Powers v. Campbell

• Decision Date: 08 July 1968
• Docket Number: No. 8457,8457
• Citation: 1968 NMSC 111,442 P.2d 792,79 N.M. 302
• Parties: Julie POWERS and David Powers, Plaintiffs-Appellants, v. Esther CAMPBELL, as Administratrix of the Estate of Otis Campbell, Deceased, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 792

442 P.2d 792

79 N.M. 302

Julie POWERS and David Powers, Plaintiffs-Appellants, v. Esther CAMPBELL, as Administratrix of the Estate of Otis Campbell, Deceased, Defendant-Appellee.

No. 8457.

Supreme Court of New Mexico.

July 8, 1968.

[79 NM 302] Eugene E. Klecan, William H. Carpenter, Albuquerque, for plaintiffs-appellants.

Irving E. Moore, Albuquerque, for defendant-appellee.

OPINION

COMPTON, Justice.

Plaintiffs brought this action against Otis Campbell to recover damages for injuries sustained in an automobile accident. Campbell has since died of causes unrelated to the accident, and Esther Campbell, as administratrix of his estate, was substituted as a defendant. The issues were tried without a jury, and the court awarded Julie Powers $3,250.00 for personal injuries, and David Powers $750.00 for hospital expenses and property damages. The plaintiffs, feeling aggrieved, appeal the sufficiency of the awards.

The appellants first contend that the trial court erred in awarding inadequate damages to the appellant, Julie Powers, for pain and suffering and impairment of earning capacity. In this regard the appellants do not attack the findings of the court but instead urge that the facts require the court to make greater awards.

In view of the unusual claim, we review at length the evidence regarding personal injuries sustained by Julie Powers. On February 28, 1964, an automobile driven by Otis Campbell collided with an automobile driven by Mrs. Powers. It was observed at the scene of the accident that Mrs. Powers was suffering from lacerations. She was taken by ambulance to a hospital where she was examined by Dr. Frank Trinosky, the physician under whose care she had previously placed herself for pregnancy. Dr. Trinosky noted at the time that she also complained of abdominal pains, but released her from the hospital. The pregnancy at that time was in its eighth month and had thus far progressed normally and healthfully.

On March 2, 1964, Dr. Trinosky again examined Mrs. Powers. She then complained of generalized neck pain, headaches, and tenderness over her cervical spine. At that time Dr. Trinosky discovered a contusion on the lower part of Mrs. Powers' abdomen and he prescribed rest. On March 3, 1964, Mrs. Powers was admitted to the hospital. She was experiencing a considerable amount of vaginal bleeding. After consulting a specialist in obstetrics and gynecology, Dr. Trinosky decided to augment labor because of fear of hemorrhaging. Several bonus later on that same day Mrs. Powers experienced, in the words of Dr. Trinosky, 'an uneventful delivery of a four pound four ounce viable male.' Speaking in terms of reasonable medical probabilities, Dr. Trinosky attributed the premature delivery to the trauma Mrs. Powers sustained in the automobile accident.

Probably as a result of the premature birth, the baby had respiratory problems which required certain specialized treatment for the first few days of life. Mrs. Powers was released from the hospital on March 7, 1964. The length of Mrs. Powers' stay in the hospital was within the normal range of uneventful delivery; but the baby remained in the hospital longer than that expected in normal, full-term deliveries. According to Dr. Trinosky the baby progressed so well after leaving the hospital that no treatments or examinations were required which would not have been necessitated for a full-term baby.

Mrs. Powers again visited Dr. Trinosky on July 6, 1964, complaining that she had suffered headaches and neck pains for two months. Dr. Trinosky then administered a foramenal compression test, and X-rays of the cervical spine were taken. The X-rays showed no abnormalities, but Dr. Trinosky prescribed medication to ease pain. Mrs. Powers visited Dr. Trinosky the last time on July 11, 1964.

On October 6, 1964, Mrs. Powers visited Dr. Lloyd Hurley, an orthopedist, and complained basically of the same symptoms she had related to Dr. Trinosky in July of that year. Based on the patient's description of the pain, the patient's history, and his own examination, Dr. Hurley explained the persistent symptoms as 'residual myositis and fibrositis, subsequent to an acute sprain of the neck' and connected the neck sprain to the automobile accident. Dr. Hurley advised Mrs. Powers to avoid activities which would require holding her head in one position too long, and prescribed medication for relief of muscle spasm and muscle soreness. During the period of approximately two years from the time of her first visit to Dr. Hurly until...