Belford v. Humphrey
| Decision Date | 26 February 1968 |
| Docket Number | No. 5--4480,5--4480 |
| Citation | 244 Ark. 211,424 S.W.2d 526 |
| Parties | Harry A. BELFORD, Appellant, v. Brenda HUMPHREY, Appellee. |
| Court | Arkansas Supreme Court |
Fletcher Long, Forrest City, for appellee.
This appeal by Harry A. Belford puts before us the issues of the permanency of the injuries of appellee Brenda Humphrey and the excessiveness of the $78,000 jury verdict in her favor. The litigation stems from an automobile collision in which Belford's vehicle struck the rear of appellee's 'Thunderbird' with such force that both sides were 'bucked out' and the left front seat was broken.
Following the collision on June 3, 1965, appellee, age 25, was hospitalized under the care of Dr. H. G. Lanford until June 10, 1965. During hositalization she was treated for a whiplash injury of her cervical spine. Her treatment consisted of cervical traction, muscle relaxants and medication for pain. She was removed from Crittenden Memorial Hospital in West Memphis, Arkansas, to her home in McCrory by ambulance.
The day following her return from the hospital the pain was so unbearable that she screamed when her bed was moved. A local doctor was called about 3:00 to 4:00 a.m., who gave her a shot to relieve the pain. The pain continued to such an extent that she was returned to the hospital on June Testimony showed that appellee had been self-sustaining from her high school graduation in 1959 to the date of the accident. At that time she had been working at the General Electric plant in Memphis, Tennessee, where she earned in excess of $300 per month. Her job had required the bending of her neck to look down while testing light bulbs. She was in touch with General Electric for a year after the accident before they mailed her her separation papers.
17, 1965, where she again was put in traction and given muscle relaxants and pain medicine. She was discharged on July 1, 1965. At the time of her August 26, 1965, visit to the doctor, she was unable to return to work. Dr. Lanford testified that at that time she had a severe whiplash injury and he did not know what would be the outcome. For eight to ten months thereafter she slept in traction. Exercise and weight lifting were subsequently prescribed. At the [244 Ark. 213] time of trial on January 30, 1967, appellee still complained of pain when she bent her neck forward as one does when ironing and typing, she was still on muscle relaxants, and had an appointment with her doctor some two weeks hence. Hospital and medical bills had accumulated in excess of $1,426.63 and were still accruing.
When the doctor advised appellee that she could try to work, some three months before trial, she applied for employment at the Little Rock employment office, Timex, the Little Rock Police Department as a meter maid, the Newport Telephone Company, and the Augusta Corporation. Each time application was made she was asked to state why she had left her last job and to give her physical history. By trial date, she had been unable to obtain employment although she understood she was first up for the next available mater maid job with the Little Rock Police Department at a monthly salary of $235.
Prior to the accident appellee enjoyed bowling, but this she cannot do any more. She also liked to hunt and fish, but is unable to do this without pain.
Dr. H. G. Lanford testified that appellee had had pain during the entire course of her treatment. This he based on both subjective and objective symptoms, so that he did not rely solely upon her credibility to determine that she had pain. Her first real improvement was in November 1966 and resulted from exercises designed to strengthen her neck muscles. Dr. Lanford testified that he had examined her in January 1967 before the trial and that she had suffered a personality change; also, that with the history of her injury and the long recovery period involved, she would have difficulty in finding employment anywhere a physical examination was given. On cross examination he stated emphatically that she would have prolonged pain for several hours when she held her head forward for any period of time. The doctor believed appellee incapable of any work involving the bending of her neck forward or backward.
Appellant introduced evidence to the contrary, but because review of a jury finding is limited to the substantial evidence rule, we have stated the facts in the light most favorable to appellee.
The issue of permanency arises through an objection to the instructions on the issue of damages, the mortality table and present value. Appellant points to our cases such as St. Louis, I.M. & S. Ry. Co. v. Bird, 106 Ark. 177, 153 S.W. 104 (1913), and Midwest Bus Lines, Inc. v. Williams, 243 Ark. 854, 422 S.W.2d 869 (1968), and argues that the issue of permanency should not have been submitted to the jury in the absence of expert medical testimony that the injuries were permanent to a reasonable degree of certainty.
Appellee argues that the injury here was such that a permissible inference of permanency was demonstrated by the evidence. See Missouri Pac. Transp. Co. v. Mitchell, 199 Ark. 1045, 137 S.W.2d 242 (1940), and Bailey v. Bradford, 244 Ark. 8, 423 S.W.2d 565 (1968).
Where the injury is only subjective in character and of such a nature that laymen cannot with reasonable certainty know whether there will be future pain and suffering, it is obvious the courts must demand expert opinion testimony. On the other hand, when the injury is objective in nature, such as when a limb is severed, it is obvious that expert opinion testimony is not a prerequisite to submission of the issue of permanency to the jury. See 31 Am.Jur.2d, Expert and Opinion Evidence, § 119. Between the two extremes are gray areas in which the issue of permanency becomes a matter of judgment.
Here the injuries had persisted for some twenty months; appellee had suffered a personality change; she was unable to perform certain movements without pain; she will have difficulty obtaining employment where a physical examination is required; and she was still taking eight muscle relaxant pills per day at time of trial. After reviewing the record, we are unable to say that it was error to submit the issue of permanency to the jury.
Appellant also complains of error in submitting to the jury the issues of diminished earning capacity in the future and future medical expenses. We hold these contentions to be without merit. The record shows that appellee had sought employment before the...
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Welter v. Curry
...The evidence in this case is readily distinguishable from that in Bailey v. Bradford, 244 Ark. 8, 423 S.W.2d 565; Belford v. Humphrey, 244 Ark. 211, 424 S.W.2d 526; Arkansas Drilling Co. v. Gross, 179 Ark. 631, 17 S.W.2d 889 and Missouri Pacific Transportation Co. v. Mitchell, 199 Ark. 1045......
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