LAMONT "MONTY" TUCKER v. GEARY BROTHERS, INC.; JAMES EDWARD GEARY, d//b/a GEARY BROTHERS; JOHN BURDEN and CMH HOMES, INC.
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RENDERED:
February 5, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1997-CA-002580-MR
LAMONT “MONTY” TUCKER
v.
APPELLANT
APPEAL FROM MUHLENBERG CIRCUIT COURT
HONORABLE DAVID H. JERNIGAN,JUDGE
ACTION NO. 95-CI-000359
GEARY BROTHERS, INC.;
JAMES EDWARD GEARY, d//b/a
GEARY BROTHERS;
JOHN BURDEN and
CMH HOMES, INC.
APPELLEES
OPINION
AFFIRMING
* * * * *
BEFORE:
GUIDUGLI, JOHNSON and KNOPF,Judges.
GUIDUGLI, JUDGE.
Lamont "Monty" Tucker (Tucker) appeals from a
judgment of the Muhlenburg Circuit Court entered September 11,
1997, which dismissed his cross-claim against appellees, Geary
Brothers, Inc., James Edward Geary, d/b/a Geary Brothers, and
John Burden (Burden).
We affirm.
On August 1, 1994, Tucker was transporting a mobile
home owned by CMH Homes, Inc. (CMH) on Highway 431 in Muhlenburg
County.
While going around a bend in the road, the driver’s side
mirror of Tucker's truck and the mobile home was struck by the
back pole rack on the trailer of a log truck being driven in the
opposite direction by Burden.
The pole rack broke out the
driver’s side window of Tucker’s truck and caused extensive
damage to the side of the mobile home.
The truck driven by
Burden was owned by James Edward Geary, d/b/a Geary Brothers,
Inc.
On July 27, 1995, CMH filed a complaint seeking damages
from Tucker, Geary, Burden, and Geary Brothers, Inc. for the
damage to the mobile home.
Tucker filed a cross-claim against
the appellees seeking damages for personal injuries he allegedly
received in the accident.
Prior to the trial the parties
stipulated that the mobile home sustained $8,000 in damages and
that the defendants would pay that amount according to their
respective percentages of fault as determined by the jury.
At trial, both parties presented conflicting evidence
as to the negligence of Tucker and Burden.
Conflicting evidence
regarding Tucker's physical condition and his ability to work
following the accident was also presented.
While the jury was deliberating, they sent a note to
the trial court which read, "We will not be awarding any
compensation to Mr. Lamont [sic].
responsible for the accident.
We do feel both is [sic]
Do we fill out the page marked
Form (very last page) For Verdict and if we do will Mr. Lamont
[sic] be award [sic] compensation from it."
The trial court told
the jury that the court could not answer the question and told
them to render a verdict based upon the instructions as given.
The jury returned a verdict which apportioned the fault
for the accident at 25% for Burden and 75% for Tucker.
However,
the jury's verdict was incomplete in that the form for verdict
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section concerning Tucker's damages was left blank.
The trial
court sent the jury back with instructions to "go to the form for
verdict in front of the one that you did fill out and complete
that, based upon the evidence and instructions.”
After
additional deliberations, the jury returned a verdict finding
that Tucker was entitled to $0.
In accordance with the jury's verdict, the trial court
entered a judgment in favor of the appellees on September 11,
1997, and dismissed Tucker's cross-claim.
Tucker filed motions
for judgment notwithstanding the verdict and a new trial.
Following a hearing, the trial court denied both motions in an
order entered September 15, 1997.
In its order, the trial court
stated:
There was considerable evidence presented to
the Jury that Tucker did not sustain any
significant injury as a result of this
accident, let alone a permanent injury. The
Jury had the opportunity to observe Tucker
give his testimony and to hear all of the
other evidence in arriving at its verdict.
The verdict of -0- award in this case is not
so at variance with the facts of this case as
to indicate the verdict was influenced by
passion and prejudice.
This appeal followed.
Tucker first contends that "Burden was negligent in his
operation of the log truck and liable for the accident which
occurred between himself and defendant Tucker.”
Although not
clear from the argument, it appears that Tucker believes the jury
erred in finding Burden only 25% responsible for the accident and
maintains that Burden's negligence should be attributed as the
sole cause of the accident.
of his argument.
Tucker cites no authority in support
We review a trial court's refusal to grant a
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new trial under the abuse of discretion standard.
Woods v.
Asher, Ky., 324 S.W.2d 809, 811 (1959).
As we noted earlier, both sides presented conflicting
evidence as to which party was responsible for the collision.
It
is the sole province of the jury to judge the credibility of
witnesses and decide questions of fact when conflicting evidence
is presented.
Woods, 324 S.W.2d at 811.
As long as the jury's
verdict is supported by sufficient evidence, the trial court
cannot disturb the verdict, even if it believes that the outcome
should have been different.
Id.
We have thoroughly reviewed the
two-volume transcript of evidence contained in the record on
appeal and find that the jury's verdict is supported by
sufficient evidence.
Thus, we will not disturb it on appeal.
Tucker next argues that the jury's verdict was
defective and inconsistent in that it apportioned liability but
failed to award damages.
Tucker further maintains that the
jury's verdict was the result of passion and prejudice and that
he is entitled to a new trial under Kentucky Rules of Civil
Procedure (CR) 59.01.
Under CR 59.01(d), a party is entitled to a new trial
if it appears that inadequate damages were awarded under the
influence of passion or prejudice.
