State Farm Mut. Auto. Ins. Co. v. Futrell

• Decision Date: 06 September 1968
• Citation: 209 Va. 266,163 S.E.2d 181
• Court: Virginia Supreme Court
• Parties: STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. William Howard FUTRELL et al.

Page 181

163 S.E.2d 181

209 Va. 266

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. William Howard FUTRELL et al.

Supreme Court of Appeals of Virginia.

Sept. 6, 1968.

Larry M. Topping, Newport News (Hall & Fox, Newport News, on brief), for plaintiff in error.

B. M. Millner, J. Warren Stephens, Newport News (W. Glover Garner, Jr., Robert W. Curran, Stephens & Wentworth, Marshall Blalock, Garner & Millner, Newport News, on brief), for defendants in error.

Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, GORDON and HARRISON, JJ.

HARRISON, Justice.

William Howard Futrell, plaintiff, filed his motion for judgment against Robert Edward Coleman and Richard Rexsamer Baker, defendants, alleging that the negligence of the two defendants, jointly and severally, caused the plaintiff to sustain personal injuries in an automobile accident. Defendant Baker filed his grounds of defense to the motion. Defendant Coleman being an uninsured motorist, grounds of defense in his behalf were filed by State Farm Mutual Automobile Insurance Company and Fidelity and Casualty Insurance Company of New York.

Upon a trial of the case, the court granted Baker's motion to strike the plaintiff's evidence as to him and entered summary judgment in his favor. Thereafter the jury returned a verdict in favor of the plaintiff in the sum of $35,000 against Coleman, and the trial court entered judgment on the jury's verdict. We granted State Farm Mutual Automobile Insurance Company a writ of error to this final order.

The accident involved here occurred on Highway 168, a mile west of Queen's Creek Bridge in York County, about 1 P.M. on October 5, 1964. Normally this is a divided four-lane highway, but at that time all traffic was being handled on the lanes usually reserved for eastbound traffic.

The speed limit at this point was 55 miles per hour. The road was of concrete construction. It had been raining, and a slight drizzle was occurring at the time. Futrell was driving his Ford car in a westerly direction, behind a bread truck driven by one Jack Sale. Following Futrell was a Thunderbird driven by defendant Baker.

The defendant Coleman was proceeding in an easterly direction. Evidence of eyewitnesses established that, while attempting to pass vehicles in front of him, and notwithstanding approaching vehicles, he so operated his Pontiac vehicle as to cause Sale to pull abruptly to the right to avoid a collision. Coleman then pulled further into the left and improper lane of the road and collided headon with the automobile driven by Futrell. Immediately following this impact, defendant Baker's automobile struck Futrell's vehicle in the right rear.

The speed of Coleman's vehicle was estimated by witness Herbert Russie, who was following immediately behind Coleman, at approximately 55 miles an hour, 'if not a little faster'. He testified that Coleman narrowly missed the bread truck before colliding with the Ford automobile driven by Futrell. Four witnesses estimated that Coleman veered into the lane in front of Futrell when the two cars were approximately 50 to 75 feet apart. The speeds of the bread truck, Futrell and Baker were variously estimated at from 45 to 55 miles an hour.

Baker was approximately 150 to 200 feet behind Futrell when he saw Coleman veer over the centerline of the road toward the Futrell car. His statement was that as soon as possible he applied his brakes and cut his car to the right side of the road; that the road was built up at that point and his car started to 'crab like' with all four wheels going off the concrete; and that before it came to rest, the right front fender of his car had struck the Futrell vehicle. He estimated his speed at the time of impact at not more than 10 or 15 miles an hour. The damage to the front end of the Baker vehicle was described by him as follows: 'The bumper had a dimple in it. The * * * grille was broken on the right side. The right headlight was * * * broken and the right fender was bent.'

The state trooper who investigated the accident described the damage done the Futrell vehicle by the Baker car as '* * * a slight dent or marking on the right rear bumper.' He said that the Baker vehicle sustained damage to its right front headlight, hood and fender.

