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FRANK R. BACCARE v. ANTHONY MENNELLA (11/22/76)

decided: November 22, 1976.

FRANK R. BACCARE, APPELLANT,
v.
ANTHONY MENNELLA



Appeal from the Judgment of the Court of Common Pleas, Trial Division, Law, of Philadelphia County at No. 4220E, October Term, 1968. No. 1831 October Term, 1976.

COUNSEL

Malcolm H. Waldron, Jr., Philadelphia, for appellant.

Jonathan D. Herbst, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Jacobs

[ 246 Pa. Super. Page 54]

In this appeal from a verdict in appellant's favor in his personal injury action, appellant Frank Baccare

[ 246 Pa. Super. Page 55]

    contends that he received an inadequate verdict to compensate his losses due to the trial court's error in failing to instruct the jury regarding future medical expenses and loss of future earnings.*fn1 Because we find that appellant failed to prove the probability of future losses, we affirm.

Appellant was injured in February 1968 when a truck collided with his car while he was stopped in the middle of an intersection waiting for some children who were running back and forth across the street to clear the way. Appellant sustained injuries to the left side of his head, his left shoulder and arm and his lower back. After a period of time, appellant recovered from the head, shoulder and arm injuries but he continued to experience trouble with his back. At the conclusion of the trial, the jury returned a verdict in favor of the plaintiff-appellant in the amount of $19,000. He now contends that this amount is inadequate because, first, the jury was not instructed to consider future medical expenses, and, second, it was specifically charged not to consider future loss of earnings.

In order for a jury to be permitted to consider the future continuation of a disability as an element of damages, it is necessary that there be competent testimony of the likelihood that the disability will persist into the future. Some evidence must be submitted from which the jury can reasonably infer what the probable future consequences of the injury will be and award damages accordingly. Rice v. Hill, 315 Pa. 16, 172 A. 289 (1934); Schwegel v. Goldberg, 209 Pa. Super. 280, 228 A.2d 405, allocatur refused, 209 Pa. Superior Ct. xxxix (1967). This does not mean that expert medical

[ 246 Pa. Super. Page 56]

    testimony is required to predict with certainty the exact result expected; however, definite evidence of the degree of probability that the impairment will persist for some period is required. Stevenson v. Pennsylvania Sports & Enterprises, Inc., 372 Pa. 157, 93 A.2d 236 (1952); Lorch v. Eglin, 369 Pa. 314, 85 A.2d 841 (1952). The court in Lorch v. Eglin, supra, quoting O'Reilly v. Monongahela Street Ry. Co., 17 Pa. Super. 626, 630 (1901), stated, "'It is not what is to be feared but what is to be reasonably expected as the probable result of an injury which is to be taken into consideration by the jury . . . .'" Lorch v. Eglin, supra 369 Pa. at 321, 85 A.2d at 844. It was further noted in that case that "a mere possibility of future consequences resulting from an accident is not admissible in evidence; the object of this rule is to prevent a jury from estimating damages on the basis of mere conjecture or speculation as to what might occur in the future". Id. at 320, 85 A.2d at 844.

In the case at bar, the appellant testified to the pain he suffered in his lower back up to the time of trial and his doctor testified to the medical reasons the pain persisted. However, when asked to give a prognosis for the future, the doctor was unable to do so, nor was he able to estimate medical expenses or predict whether future hospitalizations would be required. He testified that it was his experience in cases of low back strain that recovery could come any day or never come at all and he could not predict what the future would bring in the appellant's case. When asked to estimate his future medical bills, appellant's doctor stated, "It would be hard, really, to pin down exactly how long -- I am hoping some day he'll wake up in the morning and say, Dr. Silk, I just feel like a new man. I don't need you any more, I mean, I am hoping for ...


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