Shewry v. Heuer

• Decision Date: 07 May 1963
• Docket Number: No. 50971,50971
• Citation: 121 N.W.2d 529,255 Iowa 147
• Parties: Charles SHEWRY, Appellant, v. C. E. HEUER, Appellee.
• Court: Iowa Supreme Court

Page 529

121 N.W.2d 529

255 Iowa 147

Charles SHEWRY, Appellant, v. C. E. HEUER, Appellee.

No. 50971.

Supreme Court of Iowa.

May 7, 1963.

Eckerman, McFerren & Fair, Davenport, for appellant.

Carl W. Schultz, Davenport, for appellee.

GARFIELD, Chief Justice.

This is a law action to recover for personal injuries and damage to his truck sustained when plaintiff's pickup truck, stopped for a traffic light at a street intersection in Davenport, was struck from the rear by defendant's pickup truck. Jury trial resulted in verdict and judgment for plaintiff for $109.71. The jury apparently arrived at this amount by adding the agreed damage to plaintiff's truck, $84.71, to his doctor bill of $25. The trial court overruled plaintiff's motion for new trial based on inadequacy of the verdict and other grounds. Plaintiff has appealed.

Plaintiff's main contention is that damages for pain and suffering were properly claimed and proven and the jury was bound to make some reasonable allowance therefor. The trial court was of the opinion the jury might have found plaintiff suffered no personal injuries or, because his petition prayed for judgment of $25,000, that he was exaggerating his troubles in all respects. In view of the verdict returned, we think the denial of a new trial cannot fairly and logically be accounted for on such ground and the ruling was an abuse of discretion.

It seems best to refer to the evidence bearing on plaintiff's injuries. He was 59 at the time of the accident November 30, 1959. In partnership with his son he was engaged in fabricating and welding metals. He testifies his truck went 'quite a ways' down the street when it was hit from the rear by defendant's truck. Defendant says plaintiff's truck moved 50 to 60 feet. Plaintiff testifies he was 'banged up pretty good' and his condition got worse afterward, he sat around the rest of the day because he was pretty sore, was pretty sore the next few days, could hardly move around, tried to work and couldn't do anything, couldn't work this off as he thought he could, seldom sleeps two hours without waking, sometimes he wakes up yelling, had a lot of pain, had headaches which he still has in his neck and back (trial was 23 months after the accident), eats a lot of bufferin when the pain is too bad, can't drive much since the accident, can't bend over a drawing board to draw plans for customers, can't do most of the work he did before the accident, is at his place of business only 30 hours a week just walking or sitting around, can't do much manual labor now, can't do much around home, couldn't shovel snow, his neck is not as sore as it originally was but his headaches get so bad he sometimes has to vomit. Plaintiff says he enjoyed good health and was not troubled in these respects before the accident.

Plaintiff is corroborated in many matters by his wife and to some extent by his partner-son and an employee of theirs in the welding business. There is no evidence to the contrary. Nearest approach to it is that defendant says plaintiff talked to him twice over the telephone during the week following the accident and did not mention being injured. Plaintiff testifies, however, he told defendant in both these phone conversations he was 'banged up,' his back and neck were hurt and were still bothering him a lot.

Plaintiff first consulted a doctor eight days after the accident--a Dr. Bessmer who has long specialized in traumatic medicine and surgery. The doctor testifies concerning this and two other visits of plaintiff to his office. Plaintiff complained of pain in his neck and back and inability to work and sleep, X-rays showed no broken bones, the doctor discovered evidence plaintiff had painful muscles in his neck and back and headaches from his neck, the neck could hardly be moved and plaintiff could not bend, he had muscle strains of his back and neck which also involved the ligaments. 'I think he was jerked and these structures were overstrained and became painful.' There is other similar testimony. The doctor says he has known plaintiff a number of years, he is not emotionally disturbed, is very stable, he can stand and work with more pain than the average patient.

Plaintiff saw Dr. Bessmer again December 8, 1960, and again about three weeks before the trial in October, 1961. The doctor testifies that in December, 1960, plaintiff had not recovered and still had pain in his neck and back. Three weeks before the trial he still had some pain, particularly in his lower back. The doctor says he cannot tell definitely how long plaintiff will be bothered with this, 'he is going to have some trouble for a while yet. That is sure.'

On cross-examination of the doctor defendant sought to show plaintiff's symptoms were based on his own statements. To this the doctor answered, 'Oh, no. He is stiff. He can't move his muscles. He is spastic. His muscles are hard. You can verify the statement he is having the trouble. That is easily detected.'

