Howle v. PYA/Monarch, Inc., 0697

• Decision Date: 27 February 1986
• Docket Number: No. 0697,0697
• Citation: 344 S.E.2d 157,288 S.C. 586
• Parties: Joyce S. HOWLE, Respondent, v. PYA/MONARCH, INC. and Ray Gregory, Appellants. . Heard
• Court: South Carolina Court of Appeals

Page 157

344 S.E.2d 157

288 S.C. 586

Joyce S. HOWLE, Respondent, v. PYA/MONARCH, INC. and Ray Gregory, Appellants.

No. 0697.

Court of Appeals of South Carolina.

Heard Feb. 27, 1986.

Decided May 5, 1986.

James W. Alford, of Barnes, Alford, Stork & Johnson, Columbia, for appellants.

John W. Bledsoe, III, of Saleeby, Cox & Bledsoe, Hartsville; John Lindsay, of Lindsay & Lindsay, Bennettsville, for respondent.

GOOLSBY, Judge.

This is an action for negligence arising out of an automobile accident. In the trial court, the jury returned a verdict in favor of the respondent Joyce S. Howle in the amount of $200,000 actual damages. PYA/Monarch, Inc. (PYA) and Ray Gregory appeal. We affirm.

The questions on appeal concern the sufficiency of the evidence as to negligence, the admission of certain evidence from a consulting psychologist challenged as being incompetent, the admission of certain medical bills challenged as being irrelevant, the trial judge's ruling allowing Howle's counsel to cross-examine Gregory as to PYA's net worth, the closing argument made by Howle's counsel, the amount of the verdict, and the denial of PYA's and Gregory's motion for change of venue.

I. Sufficiency of Evidence

PYA and Gregory argue that there was no probative evidence from which a jury could find Gregory negligent and that it was therefore error for the trial judge to deny their motion for judgment notwithstanding the verdict.

In determining this question, we must review the evidence and all inferences reasonably deducible therefrom in the light most favorable to Howle, the nonmoving party. Vacation Time of Hilton Head v. Lighthouse Realty, 286 S.C. 261, 332 S.E.2d 781 (Ct.App.1985). We must affirm if there is any evidence to sustain the factual findings implicit in the jury's verdict. Id.

On July 13, 1981, Howle and Gregory were involved in a head-on collision. Gregory's car travelled over the center line and hit Howle's car in her lane of traffic.

One eyewitness to the accident testified that immediately prior to the collision she observed Gregory's car approaching her from the opposite lane. Gregory's vehicle swerved off the road onto the shoulder, came back upon the highway over into her lane, and narrowly missed hitting the rear of her car.

Another eyewitness testified that she followed Gregory's automobile for eight or nine miles before the accident. She stated that Gregory drove erratically the entire time, weaving from one lane to the other.

Gregory suffers from brittle diabetes, a form of diabetes that is difficult to control. He went into a diabetic coma just before he collided with Howle's car.

PYA and Gregory admit that at the time of the accident Gregory was working within the scope of his employment as a route salesman for PYA.

On the day of the accident, Gregory called at the Tastee Freeze store on the highway where the accident occurred. B.B. Smith, the operator of the Tastee Freeze and a good friend of Gregory, testified that on this particular morning Gregory looked red in the face and seemed unusually quiet. It took so long for Gregory to work up Smith's order that Smith became concerned about him. At Smith's inquiry, however, Gregory said he was fine.

Gregory must take insulin each day and must eat three regular meals a day to maintain control over his diabetes. Although he took insulin and ate breakfast the day the accident occurred, he did not eat lunch. His normal lunchtime was 11:30 a.m. The accident occurred shortly before noon.

The last thing Gregory remembers before the accident is pulling out from the Tastee Freeze. The accident occurred about eight or nine miles from the Tastee Freeze.

Gregory told the highway patrolman who investigated the accident that "he had gotten woozy and passed out."

Gregory has had diabetes for over thirty years and has experienced several hypoglycemic episodes when the sugar level in his blood decreased. According to one physician who testified at the trial, most diabetics realize when a hypoglycemic episode "is coming on."

The doctor further stated that "most diabetics carry some candy or sugar of some form in their pocket and will take it and this will relieve them." Gregory kept candy in his car, but he did not eat any prior to colliding with Howle.

Hypoglycemia causes Gregory to "get nervous" and "feel a little woozy." As Gregory further described the condition's effect on him, "things would just kind of go dim and [he] couldn't see very good" and he would feel himself on the verge of passing out.

