Duty v. Gunter ( 1961 )

Carleton Harris, Chief Justice.

This is the second appeal in this case. In Duty v. Gunter, 231 Ark. 585, 331 S. W. 2d 111, a $2,000 judgment for appellee was reversed because of the court’s error in admitting improper evidence. On a second trial, the jury returned a verdict of $7,500 for appellee, and from the judgment entered thereon, appellant brings this appeal. The sole issue in this appeal is whether the verdict and judgment are excessive.

Mr. Gunter, age 60 at the time of the trial, was injured in an automobile collision on February 2, 1959. The proof reflects that Gunter’s truck was worth between $1,700 and $1,900 before the accident, and that he was allowed $700 for same on the purchase of another truck subsequent to the accident. Further, the appellee incurred an expense of $32.50 on the date of the collision, covering emergency medical, hospital, and ambulance bills; he has since expended $40 in medical and drug bills, and $33 for replacement of his glasses, which were broken at the time of the collision. Appellee suffered a cut over his eye, which required seven stitches. No medical evidence was offered, but according to Gunter’s testimony, he suffered a broken rib, has frequent headaches, is very nervous, and is bothered by pain in his stomach, back, neck, and spine. One of his principal complaints deals with an inability to sleep. Gunter stated that since the wreck, he is only able to sleep two or three hours per night; that he generally sleeps until twelve or one -o’clock, “and then that’s all of it.”

Appellant testified that due to his condition, he was unable to work, and had been unable to work since the collision; that he normally made $2.75 per hour when employed. Appellant points out that appellee did not show the availability of work during this period, and that he had not worked for fourteen months before he was injured. The record does reflect, however, that on the occasion of the collision near Russellville, he had gone from Benton to the site of a job near Dardanelle for the purpose of obtaining employment. Upon being advised that construction would probably start at the site in the spring, Gunter returned to Russellville to the employment office there, to ascertain how the labor would be handled. Shortly thereafter, he was involved in the collision from which stems this litigation.

Appellant cites several cases in support of his contention that the verdict is excessive. It is true that from a comparison, this verdict does appear unduly large. In Turchi v. Shepherd, 230 Ark. 899, 327 S. W. 2d 553 (1959), we said:

“A comparison of awards made in other cases is a most unsatisfactory method of determining a proper award in a particular case, not only because the degree of injury is rarely the same, but also because the dollar no longer has its prior value.”

However, aside from other cases, we are very firmly of the view that the evidence in the instant case does not support the amount of judgment, i.e., the injuries do not appear to be so substantial or disabling as to justify the amount awarded. Gunter was not in the hospital more than thirty or forty minutes, and was released, leaving by taxi. His medical expense was nominal; his visits to the doctor after the collision appear to be infrequent, and neither the broken rib, nor the “sleeplessness” complained of, was corroborated. Appellant strongly argues the failure of Gunter to offer supporting medical evidence. This, of course, is noticeable, but it is likewise true that appellant offered no medical evidence to minimize the asserted injuries.¹

Determining the proper amount of award in a personal injury suit is indeed difficult, but when we give the evidence its greatest probative value, as we must, we are of the opinion that the proof introduced will not justify a judgment for personal injury damages in excess of $2,300. Giving Mr. Gunter the benefit of the highest figure mentioned in evaluating the truck before the collision, and deducting therefrom the value of the truck after the collision, we arrive at the figure of $1,200 for the loss of this property, or a total award of $3,500.

If within seventeen calendar days, a remittitur be entered in keeping with this opinion, the judgment is affirmed as so reduced. If such a remittitur be not entered, the case will be reversed and the cause remanded for a new trial.

McFaddin and Johnson, JJ., dissent.

1 The suit had been pending for about two years, and the complaint sought judgment for $22,400. Appellee alleged severe injuries, and asserted that “plaintiff will continue to suffer great and excruciating pain and mental anguish * * Apparently no effort was made by appellant to have appellee examined.'