Ross v. Clark

Decision Date12 February 1929
Docket NumberCivil 2752
PartiesGEORGE ROSS, Appellant, v. L. A. CLARK and ETTA CLARK, His Wife, Appellees
CourtArizona Supreme Court

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment ordered for appellees, conditioned on remittitur; otherwise judgment reversed and new trial ordered.

Messrs Sloan, Holton, McKesson & Scott and Mr. J. E. Russell, for Appellant.

Messrs Anderson & Gale, for Appellees.

OPINION

ROSS, J.

This is an action for damages for personal injuries growing out of an automobile collision that occurred on the streets of Prescott, on July 2d, 1928, during the Frontier Celebration.

Defendant Ross, was a licensed taxicab driver, and at the time was engaged in taking persons to and from the fair grounds, where the celebration was being held. The plaintiffs, husband and wife, with the husband at the steering wheel of their automobile, late in the afternoon of that day, were driving north on the right side of the street, towards the fair grounds, and defendant, as it is alleged, in an intoxicated condition, was returning from the fair grounds, driving at a speed of fifty to sixty miles an hour, when he lost control of his car and wantonly, culpably, and with utter disregard of the consequences to the life and limb of plaintiffs, and while their car was on the proper or right side of the street, crashed into and collided with the automobile of plaintiffs, "thereby throwing and hurling plaintiff, Etta Clark, through the windshield thereof, severely cutting, bruising and injuring her on and about her face, head, arms and body; and inflicting divers severe wounds and injuries upon her; and thereby throwing and hurling plaintiff, L. A. Clark, upon and against the steering wheel of plaintiffs' said automobile inflicting serious bruises and injuries upon his chest and lungs.

"That at the time of said accident and collision plaintiff, Etta Clark, was sick and afflicted with tuberculosis, and that the severe physical shock attendant upon said collision has caused said disease to become more active and virulent, and has rendered her sick, sore and incapacitated, and has deprived her of a large part of the benefit of medical care, treatment and rest, and has caused plaintiffs to expend and incur large sums of money for further care and treatment rendered necessary by said collision and physical shock."

Actual damages of $15,000 and punitive of $5,000 were prayed for.

Plaintiffs had a verdict for $12,000 actual and $3,000 punitive damages.

A motion for a new trial was overruled and judgment entered for the above amounts.

On this appeal the issue of negligence is not contested, the defendant admitting that the finding of the jury thereon is sufficiently supported by the evidence and is final on that issue. But he does contend: (1) That the damages of $12,000 are excessive and appear to have been given under the influence of passion and prejudice; (2) that there is an entire want of competent evidence supporting a verdict for $12,000 actual damages; (3) that there is no testimony from which the jury was warranted in awarding future damages, the evidence thereon being entirely speculative; (4) that the evidence does not warrant a verdict for punitive damages; and (5) that the court misdirected the jury as to the law of the case.

The facts gleaned from the evidence bearing upon the issues raised by these assignments are as follows: Plaintiff Etta Clark was suffering with tuberculosis, and some two months before the accident, upon the advice of her physician in California, with her husband removed to Arizona in search of relief. They first went to Flagstaff, but on account of the high altitude were advised by a local physician to go to Prescott, where they arrived about one month prior to the accident. At Prescott plaintiff Etta Clark secured the services of Dr. John W. Flinn, a tuberculosis specialist, who examined her on June 6, 1927, and found that she was suffering with tuberculosis, which he described as a low-grade active disease. He directed her to go to bed and remain there, which she did for one month. On the date of the accident she and her husband had gone for a ride, that being the first time she had been out of bed from the date of her arrival in Prescott. It was testified by both the plaintiffs that Mrs. Clark was thrown forward, breaking the windshield of their car; that her forehead, nose and chin were cut and lacerated; that her eyes were black and swollen shut for several days; that she had bruises on her body, chest, and legs; that within an hour of the accident Dr. Southworth treated her at her home and made no further calls, and was consulted at his office by her husband only twice thereafter; that she visited Dr. Yount and was treated by him a month after the accident.

