Summary
finding that a "deprivation of some marital association by the husband can be inferred reasonably from the wife's infirmities" where wife testified that the couple hired someone to clean around the house for some time after her accident
Summary of this case from Schipani v. McLeodOpinion
January 20, 1971
Appeal from a judgment of the Supreme Court, entered June 1, 1970 in Ulster County, upon a verdict rendered at a Trial Term for $10,000 in favor of the plaintiff wife and $1,500 for her husband, the sole issue being the amounts of the verdict. The action arises out of an automobile accident on November 2, 1967. The wife, 30 years old at that time and the mother of a small infant, testified that on the day following she "ached all over" particularly in the neck and back, that when she visited a physician four days later her neck, back and shoulder bothered her, that her lower back troubled her for six weeks or more, that she experienced numbness in her arms during the following springtime, that at the time of trial in May, 1970 she was still having stiffness in her neck and shoulder each morning with more severity in cold weather and discomfort following vigorous work. She related that, although not bedridden, she was unable to do regular work and was confined to her home for a couple of weeks following the accident except for grocery shopping twice and a doctor's visit, that for a period of four months a lady was engaged to do heavy cleaning and that her doctor was visited or consulted six times. Dr. Russo, an orthopedic specialist, initially found spasms of the trapezius muscles and made a diagnosis of cervical and lumbosacral sprain. A year later he noted a persistence of spasm and five months thereafter found evidence of fibrosis or scarring of the right trapezius muscle. In his opinion, she suffered a permanent disabling condition caused by stiffness and discomfort. The Trial Justice occupied an advantageous position in judging the truthfulness of the witnesses and we necessarily attach weight to his evaluation of the case upon the motion to set aside the verdict as against the weight of the evidence ( Lawrence v. Walsh, 8 A.D.2d 917). It cannot be said that the jury's finding "could not have been reached upon any fair interpretation of the evidence" ( Olsen v. Chase Manhattan Bank, 10 A.D.2d 539, 544, affd. 9 N.Y.2d 829; 7 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 5501.21). The basic issues, the existence of a condition of such severity as to cause the prolonged pain and disability to which Mrs. Murphy testified and the permanency found by her physician, were for the jury's determination and the amounts of the verdict were not so shocking as to warrant our interference ( Colby v. Drew, 15 A.D.2d 846). The deprivation of some marital association by the husband can be inferred reasonably from the wife's infirmities ( Gering v. Nicholville Tel. Co., 18 A.D.2d 945). Judgment affirmed, with costs. Herlihy, P.J., Reynolds, Staley, Jr., Greenblott and Cooke, JJ., concur.