There is no testimony contrary to Dr. Bessmer's. The only testimony defendant offered was his own, mostly as to happening of the accident.

Dr. Bessmer's bill was $25 and plaintiff paid it.

The jury was instructed that in order for plaintiff to recover he must establish defendant was negligent, such negligence was the proximate cause of the collision and plaintiff's resultant damage, plaintiff was free from contributory negligence, and suffered damages to some extent as alleged. Obviously, the verdict for plaintiff could not have been reached without an affirmative finding on all four propositions.

The jury was also instructed to determine whether plaintiff had established that he has endured, or will endure in the future, pain and suffering on account of his injuries. With reference to the doctor bill the jury was told it could be allowed only if the jury found the services for which the bill was rendered were necessary. The jury thus apparently made an affirmative finding as to the necessity for the doctor's services.

I. We can find no logical ground on which the jury could award plaintiff the cost of medical services made necessary by his pain and suffering and yet allow him nothing for the pain and suffering. There is no basis for finding that anything other than the pain and suffering resulting from the accident necessitated the medical services for which allowance was made. Of a similar situation Wall v. Van Meter, 311 Ky. 198, 223 S.W.2d 734, 20 A.L.R.2d 272, 274-275, says: 'It is evident from the verdict that the jury found appellee was negligent and that appellant was not guilty of contributory negligence, and was entitled to recover the damages he sustained in the accident. Such being the case, it was incumbent upon the jury to compensate him for all damages he suffered, that is, for pain and suffering as well as for his medical expenses. With reason the jury could not have awarded him a recovery for his medical expenses and then denied him recovery for the very injuries which necessitated such medical expenses.' (emphasis added).

An annotation in 20 A.L.R.2d 276, following Wall v. Van Meter, states: 'The question discussed * * * is whether a verdict may validly award plaintiff, in a personal injury action, the exact amount of his medical expenses without simultaneously awarding him damages for pain and suffering where claim therefor was properly made and proven.

'The number of cases in which this question has been specifically answered is relatively small. But despite the dearth of authority, it seems permissible to state, on general principles, that such a verdict is invalid and all the cases in which this particular point was involved are in accord with this rule.'

Decisions other than Wall v. Van Meter, supra, which support the above statement and our holding here include: Johnson v. Franklin, 112 Conn. 228, 152 A. 64; Browder v. Beckman, 275 Ill.App. 193, 198-199; Fordon v. Bender, 363 Mich. 124, 108 N.W.2d 896; Mosley v. Dati, 363 Mich. 690, 110 N.W.2d 637.

We refer now to some of our own precedents we think support our conclusion here. Tathwell v. City of Cedar Rapids, 122 Iowa 50, 54, 97 N.W. 96, 97, says: '* * * the power to set aside the verdict, when manifestly inconsistent with the evidence, and the result of a misconception by the jury of their powers and duties, is as fully recognized where the verdict is inadequate as where it is excessive; * * *.' This has recently been followed in Webster v. City of Colfax, 250 Iowa 181, 185, 93 N.W.2d 91, 93; Feldhahn v. Van De Venter, 253 Iowa 1194, 1197, 115 N.W.2d 862, 864, and Allbee v. Berry, 254 Iowa----, 119 N.W.2d 230, 232.

Torrence v. Sharp, 246 Iowa 460, 464-465, 68 N.W.2d 85, 88, states with reference to the grant of a new trial: 'The general rule appears to be that a plaintiff who has been awarded inadequate damages is as well entitled to relief as a defendant who suffers from one which is excessive.' (citations)

The trial court granted Tathwell in his case, supra, a new trial for inadequacy of the verdict for $100 and we affirmed. This is also true of Torrence v. Sharp. In Webster v. City of Colfax, supra, the trial court granted a new trial where the verdict was for past medical and hospital expenses only and we also affirmed. The Feldhahn and Allbee decisions reversed the trial court's failure to grant a new trial because of grossly inadequate damages. The Allbee award equalled the exact amount of medical and hospital services. It is true in the three most recent cases just cited the injuries appear to have been more serious than plaintiff's were here. But this is hardly adequate basis for distinguishing the decisions. See also De Moss v. Brown Cab Co., 218 Iowa 77, 78, 254 N.W. 17, and citations.

II. Defendant makes some attempt to justify the verdict on the ground pleaded in his answer that plaintiff failed to follow the advice of his physician as to the care and treatment of any alleged injury and any alleged effects on...