Brown Ex Rel. McNair v. Neal , 283 N.C. 604 ( 1973 )

197 S.E.2d 505 (1973) 283 N.C. 604

Ricky Clyde BROWN, by his next friend, Lucille P. McNair
v.
Jerry Evon NEAL et al.

No. 83.

Supreme Court of North Carolina.

July 12, 1973.

Childers & Fowler by Henry L. Fowler, Jr., Mount Holly, for plaintiff.

Mullen, Holland & Harrell, P. A., by Philip V. Harrell, Gastonia, for defendants.

LAKE, Justice.

Of the defendants' twenty assignments of error only Numbers 1, 3, 5, 7 and 20 are brought forward into their brief. The remainder are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court; State v. Greene, 278 N.C. 649, 180 S.E.2d 789; State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526. Of those brought forward and preserved for our consideration, all save No. 20 relate to rulings of the trial judge on the admissibility of evidence. Of these only Assignments 3 and 7 relate to the issue of negligence.

Assignment of Error No. 3 is that the court erred in denying the defendants' motion to strike the plaintiff's testimony that the car "was approaching very fast." The plaintiff had previously testified that he first observed the car on the other side of the intersection, in the left turn lane, about 80 feet from the plaintiff and that it came directly at him. There is no suggestion of any intervening traffic or other obstruction. The plaintiff had ample opportunity to observe whether the oncoming vehicle was approaching slowly, fast or very fast. Murchison v. Powell, 269 N.C. 656, 153 S.E.2d 352; Strong, N.C. Index 2d, Automobiles, § 46. Furthermore, the record shows no objection until after the answer to the question, "Will you describe the movement of the car?" It came too late. Stansbury, North Carolina Evidence, 2d Ed., § 27. There is no merit in this assignment of error.

In his Assignment of Error No. 7, the defendant complains of the court's excluding testimony of the defendant Neal designed to rebut the plaintiff's testimony that "the posted speed limit" in the area where the collision occurred was 20 miles per hour. The defendant was asked, "What is the closest traffic control sign that you know of between Main and Chester Street and the scene of the accident?" Had the witness been permitted to answer, he would have testified, "None." He had previously testified that the intersection of Main and Chester Streets, at which point he entered Chester Street, was only 175 feet from the point of collision and his testimony immediately preceding this question was, "A traffic light is the only speed control signs [sic] or devices [sic] between Main Street and Chester and Chester and Airline." There is no merit in this assignment of error.

The remaining exceptions brought forward into the appellant's brief relate solely to the issue of damages. "The law is well settled in this jurisdiction that in cases of personal injuries resulting from defendant's negligence, the plaintiff was entitled to recover the present worth of all damages naturally and proximately resulting from defendant's tort. The plaintiff, inter alia, is to have a reasonable satisfaction for actual suffering, physical and mental, which are [sic] the immediate and necessary consequences of the injury. The award is to be made on the basis of a cash settlement of the plaintiff's injuries, past, present, and prospective." King v. Britt, 267 N.C. 594, 148 S.E.2d 594. However, "[t]he doctrine of proximate cause which determines the existence of liability for negligence is equally applicable to liability for particular items of damage. To hold a defendant responsible for a plaintiff's injuries, defendant's negligence must have been a substantial factor, that is, a proximate cause of the particular injuries for which plaintiff seeks recovery." Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753.

The defendants' Assignment of Error No. 1 is that the court erred in permitting the plaintiff, over objection, to testify to certain pains and difficulties experienced in his lower back while taking calisthenics in the course of his army training and while he was in military service in Vietnam, more than two years after the injury for which he sues. He described these pains and difficulties as being in the same general area as the injury received in the collision. His testimony did not disclose any like difficulties with his lower back between his discharge from the hospital and his induction into the army.

