Williams v. Penn Line Service, Inc.

126 S.E.2d 384, 147 W. Va. 195, 1962 W. Va. LEXIS 22

• Court: West Virginia Supreme Court
• Decided: July 3, 1962
• Docket: 12149
• Status: Published

Opinions

Browning, Judge:

Plaintiff, Cierna Williams, instituted this civil action in the Circuit Court of Webster County to recover damages for personal injuries sustained when she was struck by a truck owned by the corporate defendant, Penn Line Service, Inc., hereinafter sometimes referred to as Penn, and driven by the individual defendant, Herbert Ware. The jury returned a verdict in favor of the plaintiff and against both defendants in the amount of $100,000.00 and judgment was entered thereon. Defendants thereafter moved to set aside the judgment and award them a new trial which motion was overruled on November 27, 1961, to which judgment this Court granted an appeal and supersedeas on December 11, 1961.

The accident occurred at approximately 11:00 A.M. on April 1, 1960, on State Route 20 on what is known as Baker’s Island in the town of Webster Springs. Plaintiff, in testifying, stated that: she had emerged from a building on the west side of the highway, waited for traffic to pass, then walked to the end of the building and crossed the highway to the opposite berm; and she then began walking north along the berm until she heard a noise behind her, looked back and saw defendants’ truck but so close she could not avoid being struck. She also stated that “As I come out of the building I noticed this red truck and it looked like it was getting ready to go toward Cowen [south]. I thought it went that way.” A statement taken from her in the hospital by a state trooper is as follow: “I had just come out of the power company and crossed the road and was on the dirt part. I saw the truck hacking and I thought it was going to back out into the road. I started walking on toward Webster Springs. I turned and the truck was right on me. I tried my best to get out of the way. The rear of the truck is what knocked me down. The transmission hit me. I was under the truck near the middle when it stopped.”

On the east side of the highway, where the accident occurred, was an unpaved berm at least twelve feet in width extending north in front of the office building of Penn, a barber shop and a vacant lot, used by Penn and its employees as a parking lot, which lot was enclosed by a post and cable fence with an opening for the ingress and egress of vehicles. An automobile was parked at an angle near the common corner of the barber shop and parking lot. The truck which struck the plaintiff was a red “pick-up” truck with the rear covered over with aluminum and with tool bins along the sides leaving a “tunnel” about 36 inches wide. It was equipped with side rear-view mirrors but the individual defendant, Ware, stated: “. . . the best view I could get was through the back.” A similar truck, painted all red, arrived at the Penn office as Ware was leaving. Ware entered his truck “. . . looked out the back and started backing out and continued to back out with my arm on the back seat. I attempted to cut the truck between the 2 posts that held the wire in order to turn around. That is when I heard her scream.” Ware further testified that he backed a distance of 51 feet before striking plaintiff. It was admitted by Ware, and plaintiff’s witnesses also testified, that the berm where the accident occurred was commonly used by pedestrians as a walkway.

