Goggins v. Harwood, 85-10

• Decision Date: 13 August 1985
• Docket Number: No. 85-10,85-10
• Parties: Jack E. GOGGINS and Mary Ellen Goggins, husband and wife, Appellants (Plaintiffs), v. Ed HARWOOD and Harwood Enterprises, a Wyoming corporation, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 1282

704 P.2d 1282

Jack E. GOGGINS and Mary Ellen Goggins, husband and wife, Appellants (Plaintiffs), v. Ed HARWOOD and Harwood Enterprises, a Wyoming corporation, Appellees (Defendants).

No. 85-10.

Supreme Court of Wyoming.

Aug. 13, 1985.

C.S. Hinckley of Hinckley & Hinckley, Basin, for appellants.

Jeffrey J. Gonda of Lonabaugh and Riggs, Sheridan, for appellees.

Before THOMAS, C.J., ROSE, ROONEY and CARDINE, JJ., and LANGDON, District Judge.

ROSE, Justice.

This appeal grows out of a judgment entered upon a jury's verdict which finds that even though appellee Ed Harwood committed an assault and battery upon appellant Jack Goggins on September 14, 1981, the assault and the battery were not "a proximate cause of the injuries sustained" by appellant, and the jury's further finding that "[w]ithout considering" its answer to other questions on the verdict form, the amount which it believed would "fairly compensate the Plaintiff, Jack E. Goggins, for his alleged injuries" was "One Hundred Thousand $100,000.00." ¹

FACTS

Plaintiff-appellant Goggins alleged but defendant-appellee Harwood denied that Harwood committed an assault and battery upon Goggins by striking him on the head with his fist while he, Goggins, was sitting in his pickup truck. The jury decided this issue in Goggins' favor and, for purposes of this opinion, we are bound by that finding. The evidence is, however, in conflict with respect to the extent of the injury. Appellant's doctors testified that, as a consequence of the striking, and in addition to minor abrasions, contusions and a headache, Goggins suffered epilepsy, post-traumatic brain damage resulting in intelligence-quotient reduction and a serious ear injury. The appellee's doctors denied that these serious and permanent injuries or conditions resulted from the blow. Since we are bound to accept the testimony most favorable to the successful party and disregard the evidence of the unsuccessful party in conflict therewith, ² it will be our assumption throughout these considerations that the assault did not cause the appellant's alleged epilepsy, post-traumatic brain damage and permanent ear injury.

There is, however, competent and uncontradicted medical testimony that some injury resulted from the blow. The doctor who saw appellant the day after the incident in question--a Dr. Willson--testified that Goggins had

"[s]welling, contusion, some ecchymosis, which is black and blue areas, a small amount of abrasion, puncture type thing around the ear."

He described the "puncture type thing" as:

"Break, small break in the skin. It's a scrape or puncture from the obvious blow of some sort."

A request for a further description of the ear area brought this response:

"Well, they were scrapes and pin point punctures, whatever you want to call them, small breaks in the skin and some minor abrasions around the ear, abrasions just being a break on the skin as a pin prick being a small break in the skin or puncture wound."

Dr. Willson also reported that Goggins had a vascular headache due to a blow on the head.

Dr. Schwidde, a neurologist, to whom Dr. Willson referred Goggins, wrote to Willson after examining the appellant on September 15, 1981, that Goggins had "sustained a blow to the left ear" at 6:00 p.m. on September 14, 1981, and "he developed a right frontal headache." He said that he had received a "cranial cerebral trauma, blow to left ear" and that he had developed a "severe headache and neck and left pectoral pain" as a result of the blow and that Goggins was "dazed" after the blow but not rendered unconscious. The doctor prescribed some "Talwin Compound" to treat the headache.

It is to be further observed that both Dr. Willson and Dr. Schwidde submitted bills for services rendered to appellant, which services were necessitated by the assault and battery in issue here, and the appellant incurred medical prescription expense that was occasioned by the doctor's ordering medicine relief for the headaches.

The Appellant's Position

The appellant represents that "the primary basis for this appeal" is the "Special Verdict Form." For clarity of the issues and the discussion which follows, we herewith publish the relevant part of that document:

"SPECIAL VERDICT FORM

"We, the jury, duly empaneled and sworn to try the above-entitled cause, do find as follows:

"QUESTION 1. Did the Defendant, Ed Harwood, commit an assault and battery upon the Plaintiff, Jack E. Goggins?

