Lenox v. McCauley

• Decision Date: 22 October 1992
• Docket Number: No. 20487,20487
• Citation: 423 S.E.2d 606,188 W.Va. 203
• Court: West Virginia Supreme Court
• Parties: Edward A. LENOX and Debra L. Lenox, Plaintiffs below, Appellants, v. Robert Edwin McCAULEY and Pepsi Cola Metro Bottling Co., Inc. Defendants below, Appellees.

Page 606

423 S.E.2d 606

188 W.Va. 203

Edward A. LENOX and Debra L. Lenox, Plaintiffs below, Appellants, v. Robert Edwin McCAULEY and Pepsi Cola Metro Bottling Co Inc. Defendants below, Appellees.

No. 20487.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 9, 1992.

Decided Oct. 22, 1992.

Syllabus by the Court

1. " ' "Questions of negligence, due care, proximate cause and concurrent negligence present issues of fact for jury determination when the evidence pertaining to such issues is conflicting or where the facts, even though undisputed, are such that reasonable men may draw different conclusions from them." Syl. pt. 1, Ratlief v. Yokum , 280 S.E.2d 584 (W.Va.1981), quoting, syl. pt. 5, Hatten v. Mason Realty Co., 148 W.Va. 380, 135 S.E.2d 236 (1964).' Syllabus Point 6, McAllister v. Weirton Hosp. Co., 173 W.Va. 75, 312 S.E.2d 738 (1983). Syl. Pt. 17, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990)." Syllabus Point 1, Waugh v. Traxler, 186 W.Va. 355, 412 S.E.2d 756 (1991).

2. " 'Violation of a statute is prima facie evidence of negligence. In order to be actionable, such violation must be the proximate cause of the plaintiff's injury.' Syl. Pt. 1, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990)." Syllabus Point 2, Waugh v. Traxler, 186 W.Va. 355, 412 S.E.2d 756 (1991).

3. " 'Instructions must be read as a whole, and if, when so read, it is apparent they could not have misled the jury, the verdict will not be disturbed, through [sic] one of said instructions which is not a binding instruction may have been susceptible of a doubtful construction while standing alone.' Syl. Pt. 3, Lambert v. Great Atlantic & Pacific Tea Company, 155 W.Va. 397, 184 S.E.2d 118 (1971)." Syllabus Point 2, Roberts v. Stevens Clinic Hospital, Inc., 176 W.Va. 492, 345 S.E.2d 791 (1986).

4. " '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.' Syllabus Point 9, Jordan v. Bero, W.Va. , 210 S.E.2d 618 (1974)." Syllabus Point 1, Flannery v. United States, 171 W.Va. 27, 297 S.E.2d 433 (1982).

5. " 'It is not error to refuse to give an instruction to the jury, though it states a correct and applicable principle of law, if the principle stated in the instruction refused is adequately covered by another instruction or other instructions given.' Syl. pt. 2, Jennings v. Smith, 165 W.Va. 791, 272 S.E.2d 229 (1980), quoting syl. pt. 3, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966)." Syllabus Point 2, McAllister v. Weirton Hospital Co., 173 W.Va. 75, 312 S.E.2d 738 (1983).

6. "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, 173 W.Va. 548, 318 S.E.2d 598 (1983).

Robert W. Friend, Parkersburg, for appellants.

John D. Hoffman, Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Charleston, for appellees.

PER CURIAM:

Edward A. Lenox and Debra L. Lenox appeal from an award by a jury in the Circuit Court of Wood County for personal injury damages. Mr. and Mrs. Lenox allege that: (1) the trial court erroneously instructed the jury on the defendants' theory of the case and erroneously excluded other instructions; (2) the trial court erroneously instructed the jury on the issue of future damages; (3) the $3,837.40 award was inadequate; and, (4) the failure to award Mrs. Lenox damages for the loss of consortium requires reversal. We find no error and affirm the jury verdict.

On May 7, 1986 an accident occurred north of Parkersburg on Route 2 near Five Mile Run Road when the 1978 Toyota operated by Mr. Lenox was struck in the rear by a Pepsi Cola Metro Bottling Co. truck operated by Robert McCauley. Shortly before his car was struck, Mr. Lenox began slowing down to make a right turn. After the accident Mr. Lenox was treated at the Camden Clark Hospital Emergency room for an abrasion of the left elbow and "probable" muscle strain of the cervical, dorsal and lumbar spine. Mr. Lenox was advised not to work for two days.

There are several factual disputes concerning the accident and its effect on Mr. Lenox. The parties disagree about both the circumstances and severity of the accident. Mr. Lenox maintains that the accident occurred after he slowed down and signaled a right turn, which he was about to make. Mr. McCauley said that he never saw a turn signal or brake lights. A witness who was going the opposite way on Route 2 said he saw the turn signal on the car's front; however, this witness admitted that he did not wait at the scene to give the police a statement because he had been drinking beer. The passenger in Mr. Lenox's car said that he saw the dashboard's turn signal indicator light blinking. The State Trooper who investigated the accident testified that when he tested the brake lights on Mr. Lenox's car after the accident, they did not work even though the tail light lenses were not damaged by the accident. Mrs. Lenox testified that the car's brake lights were working on the day after the accident.

