Poltorak v. Sandy

Dissenting Opinion by

Hoffman, J.:

This is an appeal from a verdict in favor of the appellant Marion E. Poltorak in the amount of $15,000.00 for injuries suffered in an automobile accident.

The accident occurred on a snowy Christmas Eve, on December 24, 1966, at approximately 8:30 p.m. Plaintiffs testified that they were proceeding north on York Road in Warminster, Bucks County. They described the highway as lined with mounds of snow two feet high along the center and sides. Intending to make a left turn, the plaintiffs observed a 50-foot opening in the mound of snow in the center of the highway. They testified that they could see for about 300 feet and saw no oncoming traffic. While plaintiffs attempted to negotiate the turn, the car stalled with its front protruding into the southbound lanes. The operator of the vehicle, Frank J. Poltorak, said he shut off his heater, radio and wipers and tried to start the car up again. The defendant’s vehicle struck the plaintiffs’ stalled automobile at the middle of the passenger side.

Defendant William P. Sandy, Jr. told a different story. He stated that it was snowing heavily and that visibility was only about 25 feet. He testified that as he was proceeding in the southbound lane, he suddenly saw the plaintiffs’ vehicle when he was almost upon it, and stated that he could not avoid skidding into the automobile upon applying his brakes. Police testified that the weather conditions were far worse than described by the plaintiffs. They stated that visibility was no more than 25-35 feet in either direction, and that there was a heavy, driving snowstorm at the time of the accident. Both police officers who came upon the scene stated that they saw no “opening” in the snow mounds, and that the rear of *368plaintiffs’ vehicle was actually in or about a deep snow bank.1

Plaintiffs brought a suit for personal injuries to Mrs. Poltorak against the operator of the striking vehicle. The defendant Mr. Sandy joined Mr. Poltorak, the operator of plaintiffs’ car, as an additional defendant. The jury determined that Mr. Poltorak had been contributorily negligent, but awarded Mrs. Poltorak $15,000.00 against both the defendant and her husband.2 Plaintiffs have appealed from that verdict.

Contributory Negligence

Appellant Frank J. Poltorak contends that there was insufficient evidence to establish that he was contribu-torily negligent or that such negligence was a proximate cause of the accident. In refusing post-trial motions, the trial court reasoned:

“On this record the jury could well have concluded that a reasonable driver exercising due care would not have chosen to negotiate a difficult turn through a large mass of snow under dangerously poor conditions of visibility and then at an inordinately low rate of speed; that Mr. Poltorak’s efforts, once the car stalled, were also negligent; and that his negligent driving was the cause of the car’s blocking the southbound side of the highway, which was, clearly, a proximate cause of the accident.”

In considering the grounds for reversal, the trial court properly read the evidence in the light most favorable to the verdict-winner, rejecting all unfavorable testimonial evidence. Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968). There was ample evidence for the jury to believe that the weather and road conditions were far worse than *369the plaintiffs described them to be. The jury may have determined that under these severe conditions and in the path of a deep snow mound, plaintiffs negligently endeavored to make a sharp left turn into the lanes of opposing traffic. We may not, as a reviewing court, disturb a jury verdict which resolves conflicting evidence primarily of a testimonial nature. Mapp v. Wombucker, 421 Pa. 383, 219 A.2d 681 (1966). It is not, after all, this Court’s function to substitute its own judgment of the facts where the jury verdict is premised on evidence appearing of record. Skoda v. West Penn Power Co., 411 Pa. 323, 191 A.2d 822 (1963).

Appellants argue that their negligence should not preclude recovery unless it proximately caused the accident. This is, of course, a valid argument under the law to which we readily agree. See, McCoy v. Philadelphia Electric Co., 447 Pa. 490, 291 A.2d 759 (1972). The record reveals a proper charge of the court on this legal issue. The trial judge adequately instructed the jury that any contributory negligence had to be a proximate cause of the accident in order to preclude relief.

Appellants contend that even if husband-plaintiff was contributorily negligent, the verdict itself was grossly inadequate.

Alleged Trial Errors on Admissibility

Plaintiffs attribute the inadequacy of the verdict to three alleged trial errors. At the conclusion of the plaintiffs’ case, counsel attempted to offer all the bills for services rendered by Marion Poltorak’s personal physician, Dr. Doering. The bills, spanning a period of time from the date of the accident to the date of the trial, totalled $946.08. During the trial, neither the plaintiffs nor Dr. Doering could allocate which of the visits represented the treatment of routine ailments and those which were for the injuries suffered in the accident. Mrs. Poltorak admitted that on a number of occasions she saw her family physician for colds, diarrhea, headaches and *370bronchitis. The admission of evidence is within the sound discretion of the trial court, and such discretion is not abused where a plaintiff is unable to make a reasonable showing that the damages reflect the injuries sustained in an accident. The calculation of damages and the allocation of medical expenses between legitimate and non-related treatments may not be left to the jury’s speculation. McGuire v. Hamler Coal Mining Co., 355 Pa. 160, 49 A.2d 396 (1946).

