Standard Coffee Company v. Watson , 198 Ark. 592 ( 1939 )

Appellee, a resident of Pulaski county, recovered judgment for $12,500, in the Clark circuit court, to compensate an injury sustained in Grant county. At the time of his injury, appellee's employment was in the nature of an apprenticeship, learning the business of selling and delivering coffee to the customers of the appellant coffee company. His wages, while so employed, were $9 per week. He was under the supervision of David Ray, an experienced salesman. It was necessary for a new man to travel for about three weeks with a regular route salesman to learn the customers and the method of selling coffee, so that he could take a route of his own. Ordinarily, orders were taken for delivery two weeks later. Ray was provided with a truck in which he carried the coffee previously ordered.

Sheridan, Arkansas, was in Ray's territory, and he and appellee had been engaged, on the day of March 9, 1937, in taking orders and in making deliveries. They ate supper at a hotel in Sheridan, and about 7:30 p.m. drove away in the truck. Their purpose in doing so is one of the sharply controverted questions of fact. Appellee testified that it was their purpose to call on certain customers whom they had failed to see during the day, and that, while doing so, through Ray's negligence, they had a collision with another car, which was badly damaged, and appellee was hurt. Ray reported the collision to the company's manager at Little Rock, who came to the scene of the collision, and, being advised by Ray that the collision occurred while he was pursuing his employment, the manager paid the owner of the car with which the truck had collided for damages sustained to the car. Ray admitted making this statement to the company's manager, and admitted making the same statement to appellee's attorney before the suit was brought. He testified that statement was untrue, and had been made to save his job, as he knew he would be fired, if it were known that he had violated his instructions about using the truck for personal purposes. Ray, who was not employed by the appellant company at the time of the trial, testified that he and appellee had finished their day's work on March 9th, and had arranged for the next day's work, after which they left to visit a night club near Sheridan, and that they had no customers on the road out of Sheridan over which they drove to the night club. A lady employed at the club testified that Ray and appellee stopped at the club between 2 and 2:30 on the afternoon of the day of the collision, and that Ray said, in appellee's presence, that they would return that night to "dance a couple of numbers." Bates, the operator of the club, stated that he saw Ray and appellee after the collision, and again the next morning, and that he asked Ray, in appellee's presence, "Where in the world were you boys going in such a hurry?" and Ray answered, "Well, we were going out to your place." However, appellee testified that they were pursuing their employment, when the collision occurred, and that they had called on two customers, whose names he did not know. This conflict in the testimony made the question one for the jury, whether appellee and Ray were pursuing their employment when the collision occurred.

It is insisted that the damages awarded were grossly excessive: and we think they were. It is true appellee testified that he suffered much pain the night he was injured, and was required to take four aspirin tablets to sleep, and his uncle, who slept in the room with him that night, testified that he had heard appellee groaning during the night. Appellee completed his apprenticeship and acquired a route of his own, but he suffered some pain every day when he drove his car, and on some days he would take an entire box of aspirin to obtain relief. He was finally compelled to quit work and rest up, and had sustained a loss in weight, and had become nervous and easily excited, and his general physical condition was not good.

Dr. R. L. Bryant testified that he took an x-ray picture of appellee, and had otherwise examined him. He found appellee to have "considerable tenderness and rigidity of the muscles, neck, back, and hips, and there was a visible curvature of the upper thoracic or chest portion of the spinal column to the left side. The curvature of the back is a very pronounced definite condition, and shows up in the X-ray, and there is an injury to a joint between the back and pelvis on the right side, or the right sacroiliac joint, with some separation at this joint, a space." And this witness attributed the curvature of the spine to an injury, although he admitted that he found no fracture or other evidence of an injury which could have caused the curvature of the spine. A hypothetical question was propounded to this witness, which contained a recital of the manner in which appellee stated he had been injured, this being that, as the truck collided with the car, cartons of coffee in the rear of the truck, weighing 60 pounds, were thrown upon him. The doctor said that such a condition as he found could have been caused by an injury of that kind.

This doctor admitted that he had never seen appellee until September 20, 1938, which was more than a year and a half after the collision occurred, and that the only evidence of an injury which he found was a curvature of the spine. He admitted that appellee may have been born with this curvature, as many people were, and he also stated that, if one received an injury sufficient to cause the curvature, he would be put to bed immediately, and that he "did not believe that any one having that serious type of injury could go ahead at his work, stooping and lifting and physical exertion." He also admitted that such pains in the back as those of which appellee complained could be, and frequently were, caused by an enlarged and tender prostate.

Opposed to this testimony was that of a number of doctors, whose qualifications were admitted, who testified that they had made and had examined X-ray pictures of appellee, and that they found no evidence of any curvature of the spine or of any injury of any kind. There was one fact, however, upon which all the doctors were agreed, and that was that an injury sufficiently severe to cause curvature of the spine would, for some time at least, render incapable the injured party from doing any kind of active work.

Ray testified that none of the packages were thrown over the seat, and persons who assembled after the collision testified that they saw none which had been, although there was testimony that "the impact was strong enough that it knocked the wheels down on the car."

In view of the jury's verdict, we must assume that appellee was injured in the manner stated by him. However, there are certain facts relating to the extent of his injury which are undisputed, even by appellee.

After the collision appellee got out of the truck, and went to look at the road, and stood around the place of the collision for an hour or more, waiting for another party. The witnesses who saw him testified that he walked and acted naturally, and showed no evidence of an injury, and did not state that he had been hurt. Appellee reported for work the next morning and discharged his usual duties, which required him to get in and out of the car from forty to fifty times a day. The truck had been disabled and another car supplied. Appellee's employment required him to handle the heavy cartons of coffee. He continued in that employment for several months after his injury, and had acquired a route of his own, although he testified that he was assisted in loading the cartons of coffee into his truck. The testimony shows that appellee lost considerable weight, but it is undisputed that his tonsils were infected, and that he had an enlarged and tender prostate, and that he suffered from colitis. He had a chronic infection of his leg, for which he was twice operated upon the last time in 1935, and he had a discharge from his penis in the fall of 1937 and the spring of 1938. While appellee consulted doctors for other purposes, he did not receive any treatment for the injury sustained in the collision. He was provided with and put in charge of a route of his own about the last of March, 1937, and his reports to appellant company continuing to the last of October, show that he was regularly employed each week during that time, with an increase of earnings. On May 7, 1938, he made application to another company for employment as a solicitor, in which he stated that he had no physical defects, and on the 18th of that month he wrote a letter to appellant's superintendent, in which he stated: "I take this opportunity of thanking you and Standard Coffee Company for all that you have did for me." The letter contained no intimation that he had received an injury while employed by appellant.

We must assume, however, in view of the verdict of the jury, that appellee did sustain an injury; but it appears to us that it would be an abdication of our function, to review trials in the court below, which come on appeal to this court, to affirm the judgment for the amount for which it was rendered. The undisputed testimony, including that of the expert physician who testified in appellee's behalf, is to the effect that, had he sustained an injury of sufficient severity to curve his spine, he would immediately have been confined to his bed. He was not confined, and consulted no doctor until he brought this suit, and he continued his employment without any loss of time on account of his injury.

It appears to us, therefore, that any recovery in excess of a thousand dollars would be excessive, and the judgment will, therefore, be reduced to that amount, and, as thus modified, is affirmed. M. P. Rd. Co. v. Remel,185 Ark. 598, 47 S.W.2d 548; Coca Cola Bottling Co. v. Eudy, 193 Ark. 436, 100 S.W.2d 683.

HUMPHREYS, MEHAFFY and BAKER, JJ., dissent.