Drs. R. M. Looney and J. H. Allen, under an appointment by the court, examined the plaintiff Etta Clark a few days before the trial, and the diagnoses of these two physicians, made at the same time, are practically identical. Dr. Looney testified that at the time of the examination she was inclined to be hysterical; that this was manifested by marked twitching of the body and face, a tremulous voice, and crying; that he found a marked erythema, or a redness of the skin; that she was a well-developed and well-nourished woman; that her chest expansion was full and clear on both sides; that there was a marked fibrous or old tuberculosis scar on the upper part of both arms (probably meaning lungs); a few moist rales (meaning wheezing); that her pulse was 134 (normal 72); temperature 99.8 (normal 98.6); blood pressure 148 (normal 120 to 123). As to subjective symptoms, he said that she complained of severe pains and tenderness above the eighth or tenth dorsal vetebra, about the middle of the back. His diagnosis was chronic pulmonary tuberculosis, probably active, in both lungs, and traumatic neurosis -- a condition due to trauma. As to the permanency of her nervous condition, Dr. Looney testified:

"Q. Is such a condition, Doctor, a permanent condition, probably? A. That is hard to say.

"Q. What would you say, Doctor? A. I don't know. Sometimes it is; sometimes it is not.

"Q. You find it very pronounced now? A. I found it very pronounced as I stated there in my report."

And Dr. Allen said: "Q. And in your opinion that will exist for how long, Doctor? A. Well I don't believe anyone can say exactly how long -- the probabilities are that it will continue for some length of time -- an indefinite period."

In August plaintiffs motored to Los Angeles, driving to Needles, California, the first day, and completing the trip the next. They spent about six weeks in California and returned to Prescott October 9th, driving to Blythe, California, the first day, and the third day to Prescott. Plaintiff Etta Clark saw Dr. Thompson, who had known her all her life and who was her doctor before she came to Arizona, just one time during her six weeks' visit in California.

Plaintiff Etta Clark was nursed and cared for by her husband, both before and after the...

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17 cases
  • Biswell v. Duncan
    • United States
    • Utah Court of Appeals
    • 18 Agosto 1987
    ...(Fritz v. Salva, 406 So.2d 884 (Ala.1981)); Arizona (Smith v. Chapman, 115 Ariz. 211, 564 P.2d 900, 904 (1977)) (citing Ross v. Clark, 35 Ariz. 60, 274 P. 639 (1929)); Arkansas (Miller v. Blanton, 213 Ark. 246, 210 S.W.2d 293, 3 A.L.R.2d 203 (1948)); California (Taylor v. Super. Ct. of Los ......
  • Johnson v. Rogers
    • United States
    • Utah Supreme Court
    • 25 Agosto 1988
    ...of ZIMMERMAN, J. 1 Fritz v. Salva, 406 So.2d 884 (Ala.1981); Smith v. Chapman, 115 Ariz. 211, 564 P.2d 900 (1977) (citing Ross v. Clark, 35 Ariz. 60, 274 P. 639 (1929)); Miller v. Blanton, 213 Ark. 246, 210 S.W.2d 293 (1948); Taylor v. Superior Court of Los Angeles County, 24 Cal.3d 890, 59......
  • Southern Farm Bureau Cas. Ins. Co. v. Daniel, 5--4903
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    • 5 Mayo 1969
    ...of law in Miller v. Blanton, 213 Ark. 246, 210 S.W.2d 293, 3 A.L.R.2d 203, when we adopted the language of the opinion in Ross v. Clark, 35 Ariz. 60, 274 P. 639, as "Punitive damages' are not intended to remunerate the injured party for the damages he may have sustained. They are not to com......
  • Dorn v. Wilmarth
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    • Oregon Supreme Court
    • 24 Septiembre 1969
    ...harm caused by driving while intoxicated include Miller v. Blanton, 213 Ark. 246, 210 S.W.2d 293, 3 A.L.R.2d 203 (1948); Ross v. Clark, 35 Ariz. 60, 274 P. 639 (1929); Infeld v. Sullivan, 151 Conn. 506, 199 A.2d 693, 694 (1964); Sebastian v. Wood, 246 Iowa 94, 66 N.W.2d 841 (1954); Southlan......
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