Kalchthaler v. Workman

Connor, Judge

(concurring):

I concur with the majority in result only. I agree the statement made by Workman’s attorney in closing argument concerning the date of filing of the lawsuit was harmless. The statement did not affect the jury’s verdict. Therefore, a new trial was not required. I would affirm Kalchthaler’s first issue on this basis.

I disagree with the majority that because Kalchthaler received some amount as an additur, she is barred from challenging that amount. The Supreme Court in O’Neal v. Bowles, — S.C. —, 431 S.E. (2d) 555 (1993), clearly and succinctly capsuled our standard of review when considering the appropriateness of the trial judge’s ruling on a new trial nisi or a new trial absolute:

The trial judge alone has the power to grant a new trial nisi when he finds the amount of the verdict to be merely inadequate or excessive. The denial of a motion for a new trial nisi is within the trial judge’s discretion and will not be reversed on appeal absent an abuse of discretion. If the amount of the verdict is grossly inadequate or excessive so as to be the result of passion, caprice, prejudice, or some other influence outside the evidence, the trial judge must grant a new trial absolute. The failure of the trial judge to grant a new trial absolute in this situation amounts to an abuse of discretion and on appeal this Court will grant a new trial absolute. Therefore, on appeal of the denial of a motion for a new trial nisi, this Court will reverse when the verdict is grossly inadequate or excessive requiring the granting of a new trial absolute.

Id. at —, 431 S.E. (2d) at 556.

Under the majority’s view, if a party made a new trial nisi motion and the trial court ordered one dollar more or less *505than the jury’s verdict, that party would be barred from having the appellate court review the appropriateness of the amount of the verdict. O’Neal requires that we review a verdict and reverse if it is grossly inadequate or excessive, regardless of whether the motion is one for a new trial nisi or for a new trial absolute.

Having reviewed the circumstances of this ease, however, I would not find Kalchthaler’s final verdict of $5,153.76, which included an additur of $2,553.76 by the trial judge, grossly inadequate.