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MARY ANNE HOLLAND v. GEORGE ZELNICK (07/13/84)

filed: July 13, 1984.

MARY ANNE HOLLAND, APPELLANT,
v.
GEORGE ZELNICK



No. 2268 Phila., 1981, Appeal from the Judgment of the Court of Common Pleas of Northumberland County, Civil Division, Entered August 26, 1981 at No. CV-79-8.

COUNSEL

Richard M. Serbin, Altoona, for appellant.

Joey A. Storaska, Sunbury, for appellee.

McEwen, Rowley and Watkins, JJ. Rowley, J., concurs in the result.

Author: Watkins

[ 329 Pa. Super. Page 472]

This case comes to us on appeal from the Court of Common Pleas of Northumberland County and involves plaintiff-appellant's appeal from an order of the court below which denied her motion for a new trial.

Plaintiff, a 22 year old college graduate, was the operator of a motor vehicle on January 5, 1977 when it was struck in the rear by defendant's vehicle while stopped at a traffic control device. Plaintiff initiated an action in trespass against defendant alleging various injuries to her neck area. At trial three physicians testified about her injuries. Plaintiff's expert medical witnesses attributed her pain and suffering to the January 5, 1977 accident. The defendant's expert medical witness noted that neither he nor any of the physicians who had treated plaintiff found any objective evidence of pain. His opinion was that the January 7, 1977 accident did not cause plaintiff to have the pain of which she complained. He testified that her pain was subjective and was brought on by the litigation and was thus due to an external factor. Plaintiff also admitted that she had suffered an injury to her neck in April of 1976 in another automobile accident. The evidence at trial indicated that the January 5, 1977 accident consisted of a mere "thump" or "bump".

The jury returned a verdict on October 17, 1980. The verdict slip contained three interrogatories. Following deliberation the jury returned a verdict to the effect that defendant was negligent, but that defendant's negligence did not bring about plaintiff's injuries, and awarded plaintiff no damages. After the court below denied plaintiff's motions for a new trial limited to the issue of damages she appealed to this Court.

[ 329 Pa. Super. Page 473]

Plaintiff's first contention is that the court below erred when it refused plaintiff's point for charge which would have instructed the jury that plaintiff had a right to be compensated for aggravation of a previously existing injury. Plaintiff requested this charge and the trial court refused it. In support of its argument plaintiff cites our decision in the cases of Binkey v. Olinger, 282 Pa. Superior Ct. 473, 423 A.2d 1 (1980 and Cingota v. Milliken, 286 Pa. Superior Ct. 117, 428 A.2d 600 (1981) wherein we held that plaintiffs who have failed to allege in their complaint that an injury constituted an aggravation of a pre-existing one should be permitted to introduce evidence of such nature at the trial of their cases so long as the defendant is not surprised nor prejudiced in any way. Plaintiff argues that in the instant case her requested point for charge should have been granted because she was entitled to recovery even if her January 5, 1977 injuries constituted an aggravation of her April, 1976 neck injuries. The difficulty with this contention is that plaintiff never alleged nor proved that the January 5, 1977 accident aggravated her pre-existing injury. At trial all of her proof was to the effect that she had completely recovered from her April, 1976 injuries and that her present condition was attributable solely to the January 5, 1977 accident. In the cases cited above, while plaintiffs failed to plead aggravation of a pre-existing injury, they introduced evidence to prove it which was allowed by the courts. In our case plaintiff neither alleged nor proved such a situation. A trial court properly refuses a requested point for charge where it has no application to the facts of the case or where it assumes the existence of evidence not in the record. Pavia v. State Mutual Life Assurance Co., 179 Pa. Superior Ct. 272, 116 A.2d 762 (1955). Since plaintiff never offered evidence to the effect that January, 1977 accident aggravated her pre-existing injuries, the court below did not err in refusing her requested point for charge.

Plaintiff's second contention is that the court below erred in refusing her motion for a new trial limited to the

[ 329 Pa. Super. Page 474]

    issue of damages because the jury's verdict was against the law, against the weight of the evidence, and against the charge of the court. In her brief plaintiff goes to great lengths to describe the pain and emotional anxiety she suffered allegedly as a result of the accident. She also points to the testimony of her expert witnesses both of whom opined that her pain and emotional frustration were due to injuries received in the January, 1977 accident. She argues that although defendant's expert medical witness advanced the opinion that her pain and frustration were caused by her anxiety over her lawsuit he also admitted that the type of accident she described to him could result in soft tissue damage. Thus, she argues that for the jury, to find negligence on defendant's part, but for it also to find that the negligence was not a substantial factor in bringing about her injuries, it entered a contradictory verdict which was clearly against the weight of the evidence. We disagree. This is not a case where a defendant is found to be negligent and his negligence is found to have caused plaintiff's injuries, but an award of adequate damages is not returned because of some subjective view on the part of the jury. In this case despite the finding of negligence on defendant's part for "bumping" plaintiff's vehicle, the jury clearly found that defendant's actions had nothing to do with plaintiff's condition, real or otherwise. Simply put, the jury rejected the testimony of plaintiff's expert medical witnesses and accepted the testimony of defendant's expert. The jury simply did not believe that the headaches and other severe pain described by plaintiff and her parents at her trial were caused by defendant's negligent action in bumping plaintiff's vehicle. Thus, the jury found that ...


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