Summary
In Nichols v. Montgomery Ward Co., 489 P.2d 351 (Colo. App. 1971), an invalid wife claimed loss of consortium on the ground that her husband had been personally providing nursing care to her prior to his accident and became unable to continue doing so after the accident due to the worsening of his arthritic condition.
Summary of this case from Kingman v. Dillard's, Inc.Opinion
Oct. 5, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 352
A. E. Radinsky, Denver, for plaintiffs-appellants.
Wood, Ris & Hames, Thomas Crumpacker, Denver, for defendant-appellee.
PIERCE, Judge.
This appeal arises out of a two-car automobile accident at a Denver intersection. Plaintiff Arnold Nichols was driving an automobile south on Washington Street when he was struck by defendant's panel truck, driven by its employee, Earl Phillips. Each driver claimed he had a green light. Arnold Nichols thereafter brought suit for personal injuries and special damages. His wife claimed damages for loss of consortium. The case was tried to a jury which returned a verdict in favor of Arnold Nichols for $500 and against Mrs. Nichols on her claim for loss of consortium.
I.
Plaintiffs claim that the trial court erred in improperly striking that part of their amended complaint alleging willful and wanton disregard of plaintiffs' rights, thereby taking the issue of exemplary damages from the jury. We disagree. The record indicates that the trial court struck this allegation when it appeared that the original first page of the amended complaint had, by request of plaintiffs' attorney to the court clerk, been replaced by a substituted first page containing this additional allegation. Plaintiffs' attorney, however, did not move to file a second amended complaint.
We know of no rule which would permit this substitution without proper notice and hearing, or a stipulation of the parties, and we hold that the issue of exemplary damages was properly stricken by the trial court.
II.
Plaintiffs further contend that the jury verdict was contrary to the evidence and grossly inadequate because it made no award for personal injury, pain, or disability, and awarded only $500, where medical expenses appeared to be approximately $507 and special damages were alleged to be over $1,400. Plaintiffs also contend that the jury verdict was contrary to the evidence in failing to award damages to the wife for loss of consortium.
Contrary to plaintiffs' assertions, however, none of the evidence on damages was uncontroverted. Expert testimony of three physicians established that Mr. Nichols, then in his seventies, had an arthritic condition prior to the accident. Although his condition worsened after the accident, the physicians could not agree as to whether his arthritis had been aggravated by the accident. In the opinion of one physician, Mr. Nichols' complaints were related to the development of arthritis and were attributable to age and hereditary factors not associated with this alleged injury.
Although Mr. Nichols stated that he was no longer able to personally provide nursing care for his invalid wife, upon the above stated facts, it is not an unfounded inference that Mrs. Nichols' loss of consortium in this respect was not caused by the accident. In view of this evidence, we find no error. The amount of damages to be awarded in a personal injury case is a matter within the sound province and discretion of the jury and the award will not be interfered with unless it is so blatantly unjust and disproportionate as to demonstrate that the jury was swayed by passion, prejudice, or some other improper motive. Lehrer v. Lorenzen, 124 Colo. 17, 233 P.2d 382. See Preuss v. Schoonover, 154 Colo. 531, 391 P.2d 880. Here, the award is not so negligible as to indicate clearly and definitely that the jury did not properly apply the law.
III.
Plaintiffs further contend that the trial court erred in refusing a tendered instruction on life expectancy. The trial court ruled, however, that there was no evidence that Arnold Nichols suffered any permanent injury or disability, and a review of the record confirms the trial court's finding. Although there was evidence that Mr. Nichols' pre-existing arthritic condition was permanent, there was no testimony to the effect that any aggravation which might have been caused by this particular accident was permanent in nature. A mortality table instruction should not be given unless there is evidence to the effect that the plaintiff's injuries are permanent. Rio Grande Southern R.R. v. Nichols, 52 Colo. 300, 123 P. 318; Colorado Jury Instructions 5:4 (Notes on Use); See Barter Machinery & Supply Co. v. Muchow, 169 Colo. 100, 453 P.2d 804.
Plaintiffs' assignments of error relating to instructions not specifically objected to by plaintiffs pursuant to the requirements of R.C.P.Colo. 51 will not be considered upon review. See Sharoff v. Iacino, 123 Colo. 456, 231 P.2d 959.
Plaintiffs' further assignments of error have been fully considered and are found to be without merit.
Judgment affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.