Thigpen v. Polite

George Rose Smith, Justice. Following a minor collision on an apartment parking lot, Renee Thigpen brought this suit for personal injuries and property damage against the other driver, Glen Polite, then 17, and his mother, who had signed his application for a driver’s license. The jury returned a verdict for the defendants. In a motion for a new trial the plaintiff asserted that since the defendants admitted negligence and did not claim contributory negligence, the verdict awarding no damages was clearly against the weight of the evidence and entitled the plaintiff to a new trial. The only point for reversal is that the court erred as a matter of law in refusing to grant a new trial. We can find no merit in the appellant’s argument and affirm the judgment. It is an appellant’s responsibility to bring up a sufficient record, but there are omissions in this record. At an unreported pretrial conference there was an admission of liability by the defendants, but neither they nor their attorney has admitted that the plaintiff suffered any personal injury or property damage. Hence the plaintiff had the burden of proving her damages. The record does not contain the court’s instructions to the jury; so we must presume that correct instructions were given. Cotton v. Brasher, 175 Ark. 209, 298 S.W. 1035 (1927). The appellees’ brief states that the jury was instructed with regard to causation and damages; in any event we would assume such instructions were given. We adhere to our practice of stating the facts most favorably to the verdict. The plaintiff testified that she was approaching a speed breaker at three or four miles an hour. Glen said he was backing out of a parking space and pulling to his left before going forward. He said he guessed the vehicles scraped (which would have been possible as he described the incident). He had not looked both ways and admitted the accident was his fault. The only damage to Glen’s pickup was a smudge of paint from the other car, on his righthand door. He had no idea whether the plaintiff’s car had been damaged. She testified that her front fender was dented. Immediately after the accident the plaintiff obtained information about the defendants’ insurance. Her husband testified about his wife’s asserted injury. On cross examination the defendants’ attorney produced an estimate of damage, which the witness admitted he had submitted to the defendants’ insurance company. The estimate totaled $551.22 and included not only $153.95 for a fender but also $102.20 for a wheel, a charge for aligning the front end, and other items the witness could not explain. He said the insurance adjustor refused to pay the bill because his insured had not caused the damage. That attempt to mulct the insurer may have aroused the jury’s indignation. The plaintiff admittedly said at the time that she was not hurt, but she claimed that she began having a headache later that day. At the trial her doctor testified that she had told him she had been in an automobile accident during which she sustained a jerking of her neck and torso. (She did not so testify.) The doctor found “a typical whiplash type of injury.” In view of the parties’ description of the accident, the jury could have found that two slowly moving vehicles made a scraping contact that was too slight for the plaintiff to have suffered any injury at all. The trial judge’s refusal to grant a new trial, with the implication that he found the verdict not clearly against the preponderance of the evidence, was not a clear and manifest abuse of discretion, as we would have to find to justify a reversal. Warner v. Liebhaber, 281 Ark. 118, 661 S.W.2d 399 (1983). In the motion for new trial counsel for the plaintiff recognized that the jury might have disregarded her proof of physical injury and property damage, but it was insisted that since the defendants had admitted “some damage” (apparently scraped paint) and also fault, the verdict for no damages was clearly against the weight of the evidence. If the jury had awarded nominal damages, the award might well have been sustained. But when there is no property right to be vindicated by nominal damages, the issue being negligence only, the jury’s failure to award nominal damages is not reversible error. Harlan v. Curbo, 250 Ark. 610, 466 S.W.2d 459 (1971). Both the dissenting opinions seem to be based on the trial court’s asserted error in submitting a verdict form that permitted the jury to find for the defendants. The short answer to that argument is that the record shows no objection to the court’s action; so it was too late for the point to be raised in a motion for new trial after the plaintiff had speculated on the possibility of a favorable verdict. Affirmed. Purtle and Newbern, JJ., dissent.