Mariner v. Marsden

Decision Date09 April 1980
Docket NumberNo. 5199,5199
Citation610 P.2d 6
PartiesLeslie Rebecca MARINER (formerly Leslie Rebecca Charles), Appellant (One of defendants below), John Smith and Diane Smith, (Other defendants below) v. Gary Lee MARSDEN, Appellee (Plaintiff below).
CourtWyoming Supreme Court

Cameron S. Walker, of Schwartz, Bon & McCrary, Casper, for appellant.

W. A. Smith, Lander, and Robert M. Seipt, Riverton, for appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROSE, Justice.

Appellant, Leslie Rebecca Mariner, one of the defendants below, appeals from a judgment entered against her for damages arising out of an automobile accident in which she was operating one vehicle and Highway Patrolman Marsden was operating the other. At trial, appellant conceded liability and damages of approximately $3,000.00 for past medical expenses, lost wages, and damage to personal property. The trial judge, sitting without a jury, awarded these damages as well as the following damages, which have become the subject of this appeal: 1

                Past Pain and Suffering ................ $19,500.00
                Future Pain and Suffering ................ 5,000.00
                Loss of Enjoyment to Plaintiff's Life ... 25,000.00
                

Appellant argues that the awards which were not based on any testimony by medical experts were unsupported by the evidence We will affirm.

excessive, and were the result of the trial judge's passion and prejudice. Appellant also argues that the award for loss of enjoyment of life was improper because it was not pleaded and because it is cumulative to the awards for pain.

EVIDENCE

The only evidence in the case appears in the form of the testimony of Gary Lee Marsden, appellee, and Homer Small, the highway patrolman who helped Marsden into an ambulance after the accident. No professional medical evidence was submitted a tactic which, we suggest, reeks of risk.

Marsden, at the time of the accident, October 11, 1974, was a Wyoming Highway Patrolman and was injured while driving his patrol car. The vehicle, a Buick LeSabre, was severely damaged in the collision with the automobile operated by the appellant. A photograph admitted into evidence reveals extreme impact damage with large portions of the driver's side of the patrol car sheared away by the impact. Officer Small contributed to the foundation for the admission of the photograph when he related how he had helped Marsden into an ambulance. Among other things, Small said that Marsden had protested when he attempted to loosen the top button on Marsden's shirt, thus indicating Marsden's pain, discomfort, or tenderness. Small was not cross-examined.

Marsden, when asked to describe his condition after the collision, said:

". . . I had a cut on the forehead; a cut on the back of my head; I had a swollen mouth; some loose teeth; a crown that was missing had been knocked off of one tooth. I had a tooth chipped and a sore neck; a bruised hip; and general bruises around my body."

The appellee testified that he received out-patient treatment at a hospital for these injuries immediately after the accident that prior to the accident he had never experienced any neck pain. He testified that, following the accident, he experienced pain all over his body but especially in his neck whenever he made certain movements. He said that his jaw had been cracked and he had had to undergo some painful dental work.

The appellee testified that the neck pain persisted and that a myelogram, a diagnostic procedure, was administered. He related that the aftereffects of the myelogram was "one of the most uncomfortable times of my life" with nausea, vomiting and severe headaches. The myelogram coincided with a five-day stay in the hospital for diagnosis and therapy of the neck pain. As an out-patient, Patrolman Marsden continued heat, massage and therapy treatment and such treatments continued up to the time of trial.

Marsden testified that in the interim between his treatments he experiences a sharp pain along with, "terrible splitting headaches that accompanied with this nausea. It was a nausea to the point of vomiting." The case was tried in July of 1979 and Marsden testified that ever since the accident on October 11, 1974, he had suffered neck pains between three and ten times a month. Sometimes the pain was just an annoyance and sometimes it prevented him from turning his neck.

Marsden explained that he had recently completed some schooling at the FBI academy but it had been painful for him to complete the physical-training portions of the program. He also testified that the neck injury interfered with some of his duties and that he worried a lot about being discharged from the Highway Patrol. He further testified, however, that since the accident he had received two promotions to his current rank of lieutenant and his salary had more than doubled.

