Hutson v. Cummins Carolinas, Inc.

Shaw, Judge

(concurring in part and dissenting in part):

B. H. Hutson brought suit against Cummins Carolinas, Inc. alleging that repairs made by Cummins on his 1974 Kens-worth truck resulted in damage to the truck and ioss of wages, profits and time. The suit was brought on the grounds of negligence and breach of implied warranty of repair. Cummins is appealing a jury verdict of $65,000 in favor of Hutson which was remitted by the trial judge to $47,500. I would affirm.

On appeal, Cummins claims that Hutson failed to prove that any damages he suffered were proximately caused by a specific defective repair made by Cummins. The evidence shows that several repairs were made on the Kensworth over a one year period. Cummins made the major repairs over this period but not the majority of them. At the end of all the testimony, Cummins’ motion for a directed verdict on the grounds that Hutson failed to sustain his burden of proof as to proximate cause was denied and the case was allowed to go to the jury.

*562In Townes Associates v. City of Greenville, 266 S. C. 81,221 S. E. (2d) 773 (1976), our Supreme Court held:

In an action at law, on appeal of a case tried by a jury, the jurisdiction of [appellate courts] extends merely to the correction of errors of law and a factual finding of the jury will not be disturbed unless a review of the record discloses that there is no evidence which reasonably supports the jury’s findings. Townes, 221 S. E. (2d) at 775.

This court has no power to review matters of fact in an action at law, except to determine if a verdict is wholly unsupported by evidence. Worrell v. S. C. Power, 186 S. C. 306,195 S. E. 638, 641. On review of the record, it appears that the evidence presented reasonably supports the factual findings of the jury. We are not at liberty to retry this case.

Cummins also claims that the contributory negligence of an employee of Hutson’s was a substantial factor in causing the damage complained of. Ordinarily, contributory negligence is an issue for the jury, Young v. Parker, 224 S. C. 35,77 S. E. (2d) 288 (1953), and rarely becomes a question of law for the court. Mock v. Atlantic Coast Line, 227 S. C. 245, 87 S. E. (2d) 830 (1955). The jury heard testimony that the employee’s actions in the situation he was confronted with were proper. In light of that testimony and the jury’s verdict, we cannot say as a matter of law that the employee was contributorily negligent.

The jury returned a verdict of $65,000 in favor of Hutson. Hutson was given the option of accepting a new trial nisi or a remittitur of the verdict to $47,500 and took the remittitur. Hutson had introduced evidence of damages totalling $65,000. The $65,000 included amounts for renting another truck and for lost profits. Based on this evidence, the trial judge could find the damages awarded to be unduly liberal. Remittitur of the verdict was proper when Hutson was given the choice of a new trial nisi. Nelson v. Charleston & W. C. Ry. Co., 231 S. C. 351, 98 S. E. (2d) 798 (1957).

The Supreme Court accords great respect to the jury and trial judge to determine the amount of a verdict. “We have said repeatedly that we have little, if anything, to do with the amounts of verdicts. The proper amounts to be rendered, as actual or punitive damages, are left, under our law, almost entirely to the trial jury and the trial judge.” Charles v. Texas *563Co., 199 S. C. 156, 18 S. E. (2d) 719, 729 (1942), quoting from Weeks v. Carolina Power and Light Co., 156 S. C. 158,153 S. E. 119, 124 (1930). The Supreme Court cannot reduce a verdict and will only strike down a verdict in toto in those rare cases where the amount is so shockingly excessive as to indicate it was the result of passion, partiality, prejudice or corruption. Aaron v. Hampton Motors, Inc., 240 S. C. 26,124 S. E. (2d) 585 (1962); Lucht v. Youngblood, 266 S. C. 127, 221 S. E. (2d) 854 (1976).

Where the amount of the verdict is such as to indicate mere undue liberality on the part of the jury, the Supreme Court has no jurisdiction to correct it; rather, that power rests with the trial judge alone who may set it aside or reduce it by granting a new trial nisi. Reid v. Swindler, 249 S. C. 483,154 S. E. (2d) 910 (1967). The trial judge acted properly.

Accordingly, I would

Affirm.