157 S.W.2d 739 | Ky. Ct. App. | 1941
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *42 Affirming.
We will consider and dispose of both appeals in one opinion. The first is from a judgment in the sum of $6,500 rendered at the May 1940 term of the Hart circuit court for damages to appellee by reason of alleged negligence in the operation of an automobile owned by appellant and used and driven by his son Chester, who was 16 years of age at the time of the accident. The second is from a judgment rendered in the same court at its September 1940 term, sustaining a demurrer to, and dismissing, appellant Ralston's petition to have the judgment and verdict rendered in the first case set aside, because, while deliberating, the jury's attention was directed to matters which did not appear in evidence on trial of the case.
On the afternoon of October 1, 1931, Chester Ralston and his brother, Charles Ralston, were using an automobile owned by appellant and maintained by him for the use of the family. The boys had obtained permission of their father to use the car on this occasion. They invited Raymond Bales, Louis Hensley, and James Rogers to ride with them to Horse Cave, and as they were leaving Canmer, Morris Dossey joined the party. At a tourist camp known as the Wigwams they overtook a car driven by Leo Martin who was accompanied by his wife, his children, and a boy named William A. McKinney. Concluding to pass the Martin car, Chester drove close behind it and abruptly cut his wheels to the left, leaving the concrete pavement. In cutting his wheels to the right in an endeavor to get back on the concrete, as he was passing or after he had passed the Martins, the Ralston car turned over, severely injurying the Dossey boy. The Martin car was clearly on the right edge of the concrete at all times before and during the happening of the accident and was not touched by the Ralston car at any time. There is no dispute of the above facts and appellant states in his brief "all the way from home" Chester did not exceed the speed allowed by law and that at the place of the accident the road was "of ordinary width, smooth and straight" and no car, other than the Martin *43 car was in sight. Our review of the evidence confirms these statements except as to the speed of the car at the moment of attempting to pass the Martins.
Complaint is made (1) that the trial court erred in overruling defendant's motion for a directed verdict; (2) that instructions 1, 2, and 4 given by the trial court were erroneous and prejudicial to his substantial rights. We will discuss the contentions in the order named. We are not persuaded that counsel for appellant are serious in their first contention because the statement of facts contained in their brief (which were not controverted in brief of appellee) are such as to call for the application of the doctrine of res ipsa loquitur. The phrase res ipsa loquitur means "the thing speaks for itself." Paducah Traction Co. v. Baker,
"If the jury find for the plaintiff as to his injuries, you should award him such sum in damages as you may believe from the evidence will fairly and reasonably compensate him for his physical and mental suffering, if any of either, which he has endured or it is reasonably certain he will hereafter endure; for the reasonable expense, if any, incurred for physician and doctor's bills, nurses' bills, hospital bills, medicine, ambulance fee and transportation fee, not exceeding $1500.00 for said expenses, and for any impairment of his power to earn money, if there was any, which you may believe from the evidence are the proximate results of his injury, not exceeding in all the sum of $26,500.00."
The complaint of this instruction is that the court permitted the jury to "assess damages for any impairment of his (plaintiff's) power to earn money" when there was no evidence as to either temporary or permanent power to earn money, and it is argued that the testimony as to permanent disability is shadowy and uncertain. Neither allegation nor proof of specific pecuniary loss of earning power is necessary to recovery. Permanent impairment of power to earn money is merely the test by which the jury must be guided in fixing the damages for permanent injuries, and, where permanent injuries are pleaded and shown, permanent impairment of power to earn money follows as a matter of course. Gretton v. Duncan,
"Ordinarily in six months the larger portion of them do. It has been about seven or eight months now, and ordinarily the improvement is noted in the first six months. The boy shows no improvement in the last two or three months on the face of it. To determine just what the disability will be is something I can't say, I don't think anybody can say. Disability coming from a brain injury is hard to say. I think he is sure to have some disability always, I don't know how you could get around that. His jaw teeth are gone, and when he chews his mouth does not come together right, and it is impossible for him to chew properly on one side. That can never be corrected, that is a permanent disability, and he had an infection in the bone on that side. These teeth that are gone can never be recovered. This bone that was infected could start up again, or rather an abscess at that old place of fracture. The other condition, and of course the most important one, is the brain injury, and of that condition. I don't know and have no way of saying. It might be he would be better in a few months, and it is possible that he might have to have a brain operation on some bone to relieve it within his head in a years time, it is hard to say, nobody can tell that. His eyes of course have been examined, and from the symptoms he has some disability in his eyes. At present I don't know of any occupation that the boy is qualified to do that he could get and hold, I don't know of any work that he could hold down at present, but how long that will last, I don't know."
Dr. R.H. Burdette, a dentist of Glasgow, described the condition of the mouth, teeth, and jaws to be the same as that described by Dr. Follis; that the jaw is not in a normal condition, the teeth do not mesh as they formerly did, and the injuries are permanent. Dr. J.J. Moran testified that he examined the patient 6 months after the injuries, that the headaches, vertigo, and low pulse were, in his opinion, the result of a brain injury, and he believed the boy to be permanently affected. The *47 defendant introduced the written statement of Dr. W.P. Drake, the only expert introduced by him. It was agreed that the statement could be read as his evidence. He stated that he had examined the eyes of the boy and there was a 10 per cent impairment of the field of vision in one eye, none in the other, and there was no inflammation of the optic nerve.
There is no difference of opinion among the doctors as to the extent of any of the injuries except as to the eyes, and the conflict as to the eye injuries was not as to the permanency of the disability but solely as to the percentage thereof. All of the medical testimony is to the effect that the injuries are permanent, and such evidence, not being in the field of common knowledge, when uncontradicted by opinion, fact, or circumstance, must be accepted by us as conclusive of the point in question. Kingston-Pocahontas Coal Co. v. Maynard,
There remains for our determination complaint that the trial court erred in sustaining the demurrer to the petition in the second case. This action was brought under Section 344 of the Civil Code of Practice, which reads:
"If grounds for a new trial be discovered after the term at which the verdict or decision is rendered, the application may be made by a petition filed with the clerk not later than the second term after the discovery — on which a summons shall issue, as on other petitions, requiring the adverse party to appear and answer it on or before the first day of the next term. The application shall stand for hearing at the term to which the summons is returned executed, and shall be summarily decided by the court. The evidence may be either by depositions or by witnesses examined in court. But no such application shall be made more than three years after final judgment was rendered; nor do the provisions of this section apply to divorce cases, so far as the judgment for divorce is concerned."
Appellant set out in his petition the affidavits of 5 *48 jurors which recited that while deliberating on the verdict in the case on its trial in May, one of the jurors told the others that appellant had stated to his (the Juror's) wife that appellant had accident insurance on his car to the amount of $10,000; that another juror stated that he had overheard a statement by some one that the defendant or his attorneys had offered to pay the plaintiff the sum of $5,000 in settlement of the case; and that another stated that he had overheard a conversation around the courthouse that Mr. Ralston had insurance on the car. The appellant further alleged that he did not receive the information contained in the affidavits until after adjournment of the May term of court.
The petition contains the following allegation:
"The matters complained of herein will be established on the trial of this cause, by the members of said jury and no other witnesses."
The court sustained the demurrer to the petition, and appellant declining to plead further, the petition was dismissed. Appellant admits that public policy forbids the examination of jurors to impeach the verdict of the jury but relies upon the distinction made by the Supreme Court of the United States in the case of Mattox v. United States,
Wherefore the judgment in each case is affirmed.