Opinion
April 8, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 824
Myers, Woodford & Hoppin, Frederick J. Myers, Denver, for plaintiff-appellee.
White & Steele, P.C., Stephen K. Gerdes, Denver, for defendant-appellant.
COYTE, Judge.
Plaintiff was driving westbound in the center lane of a three-lane highway on his side of the line dividing eastbound and westbound traffic. Defendant, while attempting to make a left turn from the eastbound bound lane, was distracted by conversation with her passenger and crashed into plaintiff's vehicle in his lane. He sued for the resulting injuries. In the first trial, a mistrial was declared after some testimony had been given. In the second trial, the jury returned a verdict for plaintiff in the amount of $17,500. We affirm the judgment.
Defendant first contends that the court erred by receiving into evidence at the second trial testimony given by the investigating state highway patrol officer at the first trial. This officer left the employ of the State Highway Patrol before the first trial. Prior to that trial, plaintiff's attorneys had mailed him a subpoena and a check for $70 as witness fees and mileage, and he appeared and testified. Prior to the second trial, plaintiff's attorneys contacted the witness who agreed to appear. They then mailed a similar subpoena and check to him and he cashed the check. The day before he was scheduled to appear, his secretary notified plaintiff's attorney that he would have to be paid $600 to $700 to appear because he was on an important job that day. The trial court held that the showing by plaintiff was sufficient and allowed the introduction of this testimony taken at the prior trial in evidence. The prior testimony of the witness was under oath, there had been cross-examination, and the parties and issues were identical in the two trials. Therefore, since the witness had acknowledged receipt of the subpoena by cashing the check and failed to appear, there was no error by the trial court in allowing the testimony of the former investigating officer taken at the first trial to be used in the second trial.
Defendant contends that the court erred in instructing on future mental pain and suffering and permanent disability. We disagree. Plaintiff testified that at the time of trial he occasionally suffered from inability to concentrate and loss of memory, weakness of arms and legs, and headaches. He testified that his problems persisted but to a much lesser degree than in the peak period in the past. His doctor testified that he was suffering from a post-concussion syndrome which 'is the manifestation of the symptoms which are secondary to the concussion, which occur after the concussion and go on for a period of time after the concussion.' He also testified that, in his opinion, there was a reasonable degree of medical certainty that plaintiff's symptoms would persist into the future.
There was sufficient evidence in the record to submit the disputed issues of future pain and suffering and permanent disability to the jury. See Moseley v. Lamirato, 149 Colo. 440, 370 P.2d 450. Even though plaintiff's medical expert did not testify as to the length of time into the future that plaintiff's problems would persist, it was proper to instruct on future pain, suffering, and permanent disability, and it was proper for the jury to consider the life expectancy of plaintiff in considering the amount of damages if they determined that there was, in fact, permanent disability and future pain. See CeBuzz, Inc. v. Sniderman, 171 Colo. 246, 466 P.2d 457. It should be noted that the damages instruction limited consideration to such items as had been established by the evidence.
Defendant also contends that the damages assessed are so high that the jury must have been motivated by sympathy for the plaintiff. Plaintiff was rendered unconscious in the accident, was hospitalized for five days, and years later still has intermittent severe headaches, inability to concentrate, loss of memory, and weakness of arms and legs on occasion. His elbow was fractured in the accident and a tooth which was cracked required a cap.
As stated in Davis v. Fortino & Jackson Chevrolet Co., 32 Colo.App. 222, 510 P.2d 1376:
'The determination of the amount of damages to be awarded is within the sole province and sound discretion of the jury and will not be disturbed on review unless the verdict is grossly and manifestly excessive. . . .'
From our review of the evidence we do not view the damages as 'grossly and manifestly excessive.'
Defendant's argument that an instruction on mitigation of damages was improperly refused is without merit. Mitigation of damages is an affirmative defense and applies when plaintiff fails to take reasonable actions that would tend to mitigate his injuries. See Powell v. Brady, 30 Colo.App. 406, 496 P.2d 328. Here, defendant presented no evidence that plaintiff could have taken any medical action which would have resulted in a shorter recovery period or alleviation of his remaining symptoms.
Judgment affirmed.
SMITH and RULAND, JJ., concur.