Plaintiffs also complain that the trial court erred in excluding evidence of physical therapy treatments administered to Marion Poltorak. During the plaintiffs’ case, testimony was permitted to describe the continuous and extensive treatments by a physiotherapist for the injuries Mrs. Poltorak suffered. When counsel sought to introduce bills, defense counsel objected on the ground of surprise. It appears from the record that this offer was the first notice to the defendant of such expenses. In pretrial interrogatories, defendant had asked for itemized damages, and no mention had been made of these treatments. The defendant’s interrogatories, consistent with recognized practice, were expressly framed as of a “continuing nature”, so that any additional bills incurred after answers were filed should be supplemented. Furthermore, at the time of the pre-trial conference, plaintiffs did not mention these expenses in its memorandum. This was in contravention of the local rule of court, Bucks Co. R.C.P. *212 requiring such a memorandum to contain “a specification of all damages claimed.” Under the circumstances, I do not believe the trial judge abused his discretion in refusing this late offer of bills unmentioned in any of the foregoing proceedings.

Finally, appellants contend that the trial court erred in allowing the introduction of employment records by a witness who was not the records custodian. The Uniform Business Records as Evidence Act, 28 P.S. §91 (b), permits the admission of business records, hearsay evidence, *371only “... if the custodian or other qualified witness testifies to its identity and the mode of its preparation .. (Emphasis added). The employer’s record custodian was not present at the trial. Instead, Miss Apt, who had been records custodian and personnel director at the time of Mrs. Poltorak’s employment, offered the records into evidence. I believe that on the basis of this witness’ prior experience and on the testimony given by this witness, such records were offered by a “qualified witness” within the meaning of the Act.

I do not believe that any of the specifically-ascribed trial court .rulings constituted reversible error. I do, however, find that the amount of the award, in light of the uncontradicted evidence, is patently and grossly inadequate.

Adequacy of the Verdict

Following brief outpatient treatment, Mrs. Poltorak returned home on the night of the accident in considerable pain. She spent the next two days in bed. When her condition did not improve, Mrs. Poltorak consulted her family physician, Dr. Doering, who observed a three to four-inch diameter bruise in the right lumbar area of her back and other bruises on her thigh. During the next few months, Dr. Doering saw his patient at regular intervals, and prescribed a Thomas Collar, medication, hot packs, physical therapy and outpatient traction. Because of continued pain in the neck, back and right extremities, Dr. Doering admitted Mrs. Poltorak to Holy Redeemer Hospital on May 29, 1967. She remained in the hospital until June 11, 1967, when she underwent extensive physiotherapy, pelvic traction and x-rays. After her discharge, she continued with out-patient traction and treatments with Dr. Doering for the next two months.

In August, 1967, concerned with indications of worsening pain and numbness, Dr. Doering referred Mrs. Poltorak to an orthopedic surgeon, who saw her on *372September 1, 1967. She was admitted to Holy Redeemer Hospital, where she underwent a hemilaminectomy at the L-5, S-l interspace.3 In early 1968, Mrs. Poltorak began to experience more pain in her leg, back and neck. She was readmitted to Holy Redeemer on May 28, 1968 for another myelogram, x-rays, physiotherapy and other tests. She was discharged on June 18, 1968, but because of continued pain and numbness, Mrs. Poltorak was admitted to Nazareth Hospital, on March 31, 1969. A consulting neurosurgeon identified nerve root irritation, and performed a discoidectomy removing disc material from the point of the irritation.

Following surgery, Mrs. Poltorak continued to see her physicians at six-week intervals up to the time of the trial. Mrs. Poltorak testified that on their advice she continued physical therapy and outpatient cervical traction. The pain in the affected area continued to the date of trial with severe pain in the instep of her right foot and cervical pain necessitating the wearing of a collar.

In the opinion of her orthopedic surgeon, Mrs. Poltorak’s condition would persist and worsen with time. The prognosis was continued medical attention with an eventual spinal fusion. The defendant’s expert witness, a physician who had examined the plaintiff on one occasion, testified that he found Mrs. Poltorak cured of her injuries. He stated that he neither anticipated any need for future medical care nor could find any reason why her disability would prevent gainful employment. He diagnosed plaintiff’s complaints as “psychogenic”.