It was Officer Marsden's testimony that the neck pains caused him to quit playing with his children as much as he had before the accident. He said that he had discontinued his former athletic activities because, "the pain just isn't worth the reward that I have gained from playing basketball, tennis, racquet ball or any of the other activities."

Hunting was often painful and it had become necessary for him to stop dancing with his wife. Marsden also said that since the accident he was unable to drive a car for as long a stretch as he could before the accident.

On cross-examination, Marsden conceded that his two promotions since the accident were based on performance but said he was not advancing as rapidly as he would like. Also, on cross-examination, the witness admitted to hunting a deer every year for the past ten years, to fishing, and to doing a lot of target practicing. He admitted that he had hunted elk in rough terrain on foot since the accident. He acknowledged passing physical exams in order to stay in the Highway Patrol and in order to attend the FBI school, and admitted to jogging or attempting to jog a couple of miles a day in 1979. Marsden agreed that his job as a lieutenant was largely sedentary as compared to his former job as a patrolman.

REMARKS BY THE TRIAL JUDGE

Appellant alleges passion and prejudice on the part of the trial judge in this court-tried case. She points to the following remarks by the trial judge, which she claims shows his prejudice.

In a discussion between the two attorneys and the judge before the introduction of evidence, the plaintiff's counsel said that he planned to introduce a few photographs of the wrecked cars to show the force of the collision. Defendant's counsel stated that he thought the photos were unnecessary since liability was conceded. Plaintiff's counsel responded and the following exchange ensued:

"MR. SMITH (Plaintiff's counsel): We're talking about a neck injury to the spine and I'll concede right now we can't get a doctor to X-ray the spine and find what's causing him his trouble.

"THE COURT: Probably a soft tissue injury and you couldn't find it anyway."

The defense counsel had earlier moved in limine to prevent the facts of the accident from being introduced on the ground that the defendant was conceding liability. The court's response was: "Now, you know, with the Court it probably doesn't make any difference because, you see, I've read the file." The court then recited and discussed some of the facts of the accident.

The judge also inquired of defense counsel concerning the limit of the defendant's liability insurance coverage. However, the judge informed the defense counsel that he need not discuss the matter with the court and the defense counsel accepted the option of not disclosing the insurance liability limit to the judge.

Finally, the appellant objects to the following exchange which took place when the defense counsel was attempting to impeach Marsden's testimony about the effects of the accident on his ability to function at work:

"THE COURT: You see, the problem is, Mr. Walker, like a lot of people who are injured, he's put in a real dilemma. Let's say he ways (sic) 'Yes.' The Highway Patrol get ahold of that deposition and they don't want him to be a patrolman anymore, it's pretty good evidence for them that he has said that he's not capable of performing his duties because of his physical condition. And if he says it he's on the horns of a dilemma and I have seen this happen and on the one hand he's probably entitled to some recovery as a result of the defendant's negligence.

"On the other hand, to prove his damages he can prove it in one way which would be detrimental to his job in another way. And what would you expect him to say to that? He's in a tough spot.

"MR. WALKER: Under oath I would expect him to tell the truth, sir.

"THE COURT: Well, you know, he probably did but he's still in a tough spot. It's just one of those things of life. It's a tough kind of a case for a State employee to present to a Court or jury. It could cost him his job in some ways. Go ahead."

THE PROCEDURAL DEVELOPMENT

The complaint filed by the plaintiff alleged personal injury and asked for compensation "THE COURT: All right. . . . Future medical expense, we don't know. Past pain and suffering, we don't know. . . .

for past and future medical costs, past and future pain, past and future loss of earnings, loss of personal property and such other and further relief as the court deems just. The plaintiff's pretrial statement represented that the plaintiff would prove "medical expenses, lost personal property, pain and suffering, and other damages claimed." The joint pretrial memorandum states that "plaintiff has filed suit seeking past and future medical expenses, past and future pain and suffering, injury to personal property, and past and future loss of earnings." The trial judge's pretrial conference report and order incorporate the joint pretrial memorandum by reference. At the trial, the following discussion of the issues took place before any witnesses were called:...