The burden is upon the plaintiff to prove not only that he experienced the pain and difficulty with his back but also that the proximate cause of these was the injury sustained in the collision for which he sues. McCormick on Damages, 25A, § 14; 25A C.J.S. Damages § 162(6). A mere possibility of a causal relation between the two is not sufficient to permit the jury to consider the pain and difficulty experienced two years later in determining the amount of damages to be awarded for the earlier injury. Lee v. Stevens, 251 N. C. 429, 111 S.E.2d 623. It is a matter of common knowledge that one engaged in strenuous activity, such as calisthenics or military combat flying duty, may experience sudden, severe back strain and discomfort, followed by stiffness lasting several days, with no history of previous back injury. The mere proof of such back strain, without more, gives the jury no basis for knowledge as to whether it resulted from an injury sustained in an automobile collision two years earlier. Such evidence may not properly be considered by the jury in determining the amount of damages to be awarded for the earlier injury in absence of expert medical testimony, or other competent and substantial evidence, as to a causal relation between the two. Gillikin v. Burbage, supra; Strong, N.C. Index 2d, Damages, § 15.

Nevertheless, it was not error to permit the plaintiff first to testify as to the pain he experienced and thereafter to introduce evidence as to its causal relation to the injury for which he sues. In overruling the objection by the defendants to this testimony as to the pain and difficulty experienced in Vietnam, the court said, "If it doesn't connect, I will strike it." Almost immediately thereafter, there was a motion by the defendants to strike, which was denied, but this motion appears to have been directed at other, intervening testimony by the plaintiff concerning the nature of the calisthenic exercises he took in the army. If this motion to strike related to the evidence of which the defendants now complain, it was premature. Assignment of Error No. 1 affords no basis for a new trial.

Assignment of Error No. 5 is directed to the striking of part of the defendant Neal's answer to a question designed to show his solicitude for the injured plaintiff at the scene of the collision. The plaintiff testified, without objection, that when Neal got out of the car, immediately after the collision, he walked around the car and looked at it before going over to where the plaintiff lay on the pavement. In rebuttal Neal testified, without objection, "After my vehicle came to rest, I got out of the car and rushed to Mr. Brown immediately." He was then asked by his attorney, "Prior to rushing over to Mr. Brown as he was located to the left of your car, did you examine your car in any way?" He replied, "No, sir. The car didn't matter to me at all." Thereupon, the plaintiff objected and moved to strike, which motion was allowed, the court saying, "Members of the jury you will not consider his attitude towards the car." The defendant now assigns this as error, contending that the plaintiff's testimony had a tendency to show callous disregard for the plaintiff on the part of Neal and that the stricken statement by Neal was admissible to rebut such inference. This assignment does not afford a basis for a new trial.

The defendants' Assignment of Error No. 20 is directed to the following statement in the charge of the court on the issue of damages:

"The sum fixed by the jury should be such as to fairly compensate the plaintiff for injuries sustained in the past and those likely to occur in the future. The award is to be made on the basis of a cash settlement of the plaintiff's injuries, past, present, and prospective."

That this is a proper statement of the rule as to the measure of damages for personal injuries where there is sufficient evidence of pain, disability or other injury continuing into the future to justify consideration thereof by the jury, is well settled. King v. Britt, supra; Mintz v. R.R., 233 N.C. 607, 65 S.E.2d 120; Strong, N.C. Index 2d, Damages, § 3. In the present instance, however, the trial judge inadvertently overlooked the fact that there was no evidence whatever that the plaintiff, as of the time of the trial, would suffer any pain or disability in the future, and none affording any reasonable basis for a finding of a causal connection between the injury for which he sues and any pain or disability which he might experience after the trial. Under these circumstances, it was error to instruct the jury that they might award damages for pain or disability "likely to occur in the future." By so doing, the court inadvertently invited the jury to speculate as to whether the plaintiff would experience pain or disability in the future, and if so, how much, and as to whether, if such pain or disability should occur, it would have a causal connection with the injury sustained in the collision which is the subject of this action.

