Phillips v. Fulghum

• Decision Date: 11 June 1962
• Docket Number: No. 5433,5433
• Citation: 203 Va. 543,125 S.E.2d 835
• Parties: CONSTANCE C. PHILLIPS v. ERIN B. FULGHUM. Record
• Court: Virginia Supreme Court

Page 835

125 S.E.2d 835

203 Va. 543

CONSTANCE C. PHILLIPS v. ERIN B. FULGHUM.

Record No. 5433.

Supreme Court of Appeals of Virginia

June 11, 1962.

A. Christian Compton (John G. May, Jr.; May, Garrett, Miller, Newman & Compton, on brief), for the plaintiff in error.

Harry L. Thompson (James M. Minor, Jr.; Minor, Thompson, Gambill, White & Smithers, on brief), for the defendant in error.

JUDGE: EGGLESTON

EGGLESTON, C.J., delivered the opinion of the court.

Mrs. Erin B. Fulghum, hereinafter referred to as the plaintiff, while riding as a passenger in a car driven by her husband was injured when the car was struck in the rear by a car driven by Mrs. Constance C. Phillips, hereinafter referred to as the defendant. At first it was thought that Mrs. Fulghum's injuries were slight, but it turned out otherwise. In an action for damages for personal injuries sustained in the collision, Mrs. Fulghum recovered a verdict and judgment of $17,500 against Mrs. Philips. We granted the defendant a writ of error.

In her assignments of error the defendant contends that the lower court erred, (1) in denying her motion to exclude from the jury throughout the trial the amount named in the motion for judgment as the amount sued for; (2) in allowing counsel for the plaintiff to argue before the jury that they should place themselves in the position of the plaintiff and award her such amount as they would wish if in her position; (3) in refusing to set aside the verdict on the ground that it was excessive; (4) in its rulings on the instructions; and (5) in allowing counsel for the plaintiff, in their argument before the jury, to exhibit a chart listing details of the plaintiff's injuries not supported by the evidence.

The sufficiency of the evidence to sustain the liability of the defendant is not challenged. She admitted just after the collision, and on the stand, that she did not know what had happened or why she did not stop before the impact. The controversy before us involves the nature and extent of the plaintiff's injuries and certain procedural matters.

According to the plaintiff's evidence, which the jury have accepted, the impact of the collision was quite severe. The Fulghum car was struck in the rear, driven forward and caused to strike the rear of a vehicle ahead of it. The trunk, trunk lid, the grill, both bumpers, the front seat and dashboard on the Fulghum car were considerably damaged in the collision.

The plaintiff, who was riding on the right front seat, was thrown forward against the dashboard and onto the floorboards. While she complained of neck pains immediately after the impact, she did not require medical attention at the scene, nor was she taken therefrom to a hospital. She first received medical attention two days later when she consulted her family physician who referred her to an orthopedic surgeon, Dr. Edwin W. Hakala.

Dr. Hakala found that she had suffered a moderate sprain of the neck and fitted her with a 'Thomas collar' immobilizing her neck. She wore this continuously for about two weeks and thereafter intermittently for about six weeks. At Dr. Hakala's office she received 'traction treatments' in which her neck was stretched in a traction machine periodically for about three months.

At the time of the trial, which took place some eighteen months after the accident, Dr. Hakala testified that she had reached the maximum medical improvement and, in his opinion, would not improve further. He said that she had sustained an aggravation of pre-existing arthritis in her neck; that she would continue to have some pain and limitation of her neck movements. His opinion was that this situation would be permanent.

Because of abdominal and chest complaints, the plaintiff consulted Dr. William C. Grinnan, a specialist in internal medicine. After having hospitalized her for tests to determine the cause of these complaints, Dr. Grinnan found that she was suffering from a hiatus hernia which he described as an abnormal opening through the diaphragm separating the abdominal and chest cavities. It is characteristic of this trouble, he said, that the contents of the abdominal cavity, the esophagus, the stomach, and sometimes the intestines, will occasionally protrude through the hiatus into the chest cavity, causing pain in the chest and swelling at the waistline. In Dr. Grinnan's opinion, the severe blow which the plaintiff sustained in the accident either caused the hiatus hernia or aggravated it if it pre-existed the accident, which he thought might be a possibility.