"ANSWER Yes X

No ___

"(If your answer to Question 1 is 'Yes' then you will answer Question 1A. If your answer to Question 1 is 'No', then you should proceed to sign the jury verdict form and return it to the Bailiff.)

"QUESTION 1.A. Was the assault and battery of Ed Hardwood upon Jack E. Goggins a proximate cause of the injuries sustained by Jack E. Goggins?

"ANSWER Yes ___

No X

"QUESTION 3. Without considering your answers to the Questions above, what total amount of damages do you award to fairly compensate the Plaintiff, Jack E. Goggins, for his alleged injuries:

"One Hundred Thousand

"ANSWER $ 100,000.00

"QUESTION 4. Was Ed Harwood guilty of willful and wanton misconduct under the circumstances of this case?

"ANSWER Yes ___

No X

"/s/ Jessie M. Pryde

FOREMAN/FOREWOMAN"

The appellant argues that the trial court's instructions having to do with the allegations of the parties, causation, burden of proof, disability, and damages, when considered together with the special-verdict form, caused the jury to become confused, resulting in the return of a fatally inconsistent and faulty verdict. The questioned instructions pertaining to allegations of the parties, proximate cause, burden of proof, disability, and damages are the following: ³

Allegations of the Parties

Instruction No. 3 provided:

"This law suit arises as the result of an incident on September 14, 1981, involving Jack E. Goggins and Ed Harwood. On that particular day, on the road from Basin to Otto, Wyoming, Mr. Goggins and Mr. Harwood had a discussion concerning a water well easement which Mr. Goggins wanted to obtain on the property of Mr. Harwood.

"Mr. Goggins alleges that during this conversation, Mr. Harwood committed an assault and battery upon him. He furthermore alleges that as a result of this alleged assault and battery, he has suffered personal injuries and he requests that he be awarded damages for these injuries.

"Mr. Harwood denies ever assaulting or battering Mr. Goggins. He denies that he inflicted any bodily harm on Mr. Goggins and therefore denies that Mr. Goggins should be awarded any damages in this case.

"The Plaintiff, Jack E. Goggins, has the burden of proving his claim by a preponderance of the evidence.

"The Defendant, Ed Harwood, has the duty of proving the elements of his defense by a preponderance of the evidence." (Emphasis added.)

Burden of Proof

Instruction No. 6 provided "The Plaintiff has the burden of proving by the preponderance of the evidence the following:

"(1) That the Defendant committed an assault and battery upon him as is defined in Instruction No. 5.

"(2) That the assault and battery of the Defendant was the proximate cause of the injury and damage to the Plaintiff.

"(3) The nature and extent of the injuries claimed to have been so suffered, the elements of the Plaintiff's damage and the amount thereof.[ ⁴

"The Defendant has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following:

"(1) That he did not assault and batter the Plaintiff as those terms are defined in Instruction No. 5.

"(2) That the Plaintiff's injuries and damages were not caused by any actions of the Defendant and that the injuries and damages of the Plaintiff were pre-existing or other wise arose from causes other than the actions of the Defendant.

"In determining whether an issue has been proved by a preponderance of the evidence, you should consider all of the evidence bearing upon that issue regardless of who produced it. The existence of such proposition must be more probable than its non-existence." (Emphasis added.)

Proximate Cause

Instruction No. 11 provided:

"A proximate cause of an injury is a cause which in direct, unbroken sequence produces the injury. It is one without which the injury would not have occurred." ⁵ (Emphasis added.)

Mental Anguish

Instruction No. 12 provided:

"You are further instructed that mental anguish and suffering arising proximately from said injuries, is a proper element of damages, which with reasonable certainty can be expected to hereafter endure, arising from the decrease of the ability of any part of the body to function." (Emphasis added.)

Disability

Instruction No. 13 provided:

"A person who has a condition or disability at the time of an injury is not entitled to recover damages therefore. However, he is entitled to recover damages for any aggravation of such preexisting condition or disability proximately resulting from the injury.

"This is true even if the person's condition or disability made him more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury.

"When preexisting condition or disability is so aggravated, the damages as to such condition or disability are limited to the additional injury caused by the aggravation." ⁶ (Emphasis added.)

Damages

Instruction No. 9 provided:

"If you decide for the Plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for those elements of damage proved by the evidence to have been caused by the action of the Defendant, taking into consideration the nature, extent and duration of the injury.

"(1) The claimed elements of damages are:

"(a) The pain of suffering experienced as a result of the injuries and those reasonably certain to be experienced in the future.

"(b) Disability.

"(c) Loss of enjoyment of...