Diggs v. Lail, 5083

• Citation: 114 S.E.2d 743,201 Va. 871
• Decision Date: 13 June 1960
• Docket Number: No. 5083,5083
• Court: Supreme Court of Virginia
• Parties: ALLEN REED DIGGS v. MILDRED ELIZABETH BOYD LAIL. Record

Page 743

114 S.E.2d 743

201 Va. 871

ALLEN REED DIGGS v. MILDRED ELIZABETH BOYD LAIL.

Record No. 5083.

Supreme Court of Appeals of Virginia

June 13, 1960.

G. Kenneth Miller (John G. May, Jr., on brief), for the plaintiff in error.

Israel Steingold, for the defendant in error.

JUDGE: EGGLESTON

EGGLESTON, C.J., delivered the opinion of the court.

Mildred Elizabeth Boyd Lail, sometimes hereinafter called the plaintiff, while riding as a passenger in a car driven by Allen Reed Diggs, sometimes hereinafter called the defendant, was injured when that vehicle ran into the rear of another owned by Producers Cooperative Exchange, Inc., and driven by Harry H. Holmes. At the time of the collision the Porducers vehicle was following another driven by Robert C. Hatchett, Jr., and each of the vehicles except that driven by Diggs had stopped in a line of traffic. To recover damages for her injuries Mrs. Lail filed an action at law against Diggs, the Producers Cooperative Exchange, Inc., Holmes and Hatchett. During the trial she took a nonsuit as to all of the defendants, except Diggs, against whom she recovered a verdict and judgment of $35,000. Diggs has appealed claiming, (1) the evidence is insufficient to sustain the verdict and judgment against him; (2) the lower court erred in not withdrawing from the jury the consideration of the plaintiff's alleged mental 'depression' or 'changes of mood' as an element of her damages; (3) the court erred in its rulings on the instructions to the jury; and (4) the court erred in permitting counsel for the plaintiff to make an improper argument to the jury.

The accident occurred on June 26, 1957, about 3:20 p.m., near the intersection of Main and North Seventeenth streets in the city of Richmond. The three vehicles mentioned were in a line of heavy traffic which had been moving at a slow pace westwardly along Main street. Just before the collision the line of traffic had come to a stop because of a traffic light ahead. Diggs, failing to observe that the Producers vehicle had stopped ahead of him, did not apply his brakes in time to prevent his car from running into the rear of that vehicle.

At the time of the accident Diggs, who is an employee of the American Tobacco Company, had as passengers in his car five women including the plaintiff who were likewise employees of that company. For some time prior to this occurrence Diggs had customarily transported these passengers to and from their work each day. For this service each of the passengers gave him the equivalent of her bus fare and he accepted these payments as such.

According to the evidence for the plaintiff, just before the impact Diggs had taken his eyes from the street ahead, partly turned in his seat, and was talking to the passengers in the rear. Drema Compton, one of the passengers on the front seat, noting that Diggs had failed to observe that the Producers vehicle had stopped, exclaimed three times, 'Look out!' After the third warning Diggs turned around and applied his brakes, but not in time to avoid the collision. Diggs admitted that just before the collision he had been talking to the passengers on the rear seat, but did not 'recall' having turned his head in that direction. He did not hear the warnings of the passenger.

Holmes, the driver of the Producers vehicle, testified that the force of the impact drove his vehicle ahead a distance of 14 feet into the rear of the Hatchett car. According to Diggs, his car came to a stop about four feet to the rear of the Producers vehicle. At any rate, the plaintiff, who was riding on the left rear seat, was thrown forward and her face struck the back of the front seat.

Immediately after the collision it was observed that the plaintiff had sustained 'a little blood blister' on her eyelid. While she was not rendered unconscious, she was upset and crying. She was taken to a hospital where she was given first-aid treatment and left within an hour or two. The next day she returned to the hospital complaining of a headache and upset stomach. She was admitted and remained at the hospital for 23 days under the care of Dr. Joseph F. Kell, Jr., a neurosurgeon. After an examination Dr. Kell found that she had suffered a 'mild cerebral concussion,' but no brain damage, and advised her to return to work.

