Evans v. Wilson, 83-84

• Decision Date: 16 May 1983
• Docket Number: No. 83-84,83-84
• Citation: 279 Ark. 224,650 S.W.2d 569
• Parties: Thomas J. EVANS, Appellant, v. Connie WILSON, Appellee.
• Court: Arkansas Supreme Court

Page 569

650 S.W.2d 569

279 Ark. 224

Thomas J. EVANS, Appellant, v.Connie WILSON, Appellee.

No. 83-84.

Supreme Court of Arkansas.

May 16, 1983.

James E. Smedley, Little Rock, for appellant.

Butler, Hicky & Hicky, Ltd. by Phil Hicky and Preston G. Hicky, Forrest City, for appellee.

GEORGE ROSE SMITH, Justice.

This appeal comes to us as a tort case.Rule 29(1)(o).On October 2, 1979, the plaintiff-appellant, while waiting to turn left at a traffic light, suffered a whiplash injury to his neck when his car was struck from behind by the appellee's car.In appealing from an $11,000 verdict and judgment in his favor, the plaintiff argues that the trial judge violated the collateral source rule by permitting the defendant to prove that as a result of his injuries the plaintiff had received specified disability payments from his employer and from insurance companies.We agree that the trial judge's action was wrong.

The plaintiff's doctors testified in effect that he sustained a serious and painful, though not permanent, injury, that he was necessarily hospitalized from October 4 to October 18, and that he was unable to work for about four and a half months.That proof is undisputed; the defendant offered no testimony contradicting the doctors' assertions.

Why then should the collateral source rule have been disregarded?The appellee argues that she pleaded malingering as an affirmative defense and was properly permitted to prove the plaintiff's disability income in support of that defense, with a cautionary instruction to the jury that the evidence was to be considered only with regard to the asserted malingering, not with regard to any reduction of the plaintiff's actual damages.

This argument does not have substantial support in the record.To begin with, the charge of malingering is not truly an affirmative defense.It simply denies that the plaintiff was injured at all or as seriously as he contends, casting no affirmative burden of proof on the defendant.We may compare it to the now largely discredited defense of unavoidable accident, which we eventually realized to mean little more than that the defendant was not negligent.Houston v. Adams, 239 Ark. 346, 389 S.W.2d 872(1965); AMI Civil 2d, 604 (1974).

There are unquestionably situations in which proof of a plaintiff's collateral income may be admissible for a particular purpose.We mention four such purposes: One, to rebut the plaintiff's testimony that he was compelled by financial necessity to return to work prematurely or to forego additional medical care.Gladden v. P. Henderson & Co., 385 F.2d 480(3d Cir.1967);Johnson v. Reed, 464 S.W.2d 689(Tex.Civ.App.1971).Two, to show that the plaintiff had attributed his condition to some other cause, such as sickness.Stanziale v. Musick, 370 S.W.2d 261(Mo.1963);Burrous v. American Airlines, 639 S.W.2d 263(Mo.App.1982).Three, to impeach the plaintiff's testimony that he had paid his medical...