Sherman v. Manufacturers Light & Heat Co.

132 A.2d 255, 389 Pa. 61, 1957 Pa. LEXIS 339

• Court: Supreme Court of Pennsylvania
• Decided: May 27, 1957
• Docket: Appeal, 136
• Status: Published

Opinions

Opinion by

Mr. Justice Bell,

Plaintiff was injured on February 12, 1952, in a collision between the automobile he was driving and a truck of the defendant company. The questions of negligence and contributory negligence were vigorously contested. The jury rendered a verdict in favor of plaintiff for $22,000. Plaintiff sought a new trial because of alleged errors in the charge of the Court, and because the verdict was inadequate. A new trial was refused. Plaintiff has appealed from the judgment entered on the verdict.

Plaintiff was a vigorous young man 27 years of age at the time of the accident. For about a month after the accident he was treated by his family physician, Dr. McDivitt, for shock and pain in the lower back and lumbar region. From March 27, 1952 until October 1952, Dr. Steele, an orthopedic surgeon, treated the plaintiff, prescribing heat and massage and the use of a belt. In October 1952, Dr. Steele took a myelogram, i.e., an X-ray of the spinal cord, which disclosed that plaintiff was suffering from a ruptured intervertebral disc. Dr. Steele subsequently recommended surgery. On January 23, 1953, an operation for this condition was performed upon plaintiff at the Veterans’ Administration Hospital in Aspinwall. Plaintiff was discharged from the hospital on January 31, 1953. Although he sought no further medical care until January 1955, he testified that he continued to have severe pain in his lower back and right leg after April 1953.

On January 26, 1955, plaintiff saw Dr. Faix, a specialist in general and orthopedic surgery, and Dr. Mc-Cabe, a neurologist. A second myelogram was taken and Dr. Faix concluded that either all of the disc had not been removed during the operation in January 1953, or a recurrent disc had formed. Dr. McCabe testified that plaintiff had suffered permanent injury to his nervous system which would cause him severe pain throughout the rest of his life. Plaintiff testified that he worked on and off after the accident and earned approximately $2,000., but he was not able to continue to work at any of the jobs he obtained because of his pain and physical condition.

Defendant not only denied negligence and alleged that plaintiff was guilty of negligence and contributory negligence, but also introduced medical testimony which was almost diametrically opposed to that of the plaintiff’s. Defendant called as its medical witness, Dr. Steele, who was plaintiffs orthopedic doctor after the accident. Dr. Steele testified that in his opinion plaintiff’s condition was caused by tuberculosis of the spine, and this condition had been arrested and would gradually improve, so that in about 2 or 3 years he could do an ordinary job which required only ordinary physical effort.

Plaintiff contends that the trial judge failed to properly leave to the jury the question of Avhether plaintiff was totally or partially disabled. We are unable to agree with this contention. It is extremely doubtful whether plaintiff could fairly and reasonably contend under his own evidence — certainly it would be impossible to do so under the defendant’s evidence — that his disability was total and permanent in the light of the facts (1) that he had worked on numerous occasions after the accident; (2) had made wages of $2000 after the accident; and (3) that his OAvn doctor testified for defendant that he could do ordinary work in two or three years; and (4) that his doctor at the time of the trial testified in his behalf, in reply to a question whether plaintiff could do any strenuous work in the future: “I don’t believe that he could do any type of work that would require a great deal of physical activity.”

Appellant correctly alleges that the law is as stated in Saganowich v. Hachikian, 348 Pa. 313, 35 A. 2d 343 (page 316) : “. . . Damages for loss of earning capacity arise out of an impairment of that capacity, and not out of loss of earnings. The earnings of the plaintiff subsequent to the injury, as compared with his earnings at the time of the injury, are merely evidence, but not conclusive evidence, as to whether his earning power has been diminished by the accident. The matter was clearly for the jury. See Yeager v. Anthracite Brwg. Co., 259 Pa. 123, 102 A. 418; Tingle v. C.-M. Newspapers, Inc., 318 Pa. 537, 179 A. 80.”

The trial. Judge recognized that this was the law and naturally and properly applied it to the facts of the instant case.

