Rountree v. Rountree

• Citation: 200 Va. 57,104 S.E.2d 42
• Decision Date: 16 June 1958
• Docket Number: No. 4790,4790
• Parties: THOMAS J. ROUNTREE, ET AL., ETC., ET AL. v. ALICE M. ROUNTREE. Record
• Court: Supreme Court of Virginia

Page 42

104 S.E.2d 42

200 Va. 57

THOMAS J. ROUNTREE, ET AL., ETC., ET AL. v. ALICE M. ROUNTREE.

Record No. 4790.

Supreme Court of Appeals of Virginia

June 16, 1958.

John F. Rixey (Rixey & Rixey, on brief), for the plaintiffs in error.

Louis B. Fine and Jerrold G. Weinberg, for the defendant in error.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

Alice M. Rountree instituted action against Thomas J. Rountree and Margaret G. Rountree, partners trading as Rountree's Paint and Spray Equipment Company, and James K. Gregory for injuries she sustained in an automobile accident involving the car she was operating and a pickup truck owned by the company and operated by Gregory.

The litigants will be referred to at times as plaintiff and defendants in accordance with the respective positions they occupied in the court below.

At a trial on January 24, 1956, a jury verdict was returned for plaintiff in the sum of $12,500 upon which judgment was entered. On appeal we reversed the judgment and remanded the case for a new trial. Rountree v. Rountree, 198 Va. 658, 96 S.E.2d 113.

The second trial was had on May 20 and 21, 1957 and resulted in a verdict of $25,000 for plaintiff. Defendants moved to set aside this verdict and grant them a new trial on the ground that it was excessive. The motion was overruled and judgment was entered May 21, 1957 on the verdict. On June 11, 1957 defendants moved the court to vacate the judgment, set aside the verdict and grant them a new trial on the ground of after-discovered evidence. In support of this motion an affidavit of John F. Rixey, a member of the law firm of Rixey & Rixey, counsel for defendants, and an affidavit of Ida Sullivan, half sister of plaintiff, were filed. Whereupon on the same day plaintiff filed a motion to strike Rixey's affidavit and also filed her affidavit and that of her mother, Nancy T. Wise. After oral argument by counsel, the court overruled defendants' motion for a new trial. A writ of error was granted defendants to the judgment entered May 21, 1957.

The liability of defendants is not questioned, thus the facts relating to the collision will not be stated.

Plaintiff, who was 35 years of age, was taken from the scene of the accident to the hospital for emergency treatment and she remained there for 15 days. Her neck was placed in traction with a three pound pully attached to a halter and her body was also placed in a cast. After leaving the hospital she was confined to her home for approximately one month and for several months she was required to wear a brace or corset during the day time. At the second trial she testified that she still suffered intense pain in her neck, back and extremities, had difficulty in sleeping, and found it necessary to take pills for that purpose most of the time.

Dr. George G. Hollins, an orthopedic surgeon, testified that he saw plaintiff on September 18, 1955, the day after the accident. X-rays disclosed a sprain of the cervical spine, sprain of the dorsal spine, sprain of the lumbar spine and contusions of the chest. He explained that for treatment of her neck it was placed in traction, and in order to immobilize the spine a plaster cast was placed over the entire trunk of her body. She complained of constant pain while in the hospital which complaint was consistent with her injuries. To relieve her suffering he prescribed several types of drugs. After she left the hospital he saw her periodically until March 13, 1957, at which time he considered she had reached 'maximum improvement'. His diagnosis at this time was that she had pain, tenderness and limitation of 15 degrees of straight left leg raising. In his opinion, she would permanently have pain at times in varying degrees.

Plaintiff was also treated by Dr. Robert H. Thrasher, a physician psychiatrist, who first saw her on June 14, 1956, and testified she was suffering from a traumatic neurosis. He stated he had seen her eight times and that her nervous condition was 'somewhat better.'

Dr. Arthur A. Kirk, an orthopedic surgeon, who examined plaintiff on February 7, 1957, estimated she would have 5 per cent permanent partial disability, in the form of a mild recurrent low back pain and a mild weakness of her lower back.

Dr. Bernard H. Raymond, a physician and surgeon, stated that she has a 10 per cent permanent disability of her cervical spine and a 15 per cent permanent disability of the lower spine.

Medical and other expenses resulting from her injuries amounted to approximately $2,000.

