Newbury v. Vogel
| Citation | 379 P.2d 811,151 Colo. 520 |
| Decision Date | 04 March 1963 |
| Docket Number | No. 20042,20042 |
| Parties | Edwin W. NEWBURY, Plaintiff in Error, v. Hardy J. VOGEL and Nicholas Fittipaldi, Defendants in Error. |
| Court | Supreme Court of Colorado |
Myrick, Smith & Criswell, Englewood, for plaintiff in error.
Wormwood, O'Dell & Wolvington Denver, for defendant in error.
Plaintiff in error Newbury was the plaintiff in the trial court and defendants in error Vogel and Fittipaldi were the defendants. The parties will be referred to as they appeared in the trial court or by name.
The complaint alleged that each of the defendants had so negligently operated a motor vehicle as to result in permanent injuries to the plaintiff. He demanded special damages, including medical and hospital expenses incurred, and loss of wages in the amount of $6,616.87. Compensation was also asked for diminished earning capacity, for past and future disability, and for past and future pain and suffering in the amount of $35,383.13, making a total of $42,000.00.
Upon trial, the jury returned a verdict for the plaintiff in the sum of $5,000.00 against the defendant Vogel, and exonerated the defendant Fittipaldi from liability. Judgment was entered on the verdict and the plaintiff is here by writ of error, contending that errors committed by the trial court affected the amount of the award returned by the jury, which he contends is inadequate. He seeks reversal and remand for a new trial on the issue of damages only. He does not complain of the verdict exonerating Fittipaldi.
Defendant in error Vogel does not assert error by the trial court with respect to the issue of liability or to the exoneration of Fittipaldi, but contends that the rulings of the trial court with respect to the issue of damages do not constitute reversible error.
It is plaintiff's contention that the trial court erred in:
1. Failing to give an instruction embodying his theory of the case with respect to present and future disability, pain and suffering; and
2. Unduly limiting the scope of plaintiff's closing argument by refusing to allow a 'per diem' suggestion to the jury on the elements of past and future pain and suffering.
Since the errors assigned deal only with the question of damages, we need not discuss the facts relating to the accident upon which the claim for damages is based, but will deal only with the evidence pertinent to the issue of damages.
Medical testimony concerning the nature and extent of Newbury's injuries was offered by each party. The testimony of Newbury's medical witness was to the effect that as a result of the accident Newbury had suffered an acute spinal sprain which had been superimposed on a pre-existing arthritic condition. It was his opinion that at the time of the trial Newbury had a permanent disability which would be manifested primarily by pain, stiffness and chronic discomfort; that a part of this disability was attributable to the original arthritis and a part to the accident, but how much was due to the effect of the trauma incurred in the accident was 'the question.'
The testimony of Fittipaldi's medical expert was essentially the same, this witness stating that no one could say with certainty what limitation of motion, and what portion of the pain, could be attributed to the original arthritic condition and what portion to the trauma. Vogel's medical expert agreed that there had been a sprain as a result of the accident, but it was his opinion that all of the effects of the sprain had subsided and that all of Newbury's complaints were now due to a pre-existing arthritic condition.
Newbury testified that prior to the accident he had no pain in either his neck or his back and that although he was at the time of the trial working regularly he did suffer from pain in his neck and back at the conclusion of his day's work which became worse toward the end of the work week.
Newbury's wife testified that he rarely participates in activities which were his wont before the accident and that at the time of the trial he was continually applying a heating pad to his neck.
I. Did the instructions given by the trial court sufficiently present the plaintiff's theory of the case with respect to the demages which might be awarded him by reason of limitation of motion in his neck and back and past and future suffering?
We hold they did not. Instruction No. 17 given by the trial court provides:
'You are instructed that if you find from the evidence that before the accident the plaintiff had an osteoarthritic condition, and further find that because of the accident this condition was aggravated, then the plaintiff is entitled to recover because of disability or pain proximately due to such aggravation; but is not entitled to recover for any physical ailment or disability which may have existed prior to the accident, or for any ailment or disability which plaintiff now may be suffering which was not caused or contributed to by reason of the accident.'
Newbury contends that this instruction, while proper as far as it went, did not sufficently cover plaintiff's theory of the case and the evidence in support thereof.
We have stated many times and as recently as Renell v. Argonaut Liquor Co., 148 Colo. 154, 365 P.2d 239, that a party to a lawsuit is entitled to an instruction embodying his theory of the case, if there is evidence in the record to support it.
It was plaintiff's theory that the pre-existing arthritis caused him no pain before the accident; that the accident aggravated the pre-existing arthritis; that he now has permanent disability consisting of a limitation of motion, pain and soreness; and that it is impossible to determine the amount of such disability attributable to the prior arthritic condition and that caused by the accident. In accordance with this theory, plaintiff submitted his tendered Instruction No. 9, which in part pointed out to the jury that if in truth they could make no apportionment between the amount of his present and future disability due to the pre-existing arthritis, and the amount due to the accident, the defendant was liable for...
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