I. Judge’s Charge on Disability

Judge Kennedy, the trial Judge, carefully analyzed and reviewed all the evidence and the contentions of both parties in a lengthy 39 page charge to the jury. In his charge he said, inter alia: “. . . He is only entitled to compensation for the injuries and the residual effects of the injuries that occurred at the time of this accident on February 12, 1952. I call that to your attention at this time because you can’t give all of these directions for the measure of damage in just one or two sentences because again there is a radical variance in the opinion evidence of the medical testimony as to what is causing the disability of Mr. Sherman today and what has been causing it for the last three or more years and what the prognosis will be

* and what time and which, if any, he will regain his health either fully or in part.

“Then the next item would be partial loss of future earning power. Now I say partial because he has had some earning power during the period up to date, $2000, but it covered a period of three years. So he would have a partial loss of future earning power based on his past record of earning power, his ability to earn. . . .

“Now we get back to the partial loss of future earning power. It is claimed here on behalf of the plaintiff that due to his physical condition, his disability, that his earning power is greatly limited in the future and will be for all time to come. That he has a condition here that can’t be corrected. The defense does not agree with that. Doctor Steele is just to the contrary on that. However, that again is going to be for you.. . .

“Well, now, to get back to the partial loss of future earnings. You will determine what his condition is going to be in the future; whether he is going to have some partial recovery; whether he is going to get better; whether he is going to stay the same as he is or whether he is even going to get worse. Then from that take into consideration his past earnings, his education, his ability, his opportunities in life, how much has his earning power been reduced and how long will it be reduced. Well now, when you determine those things then you will determine how much in dollars and cents his earning power has been reduced and will be reduced in the future from year to year, and how long into the future. . . .

“Now then further, the question comes as to the probability of a partial or full recovery or of no hope of recovery ”

In dismissing the motion for a new trial the trial Judge aptly said: “. . . Every contention of the plaintiff as to impairment of earning power past, present and future was submitted fully and fairly to the jury for its determination. . . .

“The plaintiff was a streetcar operator at the time of the accident. He has not returned to this type of work since he was caused to be hurt. In 1954 his gross earnings were $3821.39. His net earnings during that year were not disclosed in the record. . . . During the three year period the plaintiff had three separate jobs and stated that he earned a total of $2,000. Based on the overall medical testimony the jury could readily have found that had he applied himself that he could have earned considerably more than $2,000 during this period and hence reduced in amount his claim for loss of wages up to the time of trial. . . . The jury deliberated seven and one-half hours. They could have determined from the defendant’s medical testimony that some but not all of the plaintiff’s complaints were the result of the injuries he sustained in the accident.

“Plaintiff introduced into evidence medical and hospital expenses totalling the sum of $1400 including a statement from the Y. A. Hospital in the sum of about $500. Considering all of these matters a verdict in such a substantial sum as $22,000 certainly could not be labeled inadequate ”

Since the defendant contended (by its doctor) that the plaintiff’s physical troubles stemmed from tuberculosis of the spine, unconnected with trauma, and that he would be able to resume a normal occupation in two or three years, it thus became a question of fact for the jury whether the plaintiff’s disability or some of it was or was not the result of the accident for which the defendant was responsible, and, if so, for what period of time his disablement would continue.

A reading of the Court’s entire charge to the jury— as distinguished from the isolated portions which are relied upon by appellant and quoted above — negatives the appellant’s contention of prejudicial error on the subject of permanent disability.

In Black v. A. E. Troutman Company, 385 Pa. 138, 122 A. 2d 201, this Court said (page 140) : “In determining whether a court’s instructions to the jury are erroneous we must consider that charge as a whole, and if it is not misleading we will not reverse, even though there be some inaccuracies or misstatements. Error cannot be predicated upon isolated excerpts if, when read with the remainder of the charge, a true and correct charge is revealed. Scanlan & Son v. Sherbine, 382 Pa. 376, 379, 380, 114 A. 2d 900.”

In our opinion the trial Judge’s charge, read as a whole, was, under all the evidence in this case, fair, reasonable and proper.

