Ellard v. Harvey

• Decision Date: 30 November 1976
• Docket Number: No. 13613,13613
• Citation: 159 W.Va. 871,231 S.E.2d 339
• Court: West Virginia Supreme Court
• Parties: Richard Lee ELLARD et al. v. Imogene Fay HARVEY et al.

Page 339

231 S.E.2d 339

159 W.Va. 871

Richard Lee ELLARD et al. v. Imogene Fay HARVEY et al.

No. 13613.

Supreme Court of Appeals of West Virginia.

Nov. 30, 1976.

Syllabus by the Court

1. A plaintiff may recover the cost of reasonable and necessary future medical and hospital services and for future pain and suffering where the evidence shows it is reasonably certain that such future expenses will be incurred and are proximately related to the negligence of the defendant.

2. 'In an action for damages, the plaintiff may recover for the loss or the impairment of the services and the society of his wife and of her capacity to engage in sexual intercourse, as elements of consortium, when it appears from the evidence that such loss or impairment results from injuries to his wife which are caused by the negligence of the defendant.' Syl. pt. 1, Shreve v. Faris, 144 W.Va. 819, 111 S.E.2d 169 (1959).

3. Where a verdict in a personal injury action is for an amount materially less than the evidence shows the appellant is entitled to recover or, where the verdict does not include compensation for all elements of damages which are uncontroverted or clearly shown by the evidence, it should be set aside as inadequate.

4. One claiming damages for loss of wages is not barred from recovering on the claim merely because he was paid in accordance with a sick leave policy or similar plan while away from work.

Walter W. Burton, Princeton, Wade H. Ballard, III, Peterstown, for appellants.

McDougle, Davis, Handlan & Davis, Joseph M. Handlan, Parkersburg, for appellees.

BERRY, Chief Justice:

This is an appeal by Richard Lee Ellard, Anna Catherine Ellard and Kathy Ann Ellard, who were plaintiffs in an action instituted in the Circuit Court of Jackson County to recover damages for personal injuries. The verdict of the jury and the judgment entered thereon were in favor of the plaintiffs and are attacked by them on the ground that the amount of damages awarded was inadequate.

On June 24, 1972, Richard Ellard, his wife, Anna Catherine Ellard, and their daughter, Kathy Ellard, sustained personal injuries when a truck driven by Mr. Ellard, in which his wife and daughter were riding, was struck by an automobile operated by Mrs. Imogene Fay Harvey. The accident occurred on State Route 3 in Raleigh County, West Virginia, when the automobile driven by Mrs. Harvey skidded off on the berm on a curve and then skidded across the road and struck the Ellard truck which was approaching the Harvey automobile from the opposite direction. As a consequence of the collision, the Ellards instituted a civil action in the Circuit Court of Jackson County against the defendants, Imogene Fay Harvey and Raymond Harvey, based on the alleged negligence of Mrs. Harvey. After the evidence was concluded at the trial, the circuit court directed a verdict in favor of the plaintiffs on the issue of liability, leaving only the question of the amount of damages for the jury to determine.

As a result of the accident, Richard Ellard suffered a laceration of his scalp approximately four inches in length and was diagnosed as having sustained a cerebral concussion. In addition, his injuries included a fractured rib and bruises to his chest and back. Mr. Ellard was hospitalized for a period of six days. Because of his injuries, Mr. Ellard was unable to work for approximately five weeks. During that period, he received sick leave benefits of $2,000, apparently the equivalent of his normal salary. Mr. Ellard claimed damages for his own injuries, pain and suffering, loss of earnings and for the medical and hospital expenses which he incurred by virtue of his injuries and those to his wife and daughter. Total hospital and medical expenses were stipulated at $4,500.

Mrs. Anna Catherine Ellard sustained a traumatic injury to her left kidney and left lung. In addition, she received a concussion and was bruised over her left chest and back. Mrs. Ellard was hospitalized for treatment as an inpatient from June 24th until July 13, 1972. On July 14, 1972, Mrs. Ellard was readmitted to the hospital suffering from thrombophlebitis of her left leg. This condition was diagnosed to be a result of having been confined to bed during recuperation from her injuries.

