Johnson v. Meade

563 P.2d 522, 1 Kan. App. 2d 254, 1977 Kan. App. LEXIS 155

• Court: Court of Appeals of Kansas
• Decided: April 29, 1977
• Docket: 48,264
• Status: Published

Opinions

Abbott, J.:

This suit was brought by plaintiff-appellant alleging she was injured in an automobile collision. The trial court directed a verdict for plaintiff on the issue of liability. The jury awarded plaintiff no damages. Judgment for defendant-appellee was entered on the verdict, plaintiff’s post-trial motions were overruled, and plaintiff appeals.

On August 4, 1971, the plaintiff, Betty Lou Johnson, was a passenger in a car driven by her daughter, Brenda.

Brenda was taking plaintiff to her doctor’s office for a hormone shot. The car was proceeding south and had stopped in response to a traffic light when the accident occurred. Plaintiff’s car was the second or third one from the traffic light in the outside lane of traffic. Plaintiff was sitting in the right, front seat, and at the moment of impact she had turned to check on a baby in the back seat. Defendant was also proceeding south in the inside lane, and was in the process of changing lanes when she struck the left rear and left side of the vehicle in which plaintiff was riding. Defendant was subsequently charged with and pled guilty to driving while under the influence of intoxicating liquor or drugs.

Defendant-appellee has not appealed from the trial court’s directing a verdict on the question of liability, thus a detailed reassertion of the facts of the accident is not necessary.

Defendant-appellee did contest the alleged injuries from the outset with great vigor, expertise, and success. The controversion of facts begins at the scene. Plaintiff testified she was nervous and upset at the scene, cried, and experienced pain. Her daughter verified her testimony. The investigating officer testified he marked the traffic report as a no-injury accident. He would have paid particular attention to any injuries since the defendant had been drinking. The officer testified there were no injuries reported to him, but he did not talk to plaintiff.

Plaintiff’s husband, Joe Johnson, Jr., was called, and he went to the accident scene. Mr. Johnson testified his wife was hysterical, but she did not complain of pain in any part of her body. He further testified that since the accident she had quite a change in mental attitude, cannot do her housework, limps, apd is very irritable. On cross-examination, he admitted that prior to the accident his wife complained of headaches, pain in her back which radiated to her legs, dizziness, and occasional fainting spells.

Brenda, plaintiff’s daughter, testified her mother can no longer travel, sit for a long time, do her housework, stay up any length of time, becomes upset very easily, walks with a limp, and wobbles. On cross-examination, Brenda admitted she moved away from home seven days after the accident, and that her mother had complained of fainting and blackout spells “once in awhile” prior to the accident. Two neighbors testified that since the accident plaintiff could no longer get around, couldn’t do her housework, and wasn’t cheerful anymore.

Plaintiff went directly to her doctor’s office. The doctor’s nurse gave her a hormone shot, and then checked her over. The nurse called Dr. Miller, who had a prescription delivered to her home. Plaintiff readily admitted, “I didn’t know whether I was hurt or not. I thought maybe I was just shook up. . . .” She took the medicine, used a heating pad and an analgesic. The following Monday, plaintiff returned to Dr. Miller’s office complaining of headaches, pain in the neck and back, and bruises on the left thigh and foot as a result of the accident. She was examined, medication was prescribed, and X-rays were ordered. Dr. Miller made a diagnosis of “whiplash injury with contusions and abrasions, contusions of the left thigh and of the left foot.”

Plaintiff continued to see Dr. Miller on almost a monthly basis and complained of headaches and pain in her back and neck. The X-rays Dr. Miller caused to be taken five days after the accident showed minimal arthritic changes. In November of 1971, plaintiff was hospitalized for bilateral vein ligations. Plaintiff also complained of headaches and back pain. X-rays revealed minimal degenerative changes, including a narrowing of L-5, S-l inter-space. No mention of the accident was made in the hospital records. In November of 1972, plaintiff was admitted for tension headaches and menopausal depression, and she also complained of headaches, dizziness, blurred vision, weakness on left side, shortness of breath, and having “passed out.” A neurologist, Dr. Drake, was called in, and it was his opinion that there was no organic cause for her symptoms and that she was normal from a clinical neurological standpoint. No mention of the automobile accident appears in the hospital records and the accident was not mentioned to the neurologist. Dr. Miller testified that the hospitalization in November 1972 was the result of the accident.

In February 1973, plaintiff was again admitted to the hospital and placed in traction. She continued to suffer neck and back pain and was hospitalized on June 14, 1973. An orthopedic surgeon was consulted, and traction and physical therapy were continued. On July 6, 1973, Dr. Duane Murphy, a board-certified orthopedic surgeon, performed a laminectomy and fusion. Plaintiff was again hospitalized for pain and discomfort in November 1973. Both Dr. Miller and Dr. Murphy testified at the time of trial that her condition was permanent and that she would require future medical treatment, including hospitalization. Bills totaling $8,470.02 for medical treatment, hospital care, drugs and medical appliances were introduced into evidence over defendant’s objection.

