Barter Machinery & Supply Co. v. Muchow
| Decision Date | 05 May 1969 |
| Docket Number | No. 22375,22375 |
| Citation | 169 Colo. 100,453 P.2d 804 |
| Parties | BARTER MACHINERY AND SUPPLY COMPANY, Plaintiffs in Error, v. William M. MUCHOW, Defendant in Error. |
| Court | Colorado Supreme Court |
Weller, Friedrich & Hickisch, James C. Fattor, Denver, for plaintiffs in error.
Samuel J. Eaton, Denver, for defendant in error.
A Denver district court jury awarded the defendant in error, to whom we will refer as plaintiff, the sum of $9500 in a damage suit. It is contended by the defendant in this writ of error that the verdict is grossly excessive and was the result of the jury being erroneously instructed by the trial court that it could consider in awarding damages permanent injuries and future pain and suffering claimed by plaintiff.
The plaintiff was 78 years old and while a customer in the defendant's business establishment was attacked and knocked down by a chained watch dog which he accidently encountered on defendant's permises. Defendant concedes that the court properly submitted the issues of negligence and contributory negligence to the jury and that there was evidence to support the determination of liability against the defendant. However, the plaintiff's injuries were slight, and the evidence was that he suffered a bruise on his right buttock about four inches in diameter and two abrasions on his lower left thigh. His total medical bills were $82.50 plus $27 for x-rays and $10.41 for a pharmaceutical bill. Property damage was established as $70.50, consisting of a torn pair of trousers which plaintiff valued at $22.50 and $48 for a broken pair of glasses.
There was no medical testimony establishing that plaintiff sustained permanent injury. He testified that he had continuous lower back pain, but there was no medical evidence connecting his complaints to the slight injury sustained when the dog knocked him to the ground. In fact, the medical testimony was that the back pains were consistent with an arthritic condition, unrelated to the incident, and attributable to plaintiff's advanced age.
Notwithstanding the lack of expert testimony concerning permanent injuries or competent medical evidence of probable future pain and suffering attributable to the dog-attack, the court instructed the jury that it could consider as an element of damage permanent injury and future pain and suffering. This was error.
The general law concerning instructions to the jury on the issue of permanent injury has been stated in 22 Am.Jur.2d Damages § 354, as follows:
'In an action for personal injuries, the court should not give an instruction allowing the jury to assess damages for permanent injuries or lasting impairment of health unless there is evidence showing, with reasonable certainty, that such permanent injuries or lasting impairment of health have been in fact sustained by the plaintiff. * * *'
This court adopted such rule in Cookman v. Caldwell, 64 Colo. 206, 170 P. 952, and also in Stahl v. Cooper, 117 Colo. 468, 190 P.2d 891.
Plaintiff persuaded the trial judge to instruct the jury on permanent injury and future pain even though such evidence...
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Olivero v. Trek Bicycle Corp., Civil Action No. 16–cv–0761–WJM–MJW
...some future pain and suffering would be inevitable . Id. (emphasis added).The second case cited by Trek is Barter Machinery & Supply Co. v. Muchow , 169 Colo. 100, 453 P.2d 804 (1969). In this case, the plaintiff was knocked down by a watchdog but his "injuries were slight, and the evidence......
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Pringle v. Valdez, 06SC92.
...was grossly excessive, not that it should have been subject to mitigation. 1. See, e.g., Barter Mach. & Supply Co. v. Muchow, 169 Colo. 100, 102-103, 453 P.2d 804, 805 (1969) (discussing permanent injury and pain and suffering together); Celebrities Bowling, Inc. v. Shattuck, 160 Colo. 102,......
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Preston v. Dupont
...have historically been considered a separate element of damages under Colorado common law. See, e.g., Barter Mach. & Supply Co. v. Muchow, 169 Colo. 100, 102-03, 453 P.2d 804, 805 (1969); Celebrities Bowling, Inc. v. Shattuck, 160 Colo. 102, 107-08, 414 P.2d 657, 659-60 (1966); Heckman v. W......
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Boryla v. Pash
...that a future injury will arise. Cookman v. Caldwell, 64 Colo. 206, 208, 170 P. 952, 953 (1918); see Barter Machinery & Supply Co. v. Muchow, 169 Colo. 100, 453 P.2d 804 (1969) (plaintiff must prove future harm is more likely than not to happen before damages for future harm may be awarded)......