Jordan v. Bero

• Decision Date: 17 September 1974
• Docket Number: No. 13179,13179
• Citation: 210 S.E.2d 618,158 W.Va. 28
• Court: West Virginia Supreme Court
• Parties: Russell JORDAN, an Infant, Who sues by Norman D. Jordan, his father and next Friend and Norman D. Jordan, in his own right v. Linda L. BERO and Wayne R. Bero.

Page 618

210 S.E.2d 618

158 W.Va. 28

Russell JORDAN, an Infant, Who sues by Norman D. Jordan, his father and next Friend and Norman D. Jordan, in his own right v. Linda L. BERO and Wayne R. Bero.

No. 13179.

Supreme Court of Appeals of West Virginia.

Sept. 17, 1974.

Concurring Opinion Dec. 20, 1974.

Syllabus by the Court

1. Where an objection is made to an instruction for the first time on appeal and such instruction is not so deficient so as to require invocation of the 'plain error' rule, in consonance with Rule 51, W.Va.R.C.P., this Court will not consider the late objection.

2. In tort law there is a rebuttable presumption that a child between the ages of seven and fourteen is not guilty of contributory negligence. To overcome this presumption, the burden is upon a defendant to prove by a preponderance of the evidence that a child of such age has the capacity to be guilty of contributory negligence.

3. 'If an instruction given to the jury is not a binding instruction and some element is omitted in the instruction which should have been included, it is not reversible error to give such instruction if other instructions given by the court contain or include such omitted element.' Syllabus point 5, Lancaster v. Potomac Edison Company of West Virginia, W.Va., 192 S.E.2d 234 (1972); syllabus point 7, Lawrence v. Nelson, 145 W.Va. 134, 113 S.E.2d 241 (1960).

4. While opinion evidence is not generally admissible on matters of common knowledge, such evidence may be admissible in the discretion of the trial court where the jury cannot be fully informed otherwise regarding the facts on which it is based.

5. Whether a witness is qualified to state an opinion is a matter which rests within the sound discretion of the trial court and its ruling will not ordinarily be disturbed unless it clearly appears that its discretion has been abused.

6. In the trial of negligence cases, the better practice is to withhold any monetary figure from the jury's consideration which might be suggestive of amounts not proven in evidence. Recognizing, however, the proper function of the jury and, also, that damage awards in personal injury actions are necessarily somewhat indeterminate in character and amount, this Court, while not approving exposition of Ad damnum clauses in instructions to the jury, does not reverse a case for this impropriety alone.

7. To form a legal basis for recovery of future permanent consequences of the negligent infliction of a personal injury, it must appear with reasonable certainty that such consequences will result from the injury; contingent or merely possible future injurious effects are too remote and speculative to support a lawful recovery.

8. Testimony of lay witnesses as to the physical condition of a party to an action, when relevant and material, based upon their observation of his conduct and actions is admissible. The prognosis of the future effect of pemanent injuries, however, must be elicited from qualified experts, evaluated first by the trial court and then, if found sufficient, considered by the jury upon proper instruction from the court.

9. The permanency or future effect of any injury must be proven with reasonable certainty in order to permit a jury to award an injured party future damages.

10. Future damages are those sums awarded to an injured party for, among other things: (1) Residuals or future effects of an injury which have reduced the capability of an individual to function as a whole man; (2) future pain and suffering; (3) loss or impairment of earning capacity; and (4) future medical expenses.

11. Where an injury is of such a character as to be obvious, the effects of which are reasonably common knowledge, it is competent to prove future damages either by lay testimony from the injured party or others who have viewed his injuries, or by expert testimony, or from both lay and expert testimony, so long as the proof adduced thereby is to a degree of reasonable certainty. But where the injury is obscure, that is, the effects of which are not readily ascertainable, demonstrable or subject of common knowledge, mere subjective testimony of the injured party or other lay witnesses does not provide sufficient proof; medical or other expert opinion testimony is required to establish the future effects of an obscure injury to a degree of reasonable certainty.

12. To warrant a recovery of damages for future pain and suffering, there must be evidence showing a reasonable certainty of occurrence, but such evidence may be inferred from the permanent nature of the disability.

13. In an injury case where the manifestations of the permanent injury may be obscure and the extent of the injury itself may be obscure because of its character, positive medical evidence to a degree of reasonable certainty that the injury is permanent is sufficient to take the question to the jury and to support an award of damages for the future effects of such injury.

