Opinion
March 23, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 390
George T. Ashen, Denver, for plaintiff in error.
Zarlengo, Mott & Carlin, Leonard V. Carlin, Reed L. Winbourn, Denver, for defendant in error.
COYTE, Judge.
This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.
This is an action in tort arising out of an automobile accident which occurred January 17, 1967, in Denver, Colorado. The plaintiff in error, plaintiff below, initiated this suit in March 1967, alleging he suffered personal injuries to his neck, back, and other parts of his body, and asked for damages amounting to $35,000. In May 1968, a trial was held to a jury which returned a verdict for plaintiff in the amount of $582.85. Plaintiff has appealed, contending the trial court erred in the giving of instructions and in refusing to grant a new trial because of the alleged manifest inadequacy of the verdict.
The first contention of plaintiff is that the trial court erred when it refused to give plaintiff's tendered instruction No. 1 pertaining to the aggravation of a pre-existing injury. In essence, this instruction stated that where the accident aggravates a pre-existing injury, then plaintiff is entitled to recover for all damages proximately resulting from defendant's negligence and all damages for any aggravation of the pre-existing physical condition. Citing Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811, as authority, plaintiff contends he was entitled to have the jury so instructed because he had a pre-existing back injury, for which he was operated on in 1960 or 1961. Plaintiff's argument fails for two reasons.
First, the rule in Newbury, supra, which is cited as authority for the now standard rule for aggravation of pre-existing injuries, Colorado Jury Instructions 6:8, is that the jury, if possible in such cases, much apportion that part of the disability resulting from the pre-existing condition from that portion of the disability resulting from defendant's negligence. Only if such an apportionment is not possible may the defendant be charged with the total amount of damages. The tendered instruction did not direct the jury to apportion, if possible, the damages between the pre-existing and post-accident disability suffered, and was therefore defective.
A second and equally valid reason for refusing this instruction was the fact that there was no evidence to support the theory of aggravation of a pre-existing condition. An instruction should not be given if the theory it propounds is unsupported by the evidence presented at trial. Houser v. Eckhardt, Colo., 450 P.2d 664. Otherwise, the jury might infer competent evidence is present to support this principal. Greenwood v. Kier, 125 Colo. 333, 243 P.2d 417.
Two medical experts testified at trial, one for the plaintiff and one for the defendant. A close scrutiny of the record fails to reveal any testimony by either doctor that the injuries suffered as a result of this accident might be related to or connected with plaintiff's back injury for which he was operated on in 1960 or 1961. Merely because the pain occurring in 1967 is in the same general area as the area operated on in 1960 or 1961 does not in itself establish the probability of aggravation. It would be mere conjecture under these circumstances to presume that the 1967 accident aggravated a condition existing by virtue of the 1960 or 1961 operation, and therefore refusal to instruct on the issue was not error. General Motors v. Walden, 10 Cir., 406 F.2d 606.
The second argument of plaintiff is based on R.C.P.Colo. 59(a)(5), which provides that where inadequate damages have been awarded a new trial should be granted. However, this is not a rule permitting a court to substitute its own judgment for that of the jury, but rather it is to be used sparingly, and should be invoked only in those instances where the verdict is grossly inadequate, unsupported by the true evidence of the case, and indicative of passion or prejudice on the part of the jury. Lehrer v. Lorenzen, 124 Colo. 17, 233 P.2d 382.
The evidence on this point was in conflict at trial. The doctor who testified on behalf of the defendant stated that plaintiff suffered a sprain to his back and neck, which essentially was cured by June 1, 1967. He could not make any physical findings which would account for plaintiff's complaints of pain complained of at trial, nor could he find any reason for plaintiff to undergo further therapy or treatment after June 1, 1967. Plaintiff's doctor who treated him from January 20, 1967, until trial, testified that plaintiff suffered pain and would require further medication and treatment. The verdict was for approximately $250 more than the medical expense attributable ot this injury in accordance with defendant's evidence. Unlike Kistler v. Halsey, Colo., 481 P.2d 722, Supreme Court Opinion dated February 22, 1971, considering the evidence most favorable to defendant, there was an award for pain and suffering above the actual medical expense. Since the jury decided upon competent evidence to adopt the position maintained by the defendant, its findings are conclusive upon review. Cottingham v. Star Bus Line, 152 Colo. 188, 381 P.2d 25.
As a final contention, plaintiff claims that the court erred when it refused to amend the instruction on damages to include a statement that uncertainty alone should not prevent recovery. His argument hinges on the supposition that there is evidence of aggravation of a pre-existing injury, which as noted above is not present here. Therefore, no evidence being present on this issue, no error was committed in refusing to instruct on it. Lehrer, supra.
Judgment affirmed.
DWYER and ENOCH, JJ., concur.