Cope v. Sevigny

• Decision Date: 04 April 1972
• Citation: 289 A.2d 682
• Parties: Arthur COPE v. Ronnie SEVIGNY d/b/a Ronnie's Cleaning Service.
• Court: Maine Supreme Court

Page 682

289 A.2d 682

Arthur COPE v. Ronnie SEVIGNY d/b/a Ronnie's Cleaning Service.

Supreme Judicial Court of Maine.

April 4, 1972.

Julian G. Hubbard, Seymour Nathanson, Portland, for plaintiff.

Mahoney, Desmond, Robinson & Mahoney, by Lawrence P. Mahoney, Portland, for defendant.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY, WERNICK and ARCHIBALD, JJ.

WERNICK, Justice.

In this civil action, seeking damages for injuries alleged to have been sustained as the result of a collision between motor vehicles, a jury trial was held. The legal liability of the defendant was admitted and the only issue for jury determination was the amount of damages to be assessed.

The jury returned a verdict of $2,632.95, an amount deemed by plaintiff to be inadequate. Plaintiff, therefore, moved before the presiding Justice for a new trial, defendant first to be afforded 'opportunity to accept an addition to the verdict of such amount as the court judges to be reasonable' (an 'additur'). Rule 59(a) M.R.C.P. The presiding Justice denied the motion. Judgment for the plaintiff was entered upon the verdict of the jury.

Plaintiff has appealed to this Court from the judgment. He claims reversible error in three basic aspects: (1) the refusal of the presiding Justice to grant the motion for a new trial (or 'additur'); (2) various evidentiary rulings by the presiding Justice; and (3) the denial by the presiding Justice of plaintiff's motion for a mistrial made after incidents and occurred relating to a 'Thomas Collar', so-called, and described in some of the evidence to have been worn by plaintiff in connection with his injuries.

The Denial of the Motion for a New Trial (or 'additur')

To sustain his claim of reversible error in the denial of the motion for new trial for inadequacy of damages plaintiff must establish that, the evidence being considered in the light most favorably in support of the verdict of the jury, Thompson v. Johnson, Me., 270 A.2d 879 (1970), the award is without rational explanation and, hence, is to be deemed a disregard by the jury of the evidence or the result passion, bias, prejudice, accident, mistake or improper compromise. Conroy v. Reid, 132 Me. 162, 168 A. 215 (1933); Johnson et al. v. Kreuzer, 147 Me. 206, 85 A.2d 179 (1951); Bergeron v. Allard, 152 Me. 297, 128 A.2d 848 (1957); Thompson v. Johnson, supra.

The jury was here concerned with an injury to plaintiff in the form of a neck strain, commonly known as a 'whiplash' type injury. It was caused by a sudden impact against the stopped automobile in which plaintiff was sitting when it was forcibly struck from the rear by another automobile.

The evidence discloses that plaintiff was entitled to medical expenses (including fees of physicians, diagnostic charges for x-rays and the like and the costs of pharmaceutical supplies and diathermy treatments) within a range deemed reasonable by the jury to a maximum of $1,076.70.

In addition to these special damages, plaintiff had claimed other special damages to compensate him for an impaired work capacity which plaintiff maintains had resulted, prior to the time of trial, in an actual loss of earnings. Plaintiff gave his own estimate of the dollar value of that impairment as the equivalent of approximately $150.00 per week for the period from January 30, 1967, the date of the collision, to December 16, 1969 (the first day of trial). He further contended that the diminished incapacity to work would continue into the indefinite future.

Confronted with an apparent discrepancy between his claim of actual loss of earnings and the fact that he had continued to receive the same amount of salary as had been paid to him prior to his injury (approximately $450.00 per week), plaintiff offered the explanation that (1) he was in fact absent from work on an average of approximately 1 1/2 hours per day, (2) when he was at work his work efficiency was reduced, and (3) his employer, a closed corporation owned in equal shares by three brothers one of whom was the plaintiff, was advancing to plaintiff as a loan the difference between his true work value to the employer ($300.00) and his prior salary ($450.00), plaintiff being 'impliedly obligated' to repay the moneys thus advanced.

No other witnesses testified, however, either as to an actual substantial loss of time by plaintiff from his work or in corroboration of the 'loan' arrangement.