II. Inadequacy

We have hereinabove reviewed in some detail plaintiff’s evidence of his pain, suffering and injuries, as well as briefly summarized defendant’s medical evidence as to plaintiff’s condition, its cause and its prognosis. In considering the adequacy of the jury’s verdict of $22,000, the trial Judge who saw and heard the witnesses, undoubtedly took into consideration the credibility of the witnesses as well as the defendant’s medical evidence, which the appellant has completely ignored and which, as stated by plaintiff (appellant) himself, was as follows: “The substance of the medical testimony offered by the defendant was that defendant’s doctors were of the opinion that plaintiff’s condition was not the result of the accident but was caused by tuberculosis of the spine; and that his condition had been arrested and would gradually improve, so that in about three years he should be largely recovered.”

In the light of (1) the conflicting medical evidence with the radically different opinions expressed as to the cause of plaintiff’s condition and its prognosis, and (2) the radical variance in testimony as to how and where the collision occurred and the negligence and contributory negligence of the respective parties, we cannot say that the lower Court’s refusal of a new trial, because of the inadequacy of the verdict of $22,-000 constituted a manifest abuse of discretion.*

In Karcesky v. Laria, 382 Pa. 227, 235, 114 A. 2d 150, this Court quoting from Nikisher v. Benninger, 377 Pa. 564, 105 A. 2d 281, and Carpenelli v. Scranton Bus Company, 350 Pa. 184, 38 A. 2d 44, said (page 235) : “ ‘ “When a court grants a new trial on the ground of inadequacy of the verdict an appellate court, in the absence of a gross abuse of discretion, will not interfere: Schwartz v. Jaffe, 324 Pa. 324, 188 A. 295; Pretka v. Wilson, 325 Pa. 491, 190 A. 722. When a trial court refuses to grant relief against an allegedly inadequate verdict an appellate court will exercise even greater caution in reviewing its action. . . .” ’ ”

We have considered, but deem it unnecessary to discuss, the other contentions advanced by plaintiff.

Judgment affirmed.

Italics throughout, ours.

It is sometimes erroneously contended that in considering the grant or refusal of a new trial, just as in a consideration of an appeal from the refusal to take off a nonsuit or from the entry of a judgment non obstante veredicto, all of the evidence must be taken in the light most favorable to the verdict winner. Of course this is not the correct test on an appeal from the grant or refusal of a new trial: Londrino v. Equitable Life Assurance Society, 377 Pa. 543, 105 A. 2d 333; Shields v. Larry Construction Co., Inc., 370 Pa. 582, 88 A. 2d 764; Yago v. Pipicelli, 343 Pa. 222, 22 A. 2d 699; Dupont v. Gallagher, 360 Pa. 419, 62 A. 2d 28; Jones v. Williams, 358 Pa. 559, 58 A. 2d 57; Karcesky v. Laria, 382 Pa., supra; Nikisher v. Benninger, 377 Pa., supra; Carpenelli v. Scranton Bus Co., 350 Pa. 184, 38 A. 2d 44; Schwartz v. Jaffe, 324 Pa. 324, 188 A. 295; Pretka v. Wilson, 325 Pa. 491, 190 A. 722; Nark v. Horton Motor Lines, Inc., 331 Pa. 550, 1 A. 2d 655; Wargo v. Pittsburgh Railways Co., 376 Pa. 168, 101 A. 2d 638; Smith v. Allegheny County, 377 Pa. 365, 105 A. 2d 137; Edelson v. Ochroch, 380 Pa. 426, 111 A. 2d 455; Foster v. Waybright, 367 Pa. 615, 80 A. 2d 801; Bellettiere v. Philadelphia, 367 Pa. 638, 81 A. 2d 857; Morse Boulger Destructor Co. v. Arnoni, 376 Pa. 57, 101 A. 2d 705; Harris v. Ruggles Lumber Co., 376 Pa. 252, 101 A. 2d 917; Koenig v. Flaherty, 383 Pa. 187, 117 A. 2d 719; Wilt v. Blazier, 382 Pa. 143, 114 A. 2d 111; Vereb v. Markowitz, 379 Pa. 344, 108 A. 2d 774; Martin v. Arnold, 366 Pa. 128, 77 A. 2d 99; Joseph v. Rochester Motor Coach Co., 380 Pa. 189, 110 A. 2d 214.