In addition to her physical injuries, Mrs. Ellard manifested a debilitating mental or emotional condition described as anxiety neurosis, severe/chronic and depressive neurosis, severe/chronic, following the automobile accident. While it appears that Mrs. Ellard previously exhibited some emotional distress as a result of the loss of immediate members of her family, the medical evidence presented at trial indicated that the emotional condition was directly and proximately related to the automobile accident, which event aggravated her pre-existing condition. It was the opinion of Dr. David M. Wayne, a psychiatrist called as a witness on behalf of the plaintiffs, that Mrs. Ellard's condition would be permanent in the absence of treatment. The doctor described a course of necessary treatment which included hospitalization for a period of from two to three months and out-patient therapy for six months to a year. On two occasions, counsel for the plaintiffs attempted to establish, through Dr. Wayne, the cost of future medical treatments for Mrs. Ellard. On both occasions, the court ruled the estimates by the doctor inadmissible.

Kathy Ann Ellard sustained a broken nose is the collision and was hospitalized for a brief period. The injury was painful for about four months but Miss Ellard made a complete recovery and was without pain at the time of trial.

Following its deliberation on the issue of damages, the jury returned a verdict for Richard Ellard in the amount of $5,800, which included the stipulated medical expenses of $4,500 and $1,300 for pain and suffering. As damages to Anna Catherine Ellard, the jury awarded $2,400 for pain and suffering. The plaintiff, Kathy Ann Ellard, received $100.

While the assignments of error by the appellants are related to an overall contention that the verdict of the jury was inadequate, it is not merely asserted that the amounts awarded were lower than the injuries sustained by the plaintiffs seemed to warrant. Instead, the appellants contend that the damages awarded to Mr. and Mrs. Ellard were inadequate because of adverse rulings and instructions to the jury by the court, which deprived the claimants of all the elements of damages to which they were entitled. The assignments of error can be consolidated into three categories: (1) the court erred in not permitting medical evidence as to future medical and hospital expenses for Mrs. Ellard to be given to or considered by the jury; (2) the court erred in approving the verdict of the jury which specifically excluded an award of damages for loss of consortium; (3) the court erred in giving defendant's instrucions nos. 8, 10 and 13 which limited the damages the jury was permitted to award.

I.

The first assignment of error is well taken. It is clear from the evidence that the plaintiff Anna Catherine Ellard was suffering from severe anxiety and depression at the time of the trial and that the accident proximately caused the aggravation of a pre-existing condition. Dr. Wayne, the psychiatrist who testified on behalf of the plaintiffs, stated: '. . . this condition from which she is suffering was a direct result of the car accident that she had June 24, 1972 which aggravated her pre-existing condition.' Dr. Wayne further testified that in the absence of any future treatment to Mrs. Ellard, her condition would be permanent. Finally, based on his previous experience, the doctor gave his best estimate concerning prospective medical and hospital costs, both during the necessary confinement in the hospital and after the plaintiff's release.

On several occasions, this Court has articulated the rule that a plaintiff may recover the cost of reasonable and necessary future medical and hospital services and for future pain and suffering where the evidence shows that it is reasonably certain that such future expenses will be incurred and are proximately related to the negligence of the defendant. See, e.g., Simmons v. City of Bluefield, W.Va., 225 S.E.2d 202 (1975); Jordan v. Bero, W.Va., 210 S.E.2d 618 (1974); Shreve v. Faris, 144 W.Va. 819, 111 S.E.2d 169 (1959).

The defendant contends that the evidence concerning the cost of medical treatment was not sufficient to permit the jury to consider an award for future medical expenses and that the trial court was correct in excluding such testimony from jury consideration because it did not meet the requirement of 'reasonable degree of medical certainty.' This Court has repeatedly held that such medical evidence must only to be a 'reasonable' certainty. Simmons v. City of Bluefield, supra; Jordan v. Bero, supra; Shreve v. Faris, supra. In Pygman v. Helton, 148 W.Va. 281, 134 S.E.2d 717 (1964), it was held:

'All that is required to render such testimony admissible and sufficient to carry it to the jury is that it should be of such character as would warrant a reasonable inference by the jury that the injury in question was caused by the negligent act or conduct of the defendant.'

The psychiatrist who testified on behalf of the plaintiff stated positively that Mrs. Ellard's condition required psychiatric treatment consisting of a period of hospitalization followed by a period of out-patient therapy. He stated that in the absence of such treatment Mrs. Ellard's condition would be permanent. In addition, he indicated his familiarity with the costs of such treatment, both as to the confinement in the hospital and out-patient treatment, and that the cost would be from three to five thousand dollars.

It, therefore, clearly appears that the medical evidence concerning any future pain and suffering and medical and hospital costs related to the injuries suffered by Mrs. Ellard should not have been excluded...