Doe v. Binker

• Decision Date: 28 February 1985
• Docket Number: No. 82-1632.,No. 82-1255.,No. 82-1256.,No. 82-1631.,82-1255.,82-1256.,82-1631.,82-1632.
• Citation: 492 A.2d 857
• Parties: John DOE, c/o National Union Fire Insurance Co., c/o Travelers Indemnity Co., Appellant, v. Bonnie L. BINKER, et al., Appellees. Bonnie L. BINKER, et al., Appellants, v. John DOE, et al., Appellees.
• Court: D.C. Court of Appeals

Page 857

492 A.2d 857

John DOE, c/o National Union Fire Insurance Co., c/o Travelers Indemnity Co., Appellant, v. Bonnie L. BINKER, et al., Appellees.

Bonnie L. BINKER, et al., Appellants, v. John DOE, et al., Appellees.

No. 82-1255.

No. 82-1256.

No. 82-1631.

No. 82-1632.

District of Columbia Court of Appeals.

Argued October 10, 1984.

Decided February 28, 1985.

Charles E. Gallagher, Jr., Alexandria, Va., with whom William B. Spellbring, Jr., Upper Marlboro, Md., was on the briefs, for John Doe, c/o National Union Fire Insurance Co.

David P. Durbin, Washington, D.C., with whom Dwight D. Murray, Washington D.C., was on the brief, for John Doe, c/o Travelers Indemnity Co.

William T. Freyvogel, Arlington, Va., with whom John M. Clifford, Washington, D.C., was on the briefs, for Bonnie L. Binker, et al.

Gary Ulmer, Washington, D.C., with whom William R. Scanlin, Washington, D.C., was on the brief, for Donald Peden.

Before PRYOR, Chief Judge, and NEW-MAN and ROGERS, Associate Judges.

PRYOR, Chief Judge:

Bonnie L. Binker as administratrix of the estate of her husband, Carl W. Binker, Jr., brought suit under the D.C. Wrongful Death Act (D.C.Code § 16-2701 (1981)), and the D.C. Survival Act (id. § 12-101), against an unidentified motorist, John Doe, whose alleged negligence caused the death of Mr. Binker in an automobile collision. At the time of his death, Mr. Binker was covered by two automobile liability insurance policies, one issued by the National Union Fire Insurance Company (hereinafter National Union) and one issued by the Travelers Indemnity Company (hereinafter Travelers). Both contained uninsured motorist provisions.¹ Pursuant to these provisions, since John Doe was alleged to be unknown and uninsured, National Union and Travelers were potentially liable to Mr. Binker. Accordingly, they defended John Doe at trial. Travelers filed a third-party complaint against Donald E. Peden, the driver of a third automobile involved in the accident. The jury returned a verdict for Mr. Peden on the third-party complaint.² It also returned a verdict for the plaintiffs under both the wrongful death and survival statutes. The defendants then moved for judgment n.o.v. and a new trial or in the alternative a remittitur. The trial court denied the motions for judgment n.o.v. It denied the motion for a new trial, provided that plaintiffs accept a remittitur, reducing the jury verdict under the wrongful death statute from $200,000 to $120,000. Plaintiffs accepted the remittitur. These cross-appeals followed.

I

On the evening of September 5, 1979, Carl W. Binker, Jr., a thirty-seven year old delivery route manager employed by the Washington Star newspaper, was killed in an automobile accident on the Fourteenth Street Bridge in the District of Columbia. At the time of the accident, Mr. Binker was returning to the Washington Star building in the District of Columbia after completing his newspaper deliveries in Northern Virginia. Mr. Binker was driving a truck owned by the Washington Star and was accompanied by a fifteen year old "jumper," Leon Towell.

According to Mr. Towell's testimony, as Mr. Binker and he approached the bridge at approximately 6:30 p.m., it was raining very hard, there were high winds, and visibility was poor. Because of the weather conditions, Mr. Binker had turned on the truck's headlights, windshield wipers and defroster, and was driving at a reduced speed. Upon entering the bridge, Mr. Binker was traveling in the second lane from the left of the bridge's four lanes. Mr. Towell testified that he saw a small Toyota truck approximately twenty-five feet ahead stopped in their lane of traffic. The truck did not have on its lights or emergency flashers. Mr. Towell testified that he shouted "watch out." Mr. Binker immediately swerved his vehicle into the left lane, which was clear of traffic, but he could not control the truck, which hit the left side of the bridge's concrete guard rail. Mr. Binker's vehicle traveled some distance along the guard rail and then swerved back toward the center lanes of the bridge. As the truck swerved, it began to tip over onto two wheels. Traveling on only two wheels, the truck crossed over four lanes of traffic, fell onto its left side and slid into the right side of the bridge. According to testimony at trial, the truck traveled approximately 98 feet from the first point of impact to the point at which it came to a stop. Almost immediately after the truck stopped at the right guard rail it was struck by an automobile driven by Mr. Donald Peden. Mr. Peden's automobile apparently struck the truck's exposed gas tank, causing the truck to burst into flames. Mr. Towell managed to climb out of the burning truck but Mr. Binker, who was pinned underneath the vehicle, was unable to escape and died as a result of his injuries.