Dr. Miller testified that the injuries which plaintiff received in the accident of August 4, 1971, caused her present condition, and certainly could have aggravated any pre-existing condition. On cross-examination, Dr. Miller noted he had treated plaintiff since 1956, and prior to August 4, 1971, plaintiff had complained of backaches, low back pain that radiated into her legs, headaches, dizziness, nervousness, loss of sex drive, depression, fainting, hurting all over, tenseness and nausea.

On direct examination, Dr. Murphy testified that in his opinion plaintiff’s condition was caused by the accident, but on cross-examination the doctor admitted that he wasn’t told by anyone that for eleven years prior to the accident plaintiff had complained of back pain, headaches, and dizziness.

Defendant offered no medical or lay testimony concerning plaintiff’s physical condition and relied solely on cross-examination of plaintiff’s witnesses to contravene testimony elicited on direct examination.

The trial court instructed the jury in pertinent part:

“The issues of the defendant, Lois A. Meade’s negligence and its connection with the accident in question are removed from your consideration. You are instructed that the defendant, Lois A. Meade was negligent and that her negligence caused plaintiff injury and damage.

“The only issue remaining for you to decide is the amount of damages, if any, that plaintiff is to be awarded for injuries and damages proven by her to have resulted from the accident in question.” (Emphasis supplied.)

No objection was made to the instruction by plaintiff at the trial and the instruction is not questioned on appeal. We do note the words “and damage” were added to paragraph one of the above instructions, and the words are shown in PIK Civ. 6.05 as optional, which would lead one to the conclusion the trial judge found as a matter of law plaintiff was entitled to damages. In the very next sentence of the same instruction, however, the trial court altered PIK Civ. 6.05 basically by the use of the words “if any” after the word “damages.” The two sentences are in obvious conflict and, at best, are confusing to the jury.

The jury returned a verdict and found “the amount of actual damages to be awarded to plaintiff to be in the amount of $ none.”

Appellant raises a single point on appeal, which is that the trial court erred in not granting a new trial on the issue of damages. It is appellant’s position that the evidence was uncontradicted that plaintiff was injured, suffered pain, incurred expenses for medical and hospital care and treatment, and that the jury could not return a verdict for plaintiff and find no damages.

The law is well settled that ordinarily the assessment of damages in personal injury cases is exclusively the province of the jury (Domann v. Pence, 183 Kan. 135, 325 P. 2d 321), and the jury is presumed to have acted fairly, reasonably, intelligently, and in harmony with the evidence (Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P. 2d 60).

The granting of a new trial generally rests in the sound discretion of the trial court, and its decision will not be disturbed absent a showing of abuse of discretion or other manifest error (Henderson v. Kansas Power & Light Co., supra). A jury, however, may not arbitrarily nor from partiality nor caprice disregard uncontradicted or unimpeached testimony, nor may it disregard the only evidence upon a material question in controversy by returning a verdict in direct opposition thereto (Lorbeer v. Weatherby, 190 Kan. 576, 376 P. 2d 926). “In the absence of a statute to the contrary, the general rule is that where a verdict awarding damages is so inadequate as to indicate passion and prejudice on the part of the jury, a new trial should be granted.” (Corman, Administrator v. WEG Dial Telephone, Inc., 194 Kan. 783, 402 P. 2d 112, Syl. 1.)

Appellant is faced with a negative verdict as contrasted to an affirmative one. The Kansas Supreme Court considered a negative finding against a plaintiff in In re Estate of Johnson, 155 Kan. 437, 125 P. 2d 352, stating:

“. . . As the. trier of the facts, it was the province and duty of the court to determine what weight and credence it would give to the testimony of the witnesses on both sides of the case. Of course, a jury or court cannot arbitrarily or capriciously refuse to consider the testimony of any witness but, on the other hand, it is not obliged to accept and give effect to evidence which, in its honest opinion, is unreliable, even though such evidence is uncontradicted. (State, ex. rel., v. Woods, 102 Kan. 499,170 Pac. 986; Potts v. McDonald, 146 Kan. 366, 69 P. 2d 685; State v. Jones, 147 Kan. 8, 11, 75 P. 2d 230; Briney v. Toews, 150 Kan. 489, 494, 95 P. 2d 355; Johnson v. Soden, 152 Kan. 284, 103 P. 2d 812.)

“Plaintiff contends this court has frequently reversed a trial court on findings of fact where there was no evidence to support the findings made. That is true where there were affirmative findings of fact unsupported by the record. Here, however, we have a negative finding of fact — a very different thing. (Potts v. McDonald, supra, p. 369.) Here the court, after hearing all of the evidence, was convinced the claim should not be allowed, and so found. The court quite apparently either did not believe the testimony offered in support of plaintiff’s claim or the evidence was not sufficiently clear and convincing to persuade the court concerning the validity of the claim.

“Appellate courts cannot nullify a trial court’s disbelief of evidence {Kallail v. Solomon, 146 Kan. 599, 602, 72 P. 2d 966), nor can they determine the persuasiveness of testimony which a trial court may have believed. The appearance and demeanor of a witness, which appellate courts never have the opportunity of observing and which cannot be transmitted to the cold records of this court, may be, and sometimes are, far more persuasive than positive testimony.” (pp. 439-440.)