Plaintiff was taken to a hospital where she was found to be “. . . in severe shock; her pulse was very weak; her respiration was labored and weak and she was bleeding profusely from a deep tear or laceration in the perineum. In fact when I first saw her I did not think she would live any length of time. . . .” After initial treatnaent for shock plaintiff’s injuries were later determined to be: a laceration of the perineum, the area between the vagina and the rectum, 6 inches in length and from one to six inches in depth; both shoulder blades were broken; 8 ribs, Nos. 2 through 9 on the left side were fractured, most of them having more than one fracture, accompanied by severe internal bleeding into the chest cavity; her left clavicle or collar bone was fractured; one hand broken or sprained; and many other bruises and abrasions. She remained in the hospital 52 days during which time it was necessary to aspirate her chest cavity several times, that is, remove the accumulated blood or other fluid by means of a needle inserted into the area, the total amount removed being some 2,000 centimeters. It was also necessary to reheve her severe pain in breathing by injecting novacaine into the nerve of each fractured rib several times. Dr. James A. Walker, a thoracic surgeon, testified that: “In my opinion the multiple rib fractures are healed but the normal shape and action of the ribs are permanently impaired and I believe the motion of the left rib diaphram is permanently impaired and the expansion of the left lung is impaired permanently by the constrictive pleu-ritis.” He described the “constrictive pleuritis” in this particular case as having the effect of a “binding membrane preventing the normal expansion of the left lung, the normal motion of the left diaphram and the normal motion of the left chest cage. This process has the resulting effect of preventing the normal flow of air in and out of the left lung.” Dr. Walker further testified that: “. . . Based upon my physical findings, the patient’s complaint and the chest observations and the pulmonary studies, I believe the function capacity of the left lung to breath is impaired about 50 per cent.” On cross-examination Dr. Walker stated that while the left lung carries only about 45 per cent of the breathing ability of a person, of which plaintiff has lost 50 per cent, it is necessary “to have approximately 35 to 40 per cent of lung tissue to breath.” Dr. Jack W. Hunter, plaintiff’s attending physician, testified that: “. . . I examined her on May 16, and when I checked her she was unable to raise her arms above the level of her shoulders; any motion of the head or neck she complained of severe pain; she was very tender when touched over the shoulder blades and I checked the perineum and it had healed but was very sensitive and the scar seemed to be red and irritated.” He further testified that the plaintiff has neuritis, an injury to the nerves due to the pain and irritation suffered and has sustained a traumatic arthritis of both shoulders as a result of the injury, which will probably grow progessively worse. On cross-examination, Dr. Hunter testified that plaintiff had made a surprising recovery from her injuries and that, while he would not consider her a helpless person, she could not carry on her normal housework to the extent she formerly did. Dr. Edmiston testified that: plaintiff had sustained a neuritis and arthritis following the injury which is permanent and probably progessive; the fracture of the clavicle was of no great significance but “later on will develop a great traumatic arthritis and will limit the motion of the collar bone”; she will “maintain 90 degrees, which is the motion level with the shoulder. She will not have any shoulder motion that will permit her to reach over her head or any motion that would require lifting her arm above 90 degrees”; and, while her right shoulder blade has healed, it has healed abnormally with a dislocation of the lower portion. On cross-examination, Dr. Edmiston testified that he would assume plaintiff could do light housework which did not entail any heavy work or lifting or reaching over her head. Hospital and medical bills, exclusive of drugs since release from the hospital, amounted to $1,500.00.

Plaintiff, at the time of her injury, was 49 years of age and separated from her husband, whose whereabouts is unknown. She has two children, a boy and a girl, aged 14 and 16, respectively, residing with her. She was engaged in performing housework for other people, from which employment she averaged $60.00 a month, and during the month preceding her injury she had engaged in selling cosmetics in the Webster Springs area from which she earned commissions of $30.00. Since her injury, plaintiff states: she cannot dress herself due to pain which prevents her from raising her arms and from stooping' over; she still has pain from the laceration in the perineum; she has difficulty in breathing and in walking uphill; she has pain in her chest, back and shoulders; and, she is afraid of automobiles and traffic and afraid to go near a road or street unless accompanied by someone. She also testified that she does some housework such as sweeping and washing dishes but it is necessary for her to get on a chair to put dishes away when the cupboards are over her head. She testified that she is unable to iron, scrub floors, wash walls or work in a garden.

Twelve assignments of error are made in this Court, only one of which it is deemed necessary to discuss in arriving at our decision. Suffice to say, the Court finds no error in the giving or refusal of instructions, in the submission to, and the findings thereon, of the jury with regard to the questions of primary and contributory negligence; nor in the other assignments.

