IN THE TERRITORIAL COURT OF THE VIRGIN ISLANDS



DIVISION OF ST. CROIX



ERIKA FAIRWEATHER

Plaintiff

vs.

CARMEN MALLOY



Defendant



GEORGE W. CANNON, ESQUIRE

P.O. Box 1548

Frederiksted, St. Croix,

U.S. Virgin Islands 00840

(Attorney for Plaintiff)



ESZART A. WYNTER, ESQUIRE

P.O. Box 1847

Frederiksted, St. Croix,

U.S. Virgin Islands 00840

(Attorney for Defendant)



PINCH, Judge



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CIVIL NO. 1166/1986



ACTION FOR DAMAGES



MEMORANDUM OPINION AND ORDER



(June 70,1988)



I.



INTRODUCTION



This matter came before the Court on defendant's motion

for judgment notwithstanding the verdict, and in the alterna~

tive, for a new trial. For the reasons mentioned below,

Court holds that the motion for judgment n.o.v. is procedurally



barred, and that the verdict is not against the weight of the



evidence. Accordingly, both motions will be denied.

Memorandum Opinion

Fairweather vs. Malloy

Page 2



FACTS



On or about September i111, 1986, plaintiff, Erika

Fairweather, and defendant, Carmen Malloy, was involved in an

argument. Fairweather testified that during the argument

Malloy picked up four large stones and threw them at her. She

further testified that as a result of being struck, she

sustained injuries to her mouth, face, breast, forearm, and

hips. Fairweather also testified that she was unable to work

because of her injuries. Malloy denied throwing any stones at

Fairweather. She testified that she threw dirt at Fairweather,

because Fairweather wet her with a water hose. Fairweather

admitted she accidentally wet Malloy.



Both parties reside adjacently at Good Hope Townhouse

apartments. Their patios, the situs of the incident, are

separated by a decorative block wall approximately seven feet

high. Fairweather testified that some of the stones came

through and some over the wall.



Fairweather's expert witness, Dr. Wilbur Williams, Jr.,

testified that he treated her for injuries caused by the

stones. He also stated that she may suffer future pain.

Another witness, Dr. Raymond Dehler, testified that Fairweather

sustained extensive damage to her mouth, which he treated at



substantial costs.

Memorandum Opinion

Fairweather vs. Malloy

Page 3



At the close of plaintiff's case, Malloy moved for a

directed verdict. This motion was denied. Based upon a review

of the record, Malloy did not renew her motion at the close of

all the evidence.



The jury returned a verdict for Fairweather in the amount

of $10,000 brown down as follows: Battery - $1,500; Pain and

Suffering - $1,500; Medical Expenses - $3,000; Lost Income -

$2,000; Emotional Distress - $1,000; and Punitive Damages -



$1,000.



DISCUSSION



Defendant, Malloy's motion for directed verdict was made

pursuant to F.R.Civ.P. Rule 50(b). That rule reads in part:



Whenever a motion for a directed verdict

made at the close of all the evidence is denied,

--. the court is deemed to have submitted the

action to the jury subject to a later deter-

mination on the legal questions raised by the

motion... a party who has moved for a directed

verdict may move to have the verdict and any

judgment entered thereon set aside... (Emphasis

supplied).



F.R.Civ.P. Rule 50(b). It is quite apparent from the language

of the rule, that a predicate to a judgment n.o.v., is a

directed verdict motion at the close of all the evidence. This

motion was not raised by plaintiff. However, it is well

settled in the Third Ceeeeatnes "a court may grant a motion



for judgment notwithstanding the verdict only when the moving

Memorandum Opinion

Fairweather vs. Malloy

Page 4



party formally renewed its motion for a directed verdict at the



close of all the evidence." Mallick v. International Broth. of



Elec. Workers, 644 F.2d 228, 233 (3rd Cir. 1981); See also



Acosta v. Honda Motor Co., Ltd., 717 F.2d 828, 831 (3rd Cir.



1983); Wall v. United States, 592 F.2d 154, 159 (3rd Cir.



1979); and Lowenstein v. Pepsi-Cola Bottling Co. of Pennsauken



536 F.2d 9, 11 (3rd Cir. 1976). This Court thus holds that it

is without power to grant a motion for judgment n.o.v. where,

as here, the movant failed to make a directed verdict motion at

the close of all the evidence. Accordingly, defendant's motion

will be denied.



A directed verdict motion, however, is not a prerequisite

to a motion for a new trial. Thus the Court will consider

Malloy's alternative motion for a new trial. The decision to

grant a motion rests within this Court's sound discretion.



Gutzan v. Altair Airlines, Inc., 766 F.2d 135, 140 (3rd Cir.



1985). The motion will be tested under the same standards as

if it was made under F.R.Civ.P. Rule 59. It will be granted

only where necessary to prevent injustice or where the verdict



is against the weight of the evidence. American Bearing Co.,



Inc. v. Litton Industries, 729 F.2d 943, 948 (3rd Cir. 1984).



In making this determination a court can weigh evidence and



disbelieve witnesses. Ryan By Ryan vv. McDonough Power



Equipment, Inc., 734 F.2d 385, 387 (8th Cir. 1984).

Memorandum Opinion

Fairweather vs. Malloy

Page 5



Malloy contends that the evidence established that

plaintiff, Pairweather, by spraying water on Malloy, was the

aggressor. This Court disagrees. Fairweather admitted to

spraying water on Malloy, but maintains that it was accidental.

She also said that Malloy threw stones not dirt at her. The

jury could believe either party. There was no other witness to

the incident. This Court fails to see how the weight of the

evidence is against one story rather than the other. "A

dispute over credibility will not justify a new trial.”



Consumers Power Co. v. Curtiss-Wright Corp., 780 F.2d 1093,



1097 (3rd Cir. 1986). Malloy's argument is thus without merit.



The second contention raised by Malloy is that her conduct

as alleged by Fairweather, was impossible. She argues that

Fairweather complained of injuries to five parts of her body,

though only four stones were thrown. It is not at all clear to

this Court that a stone thrown at someone can cause injury only

to one body part. But even if that were so, and Fairweather

really received injuries only to four body parts, nothing

before this Court suggests that Fairweather was awarded

compensation for injuries to five body parts. Malloy further

contends that it was impossible for Fairweather to have been

hit, in the manner alleged, because of the structure of the

lecation of the incident. Pairweather testified that some of



the stones came over a decorative block wall, and some through

Memorandum Opinion

Fairweather vs. Malloy

Page 6



it. Nothing in evidence indicates that the stones could not

pass over the wall and hit Fairweather, or that it was

impossible for the stones to pass through the decorative

blocks. A review of the record reveals evidence sufficient for

the jury to find that Malloy struck Fairweather with the stones

though there was a wall separating them. The weight of the

evidence is not clearly against such a conclusion. This Court

will not substitute its ‘judgment for that of the jury.

Malloy's contentions are without merit.



Malloy's final attempt to procure a new trial is an

assertior that the verdict of $10,000 is excessive. She does

not, however, indicate which of the six items, i.e., battery,

pain and suffering, medical expenses, loss of income, emotional

distress, and punitive damages, were excessive. Although the

award for some items appear somewhat high, the conscience of



this Court is not shocked thereby. Stafford v. Neurological



Medicine, Inc., 811 F.2d 470, 475 (8th Cir. 1987).



For the foregoing reasons, this Court holds that the

verdict in this case is not against the clear weight of the

evidence, and that there is no injustice in need of prevention.



Accordingly, defendant's motions will be denied.



Raymond L.//Finch, Judge

Territoryél Court