Prior to the accident, Mrs. Poltorak, a 52-year-old woman, was a vibrant person, employed as an inspectress in charge of forty employees. Her health had been good, with no prior back, neck or leg problems. Her orthopedic surgeon testified that it was his opinion that her condition *373prevented his patient from carrying out her duties as an inspectress or supervisor since the job required prolonged walking and standing on her feet. He also stated that a sedentary job would not be possible either, since [m] echanically, she can’t stay at any fixed position for any length of time.”

In short, the testimony of expert witnesses on each side were in direct conflict. Since the testimony of the defendant’s medical witness was limited solely to his examination of the plaintiff prior to trial, and since the diagnosis concerned only his opinion of her present and future condition, no contradictory evidence was present to rebut the serious injuries and disabilities suffered by the plaintiff from the date of the accident until the date of trial. In the face of the dismal predictions of plaintiff’s continuing disability, the jury was certainly within its power to disbelieve the plaintiff and her witnesses and choose to believe the optimistic report of the defendant’s expert. This would account for the failure of the jury to award a substantial verdict for future loss of earnings, medical expenses, and pain and suffering.

There is, however, no basis upon which the jury could ignore the history of this plaintiff from the date of the accident until the trial. Her prior good health and work experience glaringly differed from the debilitated, injury-ridden woman that had to be admitted to hospitals for extended in-patient treatment and major surgery on three occasions during the three years following the accident. Her inability to work during this period of time was unchallenged.

What then may be seen as the “admitted” damages suffered by the wife-plaintiff as a result of this accident? Even discounting an amount for future damages, Mrs. Poltorak was entitled to compensation for her lost wages and for pain and suffering associated with her condition. At time of trial, plaintiff had been unable to work for nearly four and one-half years. Her earnings had been *374approximately $4,500.00 a year, or about $20,000.00. Although the verdict against her husband prevented the recovery of the medical expenses incurred to date of trial and received in evidence ($5,988.95), she was certainly entitled to a considerable amount for pain and suffering as compensation for the trauma to her psyche and for the ordeal of repeated hospitalizations and involved surgery. The verdict of $15,000.00 does not even compensate the plaintiff for her lost wages. It ignores entirely any claims for future loss. I believe, under the circumstances, that the verdict was inadequate and that the “injustice of the verdict stand [s] forth like a beacon.” Elza v. Chovan, 396 Pa. 112, 152 A.2d 238 (1959).

I am not unmindful of our duty to proceed with great caution in reviewing the action of the trial court which refuses a new trial on the ground of inadequacy. Austin v. Harnish, 227 Pa. Superior Ct. 199, 323 A.2d 871 (1974). As we said in Rhoades v. Wolf, 207 Pa. Superior Ct. 104, 107, 215 A.2d 332 (1965): “A verdict in an action for a personal tort may be set aside as inadequate when, and only when, it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or the jury disregarded the instructions of the court, or where there was a vital misapprehension or mistake on the part of the jury, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by plaintiffs, or where the award is so inadequate that it should not be permitted to stand, or where otherwise there has been an evident failure of justice to the plaintiff.” (Emphasis added).

While there is nothing in the record to indicate passion or prejudice on the part of the jurors, I am unable to conclude that the verdict bears a reasonable relation to the uncontradicted evidence of plaintiff’s condition following the accident. Furthermore, even should the maladies complained of by Mrs. Poltorak at the time of trial be “psychogenic”, some compensation should have *375been awarded for the psychological and emotional injury to the plaintiff as a result of the accident. See, Mapp v. Philadelphia, 215 Pa. Superior Ct. 101, 257 A.2d 306 (1969)). In light of the disabling spinal injuries and the extensive surgery involved in this case, I would set aside the verdict on the grounds of inadequacy.4 Since I believe that the verdict of the jury on the issue of liability was properly justified, I would reverse and remand the case for a new trial limited to damages alone. See Troncatti v. Smereczniak, 428 Pa. 7, 235 A.2d 345 (1967).

Cercone, J., joins in this dissenting opinion.

. It was brought out on cross-examination that Mr. Poltorak, in an earlier deposition, had stated that the car stalled when it “hit a snow bank or something.”

. A combined verdict of $800.00 for minor plaintiffs was not appealed.

. A hemilaminectomy is defined as the surgical removal of half of the posterior arch of a vertebra in the spinal column.

. In Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A. 2d 259 (1963), our Supreme Court held that a verdict of $16,000.00 for similar spinal injuries was inadequate, even though the amount fully reimbursed the plaintiff for her wage loss and medical expenses. The failure to award significant damages for pain and suffering appears to have been the underlying consideration in the Court’s decision to remand the matter for a new trial.