To continue reading

Request your trial
35 cases
  • Overstreet v. Shoney's
    • United States
    • Tennessee Court of Appeals
    • June 4, 1999
    ...elements of damage such as pain, suffering, inconvenience, and deprivation of the normal enjoyments of life"); Mariner v. Marsden, 610 P.2d 6, 12 (Wyo. 1980). This type of damage relates to daily life activities that are common to most people. See, e.g., Nemmers v. United States, 681 F. Sup......
  • Anderson By and Through Anderson/Couvillon v. Nebraska Dept. of Social Services
    • United States
    • Nebraska Supreme Court
    • October 20, 1995
    ...have recognized hedonic damages as a separate and distinct category of damages, apart from pain and suffering. See, e.g., Mariner v. Marsden, 610 P.2d 6 (Wyo.1980); Pamela J. Hermes, Loss of Enjoyment of Life--Duplication of Damages Versus Full Compensation, 63 N.D.L.Rev. 561 (1987). Howeve......
  • Golden Eagle Archery, Inc. v. Jackson
    • United States
    • Texas Supreme Court
    • September 11, 2003
    ...Inc., 4 S.W.3d 694, 715 (Tenn.Ct.App.1999); Kirk v. Wash. State Univ., 109 Wash.2d 448, 746 P.2d 285, 292-93 (1987); Mariner v. Marsden, 610 P.2d 6, 12 (Wyo.1980). 44. 720 S.W.2d at 45. 813 S.W.2d 658, 674 (Tex.App.-Texarkana 1991, writ denied) (stating that loss of enjoyment of life "may b......
  • Borne v. Celadon Trucking Servs., Inc.
    • United States
    • Tennessee Court of Appeals
    • July 31, 2014
    ...elements of damage such as pain, suffering, inconvenience, and deprivation of the normal enjoyments of life"); Mariner v. Marsden, 610 P.2d 6, 12 (Wyo. 1980). This type of damage relates to daily life activities that are common to most people. See, e.g., Nemmers v. United States, 681 F.Supp......
  • Request a trial to view additional results
9 books & journal articles
  • Commonly Used Experts
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2016 Contents
    • August 4, 2016
    ...the opinion. (835 F.2d 1222). The concept of compensation for the loss of the enjoyment of life is not novel. In Mariner v. Marsden , 610 P.2d 6 (Wyo. 1980) the Wyoming Supreme Court upheld an award for the loss of enjoyment of life and considered cases from a number of jurisdictions in whi......
  • Commonly Used Experts
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2017 Contents
    • August 4, 2017
    ...the opinion. (835 F.2d 1222). The concept of compensation for the loss of the enjoyment of life is not novel. In Mariner v. Marsden , 610 P.2d 6 (Wyo. 1980) the Wyoming Supreme Court upheld an award for the loss of enjoyment of life and considered cases from a number of jurisdictions in whi......
  • Commonly Used Experts
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2018 Contents
    • August 4, 2018
    ...the opinion. (835 F.2d 1222). The concept of compensation for the loss of the enjoyment of life is not novel. In Mariner v. Marsden , 610 P.2d 6 (Wyo. 1980) the Wyoming Supreme Court upheld an award for the loss of enjoyment of life and considered cases from a number of jurisdictions in whi......
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Archive Qualifying & Attacking Expert Witnesses - 2015 Contents
    • August 4, 2015
    ...v. Conoco, Inc. , 124 F.3d 730 (5th Cir. 1997), §423.1.4, 425 Marek v. Moore, 171 F.R.D. 298 (D. Kan. 1997), §203 Mariner v. Marsden , 610 P.2d 6 (Wyo. 1980), §551.2.1 Marrocco v. General Motors Corp ., 966 F.2d 220 (7th Cir. 1992), §§201.1, 201.1.1 Marrogi v. Howard, 805 So. 2d 1118 (La. 2......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT