Alldread v. Bailey, 91-CA-0355

• Decision Date: 21 October 1993
• Docket Number: No. 91-CA-0355,91-CA-0355
• Citation: 626 So.2d 99
• Parties: Robert S. ALLDREAD v. Thomas H. BAILEY.
• Court: Mississippi Supreme Court

Page 99

626 So.2d 99

Robert S. ALLDREAD v. Thomas H. BAILEY.

No. 91-CA-0355.

Supreme Court of Mississippi.

Oct. 21, 1993.

Roy O. Parker, Jr., Tupelo, for appellant.

James B. Floyd, III, Tupelo, for appellee.

Before HAWKINS, C.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.

SMITH, Justice, for the court:

An automobile accident occurred in June, 1989, between Mrs. Sherry Alldread, wife of the appellant, and Thomas H. Bailey. The cause was tried in the Lee County Circuit Court on Mrs. Alldread's negligence claim and a derivative claim of Mr. Alldread, for damages for loss of consortium. The jury returned a verdict in favor of Mrs. Alldread and awarded damages of $20,000 based on Bailey's negligence in causing the accident. Simultaneously, the jury rendered a verdict denying Mr. Alldread's claim for loss of consortium damages. The trial court overruled Mr. Alldread's Motion for JNOV or, in the alternative, a New Trial. Feeling aggrieved, Mr. Alldread appeals to this Court requesting a review of whether a jury determination of liability against a defendant causing personal injuries to a wife is binding against the same defendant regarding the claim of loss of consortium by the wife's husband.

STATEMENT OF THE FACTS

At trial, the testimony indicated Mrs. Alldread operating an automobile in the inside lane of traffic, was stopped and waiting to make a left turn when she was struck from behind by an automobile driven by Bailey. Mrs. Alldread stated that she was thrown forward and backwards from the impact; her head hit the windshield and her body came back. She stated the impact was "very hard."

After the accident, Mrs. Alldread, believing she was not seriously injured, returned to work. Although her head and neck hurt, she decided to wait until after work to visit an emergency room. After an examination and x-rays, the doctor prescribed "pain pills and muscle relaxers." It was twenty-one days later before Mrs. Alldread visited a second doctor for her continued headaches and neck pains, and an additional twenty-four days passed before she returned for a second visit. She further testified that she was slowly improving and that her condition varied, depending Mrs. Alldread testified her family was "just a normal family" prior to the accident. She stated that they would go to the park together or go fishing, and she and her husband played racquetball and walked. She testified she did the majority of the household duties. After the accident, she was able to do housework, but normally did not do anything that required a lot of stooping and bending. She stated that after the accident her husband and children did most of the housework. In discussing her sexual relations, Mrs. Alldread stated that prior to the accident, she and her husband had relations two or three times a week; however, since the accident, they had sexual relations once a month or less. She stated she no longer plays racquetball.

on the "tension and stress" she encountered at work.

On cross-examination, Mrs. Alldread testified that X-rays taken after the accident revealed no broken bones and no evidence of torn muscles or ligaments. No hospital stay was ever necessary. She agreed that neither physical therapy, surgery, nor absence from work was recommended, and she was not referred to a chiropractor. She admitted to a previous injury, a "bruised back," sustained in 1988 from falling out a door and onto concrete steps. She testified to experiencing headaches prior to the accident. She admitted working a second job at Hickory Farms after the accident. She blamed the decrease in frequency of sexual relations on the accident, and not aging or decreased desires. She stated she and her husband did not garden or mow their own lawn together. Mrs. Alldread stated she had not taken pain medication prescribed by a medical doctor during the past eighteen months prior to trial. She stated that she had not missed any days from work.

Mrs. Alldread visited a total of five doctors, four of whom prescribed pain pills or muscle relaxers. Dr. Forrest Tutor, neurosurgeon, prescribed a tranquilizer and a pain pill and requested she return in two weeks. However, Mrs. Alldread did not make the return visit to the doctor because she did not feel that taking tranquilizers would help her, and she had to take care of her household. Dr. Tutor, Dr. Malcolm Moore, and Dr. William Gary, testified by deposition. Their testimonies were substantially similar. Dr. Gary reported that an MRI performed four months following the accident was "normal." The diagnosis of all three doctors was that Mrs. Alldread had sustained a mild muscle strain of the neck which normally heals itself within approximately four months. Regarding Mrs. Alldread's complaint of headaches, the doctors stated they were muscle tension headaches, which can be caused by traumatic injury, but are more commonly attributable to anxiety and tension. The doctors agreed there was no evidence of a permanent injury, and none recommended surgery, physical therapy, time off from work, or chiropractic treatment.

Dr. Darrell M. Blain, D.C., testified as an expert chiropractor. He first examined Mrs. Alldread in December, 1989, approximately six months after the accident. He diagnosed Mrs. Alldread as having cervical cranial and cervical brachial syndrome, and mild fibrositis, which he attributed to muscle spasms not being treated promptly, and thereafter the "spasms end up deteriorating the areas and fibrous tissues replace normal tissue." Also, he diagnosed "grade III extension side neuralgia," or pain running down the legs and into the calf region.

Dr. Blain concluded Mrs. Alldread's injuries were caused by the accident, and he was of the opinion that she would probably suffer periodic problems for the rest of her life, in varying degrees. His records revealed he had seen Mrs. Alldread for approximately 129 office visits in a period of one year and that his reported bill for services rendered was $11,560.00. Dr. Blain felt Mrs. Alldread would require continued treatment in the years to come.

Appellant, Steve Alldread, testified to his wife's changed condition since the accident. He stated they were a "normal, happy family" who did activities together prior to the accident. He described a "dramatic change" in his wife after the accident: She was not able to do things with the children she did before, she performed very fewer domestic duties, and her personality had "changed completely." He described his prior sexual Mr. Alldread appeals to this Court and presents one issue for discussion:

                relations with his wife as "very enjoyable, very pleasurable, very frequent," as opposed to their current status of "very little, if any."   Mr. Alldread admitted on cross-examination, however, that about four weeks after the accident the family took a vacation to Florida
                

I. WHETHER THE DETERMINATION OF LIABILITY AGAINST A DEFENDANT FOR CAUSING PERSONAL INJURIES TO A WIFE IS BINDING AGAINST THE SAME DEFENDANT REGARDING THE CLAIM BY THE WIFE'S HUSBAND FOR LOSS OF CONSORTIUM.

DISCUSSION OF ISSUES AND LAW

This court clearly stated in Fitzner Pontiac-Buick-Cadillac v. Smith, 523 So.2d 324 (Miss.1988):

Our scope of review in such contexts is as limited as it is familiar. We consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand, if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors i the exercise of impartial judgment might have reached different conclusions, affirmance is required.

Id. at 326.

Because of the jury verdict in favor of the appellee, this Court resolves all conflicts in the evidence in his favor. This Court also draws in the appellee's favor all reasonable inferences which flow from the testimony given. City of Jackson v. Locklar, 431 So.2d 475, 477 (Miss.1983).

Bailey disagrees with Mr. Alldread's phrasing of the issue before this Court. Bailey frames the issue as whether the jury could find for Mrs. Alldread on the liability issue, but simultaneously fail to find for Mr. Alldread, not persuaded that he suffered a "true consortium loss." The real issue for our consideration is whether the verdict is against the overwhelming weight of the evidence and credible testimony and therefore should be set aside. Alldread argues the Court should reverse and order a new trial on the issue of damages only.

Alldread argues first that "to prevent inconsistent results, if the...