Sedlock v. Trosper
| Decision Date | 07 May 1948 |
| Citation | 307 Ky. 369,211 S.W.2d 147 |
| Parties | SEDLOCK v. TROSPER (two cases). |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Harlan County; J. S. Forester, Judge.
Action by Esta Marie Trosper, by her next friend, James Trosper against Joe Sedlock, to recover for injuries sustained by infant plaintiff when struck by defendant's automobile consolidated with an action by James T. Trosper against Joe Sedlock to recover medical and hospital bills and for loss of time from work while waiting on his injured child. From judgments for plaintiffs, the defendant appeals.
Reversed with directions.
Astor Hogg, of Harlan, for appellant.
H. H Owens, of Barbourville, D. B. Smith and Ray O. Shehan, both of Harlan, for appellees.
These two cases were tried together below, have been appealed on the same record and will be disposed of in one opinion.
Esta Marie Trosper, nine year old daughter of James T. Trosper, was struck and injured by an automobile driven by Joe Sedlock. The accident happened on Main Street in Lynch, Kentucky, about 4:00 p. m. on October 9, 1946. The child was returning home from school and had alighted from a bus which had stopped on the righthand side of the street. She passed in front of the bus and started to cross the street to her home when she was struck by the automobile which was traveling in the same direction as the bus. She suffered compound fractures of both bones of her left leg above the ankle. She brought an action by her father as her next friend to recover damages for her injuries, and her father, James T. Trosper, brought an action to recover medical and hospital bills in the amount of $880.00 and for the loss of time from his work while waiting on his injured child and for the value of nursing and other services rendered by him and his family in the amount of $500.00. The jury returned a verdict for Esta Marie Trosper in the sum of $5000.00 and a verdict for James T. Trosper in his action in the sum of $500.00, and judgments were entered accordingly, The defendant, Joe Sedlock, has appealed from both judgments. He seeks a reversal in the Esta Marie Trosper case because the instructions are erroneous and the verdict is excessive.
The principal complaint of the instructions is that they authorized a recovery for the permanent impairment of the plaintiff's power to earn money after she reaches the age of 21 years, when there was neither allegation nor proof that her injuries are permanent. The petition, after charging general negligence in the operation of the automobile, alleged that the defendant 'struck said Esta Marie Trosper therewith, breaking one of her legs, injuring her internally and externally in her head, body and other limbs from which she then and there and ever since has suffered great physical pain and mental anguish and from which she will hereafter suffer, as a direct and proximate result of said negligence and injury, for the remainder of her life, and all to her damage in the sum of $10,000.00.' The petition does not allege specifically that the injury is permanent, but it does allege that the plaintiff will suffer great physical pain and mental anguish for the remainder of her life. This is another though awkward way of saying the injury is permanent. The pleadings are sufficient to entitle appellee to an instruction on permanent impairment of earning power, but appellant's contention that the proof is insufficient for that purpose is sound. The child's father testified that three physicians, Dr. Payton, Dr. Pelzy and Dr. Evans, waited on her. None of them testified in the case, but the following statement of Dr. Payton was read to the jury:
'Ester Trosper, White female, age 9, Daughter of James Trosper, Lynch, Kentucky, was admitted to Lynch Hospital October 9th, 1946, with a compound fracture of left tibia and fibula lower 1/3rd.
The testimony relied on to show that the injury is permanent is the following from the direct examination of Esta Marie Trosper:
'
She testified on September 22, 1947. In Billiter & Shurtleff Coal Co. v. Luster, 301 Ky. 17, 190 S.W.2d 683, Luster, a coal miner, was injured by a fall of slate on May 7, 1943, and testified on March 30, 1944, that in the accident his right shoulder was dislocated, his right foot and right hand were mashed and strained and that he still suffered pain. It was held that the evidence did not warrant an instruction on permanent injury, but that the error was not prejudicial in view of the small verdict, $500.00. In Pendergrass v. Salyer, 296 Ky. 866, 178 S.W.2d 828, Salyer recovered a judgment for $600.00 in an action for damages for injuries received in an automobile accident. He testified that his arm, nose, face and one hand were hurt, that his arm and nose were not in the same condition at the time he testified as they were before he was injured, and that he still suffered pain. The judgment was reversed because the instructions authorized a finding for permanent impairment of the appellee's power to earn money. The Court said:
Here the verdict is so large it can not be said the jury was uninfluenced by the instruction on permanent injury. There was no medical or other testimony that the wounds had not healed or that a good union of the bones had not been obtained. The slight evidence relied upon by appellee is insufficient to warrant an inference that the injury is permanent and that her power to earn money after she reaches her majority will be impaired. In Herndon v. Waldon, 243 Ky. 312, 47 S.W.2d 1047, 1049, a jury returned a verdict for the plaintiff for $4000.00 for injuries which included a broken or dislocated pelvis bone. The judgment was reversed because the instructions authorized the jury to return a verdict for damages for permanent impairment of plaintiff's power to earn money. In the opinion it was said:
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Cudd v. Great American Insurance Company, Civ. A. No. 8038.
...34 A.2d 96 (1943); and Powers v. Ellis, 231 Ind. 273, 108 N.E.2d 132 (1952). The minority position is stated in Sedlock v. Trosper, 307 Ky. 369, 211 S.W.2d 147, 13 A.L.R.2d 349, and Mink v. Majors, 39 Tenn.App. 50, 279 S.W.2d 714 (1954), but the soundness of its reasoning was questioned in ......
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