Blissett v. Frisby

• Decision Date: 19 October 1970
• Docket Number: No. 5--5330,5--5330
• Citation: 458 S.W.2d 735,249 Ark. 235
• Parties: Thomas BLISSETT, Appellant, v. H. L. FRISBY and Elwanda Frisby, Appellees.
• Court: Arkansas Supreme Court

Page 735

458 S.W.2d 735

249 Ark. 235

Thomas BLISSETT, Appellant, v. H. L. FRISBY and Elwanda Frisby, Appellees.

No. 5--5330.

Supreme Court of Arkansas.

Oct. 19, 1970.

Crumpler, O'Connor, Wynne & Mays, El Dorado, for appellant.

Shackleford & Shackleford, El Dorado, for appellees.

FOGLEMAN, Justice.

Appellees sued appellant to recover damages for injuries suffered by Elwanda Frisby when the automobile she was driving was struck from the rear by one being operated by appellant. For reversal of a judgment for $15,000 for Elwanda Frisby and for $6,768 in favor of her husband, H. L. Frisby, appellant relies upon the following points:

I. The verdict of the jury is contrary to the evidence.

II. The verdict of the jury in favor of both of the plaintiffs was excessive and appears to have been given under the influence of passion or prejudice.

III. The Court erred in allowing plaintiffs to admit evidence of the value to the plaintiff, H. L. Frisby, of the services of his wife, Elwanda Frisby, in the operation of his dairy business, and in instructing the jury that the plaintiff, H. L. Frisby, was entitled to recover for the value of the loss of services of his wife, Elwanda Frisby, in the operation of his dairy business.

IV. That the Court erred in allowing the plaintiff, H. L. Frisby, to introduce evidence of expenses which are not properly recoverable elements of damage.

We shall discuss these points in the order listed.

I.

Appellant argues that the jury verdict is contrary to the evidence because it is clear that the jury did not attribute any negligence to Elwanda Frisby as a cause contributing to her damage. In effect, appellant's argument is that the preponderance of the evidence showed that Mrs. Frisby was negligent and that her negligence contributed substantially to the damages suffered by appellees.

The collision occurred around 5:00 p.m., August 1, 1967, on Highway 167, south of El Dorado. Mrs. Frisby was driving to her home about nine miles south of El Dorado, where the Frisbys were conducting a dairy farm operation. Her 18-month-old daughter was riding in an infant car seat in the center of the front seat of the Frisby Chrysler automobile. Appellant Blissett followed her from the El Dorado city limits for about four miles, maintaining an interval of about 100 yards. Both vehicles were traveling at a speed of 55 to 60 miles per hour. Shortly before the collision the Frisby infant either fell or climbed from the car seat in which she was riding. Mrs. Frisby slowed her vehicle and took measures to grasp the child. There is a wide variance in the testimony of the parties regarding what happened at this point.

Elwanda Frisby's version is:

She slowed to about 45 miles per hour and pulled the child down into the seat beside her. At that time, she looked into her rear view mirror, but did not observe any vehicles to the rear. She then accelerated her vehicle speed to 50 or 55 miles per hour, when her daughter started pulling on her arm. She gradually slowed her vehicle, moving it toward her right in order to pull off onto the shoulder of the road and move her child to the rear seat of the vehicle. She then heard the screeching of brakes, glanced into her rear view mirror, and was struck from the rear almost instantly. The child never did fall to the floorboard or fall from the infant seat. She had applied her brakes when decreasing her speed. Her automobile speed was down to 15 or 20 miles per hour when she was struck.

Blissett's testimony, in substance, follows:

After the two vehicles had passed over a bridge, he noticed that the Chrysler vehicle speed was diminishing and took his foot off his accelerator because the interval had been reduced to about one-half the former distance. He had noticed the baby falling out of the infant seat just before the Frisby vehicle speed had slacked. The baby was climbing out of the seat, then fell out, and Mrs. Frisby fell over to get the child. Both driver and child disappeared from his view. Mrs. Frisby then hit her brakes and skidded to a stop in the highway. Her stop was as sudden as possible, and there was no way he could have stopped without striking the rear of the Chrysler. The rear of the Chrysler rose, and the front of the Falcon went down so that the Falcon hood and grill struck the bottom of the Chrysler bumper. There was opposing traffic which prevented his passing Mrs. Frisby to her left. Turning to the right was not possible because of the height of the highway dump. Mrs. Frisby had not brought her vehicle to a complete stop when it was struck.

The investigating state trooper testified that Mrs. Frisby told him that the child fell from the seat and that she attempted to stop to pick her up.

