Missouri Pacific Transp. Co. v. Simon

• Decision Date: 27 November 1939
• Docket Number: No. 4-5620.,4-5620.
• Citation: 135 S.W.2d 336
• Parties: MISSOURI PACIFIC TRANSP. CO. et al. v. SIMON et al.
• Court: Arkansas Supreme Court

135 S.W.2d 336

MISSOURI PACIFIC TRANSP. CO. et al. v. SIMON et al.

No. 4-5620.

Supreme Court of Arkansas.

November 27, 1939.

Rehearing Denied January 29, 1940.

Appeal from Circuit Court, Crawford County; J. O. Kincannon, Judge.

Action by Fannie Pat Simon and others against the Missouri Pacific Transportation Company and others for injuries sustained while riding as passengers in a taxicab chartered by the named defendants. From adverse judgment, defendants appeal.

Modified, and, as modified, affirmed.

R. S. Wilson, of Van Buren, Buzbee, Harrison, Buzbee & Wright, of Little Rock, and Caudle & White, of Russellville, for appellants.

J. E. Yates, of Ozark, Bob Bailey, of Russellville, Partain & Agee, of Van Buren, and Hall & Hall, of Paris, for appellees.

GRIFFIN SMITH, Chief Justice.

Because a bus operated by Missouri Pacific Transportation Company was rendered immobile when a drive shaft broke, the agent in charge chartered taxicabs at Clarksville to carry passengers to Russellville. In one of the conveyances so engaged were Mrs. Fannie Pat Simon, Mrs. Etta Erwin, Mrs. W. M. Adcock, and C. G. Bell. This cab collided in Russellville with an automobile driven by Mrs. John Leonard, one of the appellants herein.

There were jury verdicts and judgments as follows: Mrs. Erwin and Mrs. Adcock, $25,000 each; Bell, $6,000; Mrs. Simon, $1,250; W. M. Adcock (for expenses and loss of his wife's companionship), $1,000.

The question of negligence has been concluded by the jury's verdict, although reasonable minds might sharply differ with that determination. There was substantial evidence in support of the contention that Mrs. Leonard was at fault, although testimony opposing this allegation is likewise substantial. In these circumstances it was for the jury to decide. No serious objections are urged to the instructions, to admissibility of evidence, or to conduct of the trial.

The principal relief asked by appellants — in fact, the only tenable ground of attack — is that the evidence does not support verdicts amounting in the aggregate to $38,250. We have concluded that the two smaller judgments, one for $1,250 in favor of Mrs. Simon, and one for $1,000 in favor of W. M. Adcock, may be affirmed, and it is so ordered.

The situation is different in respect of the other three judgments.

Mrs. W. M. Adcock. — Mrs. Adcock, recipient of a verdict and judgment for $25,000, was in the hospital at Russellville 26 days, attended by Dr. Roy I. Millard. She testified: "I was hurt down here (indicating). From here to here (indicating) hurt, and I was bruised all the way up. My chest was hurt and through here (indicating) and under the shoulders and the back of my neck and head felt all battered up, but it cleared away; but it was after so long — about 20 days before it quit hurting".

The following examination of Mrs. Adcock is of importance:

"Q. Where all do you suffer, and how do you suffer at this time from the injuries you received? A. My knee was hurt and it is weak and if I get it bent back, you see. When I wake up at night it is agony to straighten out.

"Q. What about the scars? A. I don't know what the doctor will call it. When I was hurt it was black on the left hip down to below the knee. The veins are still black. The black places, they cleared away. I still have pains in my chest and neck and head — all the time. I don't hear as well as before. About an hour after I got in the hospital I couldn't hear hardly anything. I asked a nurse what was the matter and she said, `O, I guess it was that shot'. I had never taken [a hypodermic injection] that did me that way, but [the deafness] never cleared away. It is better, but not as good as it was. I am bothered about going to sleep and wake up too early. I don't like [to take sleeping potions] for fear of forming a habit".

On page 17 of appellees' brief the following appears in connection with the examination of Mrs. Adcock: "Q. Did you [prior to the collision] have any kind of physical disability that you know about? A. I may have had some, but I was doing fine". Mrs. Adcock's counsel then asked: "Were you suffering any way from a disability of any kind"? There was a negative answer.