As Justice Sharp, speaking for the Court in Gillikin v. Burbage, supra, observed:

"The jurors were left to speculate about a matter which frequently troubles even orthopedic specialists. * * * There can be no recovery for a permanent injury unless there is some evidence tending to establish one with reasonable certainty. * * * Where, however, the injury is subjective and of such a nature that laymen cannot, with reasonable certainty, know whether there will be future pain and suffering, it is necessary, in order to warrant an instruction which will authorize the jury to award damages for permanent injury, that there ``be offered evidence by expert witnesses, learned in human anatomy, who can testify, either from a personal examination or knowledge of the history of the case, or from a hypothetical question based on the facts, that the plaintiff, with reasonable certainty, may be expected to experience future pain and suffering, as a result of the injury proven.' Shawnee-Tecumseh Traction Co. v. Griggs, 50 Okl. 566, [568,] 151 P. 230 [, 231]; Annot., * * * 115 A.L.R. 1149."

The testimony of Dr. Gillman, the chiropractor who treated the plaintiff, was:

"During the time I was treating him, I did not at any time become concerned about his condition to the point that I felt like he should go to an orthopaedist or any other type of doctor. It was my opinion that he was doing nicely and making progress as I proceeded in treatment. In my opinion when I discharged him, he was well." (Emphasis added.)

The reports of Dr. Roberts and Dr. Miller, both of whom attended the plaintiff while he was in the hospital, do not suggest any apprehension of permanent disability. Both anticipated that the plaintiff would return for further observation, which he did not do. Nothing in the plaintiff's testimony indicates that the difficulties he experienced with his back while in military service in Vietnam continued over any extended period of time or substantially impaired the performance of his military duties. He is still on active duty.

The plaintiff's own testimony in relation to his condition at the time of trial is as follows:

"It [his back] tends to get stiff when I sit or something, it pops, my neck and back both. It kind of cracks and hurts. It pops. It hurts when it pops and also if it pops too often. If I do it too much, I develop a headache. * * * I have several scars on my lower feet and lower legs [not otherwise described and not shown in the record to have been exhibited to the jury] and bruises from this accident—a numb place on the inside of my left thigh. It stays that way * * * [for any pain experienced as of the time of the trial he simply took aspirin, or something like aspirin]. I can't sleep with a pillow. If I sleep with my head raised at all at night, I have a real bad headache. I have to sleep perfectly flat. I am not restricted in any way with my military duties as a result of being physically disabled. I just try to be careful. * * * I have been sleeping on this plywood board with no pillow ever since the wreck. I have to put a board under my mattress to make it firm and comfortable."

To permit the jury, on this evidence, to award damages for "injuries * * * likely to occur in the future" is to inject pure speculation into the award. In Short v. Chapman, 261 N.C. 674, 682, 136 S.E.2d 40, 46-47, Justice Parker, later Chief Justice, speaking for the Court, said:

"Where there is evidence from which a conclusion of permanent injury proximately resulting from the wrongful act may properly be drawn, the court should charge the jury so as to permit its inclusion in an award of damages. On the other hand, where there is not sufficient evidence of the permanency of an injury proximately resulting from the wrongful act, the court should not give an instruction allowing the jury to assess damages for permanent injuries. To warrant an instruction permitting an award for permanent injuries, the evidence must show the permanency of the injury and that it proximately resulted from the wrongful act with reasonable certainty. While absolute certainty of the permanency of the injury and that it proximately resulted from the wrongful act need not be shown to support an instruction thereon, no such instruction should be given where the evidence respecting permanency and that it proximately resulted from the wrongful act is purely speculative or conjectural."