The plaintiff testified that upon returning to work on August 12, she was 'confused,' unable to 'concentrate,' unable to do her work, and was sent home after one week. The company physician suggested that she return to Dr. Kell. When she learned that he was on vacation she consulted another physician who referred her to Dr. George S. Fultz, Jr., a psychiatrist at the Tucker Hospital, an institution specializing in nervous and neurological diseases. After treating the plaintiff over a period of six months Dr. Fultz found that she had 'no indication of any organic damage of her brain from the accident,' but that she had 'a reactive type of depression.' It was his opinion that while the accident had not 'caused' the condition, yet, he said, 'she was precipitated into a depression by the accident.' Further explaining, he said: 'I don't think the accident itself ever causes a depression. I think the threat to an individual's security afterwards -- the general shake-up in some individuals is enough of a stress for certain people that they will get depressed.' He defined a 'depression' as 'a psychiatric term applied to changes of mood.' Depressed persons, he said, 'lose interest; they simply can't function; they can't take care of themselves; they feel so badly, they are sick people.' It was the opinion of Dr. Fultz that the plaintiff would require an additional six months' treatment.

The plaintiff was referred by Dr. Fultz to Dr. Isadore S. Zfass, a psychiatrist and neurologist, who is a member of the staff of several hospitals in Richmond. Dr. Zfass saw the plaintiff a number of times between June 6, 1958, and the time of the trial which began on February 17 1959. He thus stated his conclusions:

'Well, my impression is that this patient has a post-traumatic syndrome, ¹ as manifested by the history of the head injury, with dazing, a concussion, with resultant recurrent headaches, dizziness, depression, anxiety, emotional instability, nightmares, memory impairment, 'blankout' spells; questionable neurological findings, vasomotor and autonomic nervous system changes, and electroencephalographic changes.

'It is my impression that this patient is still quite ill and will require intensified psychotherapeutic and rehabilitative measures. Hospitalization may be required in the future.'

In answer to a question from the court Dr. Zfass expressed the opinion that 'this trauma has produced such a severe disruption of her functioning, her personality, that twenty months after the accident she is still very ill,' and that he 'would not be too hopeful for any recovery.'

The plaintiff's brother and sister-in-law corroborated her testimony that at the time of the trial she was still confused, unable to do housework, and afraid to live alone in her apartment. After the plaintiff had testified that since the accident she had not lived at her apartment or spent any week ends there, and was unable to do her housework, the defendant introduced the testimony of two private investigators to the contrary. They testified that she had stayed at her apartment two week ends immediately prior to the trial, during which time she was doing household work and purchasing groceries. Their testimony was corroborated by moving pictures, the genuineness of which was not disputed. The plaintiff then returned to the stand and admitted that she had been staying at her apartment on some week ends and while there had been doing light housework.

On the merits the defendant does not question the sufficiency of the evidence to sustain the finding that he was negligent and that his negligence was a proximate cause of the accident. But, he says, the evidence further shows that the plaintiff was guilty of contributory negligence as a matter of law. His argument is that the basis of the plaintiff's claim is that he, Diggs, the driver, was negligent in turning his attention from the street ahead and engaging in conversation with the passengers on the rear seat, and that according to the plaintiff's own testimony she observed this and yet failed to warn him of the impending danger.

It is, of course, true that when a passenger has observed a dangerous situation of which the driver is apparently unconscious, it is the passenger's duty, if he is so situated that he can readily do so, to call the driver's attention to it; and if he fails to do so and is injured as a result of such failure, he is guilty of negligence. Remine v. Whited, 180 Va. 1, 8, 21 S.E.2d 743, 746; Steele v. Crocker, 191 Va. 873, 883, 62 S.E.2d 850, 855. But, as we pointed out in Atlantic Coast Line R. Co. v. Withers, 192 Va. 493, 509, 65 S.E.2d 654, 662, the...