Mrs. Adcock, 58 years of age, is the wife of a minister. Her duties were such as are ordinarily discharged by a minister's wife. This question was asked by her counsel: "Have you been able to discharge those things, carry on church work and household duties since (the injuries were inflicted"?) Her answer was: "Yes sir". Pursuing the investigation on this phase of disability, counsel then asked: "You say you have been: you mean all the time since November 1"? The answer was: "No sir: I haven't done anything but walk around in the sun a little since. Before the collision I didn't have any hired hand and did all the work. Since being injured I have not been at church. I invited the women to bring the missionary society to the home; then I didn't sleep until after three o'clock in the morning, and decided I would not do any more of that till I got well".

Further describing her disability, Mrs. Adcock said: "My back, that hurts sometimes bad and sometimes not so bad. Sometimes I wake up of a morning and if I move my head off the pillow sharp pains hit me. I have to stay in bed all day, you know. Sometimes in the day it will clear up. * * * I can get up and go do something — look out and see my chickens — then I have to go back and lie on the bed or in a reclining chair. That will rest it then. If I get up — if I stay up long — then I have to rest a long time. Then I take spells every once in a while. I can't move any way — just such agonizing pains I can't move any way on the pillow. The doctor gives me `pain dine', or something of that kind. That condition has existed until now [but] is getting better".

Dr. J. L. Post, of Van Buren, testifying at the instance of plaintiffs, had examined Mrs. Adcock, but did not treat her. Her history disclosed an old operation; that she had borne four children; weighed 155 pounds. His opinion was that the patient had only a hazy recollection of the collision. — "She gives a history of headache of the occipital region — the region back of the head — which is very constant and distressing; complains of pressure in the head with pain in the scalp and back of neck. She also complains of dizziness, insomnia, photophobia, noises in ears, nausea, and vomiting; loss of appetite, inability to work. She does have lucid moments. * * * I find pain on pressure over the region of the left shoulder with a rupture of the pleural sac above the left clavical or collar bone. I find evidences of injury to the left knee. * * * I find that she is confused and flighty, with memory defects, which are permanent. She is suffering a traumatic encephalitis, which may be for weeks, or months, or years. She is very emotional, with intellectual disturbances and memory defects which remain as results. She laughs at things that should be serious. * * * She has a contusion or infection of the whole part of the brain. Encephalitis of the brain is inflammation of the brain substance itself. * * * She may go on for several years in this same condition, but she will gradually get worse and finally die. There is no chance for improvement in the future".

Dr. Millard testified that "Outside of the nervous condition there wasn't anything that would indicate Mrs. Adcock would not completely recover at the time she left the hospital in Russellville".

Dr. S. C. Fulmer, of Little Rock, examined Mrs. Adcock February 17, 1939 — three and a half months after the injuries were inflicted. (Trial was March 27, 1939.) The question was: "Dr. Fulmer, Mrs. Adcock claims now that she is suffering from a continual nervous condition that at times is irregular; [that] she had a cloudy condition of the mind and is unable to remember things. Do you find from your examination anything which would indicate (if such is the present condition) [that] it would be a result of an injury sustained by her in this accident"? The answer was that he did not.

Dr. Millard testified that Mrs. Adcock, when brought to the hospital, was apparently suffering more than the others. She complained of an injury to her back. An X-ray was negative in this respect. She also complained of her left shoulder. Later Dr. Millard said: "Mrs. Adcock was suffering from slight shock and soreness in both elbows and the right ankle".

A hypothetical question was addressed to Dr. Millard. It assumed that since being injured Mrs. Adcock had been unable to do her housework; that she was nervous and forgetful, and had not been in that condition prior to the injuries; that "she can't remember things at all and when serious things are brought up or asked about, she laughs silly and says something important, and is nervous all the time." The Doctor was asked to leave out of consideration personal knowledge acquired as a result of his examinations of and attentions to Mrs. Adcock; to assume that the information requested was applicable to a person in Mrs. Adcock's situation — to one in mental and physical condition similar to those attributes as they applied to Mrs. Adcock prior to the collision — and to state whether, in his opinion, the type of injury or injuries sustained "would cause that sort of condition to happen". There was an affirmative answer.

Dr. Post testified largely from objective symptoms and from a history of the case supplied him by the patient and others. The Doctor gave it as his opinion that Mrs. Adcock had suffered a fracture to the petrous pyramid or arch under the brain. This conclusion, like others, was based entirely upon symptoms and the history. The history included Mrs. Adcock's description of blood draining into the throat. Dr. Post conceded there was no way of ascertaining whether the blood was from the interior of the nose or from the back part of the nasal cavity. There was no attempt to confirm the objective symptoms...