Opinion
April 28, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Harden & Wyatt, Waldine H. Olson, Fort Collins, for defendants in error.
Gene E. Fischer, Elery Wilmarth, Fort Collins, for plaintiffs in error.
Page 624
PIERCE, 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.
Plaintiffs in error were plaintiffs below and will be referred to herein as plaintiffs or by name.
This action arose out of an intersection accident which occurred in the City of Fort Collins, Colorado, wherein the vehicles of both plaintiffs and defendants were damaged. As a further result, there were personal injuries to parties in both vehicles. Plaintiffs sued to recover for damage to their vehicle and for damages resulting from personal injuries to the plaintiff, Dorothy E. Keep. Defendants filed a counterclaim for damage to their vehicle and for injuries to the defendant, Lawrence A. McDaniel.
The jury found in favor of plaintiffs and awarded them $1,052.37; it further found against defendants on their counterclaim. Plaintiffs are now before us asking for a new trial on the issue of damages, only, on the ground that the award they received was inadequate; the defendants appeal on the ground that the trial court erred in denying their motion to dismiss plaintiffs' action and their motion for judgment Non obstante veredicto on the ground that plaintiffs were contributorily negligent as a matter of law.
The record is clear that the issues of negligence and contributory negligence were properly before the jury and its determination on these issues will not be disturbed. Scott v. Matsuda, 127 Colo. 267, 255 P.2d 403. The trial court properly denied defendants' motion for judgment Non obstante veredicto; but we rule that plaintiffs should have been granted a new trial on the issue of damages only.
Mrs. Keep was a part-time jewelry saleswoman and was in good health prior to the collision in question. The collision, according to testimony presented and from the appearance of photographs of the Keep vehicle, was of considerable impact. Mrs. Keep's right knee struck the dashboard with sufficient force to burn a hole in the knee of the slacks she was wearing. Her head hit the windshield and her glasses were broken, dispersing glass into her hair and face. She alleged considerable pain, beginning the following day, in her shoulder, breast, and back; and bruises in the damaged areas of her person were readily observable. Her right knee gave her a great deal of difficulty, and eventually surgery was performed on it. The medical testimony presented by both sides in the controversy confirmed the presence of pain.
It is obvious from the jury's verdict that it considered the negligence of defendants to be the sole proximate cause of the accident, and it found Mrs. Keep suffered personal injuries in the accident which necessitated medical expenses which she offered in the form of exhibits, including the surgery to her right knee. There was ample evidence to justify its conclusions as to these matters, and we will not disturb its determination on the liability aspect of the case. But the jury's award of damages was obviously in error.
A review of the evidence indicates that the repair estimate of plaintiffs' vehicle, Mrs. Keep's doctor bills, hospital bill, and drug bills totalled exactly $1,052.37. This sum is the exact amount of the verdict. Although defense counsel has put forth some imaginative arguments showing the jury might, by coincidence, have arrived at this figure by methods other than mere addition of the above-listed items, we feel the only logical explanation for the amount of its verdict was that the jury awarded only the sum of damages shown by exhibits submitted to it concerning medical expenses and property damage.
The jury had been adequately instructed that they might consider damage to the vehicle, past pain and suffering, necessary medical expenses, future pain and suffering and medical expense, and permanent injury. (However, the court should carefully observe C.J.I. 6:1 and 6:10 upon retrial of this matter.)
There was evidence in the record that the surgery involved may have been caused by the aggravation of a pre-existing condition; but there was no evidence presented to apportion the damage as between that part directly resulting from the accident in question and that part which may have been pre-existing. The jury was properly instructed regarding the award of damages where there has been no apportionment in reference to the aggravation. Newbury v. Vogel, 151 Colo. 520, 379 P.2d 811; C.J.I. 6:8.
From a review of the somewhat conflicting evidence, we can see how the jury might, although it would have to disregard some very persuasive testimony to the contrary, conclude that there were no permanent injuries resulting from this accident, and that there would be no future pain and suffering or medical expense. It defies logic, however, that the jury could conclude there had been no past pain and suffering as a result of the naturally painful injuries received and the resultant surgery.
We feel the fact situation in the instant case is substantially analogous to Franklin v. Templeton, 163 Colo. 48, 428 P.2d 361, in which the jury allowed only property damage, and Denton v. Navratil, Colo., 459 P.2d 761, in which the jury awarded only 36¢ more than plaintiff's actual expenses. Both of these awards were reversed and remanded for new trial as to damages. Our position in the instant case is made clear by Denton, supra, where the court said:
'Under this state of the record, the conclusion is inescapable that plaintiff sustained injuries for which he is entitled to damages beyond his actual outlays and that the jury failed in its function by refusing to recognize this undisputed fact and to assess the resulting compensatory damage. This matter falls within the scope of Staples v. Langley, 148 Colo. 498, 366 P.2d 861 and, as there, this is a case in which only the question of damages should be retried.'
Judgment is affirmed as to the determination of liability and is reversed as to damages. The case is remanded with directions to grant a new trial on the question of damages only.
SILVERSTEIN, C.J., and ENOCH, J., concur.