Defendants' petition for appeal poses two questions. They are: (1) whether 'The verdict was excessive', and (2) whether 'The Trial Court erred in refusing to award the defendants a new trial on the grounds of after-discovered evidence.'

Counsel prosecuting this appeal, although a member of the law firm which defended the action in the court below, did not participate in the trial of the case in that court. His appearance in the case began after he received an anonymous telephone call on June 6, 1957 informing him that plaintiff was involved in a prior automobile accident from which she suffered a serious back injury and a leg injury. It developed that the informant was Ida Sullivan, half sister of plaintiff. Counsel was frank to state at the bar of this court that he did not expect us to set the verdict aside on account of excessiveness. His candor is commendable. Based upon the evidence adduced at the trial, we cannot say that the verdict was excessive, even though it be large.

Defendants, however, earnestly contend that the trial court erred in not sustaining their motion for a new trial on the ground of after-discovered evidence.

The material portion of Rixey's affidavit made on June 10, 1957 and filed in the court below reads:

'On Thursday, June 6, 1957 about 5:30 p.m. I received a telephone call from an anonymous caller inquiring if our firm was handling the above case and stating that the caller had certain information concerning the plaintiff, Mrs. Rountree, which was pertinent to this case. A personal conference with the caller resulted in my being advised that the plaintiff was involved in an automobile accident in either 1938, 1939 or 1940 from which the plaintiff suffered a serious back injury and leg injury, which required her to be hospitalized. Since that time I am advised that the plaintiff has continuously complained of her back and that the accident which forms the basis of this suit was not the first injury to the plaintiff's back although she testified during the trial of the above case that she had never had any previous trouble with her back. At the present time a full investigation is being made to determine if such an accident did occur and whether or not the plaintiff did suffer a back injury in the previous accident in direct conflict with her testimony of May 20, 1957. Because the previous accident is supposed to have happened sometime ago, it has been difficult to locate the information as to the accident in the short period of time before the verdict in the above case becomes final.'

The substance of Ida Sullivan's affidavit, made June 11, 1957 and also filed with the trial court follows: She is the half sister of plaintiff and they both had lived in Norfolk since January 1938, except for a two year period around 1948 affiant lived in Durham, North Carolina. During the years 1938, 1939 and 1940 plaintiff resided with her parents and a brother. While residing with them plaintiff was injured in an automobile accident, causing her to be hospitalized in old St. Vincent's Hospital in Norfolk. She received injuries to her back and a leg which gave her considerable trouble and which she has continually complained of from that time until September 1955, when the accident in the instant case occurred.

While the present suit was pending affiant discussed plaintiff's injuries with her mother and inquired if anything would be said about the previous injuries plaintiff sustained and was advised not to mention them as nothing had been said. She recalled that plaintiff was hospitalized in Norfolk General Hospital in 1947 for an operation on one of her legs by Dr. John Vann. She believed a Dr. Hadley had removed a cyst from her leg prior to the operation by Dr. Vann. Plaintiff is able to do anything she desires to do. She drives an automobile, cares for her home and children, and on one occasion in the summer of 1956 she was seen by affiant diving from the shoulders of other persons into the water at Ocean View. Plaintiff has been married four times and has five children. Two of them are by a former husband, a Mr. Laughorn, and three by her present husband, Paul J. Rountree.

Plaintiff in her counter affidavit filed in the trial court, admitted that she was involved in an automobile accident in 1938 and received an injury to a leg, but not to her back. She stated there was no bone injury or any permanent injury to her leg, and that her present back injury resulted from the accident which is the basis of this suit. Nancy T. Wise, in her affidavit also filed in the lower court, made oath that plaintiff had never received any injury to her back except the one resulting from the collision on September 17, 1955.

On January 6, 1958 plaintiff filed with this court a motion to dismiss the writ of error with supersedeas awarded defendants on the ground that defendants' motion for a new trial on account of after discovered evidence was based solely on the affidavit of Ida Sullivan, which she alleges is conclusively false as shown by affidavits attached to her motion to dismiss the writ of error.

These affidavits include another of Ida Sullivan, made on December 14, 1957. In it she said that she has suffered from a nervous and mental disorder for many years and was treated for that illness by Dr. Robert H. Thrasher, a psychiatrist, in Norfolk General Hospital during 1955. As recently as July 1957 she attended the Norfolk Mental Hygiene...