Montgomery v. Vigil

• Decision Date: 12 December 1958
• Docket Number: No. 6304,6304
• Citation: 332 P.2d 1023,65 N.M. 107,1958 NMSC 133
• Parties: Katherine MONTGOMERY, a minor, by her father and next friend, Harry Montgomery, Plaintiff-Appellee, v. Vincent VIGIL and Ann E. Vigil, a minor, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 1023

332 P.2d 1023

65 N.M. 107

Katherine MONTGOMERY, a minor, by her father and next friend, Harry Montgomery, Plaintiff-Appellee, v. Vincent VIGIL and Ann E. Vigil, a minor Defendants-Appellants.

No. 6304.

Supreme Court of New Mexico.

Dec. 12, 1958.

Iden & Johnson, W. F. Kitts, Albuquerque, for appellants.

Lorenzo A. Chavez, Arturo G. Ortega, Albuquerque, for appellee.

J. R. Wrinkle, Silver City, Joseph L. Smith, McAtee, Toulouse & Marchiondo, Albuquerque, Tibo Chavez, Dennis Cowper, Belen, amici curiae.

PER CURIAM.

After considering the appellee's second motion for rehearing, we withdraw our former opinions filed in this case and substitute the following in lieu thereof.

SHILLINGLAW, Justice.

This appeal is from a judgment in the amount of $5,000 in favor of the plaintiff below as the result of injuries suffered by her in an automobile accident between a car in which she was a passenger and a car owned by the defendant, Vincent Vigil, and being operated by the defendant, Ann Vigil, his daughter. The accident occurred in the city of Albuquerque at approximately 2:30 p.m. on June 13, 1956. As a result of the impact of the two automobiles, the plaintiff, Katherine Montgomery, a girl of thirteen years, was thrown against the dashboard resulting in injuries to her nose and adjacent areas of her face.

The sole question raised by the appellants on this appeal is that of the excessiveness of the damages. The sole basis for damages is pain and suffering and such disfigurement as she may have sustained. No consideration need be given to damages for medical expenses, loss of time or any other item of recovery.

In view of our decision in this case we deem it apropos to set forth the extent of the evidence of pain and suffering sustained by the plaintiff.

At the time of the accident the plaintiff 'blacked out' and, due to the impact of her face in striking the dashboard, her face was numb. After she got out of the car her nose began to hurt and to bleed profusely and, by the time she arrived at the hospital, her left cheek bone was also hurting. The bleeding was stopped at the hospital. There was pain generally in the area of her nose. She was discharged from the hospital at 5:30 p.m. the same day. After leaving the hospital, her nose continued hurting and in a few days her face began to swell and the area around one of her eyes turned blue.

Her nose continued to bother her and Dr. Theodore Sadock was consulted on June 25, 1956. He determined that the nose was fractured and, on the next day, June 26, he performed a refracture at St. Joseph's Hospital. She was discharged from the hospital the following day, June 27. The nose was bandaged and splinted and remained bandaged for about one week. She was discharged by Dr. Sadock on July 10 and he did not see her again until February 28, 1957, the day before the trial. At the time of the trial the plaintiff testified that her nose felt normal most of the time but that it 'sort of hurts' when she sneezed or blew her nose. Her mother also testified that she believed her daughter had pain when she sneezed or blew her nose.

The plaintiff testified that at the time of the accident she cracked two teeth that hurt when she ate or drank something cold. However, she testified that she really didn't know that she had two cracked teeth, stating that she had not gone to a dentist nor had she been advised by her doctor that she should go to a dentist.

Dr. Sadock testified in response to a question as to whether or not a fracture of the nose was painful:

'I think all fractures are painful. Displacement of the bone, that caused a lot of swelling and pressure on nerves. I would say the usual thing is they have considerable pain with a fracture.'

The mother testified that Katherine's pain and complaints as a result of the accident continued until she was taken to Dr. Sadock and that, after the refracture, she had difficulty in breathing and 'a little pain, I imagine * * * for a week or two.'

Dr. Sadock further testified that he realigned the nose through the inside of the nostril and that he considered any type of surgery where the child is put to sleep and taken to an operating room as major surgery. Dr. Sadock further testified that there was some pain after an operation of this kind but that after the splints and packing are removed the pain usually disappears. After discharging the patient on July 10, the doctor recommended no further treatment and at the time of the trial testified that he felt she had a good result, the fracture was reduced properly and, 'I think she will be all right.'

We recognize the difficulty of determining what is proper recompense for the pain and suffering of the plaintiff in this or any other case. In this respect we deem it helpful to consider other verdicts in similar cases insofar as it is possible to make such comparison. However,

'[i]n the determination of whether a verdict is excessive, the nature and extent of the injury--whether it is of a temporary or permanent nature--the extent of future discomfort, suffering, expenses, and diminution of earning capacity to be expected as a result thereof, pain and suffering already undergone, and expenses already incurred must be considered. * * * In short, each case must be ruled chiefly upon its own facts and circumstances. * * *' 15 Am.Jur., Damages Sec. 206, p. 624.

A lengthy annotation on damages involved in cases where injury to the nose was sustained appears at 16 A.L.R.2d 312 and is continued in A.L.R.Supp.Serv. Vols. 1-50 at page 963, et seq. In reviewing those cases, we do not intend to adopt the doctrine of comparable verdicts, but fully recognize distinguishing circumstances and economic factors.

In particular we note Boydston v. Twaddell, 57 N.M. 22, 253 P.2d 312, 315, wherein the plaintiff received three fractured ribs, a crushed nose cartilage, a laceration of the lip, shock and minor face and leg injuries. He was hospitalized for three or four days and was under doctor's care for one month. His chest was taped and anaesthetic injections were given for the relief of pain. In addition, the plaintiff lost one week from work. On this evidence, the jury returned a verdict for $4,500. We stated there, after reviewing the evidence:

'While these injuries are in no sense trivial, still we feel the award received by Boydston is excessive and should be reduced to $1,500.'

We note that the $1,500 included special damages for medical bills and time lost from work.

In Rosa v. American Oil Co., 129 Conn. 585, 30 A.2d 385, the plaintiff received a broken nose and possible other injuries which were not specified. The extent of medical expenses and other special damages incurred, if any, does not appear in the report of the case. The jury returned a verdict for $6,000 which was reduced by the trial court to $3,650. On appeal, the appellate court found the verdict still excessive and ordered a further reduction in the amount of $1,150.

In Baier v. Associated Metals and Minerals Corp., 1944, 93 Pittsb.Leg.J., Pa., 395, the plaintiff suffered a fracture of the nose and a displaced septum which caused pain one year after the injury. The plaintiff also sustained a fracture of the patella, several cuts over the eye, abrasions and contusions of the body. The plaintiff's leg was placed in a cast causing incapacity for a period of six weeks. Pain was present in the injured patella one year after the time of the accident and further surgery was required. Medical bills in the amount of $273 were incurred. The jury returned a verdict for $3,101.20. The appellate court found the award to be excessive and ordered a remittitur of $500.

In Candage v. Belanger, 143 Me. 165, 57 A.2d 145, the plaintiff sustained a broken nose which was left slightly misshapen. Other injuries included a transverse fracture of the right leg, numerous cuts and bruises with resulting small scars on the forehead. The plaintiff was hospitalized for one week and was thereafter incapacitated at home for a period of two months. The incidental special damages incurred by the plaintiff totaled $340.35. The trial jury returned a verdict for $2,840.35. The appellate court found the verdict to be excessive and ordered a remittitur in the amount of $1,000.

The case of Pendola v. State, La., App.1941, 4 So.2d 28,...