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Panko v. Grimes

Decided: July 6, 1956.


Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.


Mrs. Mae Panko had a verdict of $8,000 for personal injuries sustained while a passenger in a car driven by her husband, George Panko, which collided with an automobile operated by defendant. This was reduced by consent to $6,000. George Panko recovered $3,126 for personal injuries, property damage and loss of consortium. From judgments for these sums entered in the Law Division defendant appeals. The principal point of controversy arises from the charge of the trial court that Mrs. Panko "did, in fact, by uncontradicted testimony, suffer pain and at least some degree of permanent injury." Defendant's position is that the court erred in removing the issue of the permanency of Mrs. Panko's injuries from the province of the jury.

The accident occurred May 31, 1954. Mrs. Panko was rendered unconscious by the crash and was taken to the Paul Kimball Hospital, where, according to the hospital records, she remained until June 4, 1954, when she was discharged. Her testimony at the trial was that she was confined to the hospital eight days. Mrs. Panko testified that when she returned home she was unable to do her household duties because she was too sick. She felt pains and a pulling in the back and left parts of her neck. The pains and accompanying headaches continued until the trial in October 1955. These conditions confined her to bed "two

or three times a week," for a day or two on each occasion. She says the pains go "to the back of her ear and up her head" with the sensation of a hammer hitting her head. She said, also: "My body was severely bruised, so I still have aches and pains in my body. * * * Naturally, it wasn't only on the outside. It was on the inside, too."

Dr. Carmine L. Pecora, a general practitioner, testified for plaintiffs. He attended Mrs. Panko at the hospital and on a number of subsequent occasions treated her at his office, the first time, June 25, 1954, and the last three dates, March 31, May 27 and October 5, 1955. X-rays and a survey of the cervical spine and ribcage were negative, and there was no indication of dislocation. The patient's pain "persisted for quite some time," and in October 1954 he began to treat her with a Camp collar for the support of the neck. Apparently on the basis of consultation with an orthopedic specialist in Philadelphia, to whom he had referred the patient "for an opinion," Dr. Pecora described the injury as of the "whiplash" type, including a "tearing of the posterior longitudinal ligaments, involving the third, fourth, and fifth cervical vertebra [ sic ] with an anterior slipping of the vertebra and a tearing of the muscles on the left side of the neck." She was given drugs intermittently for relief of pain. The doctor testified, on direct examination:

"Q. What is your prognosis, Doctor? What does the future hold for this woman for the injuries she sustained?

A. Well. when I last saw Mrs. Panko she was still complaining of pain in the left cervical region. I can't say how long it's going to stay there or when it's going to go away. I don't know."

On cross-examination of Dr. Pecora, it was shown that the hospital record pertaining to Mrs. Panko showed an entry of "no special complaints" for June 1, 1954 and entries of "no complaints" for each of the subsequent days of her stay at the hospital.

Dr. Jesse Schulman made a physical examination of Mrs. Panko on behalf of the defendant on October 27, 1954 and also on May 13, 1955. He testified that upon his first examination

he "found that Mrs. Panko had suffered a mild sprain of the neck, in essence * * * a stretching of the ligaments which support the vertebrae, the spine, in that neck region." Her condition on the second examination and her complaints were "about the same. She still had restriction of motion of the neck and there had been very little change." He testified that he could find some restriction without regard to the subjective symptoms but that "the restriction which Mrs. Panko reported, of course, was much more extensive." His final diagnosis was "a cervical sprain of a mild degree." He testified:

"* * * I might add that I believe that Mrs. Panko's disability is more apparent than real. When one talks to her and examines her and enables her to relax, one is able to move her head rather freely, also ...

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