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Toothman v. Brescoach
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 1995 Term _____________ No. 22730 _____________ RELLA TOOTHMAN, Plaintiff Below, Appellant v. DAVID ALEX BRESCOACH AND ARLENA M. COLLINS, Defendants Below, Appellees __________________________________________________________________ Appeal from the Circuit Court of Marion County Honorable Fred Fox, II, Judge Civil Action No. 93-C-458 AFFIRMED __________________________________________________________________ Submitted: September 27, 1995 Filed: December 7, 1995 Michael John Aloi, Esq. Manchin, Aloi & Carrick Fairmont, West Virginia Attorney for the Appellant John Lewis Marks, Jr., Esq. Marks & Steele Clarksburg, West Virginia Attorney for Appellee David Alex Brescoach The Opinion of the Court was delivered PER CURIAM. SYLLABUS BY THE COURT 1. "A motion for a new trial is governed by a different standard than a motion for a directed verdict. When a trial judge vacates a jury verdict and awards a new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure, the trial judge has the authority to weigh the evidence and consider the credibility of the witnesses. If the trial judge finds the verdict is against the clear weight of the evidence, is based on false evidence or will result in a miscarriage of justice, the trial judge may set aside the verdict, even if supported by substantial evidence, and grant a new trial. A trial judge's decision to award a new trial is not subject to appellate review unless the trial judge abuses his or her discretion." Syllabus Point 3, In re: State of West Virginia Pub. Bldg. Asbestos Litig., 193 W. Va. 119, ___, 454 S.E.2d 413, 418 (1994). 2. "In an appeal from an allegedly inadequate damage award, the evidence concerning damages is to be viewed

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most strongly in favor of the defendant." Syllabus Point 1, Kaiser v. Hensley, 173 W. Va. 548, 318 S.E.2d 598 (1983). 3. "A trial court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not mislead by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. A trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to a trial court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion." Syllabus Point 4, State v. Guthrie, ___ W. Va. ___, 461 S.E.2d 163 (1995). Per Curiam: Rella Toothman is aggrieved by a jury award for damages she sustained when appellee David Alex Brescoach drove into the back of the car in which she was a passenger. On appeal, Ms. Toothman alleges that the circuit court erred in denying her motion for a new jury panel, in failing to grant a new trial because of an inadequate jury award for pain and suffering and in giving jury instructions. Because we find Ms. Toothman's assignments of error are without merit, we affirm the decision of the Circuit Court of Marion County. I FACTS AND BACKGROUND On October 5, 1991, Ms. Toothman, a passenger in a vehicle owned by Arlena M. Collins, was injured when Mr. Brescoach's vehicle struck the rear of Ms. Collins' car. Because his blood alcohol content was .241 at the time of the accident, Mr. Brescoach pled guilty to a charge of driving under the influence of alcohol. Mr. Brescoach testified that he had been drinking before the accident and did not see Ms. Collins' vehicle until impact. There was an allegation that Ms. Collins shared fault for the accident because her car was partially stopped on the road. Ms. Toothman's right shoulder injury was described by one examining orthopedist as a "frozen shoulder, adhesive capsulitis or impingement syndrome." Because of her injury, Ms. Toothman cannot lift her right arm above her head and because of the pain must hold her arm across her midsection. Ms. Toothman filed suit against Ms. Collins and Mr. Brescoach. The jury panel selected to hear Ms. Toothman's suit consisted of one female and the rest males. Because Mr. Brescoach struck the female juror, the jury was all male. Ms. Toothman objected because none of the jury was female and moved for a new panel. The circuit court overruled her objection and denied the motion. At the conclusion of the trial, Ms. Toothman submitted a set of jury instructions and each defendant below submitted a set of instructions. Ms. Toothman alleges that the circuit erred in giving both sets of defense instructions. The jury returned a verdict finding Ms. Collins not negligent and Mr. Brescoach 100 percent negligent in causing Ms. Toothman's injury. The jury awarded Ms. Toothman all the medical expenses she sought, namely, $5,155.75 for her past medical expenses and $3,200 for her future medical expenses. The jury also awarded Mr. Toothman $1,600 for pain and suffering and $5,000 in punitive damages. After the jury verdict, Ms. Toothman, alleging the award for pain and suffering was inadequate, moved to set aside that portion of the verdict. The circuit court denied Ms. Toothman's motion for a new trial on the sole issue of damages, and then, Ms. Toothman appealed to this Court. II ASSIGNMENTS OF ERROR A. Motion for a New Jury Panel Ms. Toothman's first assignment of error is that the circuit court erred in refusing to grant Ms. Toothman's motion for a new jury panel because the her jury had no females. Ms. Toothman does not challenge the procedure used by the circuit court in selecting the master panel for petit jury selection. Rather, Ms. Toothman alleges that when the primary jury panel was all male with only one female as alternate, the circuit court should have added females to her panel. Mr. Brescoach argues Ms. Toothman is not entitled to a jury of any specific make-up; rather, she is entitled to have a jury selected from a fair cross section of the community. Mr. Brescoach points out that no allegation of impropriety concerning the selection process was made. W. Va. Code 52-1-1 (1986) et seq. describes a selection process for petit juries so that "all persons selected for jury service [should] be selected at random from a fair cross section of the population of the area served by the court. .

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. . [Emphasis added.]" The assignment of jurors to jury panel must be "at random." W. Va. Code 52-1-9 (1986). See W. Va. Code 52-1-7(a) (1993) required each circuit to "provide by order rules relating to the random drawing by the clerk of panels from the jury wheel or jury box for juries in the circuit. . . courts. [Emphasis added.]" It is also the stated policy of this State that "[a] citizen may not be excluded from jury service on account of race, color, religion, sex, national origin, economic status or being a qualified individual with a disability." W. Va. Code 52-1- 2 (1992). The Code also provides a procedure which is "the exclusive means" for challenging the jury selection process. See W. Va. Code 52-1-15 (1993). In Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the United States Supreme Court noted that "the policy of the United States [is] that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division where in the court convenes." 419 U.S. at 529, 95 S.Ct. at 697, 42 L.Ed.2d at 697, quoting 28 U.S.C.

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