Maynard v. Napier

• Decision Date: 09 March 1989
• Docket Number: No. 18441,18441
• Citation: 180 W.Va. 591,378 S.E.2d 456
• Court: West Virginia Supreme Court
• Parties: Teresa MAYNARD and Ray Maynard v. Andrew NAPIER and James Napier.

Page 456

378 S.E.2d 456

180 W.Va. 591

Teresa MAYNARD and Ray Maynard v. Andrew NAPIER and James Napier.

No. 18441.

Supreme Court of Appeals of West Virginia.

March 9, 1989.

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

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

Dwight J. Staples and Herbert H. Henderson, Huntington, for Teresa Maynard and Ray Maynard.

Richard G. McNeer, Campbell, Woods Bagley, Emerson McNeer & Herndon, Huntington, for Andrew Napier and James Napier.

PER CURIAM:

The appellants, Teresa Maynard and Ray Maynard, her father, are aggrieved by a jury award for damages sustained when James Napier drove a car owned by Andrew Napier, his father, into a truck in which Ms. Maynard was a passenger. The appellants allege that the award of $3,136.50, after payment of medical expenses, included only $9.50 for pain, suffering and future medical expenses and, since liability was admitted by the appellees, the award was insufficient as a matter of law. We are not convinced by the argument because certain of the medical expenses were controverted and therefore, we affirm the verdict of the Wayne County Circuit Court entered on April 7, 1987.

Liability was admitted by the appellees for the accident which occurred on February 10, 1984 on Route 37 in Elmwood, West Virginia, when James Napier, while attempting to pass a truck in which Ms. Maynard was a passenger, veered into the truck in order to avoid a head-on collision on the two lane road. The jury below awarded $2,455 to Ms. Maynard and $681.50 to Mr. Maynard. ¹ Mr. Maynard noted the following to be medical expenses for his daughter: (1) $30, Wayne Emergency Service, (2) $110, Radiology, (3) $249.50, Cabell Huntington Hospital, (4) $247, Dr. Mattill, an orthopedist, (5) $2394.50, Casto Chiropractic Clinic, and (6) $55, Dr. Ignatiadias a neurologist. The first four medical expenses were incurred within ten months of the accident. The last two medical expenses were incurred in 1985 and 1986, well over a year after the accident. Ms. Maynard's chiropractic treatment occurred in two parts, the first, a series of 25 treatments given between June 1985 and August 26, 1985 and the second, a series of 10 treatments given between May 1986 and July 25, 1986. Dr. Ignatiadias examined Ms. Maynard in the summer of 1986 at the request of Dr. Casto.

Ms. Maynard testified that as a result of the accident she continues to experience pain and suffering and has had to limit her activities. However, Ms. Maynard also testified that after the accident she participated in high school track in both 1984 and 1985. The conditioning and training portion of the 1984 track team began 3 weeks after the accident. Ms. Maynard also indicated that she attended school dances in 1984 and 1985. During the summer of 1984, Ms. Maynard went to Kings' Island amusement park where she rode several rides including the "Beast", a roller coaster.

The special damages for the chiropractic treatments were contested at trial by the appellees on the grounds that the treatments were not necessitated by Ms. Maynard's injuries because any pain or injury received by Ms. Maynard in the accident resolved soon thereafter. The judgment by the jury evidently represented their resolution of this conflict.

In Syllabus Point 1, Kaiser v. Hensley, 173 W.Va. 548, 318 S.E.2d 598 (1983), we stated:

In an appeal from an allegedly inadequate damage award, the evidence concerning damages is to be viewed most strongly in favor of the defendant.

In Freshwater v. Booth, 160 W.Va. 156, 160, 233 S.E.2d 312, 315 (1977) this standard for review of damage awards was applied to cases where the plaintiff below "would have been entitled to a directed...