Coca Cola Bottling Co. of Tulsa v. Black

• Decision Date: 27 February 1940
• Docket Number: 29376.
• Citation: 99 P.2d 891,186 Okla. 596,1940 OK 99
• Parties: COCA COLA BOTTLING CO. OF TULSA et al. v. BLACK.
• Court: Oklahoma Supreme Court

99 P.2d 891

186 Okla. 596, 1940 OK 99

COCA COLA BOTTLING CO. OF TULSA et al. v. BLACK.

No. 29376.

Supreme Court of Oklahoma

February 27, 1940

Syllabus by the Court.

Evidence examined and held, that under the record herein presented, a verdict in the sum of $5,000 is excessive.

Appeal from District Court, Tulsa County; Floyd E. Staley, Judge.

Action by Mrs. K. J. Black against the Coca Cola Bottling Company of Tulsa, Okla., a Delaware corporation, and J. L. Mitchell to recover damages for personal injuries received in an automobile accident. Judgment for the plaintiff, and defendants appeal.

Judgment affirmed on condition that plaintiff file a remittitur of all the judgment in excess of $2,500.

Crouch Rhodes & Crowe, of Tulsa, for plaintiffs in error.

B. A Hamilton and S. J. Clendinning, both of Tulsa, for defendant in error.

DAVISON Justice.

This is an appeal from a judgment in an action instituted by the defendant in error against the plaintiff in error to recover damages for personal injuries she received in an automobile accident.

The parties will hereinafter be referred to as they appeared in the trial court.

The plaintiff's alleged injuries resulted from her automobile's collision with a bridge, which it struck after she had driven it partly off of the road to avoid a collision with one of the defendant's trucks.

The verdict and judgment were for plaintiff in the sum of $5,000.

The only proposition urged by the defendant in this appeal is that the amount of "the verdict and judgment is highly excessive, not sustained by sufficient evidence and appears to have been given under the influence of passion and prejudice."

The only physical injuries that the plaintiff claimed to have suffered were slight cuts and bruises and a sprain to her back. She testified at the trial that she had fully recovered from the cuts and bruises. At one point in her testimony she stated that she had not entirely recovered from the back sprain and was "bothered a lot" with it. Besides this testimony of the plaintiff, herself, there was no other evidence introduced as to the nature and extent of these injuries. There was no proof that the plaintiff had taken any specific treatment for the "sprain." In answer to counsel's question as to what had been done for her back, the plaintiff answered that the doctor "just gave me medicine for shock-more to settle my nerves, than anything." It appears that this medical attention was given by one Dr. Johnson, soon after the accident, and as far as the record shows the plaintiff had no medical attention from this time until approximately a year later, when she went to see a specialist in nerve and mental diseases, by the name of Dr. Smith, about two months before filing this action. When asked on cross-examination if she had physically recovered from her injuries, the plaintiff answered, "yes, sir." She then gave an affirmative answer to the following question: "And, about all that is the matter with you now is this nervous condition that you told us about?"

Plaintiff's description of the "nervous condition" alluded to is contained in the following excerpts from her direct examination:

"Q. Now, since the time of this accident, just tell the jury what you have done, and what you have been able to do? A. Well, it requires-I have to have help to do the housework and it seems like, from the daily housework-the little bit I do-that it requires so many hours, and I have to lie down-I cannot stand up. There is a nervous condition that seems to prevail so that I just cannot-

* * * * *

A. Well, as I said before-it is a condition hard to describe. It just feels like that there is-well, like as if there was something coming this way (indicating) and something this way (indicating) and nobody getting anywhere and no place to stop and it is just a condition that shoots up and down in my system all the time, and when it gets so bad-that is when I was doing my housework-I have to just lie down and control myself and keep out of crowds."

A further description of the plaintiff's condition is contained in the following excerpts from the direct examination of Dr. Smith who testified in her behalf:

"Q. What did you find, upon that examination, Doctor? A. Well, she stated her complaint to be extreme nervousness, instability, weakness, insomnia, and her sleep, such as she could get, was a troubled sleep. She kept living that accident-her experience-over and over again and she had an extra fobia of automobiles and under no circumstances could she bring herself to getting behind the wheel of an automobile."

* * * * *

"A. Well, the mean and maximum in this particular case is but another illustration of a general principle where people develop neurosis, which simply means the mal-functioning or inefficient functioning of the nervous system, and, as a general proposition, it comes about wholly on an emotional basis. We think of disease itself in terms of physical disorder, but we forget that what happens to our mental machinery might have a great deal to do with our physical and nervous efficiency and our mental stability."

We think the evidence in the present case is sufficient to support the conclusion that the plaintiff's condition, whatever its nature and extent, is due to some sort of a shock to her nervous system, and counsel for the defendant do not contend that it was not the result of the accident, but they do urge that a recovery of $5,000 for it and the plaintiff's superficial cuts and bruises is obviously out of proportion to the recoveries allowed for similar injuries in other cases. Cases cited to demonstrate this contention are Potashnick v. Wells, Mo.App., 273 S.W. 777; Tuck v. Harmon, La.App., 151 So. 803; Lowe v. Armour Packing Co., 148 Minn. 464, 182 N.W. 610; Block v. Seibold, 195 Wis. 114, 217 N.W. 694; Allen v. Friedman, 156 Miss. 77, 125 So. 539; Chaisson v. Williams, 130 Me. 341, 156 A. 154; Louisville & N. R. Co. v. Roberts, 208 Ky. 692, 271 S.W. 1036; Swartz v. Drake Realty Construction Co., 109 Neb. 746, 192 N.W. 221. In none of these cases were judgments as large as the one in this case allowed to stand. In most of them, it is readily apparent that the injuries involved were as serious, or more so, than the injuries involved herein.

Counsel for the plaintiff insist that the verdict and judgment in the present case is not excessive and call our attention to the following quotation from 17 C.J. 1114, paragraph 450: "Where damages are sought for injury to the nervous system, the utmost circumspection must be exercised to avoid injustice from the denial of substantial damages for real injury, and, on the other hand, from their award in cases of honest mistake or fraud."

Our attention is also called to the cases cited in the footnote under the above quotation, wherein judgments in amounts up to and including the sum of $20,000 were held not to be excessive for injuries to the nervous system. We find from an examination of the cases cited that in all of them, wherein judgments of $5,000 or more were upheld, the plaintiffs received either permanent injuries to their nervous systems or permanent injuries of another character in addition to injuries to their nervous systems. Nothing of that sort is established by the evidence in the present case. The only direct evidence of the permanency of the plaintiff's condition in the present case is found in the testimony of Dr. Smith. The following excerpt from the record sets forth the substance of his testimony on this subject:

"Q. Now Doctor, comparing this mental and nervous condition with just the ordinary physical condition, is it worse or is it less severe upon a person? Will you make some comparison, so we will understand it?

* * * * *

A. * * *, the average person will eventually stabilize against these experiences, sometime.

* * * * *

Q. Considering the examination you have made and what you personally know of her condition, and the lapse of time since then, what is your opinion as to the permanency of this condition? In other words, what is the prognosis? A. The prognosis is that the treatment for relief must be very guarded in this situation. It has the capabilities of being permanent.

Q. What is your opinion as...