We would have little difficulty affirming the trial court in this case were it not for the fact plaintiff received bruises above and below her left knee in the accident which were not only uncontroverted but acknowledged by defense counsel in his closing argument to the jury. Plaintiff also received prescription drugs from the doctor the day of the accident, had X-rays taken, and obtained additional prescription medicine on the following Monday. Both plaintiff and her doctor testified the initial medicine, the doctor visit and X-rays were a result of the accident. No evidence was introduced in direct contravention, and defendant’s cross-examination, even in its broadest form, did not directly controvert the first office visit, X-rays, and prescriptions as being necessitated for any reason other than the accident.

While this court will not weigh the evidence, it may determine that there is or is not sufficient evidence to support the verdict. A review of the record reveals that, other than as stated in the preceding paragraph, the weight and credibility of the appellant’s evidence could be questioned by the jury and rejected.

Appellee suggests the trial court instructed the jury that it need not find plaintiff suffered any damages by instructing the jury “[t]he only issue remaining for you to decide is the amount of damages, if any, that plaintiff is to be awarded for injuries and damages proven by her to have resulted from the accident in question” (emphasis supplied), and that plaintiff did not object to the instruction. We do not agree with appellee’s contention any more than the contention that the preceding sentence in the instruction “that her negligence caused plaintiff injury and damage” (emphasis supplied) amounted to a direction to the jury that it must find damages for the plaintiff. The trial judge obviously intended the instructions to allow the jury to determine whether plaintiff’s alleged injuries were proximately caused by the accident that defendant was responsible for as a matter of law and, if so, to fix the amount of damages. The jury performed its task, the trial court approved the verdict and entered judgment. We are now called upon to decide whether or not the jury could determine that one is not damaged by receiving bruises, and whether or not the jury could ignore the uncontroverted evidence concerning the two medical prescriptions, X-rays, and one office visit.

The Supreme Court has ordered a new trial a number of times because of inadequacy of damages. Although factually dissimilar to the present case, of interest are: Bracken v. Champlin, 114 Kan. 882, 220 Pac. 1027; Russell v. Newman, 116 Kan. 268, 226 Pac. 752; Burt v. Orr, 120 Kan. 719, 244 Pac. 1044; Daniels v. Hansen, 128 Kan. 251, 276 Pac. 819; Henderson v. Kansas Power & Light Co., supra; Lorbeer v. Weatherby, supra; Levy v. Jabara, 193 Kan. 595, 396 P. 2d 339; Timmerman v. Schroeder, 203 Kan. 397, 454 P. 2d 522.

It is important to note we are not involved with merely nominal damages. Some actual damages were proven in establishing that plaintiff incurred medical expenses as a result of the accident for the office visit, two prescriptions, and X-rays taken on August 9, 1971.

The Wisconsin Supreme Court, in Schulze v. Kleeber, 10 Wis. 2d 540,103 N.W. 2d 560 (1960), granted a new trial after it found a jury’s totally negative verdict “perverse” in light of defendant’s liability and the fact that plaintiff had sustained at least some bruises and sought medical attention for them.

The Supreme Court of Nebraska reversed a negative jury verdict where undisputed evidence showed plaintiff had suffered severe labor pains, although premature birth was avoided by medical treatment. (Friesen v. Reimer, 124 Neb. 620, 247 N.W. 561 [1933], See, also, Ambrozi v. Fry, 158 Neb. 18, 62 N.W. 2d 259 [1954].)

The Texas Court of Civil Appeals granted a new trial when the jury awarded no damages for pain and suffering contrary to all evidence where the jury had been instructed it could award damages for injuries “if any” and pain and suffering “if any.” (Bolen v. Timmons, 407 S.W. 2d 947 [Tex. Civ. App. 1966].)

New York considered a case wherein liability was admitted and the jury awarded no damages. Defendant had offered no medical testimony and relied on showing slight impact and plaintiff’s activities since the accident. The court held “some injury was sustained” and ordered a new trial on the issue of damages only. (Waldbillig v. Poitras, 29 App. Div. 2d 595, 285 N.Y.S. 2d 352 [1967]. See, also, 116 A.L.R. 820; and 49 A.L.R. 2d 1301, sec. 5, p. 1331, and cases cited therein.)

“A finding of no damage by the trial court cannot be sustained where the evidence unquestionably shows some damage. . . .” 22 Am. Jur. 2d, Damages sec. 399, p. 535.

At first glance, it may seem unfair to grant plaintiff a new trial where she will have a second chance to be awarded damages for medical problems this jury did not believe were proximately caused by the accident. The jury, however, by ignoring the undisputed and unimpeached evidence, has clearly given an indication of partiality, passion, or prejudice by arbitrarily returning a verdict in direct opposition to the evidence. That verdict cannot stand. The trial court abused its discretion in not granting a new trial. The judgment is reversed with direction to grant a new trial on the question of damages only.

Reversed.