The question as to the excessiveness of the verdict is the only one that has given this Court any concern in reviewing this case. Since the decision of this Court in Nadenbousch v. Sharer, 4 W. Ya. 203, decided at the January Term, 1870, this question has perplexed this and, of course, all other courts. In that case Judge Brown, commenting upon that question in a concurring opinion, said: “Upon the question of excessive damages, it may be remarked that, it must be a strong case to set aside a verdict for that cause, because it is the peculiar province of the jury to ascertain the amount of damages, and they are better able to judge of the circumstances of the case and the weight of testimony, and the credibility of witnesses, and the peculiar hardships' and aggravations attendant upon the injury. . . .” In the case of Unfried v. Balt. & O. R’d Co., 34 W. Va. 260, 12 S. E. 512, the trial court held that a verdict of the'jury for the plaintiff in the sum of $7,000 was excessive and proposed a remittitur of the sum of $3,500, which the plaintiff elected to accept. This Court held that such procedure, under the decisions of this Court and theVirginia Court, was erroneous, the single syllabus point of that case stating: “In an action for damages, where the verdict of the jury is so erroneous as to clearly indicate prejudice, partiality, passion or corruption in arriving at their conclusions, the defendant on motion is entitled to a new trial; and it is error in the court to allow the plaintiff to elect to take a less sum suggested by the court, when there are no data before the court, by which said smaller sum could be rightly and definitely ascertained, but which is fixed by the discretion of the court unaided by evidence.” The first portion of this syllabus point represents the rule since followed by this Court in determining whether a verdict is excessive.

In the case of Raines v. Faulkner, 131 W. Va. 10, 48 S. E. 2d 393, a jury verdict approved by the trial court in the sum of $5,000, in an action by a young woman for an indecent assault, was set aside by this Court in a three to two decision. The Court stated: “. . . to justify a verdict of three thousand dollars for compensatory damages, based almost entirely on terror, mental anguish and humiliation, the jury must have concluded that plaintiff’s terror, mental anguish and humiliation were very extensive and of considerable duration. The evidence does not support such conclusion. . . .” For the same reason and citing the Raines case, in another three to two decision in French v. Sinkford, 132 W. Va. 66, 54 S. E. 2d 38, a judgment upon a verdict in the sum of $10,000 for injury to a female child eleven years of age who was struck by a motor vehicle was reversed, the Court stating: “We have quoted this evidence of the only witnesses who were -competent to pass upon the probable result of plaintiff’s injuries. We conclude that these physicians did not believe that this child would suffer from any permanent disability on account of her injury. The case is one where there has been an injury of a nature from which complete recovery may be expected, and normal recovery is in progress, and according to the testimony the period of recovery need not exceed twelve months. . . . Naturally there was some pain and suffering, but four months after the date of the injury it had apparently disappeared, and there was nothing to anticipate it would recur. . . .”

No effort will be made to cite and analyze all of the cases upon this question, but a good discussion thereof is contained in the fairly recent case of Yuncke v. Welker, 128 W. Va. 299, 36 S. E. 2d 410, and many former decisions of this Court are therein cited. In the opinion of the Yuncke case it was stated: “In an action to recover for personal injuries the damages are unliquidated and indeterminate in character, and the assessment of the amount is generally for the jury. . . . The only limitation which the law imposes is that the damages he fairly compensatory and not such as to show partiality, prejudice or misconduct upon the part of the jury. . . . In a personal injury case no rule of law fixes the measure of damages; the law leaves the amount of damages for tort to the sound discretion of the jury. . . . Though a court may set aside a verdict as excessive, its authority to do so may not be arbitrarily exercised. It is a general rule that where damages are indeterminate, mere difference of opinion between the court and the jury as to what the verdict should be, will not justify the court in disturbing the verdict. To warrant such action the verdict must evince passion, prejudice, partiality, or corruption on the part of the jury. . . .” In the very recent case of Armstead v. Holbert, 146 W. Va. 582, 122 S. E. 2d 43, this Court affirmed the Circuit Court of Kanawha County in reversing a judgment of the common pleas court of that county upon a jury verdict for the plaintiff in the sum of $65,000, this Court finding that error had been committed in the trial of the case as shown by the first two syllabus points. This statement is contained in the opinion of that case: “However, a majority of the Judges of this Court are in agreement with the circuit court that while * * the verdict was probably too large, * * it could not be said to be excessive as a matter of law and would not be set aside upon the ground of exces-siveness alone.” In the recent case of Nugen v. Hildebrand, 145 W. Va. 420, 114 S. E. 2d 896, this Court refused to set aside as excessive a verdict in favor of the plaintiff in the amount of $50,000.00. See also Smith v. Penn Line Service, Inc., 145 W. Va. 1, 113 S. E. 2d 505, wherein, though reversing on other grounds, the Court refrained from making any critical comment as to the verdict in the amount of $85,000.00.

