R. Noel Foreman
Jeffrey A. Grove
Bachmann, Hess, Bachmann & Garden
Wheeling, West Virginia
Attorneys for the Appellant
Jesus T. Ho, M.D.

Linda M. Bordas
James B. Stoneking
Bordas, Bordas & Jividen
Wheeling, West Virginia
Attorneys for the Appellee
Sharon L. Mackey

Richard W. Stuhr
Dino S. Colombo
Jacobson, Maynard, Tuschman & Kalur
Charleston, West Virginia
Attorneys for the Appellee
Oscar S. Irisari, M.D.

James A. McKowen
Member, WVTLA Amicus Curiae Committee
Charleston, West Virginia
Amicus Curiae

JUSTICE McHUGH delivered the Opinion of the Court.

        1. "In West Virginia one joint tort-feasor is entitled to contribution from another joint tort-feasor, except where the act is malum in se." Syl. pt. 3, Haynes v. City of Nitro, 161 W. Va. 230, 240 S.E.2d 544 (1977).

        2. "As between joint tortfeasors, a right of comparative contribution exists inter se based upon their relative degrees of primary fault or negligence." Syl. pt. 3, Sitzes v. Anchor Motor Freight, Inc., 169 W. Va. 698, 289 S.E.2d 679 (1982).

        3. "The doctrine of contribution has its roots in equitable principles. The right to contribution arises when persons having a common obligation, either in contract or tort, are sued on that obligation and one party is forced to pay more than his pro tanto share of the obligation. One of the essential differences between indemnity and contribution is that contribution does not permit a full recovery of all damages paid by the party seeking contribution. Recovery can only be obtained for the excess that such party has paid over his own share." Syl. pt. 4, Sydenstricker v. Unipunch Products, Inc., 169 W. Va. 440, 288 S.E.2d 511 (1982).

        4. "Disclosure to the jury of the general nature of a 'Mary Carter' settlement agreement is not required in each case; such disclosure lies within the sound discretion of the trial court. Where the 'Mary Carter' agreement is not reached until after all or most of the evidence has been presented, and the settling defendant during closing argument and examination does not indicate to the jury a realignment of loyalties so as to prejudice the nonsettling defendant(s), it is within the sound discretion of the trial court to refuse to disclose the general nature of the 'Mary Carter' agreement to the jury." Syl. pt. 5, Reager v. Anderson, 179 W. Va. 691, 371 S.E.2d 619 (1988).

        5. "West Virginia Code § 55-7-6 (1985) did not require that parents, brothers, or sisters be financially dependent upon the decedent in order to receive 'compensation for reasonably expected loss of income of the decedent, and services, protection, care and assistance provided by the decedent. . . .'" Syl. pt. 2, Rice v. Ryder, 184 W. Va. 255, 400 S.E.2d 263 (1990).

        6. "In a wrongful death action, a showing of financial dependency upon the decedent is not a prerequisite to recovery of the damages specified in W. Va. Code § 55-7-6(c)(1) (1989)." Syl. pt. 3, Rice v. Ryder, 184 W. Va. 255, 400 S.E.2d 263 (1990).

        7. "The language of W. Va. Code, 55-7-6(c)(1)(B)(i), that allows as part of the elements of damages in a wrongful death action compensation for reasonably expected loss of income of the decedent, does not require a deduction for estimated personal living expenses." Syl. pt. 12, Wehner v. Weinstein, No. 21911, ___ W. Va. ___, ___ S.E.2d ___ (filed April 20, 1994).

        8. "Great latitude is allowed counsel in argument of cases, but counsel must keep within the evidence, not make statements calculated to inflame, prejudice or mislead the jury, nor permit or encourage witnesses to make remarks which would have a tendency to inflame, prejudice or mislead the jury." Syl. pt. 2, State v. Kennedy, 162 W. Va. 244, 249 S.E.2d 188 (1978).

McHugh, Justice:

        This case is before the Court upon the appeal of Jesus T. Ho, M.D., the third-party defendant below, from the December 28, 1992, order of the Circuit Court of Marshall County which denied his post trial motions in a medical malpractice action. The appellees are Sharon L. Mackey, Administratrix of the Estate of Tonya L. Mackey, the plaintiff below, and Oscar S. Irisari, M.D., the defendant and third-party plaintiff below. For reasons set forth below, we affirm the circuit court's order.

        We provided for a third-party action for contribution in Haynes, 161 W. Va. at 234, 240 S.E.2d at 547, when we pointed out that the absence of a joint judgment does not foreclose contribution between joint tortfeasors. However, Haynes did not note whether a defendant who had settled pursuant to a "Mary Carter" settlement agreement could seek contribution from a third- party defendant. Moreover, the parties in the case before us did not question the validity of the contribution claim, but instead, merely questioned the amount of contribution to the judgment.

