Schofield v. Uebel

Smith, J., delivered the opinion of the Court. Stung by judgments totaling $73,210.00 in a case where he admitted liability and where the medical expenses arising out of an automobile accident were only $808.86, appellant (Schofield) complains to this Court, raising four questions: (1) whether plaintiffs sustained their burden of proof when there was a marked difference between the percentages of estimated disability presented by plaintiffs’ experts; (2) whether the trial court abused its discretion in denying Schofield’s motion for a new trial, or, in the alternative, for a remittitur in the light of the disparity between the judgments and the monetary damages of plaintiffs; (3) “Whether the impatience openly displayed by the Court toward Appellant’s counsel and the sole witness who testified for Appellant intimidated the jury, hampered appellant’s counsel in the trial of the case, and otherwise deprived the appellant of a trial in a calm and unhurried judicial atmosphere”; and (4) whether the judgment in the amount of $20,000.00 for the husband can be sustained as an item for damage for the loss of society, affection and assistance. We find all of Schofield’s contentions to be without merit. This case arises out of an automobile accident.

Appellees, Wilhelmina Uebel and Robert G. Uebel, her husband, (Uebel) were passengers in an automobile which was struck from the rear by an automobile driven by Schofield. Schofield admitted liability and the jury considered only the question of damages. I. Uebel presented two physicians to testify as to the injuries sustained by Mrs. Uebel. One was the family physician who had regularly treated Mrs. Uebel since 1951. ⁴⁰⁴ He testified as to treatment beginning immediately after the accident, his referral for physiotherapy treatment, his referral for examination by an orthopedic surgeon, the fact that during a substantial period of time she was obliged to wear a back brace and as to her continuing disability.

After, having indicated that.Mrs. Uebel had sustained a permanent partial disability he was asked the extent of this disability, to which he replied: “This is very difficult to measure. I cannot give an exact percentage of the disability. The back is essential as far as the body or the function of the body is concerned in a person. I think you will have to relate disability to a person’s duties.

I can find no satisfactory manner by consulting books as to how you can give any percentage of disability in a situation such as this. This patient every time she lifts anything, every time she moves, every time she does many of her household tasks is in danger of suffering for it for a period of many weeks or months. She does suffer — to the best of my knowledge she does suffer considerable distress on a constant basis. I cannot back up my professional opinion by any published work, but I would say she is at least 50 % disabled.” The orthopedic surgeon to whom Mrs. Uebel was referred by her family physician testified that using as a guide a manual for orthopedic surgeons published by the American Academy of Orthopedic Surgery to be used as a guide in evaluating the percent of disability with any given condition he concluded that Mrs. Uebel “had a 10% permanent partial disability of the whole body due to the cervical spine prob-sacral (sic) spine, or a total of approximately 20% total body permanent partial disability”, this being 20% of the body as a whole.

Schofield contends that the testimony of these two physicians was so inconsistent on the extent of the partial permanent disability that it confused rather than assisted ⁴⁰⁵ or instructed the jury. Accordingly, Schofield claims that Uebel has not met his burden of proof. He cites in support of his position Mundano v. Philadelphia Rapid Transit Co., 289 Pa. 51 , 137 A. 104 (1927). That case does not support his position.

There the plaintiff had a conflict between his experts, not as to the extent of disability, but as to whether a certain ulcerated condition came from the accident. Consequently, the Pennsylvania court said the evidence as to the ulcerated condition of the heel should have been excluded, stating: “If plaintiff calls more than one expert, there must be no absolute contradiction in their essential conclusions * * *.” (emphasis added) Id. at 60 . Here the experts were in agreement that the accident caused the disability, their disagreement being as to the extent of the disability resulting from the accident. We do not understand the cases to hold that a plaintiff has failed to meet his burden of proof because of a variance in the opinion of his experts as to the damage sustained.

See, for example, Mathiesen Alkali Works v. Redden, 177 Md. 560 , 10 A. 2d 699 (1940), where one of the plaintiff’s examining physicians testified that he found no injury, while the other testified that there was a sixty percent loss of hearing. There the Court said: “[T]he evidence in the case was undoubtedly legally sufficient to support a finding of permanent injury; therefore there was no error in granting either the plaintiff’s withdrawn prayer, or the substituted prayer, so that defendant could not possibly have been injured by the withdrawal of that prayer even if the court erred in permitting its withdrawal. But there