Alexander v. Knight

• Decision Date: 16 January 1962
• Citation: 177 A.2d 142,197 Pa.Super. 79
• Parties: Vincent ALEXANDER and Frances Alexander, his Wife and Michael Alexander and Rose Alexander, his wife, v. Arthur E. KNIGHT, Appellant.
• Court: Pennsylvania Superior Court

Page 142

177 A.2d 142

197 Pa.Super. 79

Vincent ALEXANDER and Frances Alexander, his Wife and Michael Alexander and Rose Alexander, his wife, v. Arthur E. KNIGHT, Appellant.

Superior Court of Pennsylvania.

Jan. 16, 1962.

Max E. Cohen, Charles L. Ford, Philadelphia, for appellant.

Edward W. Furia, Furia & DiCintio, Philadelphia, for appellee.

Before ERVIN, Acting P. J., and WRIGHT, WOODSIDE, WATKINS, MONTGOMERY and FLOOD, JJ.

PER CURIAM.

The order of the Court of Common Pleas No. 3 of Philadelphia County is affirmed on the opinion of Judge Charles A. Waters for the court below.

RHODES, President Judge, absent.

The opinion of Judge Charles A. Waters follows:

The defendant has appealed from the order of this court granting a new trial on plaintiffs' motion. This trespass action arose out of an automobile accident which occurred at about 8:30 o'clock p. m. on July 26, 1957, in Philadelphia. The jury rendered verdicts in favor of all plaintiffs against the defendant in the following amounts: for Vincent Alexander in the sum of $752 which the jury stated represented $25 for his own medical bill and $727 for his wife's medical bills; for Frances Alexander in the sum of $1,000 which the jury stated represented $800 for loss of earnings and $200 for pain and suffering; for Rose Alexander in the sum of $30 and for Michael Alexander in the sum of $25. The parties are referred to by first name for convenience of reference. The new trial was granted because of verdict inadequacy.

At the time of the accident Vincent was dirving his automobile in a northerly direction on Broad Street approaching Allegheny Avenue. His wife, Frances, and his mother, Rose, were in the front seat with him; Frances was seated next to him. Michael was not in the car. The plaintiffs' version of the accident was to the effect that defendant's car struck their car in the rear after they had waited for a traffic light to change; that the collision drove their car forward about 20 to 25 feet. The defendant was also driving his car in a northerly direction with four members of his family in the car. The defendant's version of the accident was to the effect that he was driving about two car lengths behind plaintiffs' car; that the brakes were suddenly jammed on in the Alexander car and he also applied his brakes and 'just slid into him and kissed his bumper with my car.' The defendant testified neither car moved after the impact and that neither car was damaged. The plaintiff testified that all that he could see was that the bumper was banged in a little, the trunk was sprung and above the gas tank it was sprung. After the accident the police would not move Frances and they took her directly to the hospital.

Rose Alexander sprained her wrist and hurt her shoulder in the accident. She was treated by Dr. Napoleon for a period of about five weeks. She received heat and electric treatments. She testified that she had pain for about six or seven weeks which decreased with treatment. She lost three days of work as a hand sewer, doing piecework, at which she averaged about $90 per week.

Dr. John Napoleon testified on behalf of Rose Alexander to the effect that he first examined her on July 27, 1957, and found that she suffered shock and trauma to her right shoulder and right wrist. He gave her medication for pain, sedation, and diathermy to her shoulder and wrist. He saw her five times and his bill was $25.

Vincent Alexander, the owner-operator of the plaintiff car was awarded only $25. This was the amount of his medical bill. The uncontradicted testimony established that he was treated for injury to his shoulders and back for a period of one month following the accident; that he suffered pain for a period of five or six weeks or a little longer; that he received diathermy treatments. The verdict obviously returned to him only the amount of his medical bill and no allowance was made for pain and suffering. The uncontradicted testimony also established damage to the car in the sum of $233.38 which was paid for by his insurance company. The Accident Investigation Division officers testified that they observed only a small dent on the front bumper of the Knight car and no visible damage or scrapes on the Alexander car. Dr. Napolen testified that he examined him on July 27, 1957, and found nervousness, pain in the shoulders and the lower spine. He gave him medication for pain and nervousness and diathermy. He saw him on six occasions and his bill was $25. Finally the jury allowed nothing to Vincent for loss of consortium, though it is a proper item of damage.

