Allen v. Devereaux
| Decision Date | 13 April 1967 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 5 Ariz.App. 323,426 P.2d 659 |
| Parties | Sanford ALLEN and Delores Allen, husband and wife, d/b/a/ Tucson Motor Service Company, and William Carl Miles and Ruby Miles, husband and wife, Appellants, v. Marian DEVEREAUX, Appellee. 272. |
| Court | Arizona Court of Appeals |
Holesapple, Conner, Jones, McFall & Johnson, by Harrison G, Dickey, Tucson, for appellants.
Martin H. Schulman, Tucson, for appellee.
The appellee was the plaintiff in a superior court action to recover damages from the defendants-appellants for injuries sustained by her as a consequence of being struck by a truck owned by the defendant Motor Service Company and operated by defendant William Miles, an employee of said company. Defendants admitted liability, and the sole issue tried to the court without a jury, was the amount of damages, if any, incurred by the plaintiff. Judgment was entered in favor of the plaintiff in the sum of $29,204.00; whereupon the defendants moved for a new trial, or in the alternative, a remittitur. These post-judgment motions were subsequently denied, and this appeal followed.
The accident which gave rise to this lawsuit occurred on November 26, 1963, while the plaintiff was crossing East Broadway, Tucson, at a street intersection. The plaintiff, upon being struck by the defendants' truck, was propelled some eight feet into the air and landed on her back. Both the back of her head and her back hit the pavement. Measurements taken by the investigating police officer at the scene of the accident indicated that the plaintiff landed approximately ten feet from the point of impact. A witness at the scene heard the plaintiff moaning and groaning. Plaintiff was transported by ambulance to Tucson Medical Center, where she was examined by an orthopedic physician and later by her personal physician. The diagnosis was multiple injuries with contusions and abrasions in the scalp; brain concussion; contusion of the right elbow; contusions and abrasions of the left elbow, left shoulder and left wrist; and multiple sprains involving the lumbosacral and other areas of the body.
During her three-weeks' stay in the hospital, the plaintiff had persistent dizziness and headaches. After many months, the dizziness subsided, but the headaches consistently recurred and were treated with various medications. Another persistent complaint was pain in the lower back region which required daily medication to alleviate the discomfort. At the time of trial, two years after the accident, the plaintiff was still suffering from low back pain and headaches. The plaintiff, who had worked as a housekeeper for a Tucson family for some eighteen years, was unable to return to work until January 1964. When she finally did return to her job, she was unable to perform many of the tasks previously done by her with ease. In addition, she was forced to hire her sister to work one day a week to do certain heavy chores, paying the sister out of her own salary of $45.00 a week.
During the two-year period after her return to work, the plaintiff's pain and discomfort caused her to stay home from work on various occasions ranging from three days to three weeks in duration. In addition, the plaintiff was forced to give up her church-affiliated activities and needed assistance from her family with her own housekeeping chores.
Several lay witnesses testified with regard to the marked change in plaintiff and her continued manifestations of physical debilitation and discomfort after the accident. She was treated by three physicians during the post-accident period, all of whom testified at the trial. Her family physician was of the opinion as to the permanency of the headaches:
'Permanent is a long time, but I think that not having shown any signs of improvement, I think that you would have to concede up to two years, these are long-standing and might possibly be permanent, yes.'
As to the permanency of the back pain:
'I think the same thing might be stated, that they probably would be.'
The orthopedic physician's prognosis with regard to the permanency of the plaintiff's back condition was:
And when asked about the reasonable certainty of the plaintiff's continuing to suffer pain in the low back area:
'I would say with one exception, that probably is her weight, 1 I would say that the likelihood of her losing much weight is pretty small, I would say from experience people overweight, assuming she did not lose a considerable amount of weight, I would say that there is a probability she will have pain or symptoms to one degree or another off and on permanently.'
The neurologist testified that his examination of the plaintiff's cervical spine revealed a slight limitation of motion especially on hyper-extension and rotation. As to his examination of her lower back, he found some straightening of the normal curvature which should be present in the low back, and he felt there was a considerable amount of limitation of the normal bend that the lumbar spine should exhibit for bending.
He was of the opinion that the plaintiff's headaches were caused by the combination of the neck sprain and concussion which resulted from the accident. As to his opinion concerning the permanency of the headaches and low back difficulty, the neurologist testified that he felt they were probably permanent due to the fact of their persistence for two years without appreciable improvement. He further testified:
'Q Doctor, is there such a thing as mental pain?
'A There is what we call psychogenic pain, which is a pain of which the individual feels and for which the physician is unable to demonstrate a cause.
'Q Did you have an opinion based on the examination, the neurological examination, as to whether or not Mrs. Devereaux's pains were real with reference to her head pains?
'A Yes, I felt that her pains were organic in origin, yes.
'Q Doctor, are subjective symptoms a necessary finding for a neurological diagnosis?
'A They follow a well known organic pattern, they can be sufficient, there are diseases for which there is no organic cause.
'Q Can you state with certainty whether or not what Mrs. Devereaux's complaints of headaches are due to?
'A Historically, they are due to the accident of December, 1963.'
The medical witnesses all agreed that the plaintiff would continue to require symptomatic medication in the future and a minimum amount of medical supervision.
It is the defendants' position on appeal that the damages awarded by the trial court were excessive and not justified by the evidence. The damages recoverable in a case such as this are divided into three classes: (a) out-of-pocket expenses for past and...
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...for pain and suffering must be reasonably certain and cannot be predicated upon conjecture and speculation." Allen v. Devereaux, 5 Ariz.App. 323, 326, 426 P.2d 659, 662 (1967). Rather, it is "necessary to show by the evidence either that the pain and suffering actually did exist, or that th......
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Wendelken v. Superior Court In and For Pima County, 16567-PR
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