Aetna Oil Co. v. Metcalf

• Decision Date: 17 November 1944
• Citation: 298 Ky. 706,183 S.W.2d 637
• Parties: AETNA OIL CO. v. METCALF.
• Court: Kentucky Court of Appeals

183 S.W.2d 637

298 Ky. 706

AETNA OIL CO. v. METCALF.

Court of Appeals of Kentucky

November 17, 1944

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division; William H. Field, Judge.

Suit for personal injuries by Edward E. Metcalf against Aetna Oil Company. Judgment for plaintiff, and defendant appeals.

Reversed with directions.

Davis Boehl, Viser & Marcus, of Louisville, for appellant.

Woodward Dawson & Habson, of Louisville, for appellee.

SIMS Justice.

On the afternoon of May 26, 1942, Edward E. Metcalf, a Lieutenant on the Louisville Police Force, was standing on the south side of Market Street conferring on official business with brother officers seated in a police car. While he was so engaged, a three-quarter inch pope fell from a passing truck belonging to the Aetna Oil Company which struck him on the back of his head and rendered him unconscious. Metcalf brought suit against the Company to recover $25,000 for his personal injuries and $300 for doctors' and medical bills. The trial resulted in a verdict in his favor for $750 damages and $97.25 to cover his medical expenses. The judge granted Metcalf a new trial on the ground that the damages allowed by the jury were inadequate.

On a second trial the verdict was for $4000 damages and $109.85 for doctors' bills. Upon the court refusing to substitute the first verdict for the second or to grant a new trial, the Company appealed. The errors assigned are: (1) The trial judge erred in setting aside the first verdict; (2) the second verdict is excessive; (3) the court refused to permit the Company's attorney to argue to the jury the amount of damages it should award plaintiff; (4) the Company was entitled to a directed verdict because Metcalf failed to prove the pipe fell from its truck.

At the time of the accident Metcalf was 53 years of age and had been a member of the Louisville Police Force for 25 years. He had been an alert, energetic, courageous, intelligent and efficient officer. After receiving the injuries he stayed in the hospital only about an hour, was then taken home where he remained for five days, after which he was assigned to a desk job for a week to temporarily relieve a police Captain. After this temporary service he went home for an eight weeks' rest. The Chief of Police and several officers testified that plaintiff was neither mentally nor physically alert and was incapable of attending to his duties on the outside and was given a desk job. It appears from the testimony of these officers that plaintiff is not really capable of attending to the duties of this relatively easy place, but as no pension was available to him he was given this soft berth.

Metcalf testified he was in the best of health before his injuries but that since the accident he suffers from headaches, dizziness and to some extent deafness and a lack of balance in walking or standing. That he is forgetful and has but little memory and is so nervous that at times he cannot sleep and has emotional up-sets bordering on hysteria.

Dr. Franklin Jelsma, who specializes in diseases of the nervous system and of the brain, testified that the lick plaintiff received on the back of his head did not fracture his skull but that it did cause a concussion of the brain, also, it bruised the thin membrane with which the brain is enclosed. Dr. Jelsma saw Metcalf six times beginning with June 23, 1942, and ending with September 17, 1943, and it was his opinion that plaintiff's condition had improved, that it would continue to improve, that he did not regard his injuries as permanent, but he could not say that plaintiff would recover in the near future. Dr. Jelsma gave his deposition approximately 17 months after the accident.

Drs. Heman Humphrey and William J. Coyle also testified there was no fracture of the skull, and the former found what he termed a slight concussion of the brain. Neither of them was of the opinion that plaintiff's injuries are serious or permanent. Dr. Coyle seemed to think that plaintiff's condition was largely due to worry over his injury and over the fact he was unable to do his work. While none of the doctors found any objective symptoms and based their findings on subjective symptoms, none of them was of the opinion that plaintiff was malingering.

Our first question is whether or not the damages awarded on the first trial were so inadequate as to justify the judge in setting aside the verdict. In Wilkins v. Hopkins, 278 Ky. 280, 128 S.W.2d 772, it was pointed out that there is no general rule by which the adequacy or inadequacy of damages can be determined in personal injury cases, and that each case is governed by its own peculiar facts and circumstances. On this subject that opinion quotes at some length from 15 Am.Jur. § 231, p. 644, and from 17 C.J. § 397 p. 1089, 25 C.J.S., Damages, § 196, in the course of which it is written that where the verdict bears no reasonable relation to...