Vogler v. O'Neal, 5-1078

• Decision Date: 26 November 1956
• Docket Number: No. 5-1078,5-1078
• Parties: , 62 A.L.R.2d 832 Ted VOGLER, Appellant, v. Earl O'NEAL, Appellee.
• Court: Arkansas Supreme Court

Page 629

295 S.W.2d 629

226 Ark. 1007, 62 A.L.R.2d 832

Ted VOGLER, Appellant, v. Earl O'NEAL, Appellee.

No. 5-1078.

Supreme Court of Arkansas.

Nov. 26, 1956.

Barber, Henry & Thurman, Little Rock, for appellant.

Talley & Owen, and Dale Price, Little Rock, for appellee.

HOLT, Justice.

Appellee, Earl O'Neal, brought this action against Ted Vogler, appellant, to recover compensatory and also punitive damages alleged to have resulted from the collision of an automobile driven by Vogler and one driven by O'Neal, on March 4, 1955. Specific acts of negligence on the part of Vogler were alleged in the complaint and in addition it was alleged that such acts were willful, wanton and malicious and entitled O'Neal also to punitive or exemplary damages. Appellee sought $50,000 as compensatory damages and $10,000 as punitive damages.

At the trial appellant (Volger) admitted liability for compensatory damages and denied any liability for punitive damages. The jury returned a verdict for O'Neal for $10,739.45 compensatory damages and $12,000, as punitive damages. Thereafter the court, on its own motion, reduced the $12,000 verdict to $10,000 to conform to the prayer of appellee's complaint and judgment was rendered accordingly. This appeal followed.

Appellant for reversal relied upon the following points: 'I. The lower court erred in giving plaintiff's instructions Numbered 1 and 3. II. The lower court erred in permitting witnesses Brown, Laird and Singleton to testify as to statements made to them by Vogler, and as to Vogler's physical condition hours subsequent to the time of the accident. III. The verdict as to compensatory damages is excessive and the result of passion and prejudice. IV. The verdict as to punitive damages is excessive and was the result of passion and prejudice.'

We consider them in the order presented.

I

Instruction No. 1 provided: 'You are instructed that the parties, both the plaintiff and the defendant, have agreed that Earl O'Neal is entitled to recover actual damages suffered by him from the defendant, Ted Vogler. You will find for Earl O'Neal in such sum as you find from a preponderance of the evidence, will reasonably compensate him for the injuries he sustained, if any; the pain and suffering he has suffered to date, if any, the pain and suffering he will suffer in the future, if any, the medical expenses he has incurred to date, if any, the medical expenses he will incur in the future, if any; permanent partial disability which he has suffered, if any. Upon these elements of damages, you will fix such sum as in your judgment you find from a preponderance of the evidence will reasonably compensate him for the injuries and damages he sustained, if any.'

Appellant objected specifically, at the trial, to that part of the above instruction 'which submits to the jury the recovery by plaintiff of future medical expense and future pain and suffering, if any,' and he argues here that the instruction was 'inherently erroneous in that it permitted the jury to assess damages for permanent disability and injury where there was no testimony in the record, nor was there any prayer in the complaint which would have justified this element of damages.' The record reflects that there was a prayer for permanent disability and injury in the complaint. The complaint states: 'Thereby causing serious, grievous, painful and permanent injuries to the plaintiff.' We do not agree that this instruction was inherently erroneous and hold that it was a correct statement of the law with regard to the measure of damages. We said in Coca-Cola Bottling Co. of Arkansas v. Adcox, 189 Ark. 610, 74 S.W.2d 771, 772 that: "The measure of damages for a physical injury to the person may be broadly stated to be such sum, so far as it is susceptible of estimate in money, as will compensate plaintiff for all losses, subject to the limitations imposed by the doctrines of natural and proximate consequences, and of certainty, which he has sustained by reason of the injury, including compensation for his pain and suffering, for his loss of time, for medical attendance and support during the period of his disablement, and for such permanent injury and continuing disability as he had sustained. Plaintiff is not limited in his recovery to specific pecuniary losses as to which there is direct proof, and it is obvious that certain of the results of a personal injury are unsusceptible of pecuniary admeasurement, from which it follows that in this class of cases the amount of the award rests largely within the discretion of the jury, the exercise of which must be governed by the circumstances and be based on the evidence adduced, the controlling principle being that of securing to plaintiff a reasonable compensation for the injury which he has sustained." After a review of all the evidence, we hold that there was some substantial evidence that appellee has suffered permanent partial disability and will continue in the future to suffer pain and would incur future medical expenses. There was medical testimony supporting this view. Dr. Jones testified that when he re-examined O'Neal on March 28, 1956 he was complaining of injury to his left leg:

'Q. And what does this injury to the left leg consist of? A. * * * At that time he was complaining of pain just above the outer aspect of the left knee. * * *

'Q. You found it to be constant? A. Yes, sir.

'Q. Did you find any disability as a result of this knee? A. The disability would be the result of pain and complaint of pain he had. Mechanically there is no disability. From the standpoint of discomfort he experienced, yes. There was some degree of disability. * * *

'Q. Would you estimate the disability? A. Five per cent as related to the leg or that would be the reasonable estimation.'

Dr. Hundley testified that he treated O'Neal beginning March 27, 1955, that he had a fracture of the 3rd, 4th, 5th and 6th, 9th, 10th and 11th ribs, a fracture of the left scapula, or shoulder blade, that he was suffering great pain. Quoting from appellant's brief, Dr. Hundley testified: '* * * that his examination revealed some tenderness of the left para-cervical area with extension of the cervical spine or neck being 75% normal, flexion 75% of normal; that side bending to the left was 50% of normal, to the right 75% of normal; that side bending of the cervical spine was accompanied by pain in the left side of the neck and left collar bone area; that rotation to the left was 50% of normal, to the right normal; * * * that flexion of the trunk was normal but bending backward was 75% of normal accompanied by pain in the chest, * * * He again examined Mr. O' Neal on May 21, July 11, October 8, 1955, and on March 27, 1956, giving him medication for relief of pain as well as physical therapy. The last date he saw him was March 27, 1956. At that time he stated there had been no locking in the fingers, but he had had pain in his left ring finger and left thumb and the entire left arm was sore. He stated he had dizzy spells and was extremely nervous and had had headaches since returning to work. He also complained of a pulling sensation in his left leg * * *. July 11, 1955, he returned to the office, stating that the left knee felt like something was cutting it and he could hardly walk at times * * *. He continued to complain of neck and back pain and headaches. * * * On October 8, 1955, examination revealed muscle spasm to the lower spine and tenderness * * * He returned to the office on March 27, 1956, stating that sometimes when he sits down, he can hardly get up because of pain in his low back * * * The physical examination revealed tenderness in the lumbar areas * * *. As of March 27 he still found tenderness in the lumbosacral area. Flexion was normal but the extension or backward bending was limited about 50% of what it should be. As of the date of his last examination he continued to complain of pain * * *. The last date he saw him was March 27, 1956.

Under our well established rule we must affirm when we find any...