Counsel for the appellants rely principally upon the decision of this Court in Brewer v. Appalachian Constructors, Inc., 138 W. Va. 437, 76 S. E. 2d 916. In that case judgment was entered upon a jury verdict for the plaintiff in the sum of $93,800 and this Court set it aside as being excessive. The injuries which the plaintiff suffered are described in the opinion and it will not be necessary to repeat them here. The reasoning upon which the verdict was held to be excessive was based upon the assumption that this sum invested at 3% interest would return to the plaintiff an amount almost equal to his annual earning capacity during his life expectancy and that at the end thereof he would have the principal sum intact. It is stated in the opinion that the plaintiff has suffered and will suffer a loss of earning capacity of $69,703.70. The verdict of $93,800.00 plus the sum of $6,200 from the Workmen’s Compensation Fund, is said in the opinion to be “tantamount to a verdict in the amount of $100,000”. The Court further stated: “We are of opinion from this analysis of the instant verdict that it is clearly excessive and should be set aside on that ground. We say this because we think that the verdict, embracing as it does an element in the amount of more than thirty thousand dollars for pain, suffering and inconvenience, growing out of plaintiff’s serious injuries, shows that the verdict is the result of mistake, partiality in favor of and sympathy for plaintiff, prejudice, or lack of due consideration, and should be set aside on this writ of error.”

In Corrick v. Western Maryland Railway Co., 79 W. Va. 592, 91 S. E. 458, the Court said: “There is no inflexible rule by which damages for personal injuries can be determined with mathematical precision, and the law entrusts the matter to the sound judgment of the jury.” As will be observed from the cases heretofore cited, it is the peculiar and exclusive province of the jury to assess damages in a personal injury action, and the question of excessiveness must depend upon the facts in each particular case. It is therefore unfortunate that in the opinion in the Brewer case, in its reasoning to illustrate its conclusion that the verdict was the result of passion or prejudice, that the Court used a mathematical example to do so. In Thompson v. Barnes, 236 S. W. 2d 656, the Texas Court recognized the dilemma thus posed in upholding an $85,000 verdict for a back injury, stating that while the plaintiff “could never reasonably have hoped to amass through 20 years of honest, hard application, $85,000,” the verdict could not be disturbed as a matter of law in view of the showing in the record of “his physical pain, past and future, and his mental anguish, past and future”.

“The damages from suffering, either mental or physical, cannot be weighed; it cannot be measured; it cannot be computed. It can only be estimated. The difficulty in making the estimate affords no good reason for failure to make it, . . . The estimation must depend upon the good sense, sound judgment, and enlightened conscience of the jury, under all the facts and circumstances of the particular case, and the sensibilities of the particular person.” Coombs v. King, 107 Me. 376, 78 A. 468, Ann. Cas. 1912C, 1121. Of similar import is the case of Eby v. Wilson, 315 Mo. 1214, 289 S. W. 639, 50 A.L.R. 268, which contains this statement: “The reason for holding parties so tenaciously to the damages found by the jury in personal torts is that in cases of this class there is no scale by which the damages are to be graduated with certainty. They admit of no other test than the intelligence of a jury governed by a sense of justice.”

It is clear from the decisions of this Court that in arriving at its verdict this jury had a right to consider not only the financial loss suffered and to be suffered by the plaintiff but physical and mental suffering prior to and subsequent to the trial as well as her “nervous” condition resulting from the injury.

The verdict in the instant case was approved by the trial judge who, as did the jury, saw and heard the witnesses testify and was better able than this Court to determine the actual damage to the plaintiff and this Court is unable upon the present record to say, as a matter of law, that the verdict is so excessive as to indicate passion, prejudice, part-tiality or mistake, or lack of consideration on the part of the jury and the Court perceiving no other error, the judgment of the Circuit Court of Webster County is affirmed.

Affirmed.