Coleman remembers nothing about the accident.

As the result of the impact, the Coleman and Futrell vehicles were described as 'totally damaged'. The front end of the Futrell car was 'accordioned' into the driver's compartment.

State Farm petitions as to reverse the judgment against Coleman and makes 15 assignments of error.

First it complains that the trial court erred in refusing to sustain Coleman's motions to strike the plaintiff's evidence. From this evidence it could be found that plaintiff was traveling at approximately 45 miles an hour, on his right and proper side of the highway, when defendant Coleman approached from the opposite direction at a speed faster than 55 miles an hour, crossed over the dividing line of the highway when he was about 50 feet in front of plaintiff, and thereupon crashed headon into plaintiff's vehicle.

The court correctly instructed the jury that Coleman was negligent as a matter of law in the operation of his automobile. It further told the jury that if it believed that such negligence was a proximate cause of the collision it should find for the plaintiff, unless Futrell was himself guilty of contributory negligence. It is unnecessary for us to discuss here whether or not there was sufficient evidence of contributory negligence on the part of the plaintiff to have warranted the giving of that phase of the instruction. The trial judge submitted the question to the jury, and its verdict in favor of plaintiff is binding on us.

It is argued that the trial court erred in striking plaintiff's evidence as to Baker and in entering summary judgment in his favor. The testimony is that immediately prior to the accident, defendant Baker was operating his car at a reasonable speed, within the proper lane of travel, and a reasonable distance behind Futrell. The act which precipitated the accident was the negligence of Coleman in pulling left into the improper lane, and in the face of approaching vehicles, thereby forcing the bakery truck to veer to its right and requiring Futrell to brake his vehicle suddenly in an effort to avoid a collision. Baker was confronted with an emergency not of his making.

There is no evidence here that establishes, or from which it can be reasonably inferred, that any of the injuries sustained by Futrell were occasioned by reason of the impact of the Baker vehicle. The most that can be said is that following the violent collision of the Coleman and Futrell vehicles, there was some contact between Futrell's car and Baker's car. The burden was on the plaintiff to show that the negligence of Baker proximately caused or contributed to cause his injuries, or that such injuries resulted in part from the negligence of Baker as well as the negligence of Coleman. To have submitted this issue to the jury would have invited its speculation with respect to whether Futrell's injuries were caused to any degree by the impact between the Baker and Futrell vehicles.

Complaint is made that the verdict is excessive and shocking to the conscience of fair-minded men. As a result of the accident, Futrell was hospitalized from October 5, 1964 until November 6, 1964. Subsequently, he was admitted to Riverside Hospital for a heart condition, which his physician relates to the accident, and remained a patient there from February 19, 1965 to February 27, 1965. His injuries consisted of multiple lacerations, disfiguring facial lacerations involving his upper lip, a fractured nose and nasal injuries, a fracture of the right heel bone, a fracture of the left fibula, a mild cerebral concussion and numerous bruises. Approximately 300 stitches were necessary to close the lacerations he suffered. Facial surgery was performed. A closed reduction was done to the right heel bone and cast applied. The attending physician estimated that Futrell received a 25% Permanent impairment in the function of his left leg due to the heel injury. A plastic surgeon performed an operation to correct a deviated septum and cartilage resulting from a blow to the side of Futrell's face which caused an obstruction in his respiration. Plaintiff will have a 'hump' in his nose as a result of the injury and operation. Medical expenses incurred by Futrell approximate $2000. Mr. Futrell was unable to work from October 5, 1964 through June 19, 1965, and there is evidence that he is not as efficient, alert or productive as he was prior to the accident.

It suffices to say that there is abundant evidence in the record that plaintiff has suffered severe, painful and permanent injuries--some of a disfiguring character. His out-of-pocket expenses have been considerable, and the jury could have found that his earning capacity has been curtailed. The jury concluded that an award of $35,000 was fair and reasonable, and its verdict has the full...