Wickizer v. Medley
| Decision Date | 07 June 1976 |
| Docket Number | No. 3--574A86,3--574A86 |
| Citation | 169 Ind.App. 332,348 N.E.2d 96 |
| Parties | Lillian WICKIZER and Harold Wickizer, Plaintiffs-Appellants, v. Morris L. MEDLEY, Defendant-Appellee. |
| Court | Indiana Appellate Court |
Charles E. Herriman, Gemmill, Browne, Torrance, Spitzer & Herriman, Marion, Leon R. Kaminski, Newby, Lewis, Kaminski & Jones, LaPorte, for appellants.
Winfield L. Bouran, Larry G. Evans, John E. Hughes, Chester, Clifford, Hoeppner & Houran, Valparaiso, for appellees.
Lillian Wickizer was injured on March 29, 1969, when the car she was driving was struck from the rear by a vehicle driven by Morris Medley. A jury awarded damages of $5,600.00 to Lillian and $4,400.00 to her husband, Harold. On appeal, Lillian contends that the damages awarded to her are inadequate and that the court erred when it gave an instruction on the income tax consequences of an award of damages.
We conclude that the damages are not inadequate and that any error in giving the objectionable instruction was harmless. We affirm.
In Rondinelli v. Bowden (1973), Ind.App., 293 N.E.2d 812, 814, this Court stated:
'To determine if the verdict is inadequate the same rules must be applied as if the verdict were being challenged as excessive. In Henschen v. New York Cent. R. Co. (1945), 223 Ind. 393, at 399, 400, 60 N.E.2d 738, at 740, it is stated:
See also Green v. Oakley (1969), 145 Ind.App. 307, 250 N.E.2d 594; Schutz v. Rose (1964), 136 Ind.App. 165, 196 N.E.2d 285.
In the present case, the amount of damages assessed by the jury is not so small as to suggest that the jury was 'motivated by prejudice, passion, partiality or corruption, or considered some improper element.' Compare Thompson v. Town of Fort Branch (1931), 204 Ind. 152, 178 N.E. 440 (), with Schutz v. Rose (1964), 136 Ind.App. 165, 196 N.E.2d 285 ().
Lillian was 44 years old at the time of the accident. Since October 14, 1955, she had been employed by the Elgin, Joliet, and Eastern Railway Company as an IBM clerk. Lillian did not work between the date of the accident and the time of the trial (October 15, 1973). The undisputed evidence showed that Lillian's lost earnings, depending on rate classifications and overtime, amounted to between $39,000.00 and $44,000.00. Lillian contends that, in light of the evidence of lost earnings, the award of $5,600.00 is clearly inadequate.
The evidence presented is conflicting as to the nature, extent, and source of Lillian's disability and as to the reason for her inability to work after the accident. Dr. Cooper, who examined Lillian on May 14, 1970, on behalf of the railway retirement board, testified that he found no 'gross evidence of a physical impairment, disability' and 'no loss of function of this patient.' He felt that she needed no further treatment other than the 'assurance that she could get along fine.' Dr. Cohen, who examined Lillian on May 10, 1973, on behalf of defendant Medley, testified that he found 'no objective neurological deficit' and no disability as a result of injury to her back and neck. There is evidence that Lillian had a history of absence from work. She took leaves of absence because of illness of over two months in 1959, over four months in 1960, over one month in 1963, over five months in 1964, and three months in 1965.
Between the time of the accident and the time of trial, Lillian was examined and treated by seven other doctors and was hospitalized for tests on three occasions. At various times, she complained of neck, back, shoulder, and leg pains, numbness of the extremities, headaches, ringing in the ears, dizziness, hypertension, high blood pressure, and nervousness. Dr. Phillips, who treated Lillian immediately after the accident, diagnosed that, as a result of the accident, she suffered acute and chronic sprain of the cervical spine. Dr. Speigel, who examined Lillian in October 1971, diagnosed 'sprain of the cervical spine . . . and a sprain of the lumbosacral spine secondary to (caused by) the incident of injury which she alleged on the 29th of March, '69, . . . and superimposed upon a previously existing state of spondylosis (degenerative osteoarthritis) of the lumbosacral spine.' Other than evidence of spasm in the lower back muscles, found only by Dr. Speigel, the diagnoses were made on the basis of Lillian's subjective complaints of pain and tenderness which are impossible of objective confirmation. Although the doctors agreed that Lillian was probably not a 'phony' or a 'malingerer,' there is evidence that a clever person could control movement and flexion so as to indicate real pain.
After the accident, Lillian was also treated for bronchitis, chest pain, and tachycardia or rapid heartbeat. There is evidence that in 1970 Lillian was suffering from arteriosclerosis so severe that a physician had recommended a serious bypass operation. There is evidence that many of Lillian's subjective complaints, and a portion of her disability, could have been a result of arteriosclerosis.
The jury saw the witnesses, including the plaintiff Lillian Wickizer, and was in the best position to determine their credibility. The question of the damages required to compensate Lillian for the pain and suffering, mental anguish, and disability she suffered as a result of the accident was peculiarly a question for the jury. The question of whether the undisputed period of time during which she was absent from work was a proximate result of the automobile collision was also peculiarly a question for the jury. See Cox v. Winklepleck (1971), 149 Ind.App. 319, 271 N.E.2d 737; Niemeyer v. Lee (1969), 144 Ind.App. 161, 245 N.E.2d 178. We may not reweigh the evidence or reassess the credibility of the witnesses. In light of the conflicting evidence as to the nature, source, and extent of Lillian's injuries and complaints, we must conclude that the jury's award of damages was not so inadequate as to indicate passion, prejudice, or impropriety.
The trial court gave Defendant's Instruction Number Six to the jury:
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