Swenson v. Hampton
| Decision Date | 19 February 1968 |
| Docket Number | No. 5--4462,5--4462 |
| Citation | 424 S.W.2d 165,244 Ark. 104 |
| Parties | Richard Vernon SWENSON and C. B. Monroe, Appellants, v. Eugene G. HAMPTON, Appellee. |
| Court | Arkansas Supreme Court |
Carrold E. Ray, Marianna, and House, Holmes & Jewell, by Philip K. Lyon, Little Rock, for appellants.
Daggett & Daggett, Marianna, for appellee.
This is an action for personal injuries and property damage brought by the appellee, a retired army colonel. At about midday on January 14, 1966, on a highway in Crittenden county, Colonel Hampton met a tractor-trailer rig being driven by the defendant Swenson for his employer, the defendant Monroe. As the two vehicles approached each other a large inflated spare tire fell from the trailer and struck the plaintiff's radiator with great force, inflicting the injuries complained of. In the court below the defendants filed a general denial but offered no proof, so that the principal issue for the jury was that of damages. This appeal is from a $7,800 verdict and judgment for the plaintiff. We need discuss only two of the points for reversal.
First, it is insisted that the court erred in allowing Dr. Gray, for thirteen years a general practitioner, to testify that in his opinion the accident could have caused the neck and shoulder pains that Hampton was still complaining of at the time of trial. Dr. Gray had testified that when his patient's shoulder pain continued beyond a normal healing period he referred the patient to a nerve specialist. 'I felt that he needed some special examination, some neurological examination that I don't make.' The appellants rely upon the sentence just quoted as a basis for their insistence that Dr. Gray was not qualified to testify that the accident could have caused the pains.
We think the court was right in admitting Dr. Gray's testimony. A general practitioner often refers his patients to specialists, as for the removal of an appendix or for the treatment of a skin disease. That does not mean, however, that the G. P. is not qualified to discuss his patients' ailments. To the contrary, as we held in Crocker's Heirs v. Crocker's Heirs, 156 Ark. 309, 246 S.W. 6 (1922), his expert opinion is admissible, subject to the jury's determination of its proper weight.
Secondly, the appellants argue that there was no substantial evidence to justify the court in submitting to the jury, as elements of damage, the permanency of the plaintiff's injuries and his loss of earnings. With respect to permanency, Dr. Gray's statement that Hampton had suffered a 10 percent disability to the body as a whole sufficiently supported the instruction.
The serious question is whether the plaintiff adduced adequate proof of earnings lost between the date of the accident and the date of the trial. He made no showing of his earnings in the military service, his earnings in any civilian pursuit, or his training or fitness for any particular occupation. No other witness, such as an employment counselor, was called to testify. See Woods, Earnings and Earning Capacity as Elements of (Damage) In Personal Injury Litigation, 18 Ark.L.Rev. 304, 318 (1965).
We have only Colonel Hampton's testimony on the point. The day of the accident was also his first day as an employee of a collection agency, on a commission basis. He had no record of past earnings in that job and made no effort to show what others were earning in a similar occupation. On direct examination he agreed with his attorney's statement that he was 'on commission' with a $400 monthly drawing account. Most of his pertinent testimony was educed on cross examination, as follows:
Q. You were to draw four hundred dollars a month in commissions?
A. Yes, sir.
Q. How was that to be drawn?
A. I had a certain schedule. They said they would pay me so much draw. I had so much draw, and if my commissions exceeded two hundred and fifty dollars I would have so much put in what they might call a sinking fund. Then if my commissions didn't equal as much as one hundred and twenty-five dollars a week I could draw out of this fund, but at the end it was paid on a percentage basis, rotation basis. I might agree with you that I wouldn't push you or I would give you time to pay the account. You would give me some settlement or a note or...
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Arthur v. Zearley
...Meredith, 243 Ark. 498, 420 S.W.2d 866 (1967). Loss of future earnings must be proven with reasonable certainty. Swenson & Monroe v. Hampton, 244 Ark. 104, 424 S.W.2d 165 (1968). Evidence involving two basic factors is necessary to prove loss of future earnings with reasonable certainty: (1......
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Avery v. Ward
...damages." Id. "Such a remittitur is fixed by the highest estimate of the element of damage affected by the error." Swenson v. Hampton, 244 Ark. 104, 108, 424 S.W.2d 165 (1968); Martin v. Rieger, 289 Ark. 292, 299, 711 S.W.2d 776 (1986). But if "we are at a complete loss to say what damages ......
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Waterfield v. Quimby, 82-130
...except by speculation, that a loss of ability to earn as a secretary was established with reasonable certainty. Swenson v. Hampton, 244 Ark. 104, 424 S.W.2d 165 (1968); and Check v. Meredith, 243 Ark. 498, 420 S.W.2d 866 With respect to the future medical expenses, one physician stated that......
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E-Ton Dynamics Industrial Corp. v. Hall
...estimate of the element of damage affected by the error. Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986); Swenson v. Hampton, 244 Ark. 104, 424 S.W.2d 165 (1968). If we are at a complete loss to say what damages the jury would have allowed if the improper evidence had not been conside......