Furthermore, the physicians who testified offered no opinions which related directly and explicitly to the impairment of plaintiff's ability to work. They offered evidence only of plaintiff's physical condition-i. e., motion limitations of the neck, muscle spasm and tenderness elicited from plaintiff (the last of these being a subjective response to specific types of palpation) all indicative of the existence, generally, of neck discomfort, and which might (and which plaintiff reported did) appear in varying degrees od intensity and periods of recurrence bearing a partial relationship to physical activity and nervous strees. The physicians failed, however, to state a correlation, if any, between these circumstances of plaintiff's physical condition and plaintiff's general ability, or inability, to perform the usual duties to his occupation.

With the evidence in this posture, it was uniquely for the jury to assess the credibility of the plaintiff and the weight to be given to his fundamentally uncorroborated description of his actual loss of time from work as well as the impairment in his work efficiency while he was at work-and as claimed by the plaintiff to have been caused by his injury. Especially if the jury was unwilling to give credence to the plaintiff's claim of a 'loan' arrangement, the jury was free to consider all of the testimony of plaintiff bearing upon his alleged loss of time and earnings and impaired capacity to work in the future as largely suspect and to be disregarded.

Under the principle that all rational intendments are to be taken in support of the jury verdict, the jury is deemed by us (in our assessment of the propriety of the denial of a motion for new trial for inadequate damages) to have found in fact that which was open to the jury rationally to determine. We proceed, therefore, on the premise that the jury decided that the plaintiff had sustained to (or insignificant) impairment of his capacity, or power, to perform the work incident to his usual occupation and, therefore, no (or insignificant) loss of time and earnings attributable to his injury.

On this basis, it becomes clear that in addition to the maximum of approximately $1,076.70 'specials' (for medical expenses) the total verdict of the jury (in the amount of $2,632.95) includes an award to the plaintiff for his pain and suffering, at minimum, of $1,556.25.

From the totality of the evidence we cannot say that such damages for pain and suffering are without rational foundation.

The jury was within its prerogative to evaluate the plaintiff's own testimony as to his pain and suffering in terms of the jury's general assessment of plaintiff's credibility. A conclusion by the jury (validly open to it, as we have already decided) that the plaintiff had continued to receive full pay because plaintiff, despite his injury, was in fact able to work, and did work, in manner and effectiveness substantially as before be sustained injury would support the further conclusion that plaintiff's pain and suffering we in fact markedly less severe than plaintiff had described it in this testimony.

The testimony of the physicians was reasonably consistent with such conclusion by the jury. A neurologist who examined plaintiff approximately two weeks after plaintiff had been injured testified that his examination revealed a fundamentally normal neurological picture. As an objective sign, he found some spasm localized in the trapezius muscle. He testified that plaintiff gave subjective complaints of tenderness in response to the application of pressure in the neck area just beneath the skull. The neurologist prescribed no treatment for plaintiff as the result of his examination.

A general practitioner, with considerable practicing experience in the field of industrial injuries, examined plaintiff, for the first time, approximately six weeks after the collision had occurred. He then found, as the only objective signs, spasm in the muscles controlling movements of the head and some limitations of neck motion. These objective signs were accompanied by plaintiffhs subjective statements of pain in response to palpation at the base of the neck, and the pain was described as radiating, with lesser intensity, into laterally adjacent areas.

The diagnosis was a 'whiplash' injury, taking the form of an acute strain of the ligaments and muscles of the cervical spine. Diathermy was prescribed, and muscle relaxants, as well as the gradual elimination of the 'Thomas collar' which plaintiff was already wearing when he first came to the general practitioner.

Subsequently, this physician saw plaintiff during a period of approximately one year and nine months. The evidence is unclear as to the frequency of the visits, indicating only that during approximately the first four months, there were many diathermy treatments and, thereafter, the visits gradually kept 'getting further apart' until during the last six months they were approximately once a month. The general practitioner testified that after the first few visite the 'gist' of the examinations made by him was that he would discuss with plaintiff his complaints and he would palpate the neck of plaintiff to see if he could elicit responses from plaintiff indicative of tender areas. While the testimony of the general practitioner describes subjective complaints by the plaintiff of tenderness or discomfort localized between the sixth and seventh cervical vertebrae as persisting over a long period, objective signs of injury are memtioned as having been found only...