
    Jackie Michell BURGETT v. Scott Wayne SIMMONS.
    2951374.
    Court of Civil Appeals of Alabama.
    March 21, 1997.
    Rehearing Denied April 25, 1997.
    Certiorari Quashed Jan. 16, 1998 Alabama Supreme Court 1961381.
    W. L. Longshore III of Longshore, Buck & Longshore, P.C., Birmingham, for appellant.
    Clifton S. Price II and Ronald C. Wall, Jr., Birmingham, for appellee.
   WRIGHT, Retired Appellate Judge.

Jackie Michell Burgett filed a complaint in the Winston County Circuit Court against Scott Wayne Simmons, alleging that Simmons had negligently allowed, or caused, his pickup truck to collide with the back of her automobile. Burgett sought damages for the injuries she alleged she suffered in the accident. Simmons answered, asserting the affirmative defenses of contributory negligence and intervening cause.

The case was tried before a jury, which returned a verdict in favor of Burgett and against Simmons in the amount of $1,337.50. The trial court entered a judgment accordingly. Burgett filed a motion for a new trial on the ground that the damages awarded by the jury were inadequate; that motion was denied by operation of law, pursuant to Rule 59.1, Ala.R.Civ.P.

Burgett appeals, raising one issue: whether the trial court erred in denying her motion for a new trial based on the inadequacy of the damages.

The assessment of damages is a matter within the jury’s discretion. Paschal v. Nixon, 646 So.2d 110 (Ala.Civ.App.1994). Where liability is established, the assessment must include an amount at least as high as the uncontradicted special damages, as well as a reasonable amount of compensation for pain and suffering. Id. A jury verdict is presumed correct on appeal. That presumption is strengthened when a motion for a new-trial has been denied. Paschal, supra.

The record reveals that Burgett owned a child daycare facility, which employed two full-time workers, as well as Bur-gett. Burgett spent part of her time performing administrative tasks and part of her time working with the children. After work on December 30, 1993, Burgett was in her automobile on Highway 41, waiting to make a left turn into her driveway, when a pickup truck driven by Simmons struck the back of Burgett’s automobile. After the accident Burgett experienced severe headaches, backaches, and pain in the coccyx, or tailbone area. Burgett testified that because of her problems, she had to hire a part-time daycare worker to perform her duties until she closed the daycare in 1995. Although Bur-gett’s doctors differed in their diagnoses, i.e., a fractured and dislocated coccyx or a bruised “J-shaped” coccyx, the doctors testified by deposition that Burgett’s injuries were caused by the December 30, 1993, accident. Burgett and other witnesses testified that Burgett continues to experience pain. Burgett presented undisputed evidence of special damages of $2,377.20 in medical expenses and $10,306.75 in lost wages.

Accordingly, we find the damages awarded to Burgett to be inadequate. The amount of damages awarded by the jury does not compensate Burgett for the amount of her un-contradieted medical expenses, nor does that amount of damages compensate Burgett for her pain and suffering or her lost wages. American Legion Post No. 57 v. Leahey, 681 So.2d 1337 (Ala.1996); Thompson v. Cooper, 551 So.2d 1030 (Ala.1989); Ex parte Patterson, 459 So.2d 883 (Ala.1984); Orr v. Hammond, 460 So.2d 1322 (Ala.Civ.App.1984).

The trial court erred in denying Burgett’s motion for a new trial based on the inadequacy of damages. The judgment of the trial court is reversed and this cause is remanded with directions to the trial court to grant Burgett’s motion for a new trial.

The foregoing opinion was prepared by Retired Appellate Judge L. CHARLES WRIGHT while serving on active duty status as a judge of this court under the provisions of § 12-18-10(e), Ala.Code 1975.

REVERSED AND REMANDED.

ROBERTSON, P.J., and YATES, MONROE, and CRAWLEY, JJ., concur.

THOMPSON, J., dissents.

THOMPSON, Judge,

dissenting.

I must respectfully dissent from the majority opinion.

I agree that Alabama law requires that the minimum jury award equal at least the amount of uncontested special damages, where liability for the injuries is clearly established. However, damages in this case were not uncontested.

I believe that the majority’s determination that all of the injuries for which Burgett sought recovery “were caused” by the accident was improper. Further, the majority’s statement that special damages in the amount of $2,377.20 were “undisputed” is misleading. It was not disputed that Bur-gett incurred these medical bills. However, Burgett’s assertion that all of those medical bills were for treatment of injuries resulting from the accident was disputed by Simmons. Simmons contested throughout the case whether the injury to Burgett’s coccyx related back to the injuries she sustained in the automobile accident. Simmons also contested Burgett’s claim for lost wages.

Simmons elicited testimony that Burgett did not complain of the injury to her coccyx until six months after the automobile accident. The testimony of Burgett’s doctor was contradictory as to the cause of the injury to Burgett’s coccyx. The doctor testified at one point that the accident caused the injury to the coccyx, and at another point he testified that the problem was developmental and that it was unrelated to the accident. The doctor also acknowledged the possibility that Bur-gett could have sustained this injury as a result of her work. The jury could have, and apparently did, find that the injury to Bur-gett’s coccyx was not caused by the automobile accident for which the jury found Simmons at fault. “[A] jury verdict is presumed to be correct.” Alpine Bay Resorts, Inc. v. Wyatt, 539 So.2d 160, 162 (Ala.1988).

During the hearing on the motion for a new trial, neither the attorneys for the parties nor the judge could ascertain how the jury reached its verdict in the amount of $1,337.50.

“When a jury is the trier of fact, it is not for the trial judge, nor an appellate court, to attempt to determine with mathematical certainty that all of the evidence offered by the parties regarding specific costs and credits precisely equal the amount of the jury’s verdict. We do not have trial by computer, nor do we have post-trial, or appellate review by the computer. The reviewing court does not substitute its own judgment as to the amount of damages for that of the trier of fact. Davis v. Copas, 455 So.2d 27 (Ala.Civ.App.1984).”

G.M. Mosley Contractors, Inc. v. Phillips, 487 So.2d 876, 879 (Ala.1986).

Simmons points out, in his brief submitted to this court, that medical bills resulting from Burgett’s trips to the emergency room immediately following the accident total just over $1,100. Simmons argues that the remainder of the verdict amount is an award for pain and suffering. Thus, there is at least one explanation for the award of damages in this case: the jury did not find that the injury to Burgett’s coccyx was related to the automobile accident, for which the jury found Simmons at fault, and, therefore, did not award damages to compensate Burgett for that injury-

I do not support the majority opinion that the damages awarded by the jury were inadequate. I believe the jury was not persuaded that the injury to Burgett’s coccyx resulted from the automobile accident and therefore did not award Burgett payment for the medical bills related to that injury. The evidence regarding Burgett’s claims was contested, and it was the role of the jury to determine the appropriate award of damages. I do not consider the damages awarded by the jury to be inadequate; a new trial should not be granted on that ground. Therefore, I dissent.  