The verdict of the jury was a general one. It was rendered upon instructions relating to negligence, proximate cause and comparative negligence, and preponderance of the evidence, of which appellant does not complain. Resolution of conflicts in testimony in a law case is not within the province of an appellate court. Rhoden v. Lovelady, 239 Ark. 1015, 395 S.W.2d 756; Norman v. Gray, 238 Ark. 617, 383 S.W.2d 489. It is fundamentally a jury function, and a verdict usually is conclusive. Wasson v. Warren, 245 Ark. 719, 434 S.W.2d 51. Especially is this so where questions of negligence, contributory negligence and credibility of witnesses are involved. Wood v. Combs, 237 Ark. 738, 375 S.W.2d 800; Palmer v. Dillard, 224 Ark. 155, 272 S.W.2d 66; Wasson v. Warren, supra. On appeal we give the evidence its strongest probative force in favor of the verdict. Palmer v. Dillard, supra; Jarrett v. Matheney, 236 Ark. 892, 370 S.W.2d 440. If the trial court had found the verdict to be against the preponderance of the evidence, it could have granted appellant's motion for a new trial, but this court cannot do so. Horn v. Shirley (Ark. June 2, 1969), 441 S.W.2d 468. It is only where there is no substantial evidence to support the verdict, where fair-minded men can only draw a contrary conclusion or where there is no reasonable probability that the incident occurred according to the version of the prevailing party, that a jury verdict on these questions will be disturbed on appeal. Norman v. Gray, 238 Ark. 617, 383 S.W.2d 489; Midwest Bus Lines, Inc. v. Williams, 243 Ark. 854, 422 S.W.2d 869; McWilliams v. R. & T. Transport, Inc., 245 Ark. 882, 435 S.W.2d 98. We cannot say that the evidence relied upon by appellant was so conclusive as to preclude a jury finding that the negligence of the following vehicle was the sole proximate cause of the collision, or that any negligence of which Mrs. Frisby was guilty was only a minor contributing cause of her injuries.

II.

We cannot say that the awards made by the jury are excessive or that they were made under the influence of passion or prejudice. We cannot reverse on this ground unless, after viewing the evidence in the light most favorable to the appellees we find the amount of the verdicts to be so great as to shock the conscience of the court or to demonstrate that the jury was motivated by passion and prejudice. Gordon v. Smith (Ark. September 29, 1969), 444 S.W.2d 873; Dyer v. Payne (Ark. February 10, 1969), 436 S.W.2d 818. Appellant's argument that, in considering this point, we must consider that the negligence of Elwanda Frisby should have reduced the damages recoverable has been treated above. His remaining argument on this point is premised upon the contention that Mrs. Frisby cannot recover for any loss of earning capacity because her resulting 10% disability to the body as a whole will not prevent her from performing all the functions discharged by her prior to the injury.

It must be remembered that Elwanda Frisby was also entitled to recover damages based upon the nature, duration and extent of her injuries, pain, suffering and mental anguish she has experienced and which she may reasonably be expected to undergo in the future, in addition to those based upon her loss of earning capacity. We must also consider that H. L. Frisby's damages would include the reasonable expense of medical care, ¹ treatment and services rendered and reasonably certain to be required in the future, the $400 reduction in value of his automobile and his loss of the society, companionship and marriage relationship, as well as his loss of the services ordinarily rendered by a wife.

The impact of the collision was such that the Blissett Falcon was rendered inoperable, after it had skidded approximately 33 feet before striking the rear of the Chrysler. Both Mrs. Frisby's age and life expectancy were 34 years. She was actively engaged in the daily operation of the Frisby dairy farm, her husband being otherwise regularly employed. She maintained the feeding, health, production and breeding records on their 74 head of cattle. She also supervised their artificial breeding. She observed all the cattle thrice daily to view their activities and detect illnesses. She administered all necessary injections to the cattle and called a veterinarian when necessary for other purposes. She saw that the calves were properly bottle-fed. She did most of the feeding of the cattle and helped with the milking. It was her responsibility to keep sufficient feed and medicine on hand and to keep all the farm machinery in operating condition. She also checked the pasture fences.

When she suffered from a severe headache, stiffness of her neck, nervousness and insomnia during the night following her injury, she consulted a physician. Viewed in the light most favorable to appellees, there was evidence from which the jury might have found the following:

Mrs. Frisby suffered a cervical ligamentous sprain. She underwent physiotherapy consisting of intermittent traction, sonolater treatment and microwave diathermy over a period of several months. For a considerable part of this time she took prescribed muscle relaxants four times daily as well as pain relief medication. An...