as to be

outrageous.” Clark v. Deakle, 800 So. 2d 1227, 1230 (¶11) (Miss. Ct. App. 2001).

Furthermore, “[t]he party seeking the additur bears the burden of proving his injuries, loss

of income, and other damages.” Maddox, 738 So. 2d at 743 (¶5). “We view the evidence

in the light most favorable to the defendant, giving him all favorable inferences that may be

reasonably drawn therefrom.” Id. at (¶7). “Awards set by jury are not merely advisory and

generally will not be set aside unless so unreasonable as to strike mankind at first blush as

being beyond all measure, unreasonable in amount and outrageous.” Id. at (¶5).

¶7.    Since the trial court instructed the jury that Sears was negligent, the remaining

questions for the jury were damages and the extent, if any, of Wetzel’s negligence. The jury

awarded Wetzel $31,180.45. Wetzel argues that his damages should amount to $34,195.68,

which includes his medical bills, lost wages, mileage expenses, and a towing bill. Wetzel

argues that the jury’s verdict did not include damages for pain and suffering, mental anguish,

or loss of enjoyment of life.

¶8.     In calculating Wetzel’s damages, the jury was instructed to consider Wetzel’s



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potential acts of negligence. Also, during trial, the defense challenged whether Wetzel’s

claimed lost wages were accurate, as he received a salary from O’Reilly Auto Parts. Sears

also presented a medical expert who testified that Wetzel’s back pain was caused by a prior

injury and subsequent degeneration rather than the car accident.

¶9.    The record does not indicate that the damages were inadequate or that the jury was

influenced by bias, prejudice, or passion in awarding $31,180.45. The jury awarded Wetzel

approximately $3,000 less than he requested. The jury also heard testimony that called into

question some of Wetzel’s claimed damages. The jury was also instructed to consider

Wetzel’s negligence in its determination of damages. As a result, we do not find that the jury

was improperly influenced or that the verdict was against the overwhelming weight of the

evidence. Accordingly, this issue is without merit.

              B.      Motion for a Judgment Notwithstanding the Verdict
                      and Motion for a New Trial

¶10.   In reviewing a denial of a judgment notwithstanding a verdict, this Court will

       consider the evidence in the light most favorable to the non-moving party,
       giving that party the benefit of all favorable inference[s] that may be
       reasonably drawn from the evidence. If the facts so considered point so
       overwhelmingly in favor of the moving party that reasonable jurors could not
       have arrived at a contrary verdict, we are required to reverse and render. On
       the other hand if there is substantial evidence in support of the verdict, that is,
       evidence of such quality and weight that reasonable and fair minded jurors in
       the exercise of impartial judgment might have reached different conclusions,
       affirmance is required.

3M Co. v. Johnson, 895 So. 2d 151, 160 (¶30) (Miss. 2005). “A motion for JNOV tests the

legal sufficiency of the evidence supporting the verdict, not the weight of the evidence.” Id.

at (¶31). As to a denial of a post-trial motion for a new trial, this Court’s standard of review


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is abuse of discretion. Pierce v. Cook, 992 So. 2d 612, 620 (¶30) (Miss. 2008).

¶11.   Wetzel’s motions for a JNOV and a new trial again claimed error with the amount of

damages awarded by the jury. Wetzel considered the amount awarded, $31,180.45, to be

inadequate. He contends that the defense did not present any evidence to rebut his proven

economic damages of $34,195.68. However, as noted above, Sears did challenge Wetzel

regarding some of the claimed damages. Sears also presented evidence through his own

expert that Wetzel’s current maladies were the result of an injury prior to the car accident.

Furthermore, Wetzel’s argument disregards the jury’s consideration of his negligence. This

issue has no merit.

       II.    Jury Instructions

¶12.   In reviewing jury instructions, “if the instructions actually given fairly announce the

law of the case and create no injustice when read as a whole, no reversible error will be

found.” Reese v. Summers, 792 So. 2d 992, 994 (¶4) (Miss. 2001). Wetzel claims that the

trial court erred in giving a comparative-negligence instruction. He also contends that the

trial court did not properly define for the jury what acts would constitute negligence. Lastly,

he argues that the trial court erred when it did not instruct the jury to determine percentages

of fault.

¶13.   Wetzel’s main contention is that the comparative-negligence instruction was improper

because no evidence was presented at trial as proof of negligence on behalf of Wetzel.

However, there was evidence presented at trial through the testimony of Sears that Wetzel

stopped unexpectedly and abruptly while in a moving traffic lane. Therefore, the instruction



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was not improperly given.

¶14.   Furthermore, the trial court did instruct the jury as to which of Wetzel’s acts would

constitute negligence, saying:

       . . . [I]f you find from a preponderance of the evidence in this case that:

       (1)    The Plaintiff was not driving at a reasonable and prudent rate of speed
              in view of existing conditions, but instead brought his vehicle to a stop
              in the traveled lane of Cedar Lake Road; and

       (2)    That action, if any, was a proximate contributing cause of Plaintiff’s
              injuries;

       then the rule of comparative negligence will apply as explained to you in other
       instructions.

Also, the trial court instructed the jury to determine a percentage of negligence attributable

to Wetzel and reduce the damages by that proportion if the jury found both parties negligent.

¶15.   Even if the instruction did not define the acts which constitute negligence, it is

harmless error “if another instruction correctly defines negligence.” Trainer v. Gibson, 360

So. 2d 1226, 1228 (Miss. 1978). The trial court did give an instruction on negligence. So

even if, as Wetzel claims, the trial court erred in not defining the acts that constituted his

negligence, this error would be harmless. Wetzel’s contentions as to the jury instructions

have no merit.

¶16. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY,
SECOND JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO THE APPELLANT.

    LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, JAMES,
WILSON AND GREENLEE, JJ., CONCUR.




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