Gebhardt v. Smith, 20099

• Decision Date: 01 June 1992
• Docket Number: No. 20099,20099
• Citation: 187 W.Va. 515,420 S.E.2d 275
• Court: West Virginia Supreme Court
• Parties: Loretta L. GEBHARDT, Plaintiff Below, Appellant, v. Elfriede I. SMITH, Defendant Below, Appellee.

Page 275

420 S.E.2d 275

187 W.Va. 515

Loretta L. GEBHARDT, Plaintiff Below, Appellant, v. Elfriede I. SMITH, Defendant Below, Appellee.

No. 20099.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 22, 1992.

Decided June 1, 1992.

Syllabus by the Court

1. " 'In an appeal from an allegedly inadequate damage award, the evidence concerning damages is to be viewed most strongly in favor of the defendant.' Syllabus Point 1, Kaiser v. Hensley, W.Va. , 318 S.E.2d 598 (1983)." Syl. pt. 1, Maynard v. Napier, 180 W.Va. 591, 378 S.E.2d 456 (1989).

2. " ' "Where a verdict does not include elements of damage which are specifically proved in uncontroverted amounts and a substantial amount as compensation for injuries and the consequent pain and suffering, the verdict is inadequate and will be set aside. Hall v. Groves, 151 W.Va. 449, 153 S.E.2d 165 (1967)." King v. Bittinger, 160 W.Va. 129, 231 S.E.2d 239, 243 (1976).' Syllabus Point 1, Kaiser v. Hensley, W.Va. , 318 S.E.2d 598 (1983)." Syl. pt. 2, Maynard v. Napier, 180 W.Va. 591, 378 S.E.2d 456 (1989).

3. "Rule 59(a), R.C.P., provides that a new trial may be granted to any of the parties on all or part of the issues, and in a case where the question of liability has been resolved in favor of the plaintiff leaving only the issue of damages, the verdict of the jury may be set aside and a new trial granted on the single issue of damages." Syl. pt. 4, Richmond v. Campbell, 148 W.Va. 595, 136 S.E.2d 877 (1964).

4. "In a civil action for recovery of damages for personal injuries in which the jury returns a verdict for the plaintiff which is manifestly inadequate in amount and which, in that respect, is not supported by the evidence, a new trial may be granted to the plaintiff on the issue of damages on the ground of the inadequacy of the amount of the verdict." Syl. pt. 3, Biddle v. Haddix, 154 W.Va. 748, 179 S.E.2d 215 (1971).

William I. Flesher, Flesher & Flesher, Huntington, for appellant.

Mark L. Garren, Garren & Plymale, Huntington, for appellee.

PER CURIAM.

The appellant, Loretta L. Gebhardt, is aggrieved by a jury award for damages sustained when the appellee, Elfriede I. Smith, drove her car into the car in which the appellant was a passenger. The appellant contends that the itemized jury award of $12,392.35 for medical expenses and lost wages was insufficient as a matter of law because, although liability was conclusively determined to rest with appellee, the jury made no provision in its verdict for either pain and suffering or loss of enjoyment of life suffered by appellant. We agree with appellant's argument and reverse the order of the Circuit Court of Cabell County entered March 15, 1989 and remand this case for a new trial on the issue of damages.

The evidence disclosed that on November 7, 1985, between 4:30 p.m. and 4:45 p.m., the appellant and her daughter, Karen Gebhardt, were passengers in a car driven by appellant's son, Myron Gebhardt, in an easterly direction on Fifth Avenue in Huntington. The appellant was in the front passenger seat while Karen Gebhardt was in the back seat. Elfriede Smith was alone in her car, proceeding in a southerly direction along Twelfth Street. The intersection of Fifth Avenue and Twelfth Street contains a stop sign for traffic moving south on Twelfth Street, but no signs or traffic lights for traffic proceeding east on Fifth Avenue. Mrs. Smith pulled out from the stop sign and was immediately struck by the car driven by Myron Gebhardt. The weather was cloudy, and it was dusk.

The car in which the appellant was a passenger suffered a total loss due to the accident. The appellant was trapped on the floor of the car as a result of the accident and suffered a fractured tibia and fibula. The appellant testified that she was in pain at the time of the accident. Myron Gebhardt, Karen Gebhardt, and an independent witness to the accident, Deborah Ney, all testified that appellant appeared to be in pain. ¹ Appellant was removed to a local hospital by ambulance.

