Bittle v. Smith, 6216
| Decision Date | 26 March 1973 |
| Docket Number | No. 6216,6216 |
| Parties | Mazelle BITTLE and I. G. Bittle, Appellants, v. Allen SMITH, Appellee. |
| Court | Arkansas Supreme Court |
Williams & Gardner, Russellville, for appellants.
Ike Allen Laws, Jr., Russellville, for appellee.
Mazelle Bittle, one of the appellants herein, was injured on November 24, 1967, while a passenger in an automobile being driven by her son, this car colliding with the car owned by appellee, Allen Smith. Mrs. Bittle, together with her husband, appellant I. G. Bittle, instituted suit against Smith seeking damages. Mrs. Bittle asserted various disabling injuries and Mr. Bittle sought damages for the loss of consortium, companionship, care and services of his wife. Mr. Smith answered with a general denial. On trial, the jury returned a verdict of $1,500 for Mrs. Bittle, but nothing for her husband. Thereafter, appellants moved to set aside the verdict and asked the court to grant a new trial, it being appellants' position that under Ark.Stat.Ann. § 27--1901 (Repl.1962), the verdict should have been vacated because it was not sustained by sufficient evidence, and a new trial should have been granted under Ark.Stat.Ann. § 27--1902 since the amount of actual pecuniary loss sustained was in excess of the verdict. The court denied this motion and from the order of denial, appellants bring this appeal. For reversal, it is simply asserted that 'The trial court erred in not setting aside the verdict and granting a new trial.'
Actually, the issue is Ark.Stat.Ann. § 27--1902, which provides as follows:
'A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained.'
Appellants vigorously contend that the uncontradicted 1 evidence reflects an actual pecuniary loss in excess of $1,500 and that accordingly, they are entitled to a new trial. Medical bills totaling $609.55, occasioned by the wreck, are admittedly uncontradicted, and appellants rely on the contention that Mrs. Bittle was unable to work for twenty-six weeks and three days, amounting to a pecuniary loss in wages of $2,103.71. Adding this amount to the medical bills makes a total of $2,713.26, which appellants assert to be the actual pecuniary loss sustained.
Appellants argue that the situation presently before us is very similar to that presented in the case of Law v. Collins, 242 Ark. 83, 411 S.W.2d 877, the appeal in both cases being based on Ark.Stat.Ann. § 27--1902, except that in Law the trial court had granted a new trial while here it has refused to grant a new trial. We might here state that this one fact makes a vast difference for the granting or refusing of a new trial is a discretionary act by the court, and we only reverse where an abuse of discretion is clearly shown. In other words, since the trial court refused to grant a new trial, appellants must demonstrate that the court abused its discretion in order to prevail in this case.
We are unable to say that the Yell County Circuit Court abused its discretion and in making this finding, we give no consideration to a fall sustained by Mrs. Bittle on a parking lot in December, 1968, and injuries sustained when a box fell on her head in 1970, mentioned by appellee in his brief, since these events did not occur until a number of months after the contended loss of working time heretofore set out.
A review of the medical evidence is in order. Dr. D. H. Martin of Ola testified that Mrs. Bittle came to his clinic early on the morning of November 24, stating that she had been in an automobile accident, and complaining of discomfort to the right side of her head and left hip. She was admitted to the hospital at Danville and Dr. Martin testified that he found no external evidence of injury and, after x-rays no findings of any bone pathology. Her left hip was bruised, but there were no bone fractures, nor were there any bruises on her head. About forty-eight hours later she was discharged and went home, feeling better, but still with some headaches. On December 2, 1967, she again came to his office complaining of feeling 'addled' at times and she had bruises on the side of her left leg near the hip; also, she complained of headaches and was given darvon to ease pain. At his direction, she returned one week later, still complaining of headaches and the doctor referred her to a neurologist, Dr. William K. Jordan of Little Rock. Martin saw her occasionally through 1968, and stated that he last saw her on June 17, 1971, when 'she only wanted her workmen's compensation papers filled out, and I suggested to her that we have Dr. Jordan do that, since he was treating her neurologically.' 1--a On January 24, 1968, Dr. Martin wrote a note to Morton's Frozen Foods, employer of Mrs. Bittle, that Dr. Jordan recommended that Mrs. Bittle not work for approximately three months, and on April 18, 1968, Dr. Martin gave Mrs. Bittle a copy of a letter to him from Dr. Jordan's secretary, stating that Dr. Jordan wanted Mrs. Bittle to take four months off from work. Several other...
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