Harvey v. Robey

Supreme Court of Virginia

Harvey v. Robey

176 S.E.2d 673, 211 Va. 234, 1970 Va. LEXIS 239

Supreme Court of Virginia·Decided September 4, 1970·No. Record 7145·Published·Cited by 4 cases

Opinion

Harman, J.,

delivered the opinion of the court.

The assignment of error that is dispositive of this appeal is whether the trial' 1 court erred in failing to strike plaintiff’s evidence and enter summary judgment for the defendant, Evelyn Louise Harvey, on a special plea of accord, satisfaction and release.

Ann Hadden Robey, the plaintiff, was injured as a result of an automobile accident which occurred on January 28, 1966, on State Route 297 in Campbell County. She was a passenger in a car driven by her husband when it was involved in a collision with a car driven by defendant.

Plaintiff lost consciousness as a result of the accident and received numerous contusions, bruises and abrasions of her chest, arms and knees. She also received a hematoma approximately one inch in *235 diameter on the upper occipital area of her head. She was hospitalized for a period of six days at Lynchburg General Hospital where she was treated by the members of its staff. She was then allowed to return to her home at Vinton, Virginia, where she was under the care of her family physician.

The accident was investigated by Ronald W. Willis, a claims adjuster for the defendant’s insurance carrier. He concluded from his investigation that the accident was the result of negligence on the part of defendant.

Willis interviewed plaintiff and her husband on three or four occasions. On February 9, 1966, a settlement was reached with the plaintiff’s husband, Luther C. Robey, for his property damage and the loss of use of his car and a release was executed by him upon payment of repair bills for his car and the cost of a rental car.

Willis obtained a medical report from the plaintiff’s family physician. Discussions were held between Willis and plaintiff and her husband. On February 25, 1966, a compromise settlement was reached and the plaintiff and her husband executed a release of all claims. 1 The amount agreed upon represented the medical bills which plaintiff had incurred to that date, amounting to $524.35, plus the sum of $1,000 for her personal injuries and to cover possible future medical expenses. At the time of the execution of the release, plaintiff’s family physician indicated that she had not fully recovered from her injuries and would continue to be disabled for approximately one month from the date of his report, February 24, 1966. He also indicated he anticipated no permanent disability as a result of her injuries.

Subsequently plaintiff suffered a complete loss of sight in her right eye and a partial loss of hearing in her right ear.

Action was instituted against defendant in August, 1967, by a motion for judgment asking damages in the amount of $50,000 for injuries sustained by the plaintiff as a result of the accident. Defendant filed a special plea of accord, satisfaction and release. The court directed a separate trial on this plea. We are only concerned with the evidence taken in connection with this hearing.

Plaintiff’s testimony discloses that from the date of the accident to the time that the release was executed she suffered from a severe headache, nausea, dizziness and blurred vision. The headache, which she described as almost continuous, “. . . would circle through and *238 just make a line down the back of my head, starting around the (right) eye.”

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