There is also conflicting testimony concerning the severity of the accident. Mr. Lenox maintains that as a result of the collision his car became airborne for 30 to 40 feet and finally stopped some 140 yards later. Two witnesses for Mr. Lenox testified that the impact propelled Mr. Lenox's car a considerable distance. Mr. McCauley said that after the collision his truck moved about 3 feet and that Mr. Lenox drove his car about 45 feet to pull off the road. There was minimal damage to both vehicles. Mr. Lenox's car had a crease in its rear quarter panel and its bumper was detached on the left, but the lens for its tail lights were not broken. The Pepsi truck's bumper was compressed.

Mr. Lenox alleges that as a result of the accident he had substantial medical problems with his back, legs and hearing and he submitted medical bills totaling $20,197.66. One of his expert witnesses was Ermel R. Harris, Jr. a chiropractor, whose extensive treatment of Mr. Lenox began 2 years and 2 months after the accident. Dr. Harris said that the accident resulted in cervical sprain, cervicalgia (neck pain); lumbar sprain; lumbalgia (low back pain), thoracic sprain and pain in the thoracic spine. However, according to Dr. Harris, the only objective evidence of injury was an x-ray finding of a hypolordotic or straight cervical spine. Dr. Harris acknowledged that his opinion was based on Mr. Lenox's complaints of pain and the reports of the chiropractor who treated Mr. Lenox immediately after the accident. On cross-examination Dr. Harris admitted that because of Mr. Lenox's leg length discrepancy, the result of an earlier motorcycle accident, many of Mr. Lenox's misalignments were expected and that Mr. Lenox's degenerative disc disease could also have resulted from his tilted hip and shortened leg. In addition, Mr. Lenox's condition appears to have improved until he had another car accident on September 26, 1986, which at the time of this trial remained in litigation.

John W. Ray, M.D., an otolaryngologist, who examined Mr. Lenox almost 4 years after the accident, said that as a result of the accident, Mr. Lenox had some hearing loss in his right ear. Dr. Ray noted that Mr. Lenox said the hearing loss occurred about 4 months after the accident, which is an unusual delay. Dr. Ray also said that Mr. Lenox's first experience with tinnitus occurred about one month after the accident. But medical records introduced by Mr. McCauley show that in 1981 Mr. Lenox complained about tinnitus.

The defense challenged the severity of Mr. Lenox's injuries by presenting Wayne Cayton, M.D., the physician who treated Mr. Lenox in the emergency room immediately after the accident. Dr. Cayton said that Mr. Lenox had an abrasion on his elbow and a "probable" strain based on Mr. Lenox's complaints of pain. However, Dr. Cayton found no evidence of a permanent injury. Gary Miller, M.D., an orthopedic surgeon, who examined Mr. Lenox in April 1987 after Mr. Lenox's leg went numb causing him to fall and hit his back, found no objective reason for Mr. Lenox's complaints of numbness. Dr. Miller did find that Mr. Lenox had a facet disease (arthritis) of the lumbar spine, which Dr. Miller felt was the result of Mr. Lenox's longstanding leg length discrepancy.

The defense also presented evidence from Thomas Durick, M.D. from the Pain Clinic at W.V.U. School of Medicine and Richard Gross, Ph.D., a clinical psychologist. Dr. Durick found no physical reason for Mr. Lenox's complaints of pain. Dr. Gross thought that Mr. Lenox had a somatoform pain disorder that pre-existed the May 19, 1986 accident. The State Trooper who investigated the accident said that Mr. Lenox was wearing a cervical collar in January 1986, about 5 months before the accident.

Mr. Lenox testified that he and Mrs. Lenox separated in December 1986 and their divorce was final on October 1, 1987. Mr. Lenox said that although they had problems throughout their marriage, the accident worsened the problems. According to Mr. Lenox the second accident made the problems "a little worse ... [b]ut that first accident's what really got the ball rolling." Mrs. Lenox testified that before the second accident, Mr. Lenox's problems had improved except for complaints of pain. Mrs. Lenox blamed both accidents for the breakup of their marriage. The record also shows that Mr. Lenox was incarcerated from March 2, 1987 until August 31, 1987 in the Wood County Jail on an unrelated matter.

Mr. Lenox submitted documentation of medical expenses in the amount of $20,197.66. However, the defense argued that only the medical expenses incurred immediately after the accident, about $856.85, were reasonable and necessary. The jury found that Mr. Lenox was thirty-five percent (35%) negligent and Mr. McCauley was sixty-five percent (65%) negligent, awarded Mr. Lenox $3,837.40...