Field Packing Co. v. Denham

• Court: Supreme Court of Kentucky
• Citation: Field Packing Co. v. Denham, 342 S.W.2d 524 (Ky. 1961)
• Decision Date: 27 January 1961
• Parties: FIELD PACKING COMPANY et al., Appellants, v. Wilton DENHAM, Appellee.

Page 524

342 S.W.2d 524

FIELD PACKING COMPANY et al., Appellants, v. Wilton DENHAM, Appellee.

Court of Appeals of Kentucky.

Jan. 27, 1961.

Coleman, Harlin & Orendorf, Bowling Green, for appellant.

Wilson & Nunn, Glasgow, B. M. Vincent, T. H. Demunbrun, Brownsville, for appellee.

STANLEY, Commissioner.

The appeal is from a judgment for $52,761.65 for personal injuries and special damages resulting from an automobile accident. The verdict was for $50,000 for 'suffering and injuries and loss of earning power' and $2,761.65 for lost time, medical and hospital expenses and damage to the plaintiff's automobile. The appellants do not question the verdict of negligence or the amount of the special damages, but they contend the $50,000 for personal injuries is excessive.

The appellant, Field Packing Company, is a processor of meat with plants at Bowling Green and Owensboro. Its co-appellant, George Bell, an employee, was driving a truck making deliveries on the morning of January 3, 1958. The appellee, Wilton Denham, an employee at a feed mill and store near Brownsville, signaled his intention to turn left into the mill entrance. While he was stopped, waiting for opposite traffic to pass, his car was struck behind by the defendant's truck coming down a grade with defective brakes. That was the plaintiffs' evidence. The defendant's evidence, insofar as it may affect the matter of damages, was that the truck was not going over ten or fifteen mph and the impact was not severe. The driver admitted his brakes were bad and it was impossible for him to stop the truck. He could not go around plaintiff's car without colliding head-on with an approaching car. We state in detail the evidence relating to the plaintiff's injuries.

The plaintiff testified he was 45 years-old and lived with his wife and three children on a small farm, which he owned and operated. The kind of work he did at the mill was not shown. His wages were $30 a week. He was in good health before the accident. He was knocked unconscious by the collision and taken to a hospital in Bowling Green, stayed there three days, then was treated at home, and not long afterward spent four days in a clinic at Glasgow, where his neck was put in traction. His hearing in one ear has been impaired. He had to wear the neck brace constantly up until the time of the trial of the case, eleven months later. He had been unable to do any work since the accident and suffered pain and great discomfort from the brace.

Dr. S. E. Farmer, of Brownsville, was called to the scene of the accident and found the plaintiff was 'suffering most probably from a whiplash.' The doctor provided temporary support for his neck and sent him to a Bowling Green hospital. Dr. Funk, who attended him there, did not testify. Seventeen days after the accident Dr. Bryant examined the plaintiff at a clinic in Glasgow. He found no bone fracture but 'a great deal of spasm' in the neck muscles caused by whiplash or jerk. It was necessary that the patient wear a neck brace to relieve pain. Dr. Thomas M. Marshall, a Louisville neurologist, to whom Dr. Bryant had referred the patient, examined him on October 1, 1958, nine months after the injury. Dr. Marshall related as the history of the case given him by the patient that he had had continuous pain in his neck, intermittent blurring of vision when he bent over, and 'almost a blackout when he would straighten up.' This doctor made extensive examinations and tests. He testified that he found no 'objective signs of neurological involvement,' or of a 'nervous disturbance.' He expressed the opinion that the plaintiff was 'suffering from some residual discomfort from an overstretch type of injury to the muscles and ligaments in the neck from which he should recover without any permanent residuals.' Dr. Marshall further testified: 'I noted that he had worn a brace for the past nine months, and it was my opinion that he would benefit by the removal of this brace along with muscle exercises, massage and heat to the areas. I felt that he had had sufficient immobilization. I could not find any explanation for the nerve deafness on the left side, and I felt that it might possibly be a disturbance of long standing. There was no evidence of any injury or fracture to the auditory region on the X-ray as I viewed it.'

The evidence as to the plaintiff's later condition and the prognosis was as follows:

Dr. Farmer testified the plaintiff had not been as responsive to treatment as other whiplash cases he had treated and expressed the opinion that even if the muscles and tendons healed, 'he would be more prone to receiving similar injuries' and that 'in neck injuries there is a possibility of post traumatic arthritis.'

Dr. Bryant, upon a recent examination, advised the plaintiff that it was not necessary for him to wear the neck brace at all times but that he should wear it when riding or doing anything that might give him a sudden jerk 'because he is susceptible to further injury.' The plaintiff was still having pain from some neck muscle spasm, which the doctor believed would continue for some time. Asked as to the permanency of his patient's condition, Dr. Bryant compared a whiplash injury to a sprain and added, 'No one can definitely say that in a certain time they will be over them.' The witness did not undertake to express an opinion as to the permanency of the injury.

Dr. Marshall did not regard the plaintiff...