Dr. Rak Woon Kim, Deputy Medical Examiner for the District of Columbia, performed the autopsy. Dr. Kim testified at trial that Mr. Binker died as a result of multiple fractures, and internal injuries resulting from both the fractures and extensive body burns. He testified that death was almost, though not, immediate.

The jury awarded a total of $200,000 under the wrongful death statute³ to Mrs. Binker and to Mr. Binker's three daughters. It also awarded Mr. Binker's estate $200,000 under the survival statute.

On appeal, National Union and Travelers claim that the trial court erred in allowing the jury to consider pain and suffering as a measure of damages under the survival statute and that they are, accordingly, entitled to a new trial. Mrs. Binker has crossappealed, seeking to reinstate the full jury verdict in the wrongful death claim. She asserts that the trial court erred in granting defendant's motion for a remittitur.

II

A.

At trial, National Union and Travelers moved for a directed verdict on the issue of pain and suffering, which the trial court denied. The basis for their motion, and their claim on appeal, is that Mrs. Binker did not establish by substantial evidence that Mr. Binker endured "conscious pain and suffering." They argue that it is a well accepted rule that conscious pain and suffering as opposed to just pain and suffering must be shown before the jury may be allowed to consider this issue as an element of damages under the survival statute.

The issue of damages in a wrongful death or survival action, as in other actions, is particularly within the province of the jury. Notwithstanding the jury's broad discretion in assessing damages, there must be substantial evidence upon which the award is predicated. See 2 S. SPEISER, RECOVERY FOR WRONGFUL DEATH § 9:2 (1975). To be substantial, the evidence must be more than a "scintilla," but it "need not point entirely in one direction." Baltimore & O.R. Co. v. Postom, 85 U.S. App.D.C. 207, 209, 177 F.2d 53, 55 (1949).

Accordingly, on the issue of pain and suffering as an element of damages under the survival statute, a directed verdict is only proper where "the evidence is so clear that reasonable men could reach but one conclusion." Corley v. BP Oil Corp., 402 A.2d 1258, 1263 (D.C.1979) (quoting Bauman v. Sragow, 308 A.2d 243, 244 (D.C.1973)). Where there is conflicting evidence that conflict must be resolved by the jury, id. at 1263; Baltimore & O.R. Co. v. Postom, supra, 85 U.S.App.D.C. at 208, 177 F.2d at 54, however, the jury may not be left to merely speculate about the evidence. See Rule v. Bennett, 219 A.2d 491, 494 (D.C.1966); cf. Edison v. Scott, 388 A.2d 1239, 1241 (D.C.1978).

We recognize that in many courts a plaintiff bears the burden of proving that the decedent underwent "conscious" pain and suffering before that element of damages will be allowed to be considered by the jury. See, e.g., St. Louis, Iron Mountain & Southern Railway Co. v. Craft, 237 U.S. 648, 35 S.Ct. 704, 59 L.Ed. 1160 (1915); Dugal v. Commercial Standard Insurance Co., 456 F.Supp. 290, 292 (W.D. Ark.1978); Intelisano v. Greenwell, 155 Conn. 436, 232 A.2d 490, 494 (1967); Ory v. Libersky, 40 Md.App. 151, 389 A.2d 922, 928 (1978); see also 3 M. MINZER, DAMAGES IN TORT ACTIONS § 21-10 et seq. (1982); 2 S. SPEISER, supra, § 14.10 et seq. The courts, however, differ considerably over the type and amount of evidence, which the plaintiff must introduce on the issue of the decedent's "consciousness," to satisfy this burden. See 3 M. MINZER, supra, § 21.11[2]; 2 S. SPEISER, supra, § 14.12.

Understanding that circumstantial evidence, by its nature, is probative in varying degrees, we differ with our dissenting colleague and decline to accept appellant's assertion of insufficiency which in effect would require direct evidence on this issue as contrasted to circumstantial evidence. As in other areas, circumstantial evidence may be sufficient to establish a case for the jury. In fact, in survival actions, the circumstances surrounding an accident often preclude the introduction of direct evidence of consciousness or of pain and suffering. 3 M. MINZER, supra, § 21.11[3]. Thus, courts have held that the existence of conscious pain and suffering may be inferred from the nature of the decedent's injuries or the circumstances surrounding death. Id.; see In re Sincere Navigation Corp., 329 F.Supp. 652 (E.D.La.1971), modified on other grounds, 529 F.2d 744 (5th Cir.1976). For example, in cases where the decedent died by drowning or burning, an inference of conscious pain and suffering has often been permitted. 3 M. MINZER, supra, § 21.11[3]; see, e.g., Campbell v. Romanos, 346 Mass. 361, 365, 191 N.E.2d 764, 768 (1963).

Upon our review of the trial record, we find there was substantial circumstantial evidence presented on the issue of pain and suffering, from which the jury could draw reasonable inferences. Among other things, the jury heard testimony from Dr. Kim about the cause of Mr. Binker's death, as well as eyewitness accounts of the moments immediately before and after the fatal accident. In light of these...