Williams v. Yellow Checker Cab Co.

• Decision Date: 01 May 1967
• Docket Number: No. 8198,8198
• Citation: 1967 NMSC 99,77 N.M. 747,427 P.2d 261
• Parties: Alvin W. WILLIAMS, Plaintiff-Appellee, v. YELLOW CHECKER CAB CO., a Corporation, and Jack Dean, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 261

427 P.2d 261

77 N.M. 747

Alvin W. WILLIAMS, Plaintiff-Appellee, v. YELLOW CHECKER CAB CO., a Corporation, and Jack Dean,

Defendants-Appellants.

No. 8198.

Supreme Court of New Mexico.

May 1, 1967.

LeRoi Farlow, Thomas E. Jones, Albuquerque, for appellants

Rodey, Dickason, Sloan, Akin & Robb, William C. Briggs, Albuquerque, for appellee.

OPINION

COMPTON, Justice.

This is an action to recover damages for personal injuries sustained in an automobile accident occurring January 2, 1964, near the intersection of First Street and Aspen Street in Albuquerque, New Mexico. The plaintiff's car and the car driven by defendant Dean collided head-on when Dean crossed over into the plaintiff's lane of traffic. The cause was tried before a jury, and defendants appeal from a judgment entered pursuant to the verdict in favor of the plaintiff in the amount of $15,000.00.

The appellants claim that the verdict is not supported by substantial evidence and, further, that it is so excessive as to indicate that the jury was mistaken as to the measure of damages or that its verdict was the result of passion, prejudice, sympathy or partiality. There is evidence that the appellee was of the age of 54 years at the time of the trial and was retired. He had suffered heart attacks, one in 1958 and another in 195. He was taking medication regularly for his heart condition. The Social Security Administration considered him to be totally disabled even before the present car accident, and he suffered no loss of income as a result of the accident. Hence, the appellants argue that the appellee, being already totally disabled, could not have been put in any worse condition by the accident.

The argument is not convincing. We notice that the appellee continued working after the two previous heart attacks, retiring in June, 1960. After he retired, he still remained active. In 1963, he built an addition to his home. He 'sawed, hammered and nailed' and did everything but heavy lifting and specialized work. He had also put in five or six thousand square feet of new lawn. He played golf three or four times a week, and bowled on an average of two nights of each month. He engaged in stream fishing on occasions which necessarily involved substantial physical exertion. On several lengthy trips out of state he did 'most of the driving.' Before the accident, the doctors had advised him to avoid heavy lifting but to do anything else he felt like doing.

Dr. Nolting testified that as a direct result of the accident, the appellee suffered a stroke or a series of small strokes. Dr. Nolting was careful to explain and distinguish the heart conditions that existed as a result of the heart attacks from the conditions which now exist as a result of the strokes caused by the accident. The particular damage resulting from the strokes has caused the appellee to have severe headaches, the intensity of the pain being comparable to the pain of migraine headaches. The headaches are continuous, and it was Dr. Nolting's opinion that he did not expect this condition to disappear in the near future. Appellee now suffers from insomnia which is attributed to the strokes. He moved to a lower altitude because of the insomnia but still does not enjoy normal sleep. And there is evidence that in addition to the discomfort of the insomnia itself, the loss of sleep has affected his mental attitude and behavior.

There is substantial evidence that the appellee's left knee was injured in the accident. The injury has caused a condition described by medical witnesses as a grade three chondromalacia, a condition resulting in painful grating and eroding away of the undersurface of the knee cap. Dr. Hurley testified that normal treatment for this condition is a surgical operation which cannot be performed because of appellee's heart condition, although medication does relieve some of the pain; that the knee injury severely restricts his activities; that without the operation the condition of the knee is permanent, becoming progressively worse. Both Dr. Nolting and Dr. Hurley attributed the strokes, headaches, insomnia and knee injury to the accident. While there is a conflict in the medical evidence, we do not weigh the evidence and judge the credibility of witnesses but must view the evidence in a light most favorable to the judgment, disregarding all evidence to the contrary. Dungan v. Smith, 76 N.M. 424, 415 P.2d 549; Elder v. Marvel Roofing Co., 74 N.M. 357, 393 P.2d 463; and Terrel v. Lowdermilk, 74 N.M. 135, 391 P.2d 419.

In arguing that the verdict is excessive, appellants cite numerous decisions of this court and those of other jurisdictions; nevertheless, each verdict must be viewed on its own facts. In this case causal connection between the accident and injury has been established by competent evidence. There is considerable evidence of pain and suffering as a result of the accident. Compare Elder v. Marvel Roofing Co., supra; Hanberry v. Fitzgerald, 72 N.M. 383, 384 P.2d 256; Vivian v. Atchison, Topeka and Santa Fe Railway Co., 69 N.M. 6, 363 P.2d 620; Jackson v Southwestern Public Service Company, 66 N.M. 458, 349 P.2d 1029; Montgomery v. Vigil, 65 N.M. 107, 332 P.2d 1023; Hall v. Stiles, 57 N.M. 281, 258 P.2d 386; Boydston v. Twaddell, 57 N.M. 22, 253 P.2d 312; Duncan v. Branson, 153 Kan. 344, 110 P.2d 789; and Walker v. St. Louis Public Service Co., 362 Mo. 648, 243 S.W.2d 92. The cases relied on by the appellants are to be distinguished on the facts.

We have repeatedly said that no monetary standard can be set for pain and suffering. Michael v. West, 76 N.M. 118, 412 P.2d 549; Scofield v. J. W. Jones Construction Company, 64 N.M. 319, 328 P.2d 389; and Rivera v. Atchison, Topeka and Santa Fe Railway Co., 61 N.M. 314, 299 P.2d 1090. Proof that there has been no present or future loss of earnings does not in itself make this verdict excessive. Michael v. West, supra, and Terrel...