Appellant was placed in a hip to foot cast for three weeks. For the first week she was mostly confined to a bed in the hospital. She attempted physical therapy but suffered pain and regurgitation as a result. Appellant testified she was sore and hurt all over during this time period. After being transported by ambulance to her home, she remained bedridden for two more weeks. During those two weeks the appellant required frequent attention and care by her family members to help her bathe, prepare meals, and use the toilet. She testified she was "miserable" all three weeks in the long cast and had difficulty sleeping.

After three weeks, the hip to ankle cast was removed and a knee to mid-foot cast was put in its place and remained for over four months. During those four months appellant could not move well and found the use of crutches painful. After the short cast was removed, appellant still used crutches and a cane until she was able to walk without aid. The short cast was removed in early April, 1986, and appellant progressed to the point where she could walk up one flight of stairs without assistance by June of 1986.

The medical evidence in this case shows that appellant's injury, although relatively well-healed, is permanent in nature. Appellant's treating orthopedic physician, Dr. Imre Szendi-Horvath testified that when he last saw appellant in 1988 one of appellant's legs was slightly shorter than the other due to the accident. Furthermore, because of the shortness, appellant suffered "weight deformity" and bowing which caused "minimal leg discrepancy" of a permanent nature. Dr. Szendi testified that appellant had made an excellent recovery and that the shortening of her leg was not significant. Nonetheless, Dr. Szendi was of the opinion that appellant's leg would never again be perfect, and that she could have problems with pain and swelling in the future. Appellant testified that she did, in fact, still have periodic swelling in her leg.

The deposition testimony of orthopedic surgeon Dr. Tony Scott was also offered to the jury. Dr. Scott examined the appellant on one occasion, on July 24, 1986. At that time appellant had stiffness and swelling of her ankle. Dr. Scott found that appellant could have returned to her job on that date and that her recovery was complete. Nonetheless, he found that she suffered from a permanent shortness of the right leg to the extent of one-half inch and had a wasting of the right calf of three-fourths of an inch due to prolonged casting. Dr. Scott also believed that appellant would suffer permanent restriction of movement of her right ankle due to the injuries she sustained in the accident.

Appellant was released by Dr. Szendi to return to "light-duty" work on April 22, 1986. Appellant is employed as a "parts clerk" for the city of Huntington. Her job required her to lift items as heavy as car batteries, and also required much stooping and bending, and that she climb ladders. Appellant testified that her employers would not let her return to work until she was released by her physician for "full duty," despite her request to return. Appellant was released by Dr. Szendi to return to "full duty" on August 29, 1986, and she returned to work shortly thereafter.

Appellant testified that even after returning to work she had difficulties with her leg. She testified that she still takes prescription drugs to combat pain. She testified that she cannot drive for extended periods of time nor can she play badminton, a sport she previously enjoyed. However, she also testified that she frequently walked four miles at a time before the accident, and by the summer of 1988 she was once again able to walk that distance. She further testified that her life was "pretty much back to normal," by February, 1989, the time of the trial.

At the trial it was stipulated by the parties that the appellant incurred medical expenses of $4,454.35, due to the accident. The jury was presented an itemized verdict form and awarded the stipulated amount for "medical bills."

The jury also awarded the appellant $7,938.00 in "lost wages" due to the accident. This amount equals only 27 weeks of her work. ² The verdict form provided by the trial court to the jury contained the following itemized categories: (1) "pain and suffering experienced to date, if any:"; (2) "pain and suffering to be experienced in the future, if any"; and (3) "loss of enjoyment of life, including the inability to engage in normal pursuits and activities and permanent disability and disfigurement." The jury made no award in those three categories. ³

The appellant thereafter made a motion for a new trial on the issue of damages. The Circuit Court of Cabell County gave the appellee the option of paying an additur to the amount of lost wages or, in the alternative, to retry the case, including the issue of liability. ⁴ The appellee agreed to pay the additur. Therefore, the circuit court denied the motion for a new trial on damages.

The appellant maintains that the jury verdict was inadequate because no award was made for pain and suffering or lost enjoyment of life, as well as initially inadequate in the amount of lost wages awarded. The appellee has never admitted liability in this case. It is from the Circuit Court of Cabell County's denial of a new trial on the issue of damages that appellant appeals to this Court.

The appellant assigns several errors as grounds for reversal of the trial court's order, but the lone error of merit is the contention that the damages awarded by the jury were inadequate as a matter of law. ⁵ Appellant contends that despite a preponderance of uncontradicted evidence to the contrary, "the jury failed to consider any sum for pain and suffering, the degree and permanency of her injuries, any impairment, mental anguish or deformity." Appellant further contends that any retrial should be limited to the issue of damages because, "appellee put on...