14. An infant plaintiff who has never been gainfully employed may recover damages for impairment of his future earning capacity. The infant's parents or guardians may also recover damages for such impairment or loss of earning capacity proved to a degree of reasonable certainty occurring during the infant plaintiff's minority and which proximately result from the negligent conduct of a defendant.

15. To warrant a recovery for future medical expenses, the proper measure of damages is not simply the expenses or liability which shall or may be incurred in the future but it is, rather, the reasonable value of medical services as will probably be necessarily incurred by reason of the permanent effects of a party's injuries.

16. Proof of future medical expenses is insufficient as a matter of law in the absence of any evidence as to the necessity and cost of such future medical treatment.

17. 'In determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those facts, which the jury might properly find under the evidence, must be assumed as true.' Syllabus point 5, Poe v. Pittman, 150 W.Va. 179, 144 S.E.2d 671 (1965); syllabus point 3, Walker v. Monongahela Power Company, 147 W.Va. 825, 131 S.E.2d 736 (1963).

18. 'In a civil action to recover damages for personal injuries, the amount which the plaintiff is entitled to recover being indeterminate in character, the verdict of the jury may not be set aside by the trial court or by this Court on the ground that the amount of the verdict is excessive, unless the verdict in that respect is not supported by the evidence or is such that the amount thereof indicates that the jury was influenced by passion, partiality, prejudice or corruption, or entertained a mistaken view of the case.' Syllabus, Sargent v. Malcomb, 150 W.Va. 393, 146 S.E.2d 561 (1966).

19. 'In the absence of evidence reasonably tending to establish . . . the probability of future pecuniary loss resulting therefrom, an instruction including such elements among those proper to be considered by the jury in determining its verdict, is erroneous.' Part syllabus point 6, Miller v. United Fuel Gas Company, 88 W.Va. 82, 106 S.E. 419 (1921).

20. 'When the illegal part of the damages ascertained by the verdict of a jury is clearly distinguishable from the rest, and may be ascertained by the court without assuming the functions of the jury and substituting its judgment for theirs, the court may allow plaintiff to enter a Remittitur for such part, and then refuse a new trial.' Syllabus point 2, Earl T. Browder, Inc. v. County Court of Webster County, 145 W.Va. 696, 116 S.E.2d 867 (1960); syllabus point 4, Chapman v. Beltz & Sons Co., 48 W.Va. 1, 35 S.E. 1013 (1900).

Cather, Renner & Cunningham, Charles V. Renner and Diana Evertt, Parkersburg, for appellants.

Dean & Kingery, Don C. Kingery, Point Pleasant, for appellees.

HADEN, Justice:

This is an appeal by Linda L. Bero and Wayne R. Bero, defendants in an automobile accident case, who complain of a final order of the Circuit Court of Marshall County which refused to set aside a judgment entered upon a jury verdict in favor of the plaintiffs in the amounts of $20,000 and $6,000 respectively.

The errors asserted on this appeal relate to: (1) The giving and refusal to give instructions; (2) the introduction of assertedly incompetent opinion evidence relating to the accident occurrence; (3) the sufficiency of the evidence introduced and the damage instructions given by the court on the question of permanency of personal injuries allegedly suffered by the infant plaintiff; (4) the allegedly excessive amounts of the respective jury verdicts; and (5) the court's refusal to reverse its judgment and to grant the defendants a new trial.

We accepted this appeal to consider two principal questions raised by the assignments of error. First, whether the opinion testimony from an investigating police official regarding the location of the accident occurrence and the impact points between the two vehicles involved in the collision was admissible evidence although the police official was not an eyewitness to the occurrence.

Second, and most significant, whether the medical evidence in support of the plaintiffs' claims for personal injury and future effects proximately resulting therefrom was adduced with a degree of reasonable certainty so as to support instructions to the jury which made the existence of and recovery for such injuries a question for the jury to decide.

Other instructions were also fairly raised by the defendants as being erroneous and we shall treat these objections preliminary to the resolution of the main issues.

The accident which provided the genesis for this litigation occurred at approximately 5:30 p.m. on the 29th day of May, 1969, on State Route No. 2, in Mason County, West Virginia. An infant pla...