Dr. Grinnan further testified that the hiatus hernia condition of the plaintiff was permanent unless corrected by surgery which he considered 'risky' and 'undesirable.' He said the plaintiff must 'learn to live with' the trouble by eating small, frequent meals, avoiding drinking large amounts of liquids, wearing loose-fitting garments, and elevating the head of her bed in order to keep the abdominal organs in their proper place. Such a course, he said, she must follow the rest of her life.

According to the further testimony, the plaintiff is fifty-one years of age, a housewife with children, and employed as a secretary in the office of an insurance company. She was hospitalized on two separate occasions, visited several doctors at their offices for a total of sixty times, and sustained medical and other expenses in the total amount of $2,195.84.

At the outset of the trial, before counsel for the respective parties had made their opening statements to the jury, counsel for the defendant moved the court to exclude from the jury any mention by opposing counsel of the amount sued for, which was $35,000, on the ground that such was not evidence in the case and was without probative value. This motion was overruled and the defendant excepted. Both in the opening statement and summation before the jury counsel for the plaintiff brought to the attention of the jury the amount sued for.

This ruling of the lower court is the basis of one of the main assignments of error. The argument is that the amount of damages in an action of this character is to be ascertained and fixed by the jury from the evidence admitted before them, that neither the ad damnum clause in the motion for judgment nor the statement of counsel as to the amount of damages sued for is a part of the evidence, and that both should be excluded from the jury.

There is a conflict of authority as to whether counsel may inform the jury of the amount of damages claimed by his client in an action for personal injuries. See 88 C.J.S., Trial § 192, p. 376; 64 C.J., Trial, § 299, pp. 280, 281; and cases there collected. It has long been the rule in Pennsylvania that counsel for the plaintiff may not bring to the attention of the jury the amount of damages sued for, for the reason that it instills in their minds impressions not founded on the evidence. Stassun v. Chapin, 324 Pa. 125, 188 A. 111; Porter v. Zeuger Milk Co., 136 Pa.Super. 48, 7 A.2d 77, 78. Recently the highest court of New Jersey adopted the same rule, thereby overturning an earlier holding. See Botta v. Brunner, 26 N.J. 82, 138 A.2d 713, 725, 60 A.L.R.2d 1331. See also, Cooley v. Crispino, 21 Conn.Supp. 150, 147 A.2d 497, 499.

The contrary view was taken in Williams v. Williams, 87 N.H. 430, 182 A. 172, 174; Freeman v. Manhattan Cab Corp., 1 Misc.2d 601, 150 N.Y.S.2d 674, 682; Maurizi v. Western Coal, etc., Co., 321 Mo. 378, 11 S.W.2d 268, 277.

In the recent case of Jimmy's Cab, Inc. v. Isennock, 225 Md. 1, 169 A.2d 425, it was held that there was no error in overruling a motion for a mistrial when the plaintiff's counsel referred to the ad damnum clause and the court properly instructed the jury that such statement could not be considered as evidence in the case. While the court there held that under its rule the trial court may allow the pleadings containing the ad damnum clause to be taken by the jury to their room, it pointed out that this rule was merely declaratory of long-established practice in many, if not all, of the courts of that state.

The precise question has not heretofore been considered by this court. But we are reminded that in the recent case of Simmons v. Adams, 202 Va. 926, 121 S.E.2d 379, we held that the repeated reference in a number of instructions, granted at the request of the plaintiff, to the amount sued for 'is likely to be misleading and prejudicial to the defendant' because, 'Coming from the court itself it is likely to give the jury the impression that the amount sued for is significant and a factor to be considered in arriving at their award.' Consequently, we said, the instructions should not refer to the particular sum sued for, 'but by appropriate language the jury should be told that the amount of their award, if any, should not be in excess of the amount claimed or sued for.' 202 Va., at page 932, 121 S.E.2d, at pages 383, 384.

In the present case we are invited to extend the holding in the Simmons case and say that the reference by counsel for the plaintiff to the amount sued for by their client was likely to be misleading and prejudicial to the defendant and should not have been permitted.

We decline that invitation for two reasons: In the first place, reference to the amount sued for by counsel for the plaintiff is not likely to have the same effect upon the jury as reference thereto coming from the...