Sometimes Gregory has lost consciousness during a hypoglycemic episode without having any warning of its approach. In fact, Gregory claims he had no warning of the blackout he had on the day of the accident.

PYA and Gregory argue that they were not negligent because the accident was unavoidable since Gregory suffered a blackout just before the collision occurred. See Collins v. Thomas, 244 S.C. 128, 135 S.E.2d 754 (1964); Tucker v. Reynolds, 268 S.C. 330, 233 S.E.2d 402 (1977). Howle, on the other hand, contends the accident was avoidable because Gregory's blackout was foreseeable and should have been guarded against. See Lutzkovitz v. Murray, 339 A.2d 64 (Del.1975).

We agree with Howle.

A jury could reasonably find from the facts, as recited above, that PYA and Gregory were negligent because Gregory had sufficient warning on the morning of the accident that a hypoglycemic episode was approaching and, though he had "gotten woozy" and knew he had not eaten lunch, he neither ate the candy he had available to abate the episode nor stopped driving.

II. Admissibility of Psychologist's Testimony

PYA and Gregory next contend that it was error for the trial court to admit the testimony of Jan Edward Bixler, a consulting psychologist who examined Howle.

Bixler holds a Master's Degree in General Psychology and a Ph.D. Degree in Counseling Psychology from the University of Georgia. He served a one year postdoctorate fellowship at Texas Children's Hospital in Pediatric Psychology with an emphasis on psychological testing. Bixler taught in the Department of Psychology at Francis Marion College for a year and has been in the private practice of psychology for over nine years. He is licensed by the South Carolina State Board of Examiners in Psychology. For over eight years, Bixler has been certified by the State Department of Education as a School Psychologist III, the highest level of certification available. He is also a consulting psychologist to the South Carolina Vocational Rehabilitation Department, where he evaluates test results.

Bixler's practice is limited mainly to the administration of tests and the interpretation of test results. In evaluating patients with mental and emotional problems, Bixler relies on medical histories, information gained from family members, in-depth interviews with the patients themselves, and the results of a battery of tests.

Bixler administered to Howle the Minnesota Multiphasic Personality Inventory, a widely used psychological test. Based on the results of this test and interviews with Howle and her husband and daughter, Bixler concluded that Howle suffers from acute anxiety neurosis with depression and that the neurosis was caused by the accident. Bixler saw Howle again just prior to trial and acknowledged that her anxiety neurosis had improved, but he opined that the residual effects of the accident would remain with Howle for a long time.

A.

PYA and Gregory argue that, because Bixler is a psychologist and not a medical doctor, Bixler was not qualified to give expert opinion testimony concerning his diagnosis and prognosis of Howle's mental and emotional condition and the causal relationship between the accident and Howle's mental and emotional problems. They base their argument on Section 40-47-40 of the Code of Laws of South Carolina (1976), which is included among the statutes regulating the practice of medicine, and Section 40-55-50 of the Code, which is included among the statutes regulating the practice of psychology.

Section 40-47-40 provides that one who "shall diagnose, cure, relieve in any degree or profess or attempt to diagnose, cure or relieve any human disease, ailment, defect, abnormality or complaint, whether of physical or mental origin ..." shall be regarded as practicing medicine.

Section 40-55-50 provides in part:

A person practices as a psychologist within the meaning of this chapter when he:

(1) Holds himself out to be a psychologist or

(2) Renders to individuals or to the public for a fee, monetary or otherwise, any service involving the recognized principles, methods and procedures of the science and profession of psychology, such as: (a) assessment or measurement, through the use of psychological tests and interviews, of intelligence, aptitudes, skills, personality traits, behavior adjustment, attitudes and interests; ....

Generally the qualification of a witness as an expert is within the discretion of the trial judge. Madden v. Cox, 284 S.C. 574, 328 S.E.2d 108 (Ct.App.1985). "To be competent as an expert, a witness must have acquired by reason of study or experience or both such knowledge and skill in a business, profession, or science that he is better qualified than the jury to form an opinion on the particular subject of his testimony." Botehlo v. Bycura, 282 S.C. 578, 585-586, 320 S.E.2d 59, 64 (Ct.App.1984).

The question of a nonmedical psychologist's qualification to give expert testimony on the issue of mental and emotional condition has not been addressed in South Carolina. Courts in other jurisdictions have not treated the issue uniformly but the majority, more liberal approach appears to be in favor of allowing a psychologist to give expert testimony. As the Fourth Circuit Court of Appeals has stated:

[T]he determination of a psychologist's competence to render an expert opinion based on his findings as to the presence or absence of mental disease or defect must depend upon...