        The difficulty in this case arose when the parties focused on the amount of damages to be paid by each defendant rather than on whether Dr. Irisari's contribution claim should have been dismissed once he entered into the "Mary Carter" settlement agreement. However, we held in syllabus point 3 of Wells v. Roberts, 167 W. Va. 580, 280 S.E.2d 266 (1981) that "[a]s a general rule '[t]his Court will not consider questions, nonjurisdictional in their nature, which have not been acted upon by the trial court.' Syl. pt. 1, Buffalo Mining Co. v. Martin, [165 W. Va. 10,] 267 S.E.2d 721 (W. Va. 1980)." Therefore, since the parties focused their attention on the amount of damages, we, too, will focus our attention on that issue. Furthermore, since the case before us was tried under the assumption that it was like Reager, supra, and further under the assumption that the parties were co- defendants for the purpose of determining each defendant's share of damages, we will treat the case as if Dr. Ho and Dr. Irisari incurred a joint judgment, especially since there is nothing before us which indicates that the parties objected to the case being tried in this manner.

        For instance, the trial court stated the following during his charge to the jury:

        The mere fact that the Plaintiff chose not to sue Dr. Ho has no bearing whatsoever on this claim . . . .

            Your duty, after deciding this issue in regard to Dr. Ho, is simple, you just determine, weigh and compare the intent of the negligence of each physician in this case; determine by percentage how much each physician's deviation or deviations from the standard of care contributed to the death of Tonya Mackey, up to one hundred percent. This is known as comparative negligence, and the effect of your findings will be that each physician will pay the same percentage of the verdict awarded by you to the Plaintiff as you find to be the comparative fault of each physician.

Additionally, the verdict form indicates that the jury determined the percentage of fault attributable to each defendant and awarded judgment as if it were against both defendants.See footnote 5

        Dr. Ho argues that based on W. Va. Code, 55-7B-9(c) [1986] he should only have to pay Dr. Irisari the excess of what Dr. Irisari paid in the settlement over his share. However, W. Va. Code, 55-7B-9(c) [1986] states, in part, that "[t]he total amount of recovery for contribution is limited to the amount paid by the defendant to a plaintiff in excess of the percentage of the total dollar amount awarded attributable to him." (emphasis added). Because of the legislature's use of the word, "awarded," the above language in W. Va. Code, 55-7B-9(c) [1986] is premised upon a judgment being entered and not a settlement being agreed upon.

        W. Va. Code, 55-7B-9(c) [1986] simply states that if Dr. Irisari and Dr. Ho had been co-defendants, then Dr. Ho would never be responsible for more than his proportionate share. The trial court did not, in the case before us, make Dr. Ho responsible for more than his proportionate share. Under the principles of Reager, supra, Dr. Ho and Dr. Irisari incurred, what could be considered under the circumstances of the case, a joint judgment of $1,712,128.48 once the settlement from Reynolds Memorial was deducted. Therefore, Dr. Ho owed Dr. Irisari 49% of $1,712,128.48 which is $838,942.95 since the jury found Dr. Ho to be responsible for 49% of the plaintiff's damages. Accordingly, we affirm the trial court's award of $838,942.95 on Dr. Irisari's contribution claim.

        This case points out the problems with a "Mary Carter" settlement agreement. We are not revisiting the propriety of the "Mary Carter" settlement agreement in this case, but we are pointing out the perils if the parties rely too extensively on a "Mary Carter" settlement agreement. We note that if Dr. Ho had questioned the legitimacy of Dr. Irisari's contribution claim once he settled pursuant to a "Mary Carter" settlement agreement, the result may have been different.

            (3) Then Existing Mental, Emotional, or Physical Condition.--A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

        Additionally, the plaintiff correctly points out that under W. Va. R. Evid. 901(b)(2) that a nonexpert can give an "opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of litigation." Therefore, the decedent's father could authenticate or identify the "memory book" by telling the jury that the handwriting in the "memory book" was his daughter's.

        Dr. Irisari states that a correlation can be made between the case before us and Gault v. Monongahela Power Co., 159 W. Va. 318, 223 S.E.2d 421 (1976). In Gault the plaintiffs sought to recover damages for injuries sustained by Donald Gault which they alleged were caused by the negligence of Monongahela Power Company. Donald Gault testified that although he retired and was receiving social security payments, he planned on returning to work as a pipefitter. We held in syllabus point 3 of Gault that such evidence was admissible: "A declaration of an intention to return to work is admissible in evidence to prove that the declarant actually had such intention." Therefore, we hold that the trial court did not err when it allowed the decedent's "memory book" to be read into evidence.

        The above discussion reveals that the right to contribution when there has been a settlement depends upon each jurisdiction's statutes and case law. The advent of comparative negligence also affects this issue.

Date: Oct. 19, 1992    S/Edward W. West
Foreperson'.

            'The law favors and encourages the resolution of controversies by contracts of compromise and settlement rather than by litigation; and it is the policy of the law to uphold and enforce such contracts if they are fairly made and are not in contravention of some law or public policy.' Syllabus Point 1, Sanders v. Roselawn Memorial Garden, Inc., 152 W. Va. 91, 159 S.E.2d 784 (1968).