Immediately after the accident Frances Alexander was hospitalized at Temple University Hospital from July 26, 1957 to August 18, 1957, at a cost of $495. At the hospital she came under the care of Dr. John W. Lachman. She had pain across her shoulders, down her back and down her legs, and was given drugs to alleviate the pain; she had severe headaches. At the hospital her neck and legs were placed in traction; she was in neck traction for about a week and in leg traction about twenty-two days. After the neck traction she was given a neck cast which she wore about six months. After she left the hospital she remained in bed at home for several weeks. After she returned home she came under the care of Dr. Benjamin Serota. She began wearing a surgical brace which she was still using at the time of trial. From December 18, 1957, to April 1958, she received physiotherapy treatment which cost $270. On May 4, 1958, she was hospitalized again until May 31, 1958. The second hospital bill was $442.70. She had pain in her lower back and legs and numbness in her left side. At the hospital a body cast was applied which she wore for six months.

At the time of the accident she had been employed in a book binding establishment earning $53.63 per week; she had been so employed for a period of nine years. She was out of work, after the accident, for a period of sixteen months.

Dr. Lachman testified that when he first saw Frances on the evening of the accident at the accident dispensary she complained of pain and stiffness in her neck; she didn't want to move her neck because it hurt and she stated that she had been involved in an automobile accident. Objective examination showed stiffness in the neck which she did not move because of pain. She was that day placed in neck and bilateral leg traction and given sedation to control pain. A Thomas collar, that is a plaster of paris collar, that extended from chin to chest was placed on her neck. She was instructed on November 6, 1957, to gradually discard the collar, but was still wearing it in December when riding in an automobile. Dr. Lachman stated that the plaintiff sustained a whip-lash injury as a result of the accident; that in his opinion 'the problem which she had of pain and stiffness in her back, pain in her low back, nervousness, was a result of her accident.'

After she was discharged on August 18, 1957, he saw her again on October 4th. She still complained of pain and he found about 50% limitation of motion and stiffness of the lumbar spine. He described his subsequent treatment up to April 29, 1958, at which time he advised her she would have to be readmitted to the hospital. He described her hospital treatment and subsequent post-hospital treatment and stated, 'At no time was she ever completely free of pain. And at no time did she ever have completely normal back motion.'

On cross-examination Dr. Lachman testified that the patient's injury was prolonged by emotional problems. He testified that in whip-lash cases emotional problems cause the pain to last longer; but that this did not mean that the pain was not real. He stated there was no question whatsoever but that she had pain. He testified that every time he observed a whip-lash injury it dragged on just as Mrs. Alexander's did; that he felt that doctors have simply not been smart enough to find the cause of pain in whip-lash injury; that 'nobody would go through what she has gone through in the way of treatment if she didn't have pain.' Dr. Lachman called in and consulted Dr. Murtagh, a neurosurgeon, Dr. O. Eugene Baum, a psychiatrist and Dr. Robert Bucher, a general surgeon.

Mr. Joseph Bruno, a physical therapist, testified as to the course of physical therapy which he gave to Frances at Dr. Lachman's instruction, consisting of fifty-four treatments from December 18, 1957, to April 30, 1958.

Dr. Benjamin Serota also testified on plaintiff's behalf. He was her regular or family physician since 1951. He commenced treating her on August 22, 1957, after her release from the hospital on August 18th. He described her symptoms and history and gave his diagnosis as whip-lash injury of the cervico-dorsal area. On cross-examination and upon inspection of the doctor's card it was elicited that plaintiff was 'in another auto accident' and 'suffered a whiplash injury of the cervico-dorsal area again,' on September 5, 1958, after her second hospitalization and two years after the first accident.

Dr. Frederick Murtagh, a neurosurgeon, examined Frances at the request of Dr. Lachman. He testified as to the history elicited and the results of his examination. He concluded that she sustained a moderately severe whip-lash injury or musculocutaneous injury of the neck and spine; that she had a very pronounced response of the muscles with marked spasm. He also was of the opinion that there was a marked hysterical element present, which was more severe because the patient was basically emotionally unstable. He testified that emotional instability perpetuates the symptoms of a whip-lash injury over a long period of time.

Dr. Murtagh testified that he signed a report of April 25, 1960 for a Dr. William J. Ezickson wherein he stated, inter alia, 'It is my opinion there was...