In the Short case the defendant, in support of her counterclaim, testified that at the time of the trial her leg still hurt, had never gotten better, and had a numbness. Her doctor expressed no opinion that her injuries were permanent and no opinion as to the cause of the pain and numbness in her leg. He was not called as a witness. Upon that evidence, this Court said:

"Is this condition permanent, and was it proximately caused by the wrongful act of the plaintiff? Is this numbness in her left leg caused or contributed to by the injuries she sustained in the collision, or is it caused or contributed to by poor circulation or arthritis? Defendant's evidence gives no answer; it is left in the realm of conjecture and speculation. The record has no evidence that would permit a jury to find with reasonable certainty that she sustained any permanent injury as a proximate result of the collision. The instruction permitting the jury to award damages for permanent injury was highly prejudicial to plaintiff, because it is apparent from the evidence in the record of defendant's injuries, and of her continuing complaints of pain, which complaints of pain are subjective in character, and from the size of the verdict that the jury awarded defendant damages on the theory she had sustained permanent injuries proximately resulting from the collision."

In this respect there is no distinction between recovery for "permanent" disability and recovery for "prospective" pain and suffering. Obviously Short v. Chapman, supra, is squarely in point upon the question here presented to us and this assignment of error by the present defendant must be sustained.

The remaining question is as to the extent of the new trial to be granted. There was no error in the trial below upon the question of liability of the defendants to the plaintiff for damages. The conflict in the evidence of the plaintiff and that of the defendants on that question was for the jury, which resolved it in favor of the plaintiff. The error in the charge of the court related only to the measure of damages recoverable by the plaintiff and had no bearing upon the jury's determination of the negligence of the defendant Neal as the proximate cause of the plaintiff's injury.

In Godwin v. Vinson, 254 N.C. 582, 587, 119 S.E.2d 616, 620-621, Justice Parker, later Chief Justice, having found an error in the instruction of the trial judge on the measure of damages, speaking for the Court, said:

"The statement of Walker, J., for the Court in Table Rock Lumber Co. v. Branch, 158 N.C. 251, 73 S.E. 164, 165, has been quoted many times with approval: ``It is settled beyond controversy that it is entirely discretionary with the court, superior or supreme, whether it will grant a partial new trial. It will generally do so, when the error, or reason for the new trial, is confined to one issue, which is entirely separable from the others, and it is perfectly clear that there is no danger of complication.'

"This case comes within the rule stated by Justice Walker as to when a partial new trial will be ordered. We perceive no good reason why attachment defendant should again be put to trial on the first, second, and third issues. In awarding a partial new trial upon the fourth issue [damages] alone, we find precedents in our following decisions: Lieb v. Mayer, 244 N.C. 613, 94 S.E.2d 658; Hinson v. Dawson, 241 N.C. 714, 86 S.E.2d 585; Journigan v. Little River Ice Co., 233 N.C. 180, 63 S.E.2d 183; Pinnix v. Griffin, 221 N.C. 348, 20 S.E.2d 366; Jackson v. Parks, 220 N.C. 680, 18 S.E.2d 138; Messick v. City of Hickory, 211 N.C. 531, 191 S.E. 43; Gossett v. Metropolitan Life Ins. Co., 208 N.C. 152, 179 S.E. 438; Johnson v. Seaboard Air Line R. R., 163 N.C. 431, 79 S.E. 690; Ann.Cas.1915B 598; Rushing v. Seaboard Air Line R. R., 149 N.C. 158, 62 S.E. 890."

In Johnson v. Lewis, 251 N.C. 797, 112 S.E.2d 512, Justice Parker, again speaking for the Court, in an action for personal injuries caused by the negligence of the defendant, found error in the charge as to the measure of damages recoverable by one of the plaintiffs. He said, "We perceive no good reason why the infant Efird Johnson should again be put to trial on the first and second issues." Thereupon, relying upon the same authorities cited by him in Godwin v. Vinson, supra, this Court awarded the defendant a new trial "limited, however, to the issue of damages." We are of the opinion that the same rule should apply in the present case and, therefore, order a new trial, limited to the issue of damages.

Partial new trial.