In support of his argument,
Tucker cites to the note sent by the jury to the judge, which we
quoted supra, and the jury's initial return of an incomplete
verdict.
We do not believe that the note shows that the jury had
prejudicially decided the outcome.
Our review of the record
shows that the jury retired to deliberate at 2:43 p.m., sent the
note to the trial court at 4:26 p.m., and returned a verdict at
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4:55 p.m.
The jury was sent back to complete the verdict at 5:00
p.m., and returned at 5:08 p.m.
At best the note indicated that
the jury had reached a decision but was unsure how to reflect it
on the jury instructions. The note alone does not reflect passion
or prejudice against Tucker on behalf of the jury.
Neither does
the fact that it only took the jury eight minutes to complete its
verdict point to passion or prejudice as the jury had already
reached a decision during the initial deliberation.
Therefore,
the trial court did not err in refusing to grant a new trial
under CR 59.01(d).
Tucker's argument that the jury's verdict is
inconsistent and defective in that it apportioned liability but
failed to award damages is controlled by this Court's opinion in
Carlson v. McElroy, Ky. App., 584 S.W.2d 754 (1979).
In that
case, the plaintiff was given a directed verdict on liability and
the case was submitted to the jury for a decision on the issue of
damages only.
The jury awarded the plaintiff no damages.
upholding the verdict, this Court held:
The fact Carlson received a directed
verdict on liability does not necessarily
mean she was entitled to some damages, if, as
here, the jury believed she was not injured,
or, if so, she was injured as a result of
some other cause. In any event, the jury was
not bound to accept as the absolute truth the
testimony of either Carlson or her doctors
relating to her injuries, and having the
opportunity to observe Carlson giving her
testimony and to hear first hand all the
other evidence in arriving at their verdict,
the jury could have believed Carlson grossly
exaggerated the extent of her injuries, if
any, or that her injuries were not as a
result of this accident. Davidson v. Vogler,
Ky., 507 S.W.2d 160 (1974) and Wilkins v.
Hopkins, 278 Ky. 280, 128 S.W.2d 772 (1939).
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In
Carlson, 584 S.W.2d at 756.
As the evidence regarding the extent of Tucker's
injuries and his ability to work following the accident was
conflicting, it was within the sole province of the jury to
evaluate the evidence and determine if Tucker was entitled to
damages.
Under Carlson, the fact that liability was apportioned
between Tucker and Burden does not automatically mean that Tucker
is entitled to an award of damages.
Regardless of the fact that
Tucker claimed he was entitled to damages as a result of the
accident, liability had to be apportioned to determine each
party's respective share of liability for the $8,000 in damages
sustained by CMH.
Thus, the jury's verdict was not inconsistent.
Finally, Tucker argues that the trial court erred in
denying his motions for JNOV and a new trial.
In support of his
argument, Tucker maintains that the jury was not free to ignore
uncontested evidence regarding his medical bills and lost wages.
We believe that the trial court directly addressed this issue in
its order denying the motions and adopt the following portion of
its order as our own:
While Tucker accurately recites his
version of the evidence presented to the Jury
concerning his injuries, medical expenses,
lost wages, pain and suffering and permanent
injury, there were other items of evidence
presented to the Jury that contradicted
Tucker and his doctor. As stated in Davidson
v. Vogler, Ky., 507 S.W.2d 160 (1974), on
this same issue:
"If the Jury accepted the
Appellant's testimony as to the
severity and duration of the pain
which she endured, the $1,000.00
awarded for pain and suffering
would appear to be inadequate.
However, the Jury was not bound to
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accept as the absolute truth the
testimony of either the Appellant
or of her doctor relating to
Appellant's claimed pain and
suffering...."
On the issue as to whether or not Tucker was
injured as the result of the accident, the
Jury heard evidence that Tucker was heard to
complain at the scene of back pain. Tucker
went to his doctor the day after the
accident. Tucker had no prior history of
back problems. On the other hand, the impact
between the two trucks occurred at the end of
the log truck and at the middle of the mobile
home. The cab of the truck occupied by
Tucker was not directly struck but only a
side mirror was clipped by the log truck as
it passed Tucker. There was no evidence that
Tucker required medical attention at the
scene or that anyone observed an injury to
him. In contrast to the medical opinion of
Tucker's doctor, Dr. Barry Hardison, another
doctor who examined Tucker, Dr. Robert Weiss,
testified that Tucker had no discernable
injury and could work without restriction or
limitation. Tucker's credibility about his
injury was challenged when evidence of his
ability to do work was presented to the Jury.
Tucker was impeached on this point by his
testimony given in a deposition, and
Defendant, Bill Geary, testified that in 1996
and in 1997 he observed Tucker helping move
mobile homes and lifting concrete blocks. In
summary, there was considerable evidence
presented to the Jury that Tucker did not
sustain any significant injury as the result
of this accident, let alone a permanent
injury. The Jury had the opportunity to
observe Tucker give his testimony and to hear
all of the other evidence in arriving at its
verdict. The verdict of -0- award in this
case is not so at variance with the facts of
the case as to indicate the verdict was
influenced by passion and prejudice.
Having considered the parties' arguments on appeal, the
judgment and order of the Muhlenburg Circuit Court is affirmed.
JOHNSON, JUDGE, CONCURS.
KNOPF, JUDGE, DISSENTS.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEES:
Brent Yonts
Greenville, KY
Matthew J. Baker
John David Cole, Jr.
Bowling Green, KY
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