Nicholas E. Peters v. Sandra Peters, 89-LW-1778
| Decision Date | 01 June 1989 |
| Docket Number | 55453,89-LW-1778 |
| Parties | Nicholas E. PETERS, Plaintiff-Appellant, v. Sandra PETERS, et al., Defendant-Appellees. |
| Court | Ohio Court of Appeals |
Civil Appeal From the Common Pleas Court Case No. 124,795.
Nicholas A. Bucur, Richard J. Kaplow, Cleveland, for plaintiff-appellant.
Roger H. Williams, Cleveland, for defendant-appellee.
JOURNAL ENTRY AND OPINION
Plaintiff-appellant, Nicholas Peters, is appealing the jury's award of $235.50 to him on his negligence claim against his wife, defendant-appellee, Sandra Peters.
On February 23, 1987, plaintiff-appellant, Nicholas E. Peters filed his complaint against Sandra Peters, his wife, and Ladimere Maresh, alleging that as a result of the negligence of Sandra Peters he sustained personal injuries arising out of an automobile accident which occurred on November 26 1985. Sandra Peters was the driver of the automobile; Ladimer Maresh, father of Sandra Peters, was the owner of the vehicle in which the accident occurred. In addition to compensation for his injuries, the appellant also sought damages for expenses incurred as a result of the accident and consequential loss of income (claimed to be approximately $40,000).
On July 16, 1987, appellant amended his complaint by adding Vernon Slivka, operator of the second vehicle in the collision. However, prior to trial on the matter, the appellant dismissed Ladimer Maresh, then deceased, and Vernon Slivka from this action. Also, prior to trial, the appellee-wife stipulated that her negligence was the cause of the accident at issue.
The matter proceeded to trial by jury. On February 5, 1988, the jury returned a verdict in favor of the appellant, Nicholas Peters, in the amount of $235.50 and the costs of the action. On February 11, 1988, the appellant filed a Motion for New Trial, which was denied by the court on March 8, 1988. On March 24, 1988, the appellant filed a notice of appeal. He now brings three assignments of error.
In his first assignment of error, the appellant claims:
I.AS A MATTER OF LAW, THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
The claim is without merit.
It is well established in Ohio that judgments supported by competent, credible evidence going to all the essential elements of a case will not be reversed by a reviewing court as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279. The weight to be given evidence and the credibility of the evidence is for the trier of fact, not the reviewing court. State v. DeHass (1967), 10 Ohio St.2d 230.
In this case, the appellant contends that the jury's verdict and monetary award is against the weight of the evidence^but fails to make his argument as to what determination the weight of the evidence would support.
As does the appellant, the appellee, too, fails to support her argument as to what factual finding the weight of the evidence supports^other than to conclude that the medical expert testimony of Dr. Richard Kaufman established that at the time of trial the appellant had recovered from his injuries.
At trial (Jan. 26-28, 1988), the appellant testified that he had resided in Minneapolis, Minnesota since October 1972. (Tr. 55). He is a "mailer" by occupation and has worked at this for 32 years.
At trial, the appellant testified that he suffers from lower back pain. (Tr. 58). He has filed seven workers' compensation claims for work related injuries. (Tr. 59). The appellant has suffered numerous work related back injuries, going back to 1956. (Tr. 80). Injuries occurred in 1973 (Tr. 80), 1977 (Tr. 81), 1981 (Tr. 81), 1983 (Tr. 81) and 1984 (Tr. 81). One of the last in the list of work related injuries occurred on September 15, 1985, when the appellant strained his knee. (Tr. 81). He returned to work "too soon" after the knee injury and on September 25, 1985 he suffered lumbar sprain, which resulted in disability leave which was to have ended December 1, 1985. .
The appellant also suffered injuries that were not related to employment. In 1971 he was hit by a motor vehicle while he was riding a bicycle. (Tr. 84-85). In 1977 he received a back injury in another automobile collision. (Tr. 85). His back was again injured in a 1983 automobile accident. (Tr. 85). He also lost his front teeth in a 1983 accident. Id.
At the time of the automobile accident at issue, the appellant was on disability leave from his employment due to his September 1985 back injury. He and his wife were visiting her parents for the Thanksgiving holidays. (Tr. 60). He had made a workers' compensation claim for the September injury, and was scheduled to return to work in December 1, 1985. (Tr. 67-68).
While in Cleveland, following the November 26, 1985 accident presently at issue, the appellant incurred medical expenses for back injury. He went through numerous treatments and evaluations.
In addition to his medical cost claims, the appellant testified that he lost income when, following the accident, he did not work from November 26, 1985 to November 13, 1986. (Tr. 77). During this time period (50 weeks) he calculates that he would have made $40,000 in Minnesota as a mailer. His job involved "lifting and bending and picking up bundles and filling up mail sacks and a very high state of the art automated system." (Tr. 77)
Dr. Kaufman testified through a deposition read to the jury at trial that he had examined the appellant on June 2, 1986. Kaufman found that at this time (six months after the accident at issue) the appellant appeared to be free of discomfort. (Tr. 250). "He seemed to be in no discomfort and moved about easily." Id. Kaufman testified that when tested, the appellant appeared to be in no pain, but voluntarily guarded his movement. "He didn't have any pain, he just wouldn't move it [his neck]." (Tr. 250) "The examination showed (3)27 no numbness and no weakness [T]he left knee joint revealed no swelling, no fluid no instability [and] was pain free. There was no tenderness The examination of the lower back revealed no restriction. There was some restriction of all motion due to voluntary guarding. He just wouldn't move. (Tr. 251) (emphasis added).
Dr. Kaufman testified that the Lasegue test for back pain was negative on both sides. (Tr. 251). The Patrick test for back pain was negative. (Tr. 252). There was no indication the appellant had any neck pain. (Tr. 253). He had the full range of painless motion in his knee. (Tr. 254). There was no evidence of lumbar spine pain. The lumbar spine examination was completely normal. (Tr. 254).
Dr. Kaufman did find "some osteoarthritic, some degenerative arthritis type of changes in both the neck and the low back, but it certainly had occurred long before this accident and were of the type you get with just wear and tear." (Tr. 255) (emphasis added).
After a full jury trial, the jury denied the plaintiff the full damage award he sought. Rather, after hearing the evidence, the jury awarded him minimal damages^$235.50. This is close to the costs incurred by the plaintiff-appellant on November 26, 1985 for emergency treatment. The bills in evidence in Plaintiff's Exhibits 1-3 showed: 2 ;FÔ2616;T2:QÔL $157.00ÔSt. Johns West Shore Hospital Bill 44.50ÔEmergency Room Physician 33.00ÔRadiology Consultation Bill [$L1[$ $234.50Ô
As such, the jury's award is supported by competent and credible evidence and thus, it will not be disturbed on review^particularly in view of the appellant's thirty year history of numerous back injuries, work related and otherwise.
The...
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