Arkansas Amusement Corporation v. Ward , 204 Ark. 130 ( 1942 )

A majority of the court are reducing the verdicts or reversing and remanding this cause for a new trial on the ground that each verdict was excessive. The verdict in favor of Fay Ward was for $34,500 for personal injuries. The verdict in favor of Wayman Ward, her husband, was for $5,000 for expenses following his wife's injuries and expenses he will have to incur in the future on account of her injuries and for damages to his automobile. The verdict in favor of Melba Bryant was for $1,000 on account of personal injuries she received.

It is admitted by appellants that there is substantial evidence in the record to sustain each verdict for some amount, but they argue that the amount of each verdict was excessive. In order to reach this conclusion, they set out some of the evidence, but, in my opinion, have not set out or even mentioned a large part of the substantial evidence tending to show the extent of the injuries and the amount of damages resulting therefrom. The evidence is in sharp conflict as to the extent of the injuries and the amount of damages in dollars and cents each sustained as a result of their respective injuries. In view of the conflicting evidence it was within the exclusive province of the jury to determine the extent of the injuries received and the amount of damages that each sustained. These matters were within the exclusive province of the jury to determine just as much as it was within the jury's exclusive province to determine the question of liability. The extent of the injuries received by each and the pain and suffering resulting therefrom were purely questions of fact to be determined by the jury and not questions of law which are always determined by the courts.

Of course, there is the exception that if it is apparent from the record that the verdict of the jury is a result of passion and prejudice or without any substantial evidence to support same, then the Supreme Court may reverse verdicts and consequent judgments and either remand the cause for a new trial or dismiss the action. The Supreme Court has no right to reverse judgments or reduce them based upon verdicts of juries for any other reason than those just stated. Missouri Pacific Rd. Co. v. Creekmore, 193 Ark. 722, 102 S.W.2d 553; Humphries v. Kendall,195 Ark. 45, 111 S.W.2d 492; Mutual Life Insurance Company v. Springer, 193 Ark. 990, 104 S.W.2d 195.

There is nothing in this record indicating that the verdicts were the result of passion and prejudice or that they were returned by a jury arbitrarily and without evidence to support them.

The Constitution of Arkansas of 1874, art. II, 7, says:

"The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy."

Section 1490 of Pope's Digest is as follows: "Issues of law must be tried by the court. Issues of fact, arising in action by proceedings at law for the recovery of money, or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived."

This case was tried by a jury of twelve men, duly selected and qualified, and the verdicts returned by them should not be disturbed by the Supreme Court.

I assert, without the fear of successful contradiction, that the jury in the instant case reached correct conclusions as to the extent of the injuries sustained by Fay Ward and Melba Bryant for personal injuries received by each and also a fair and just amount in favor of Wayman Ward for the expenses he paid out and will have to pay out on account of his wife's injuries and the amount he received on account of damages to his automobile. In support of my assertion that the jury reached the correct conclusion I am going to quote at length from the testimony of Jay Ward:

". . . I realized the truck was going to hit us and when it came into our car I was in the middle, straddling the gearshift, and I braced my feet for the collision. When the truck hit our car it threw us and the car up in the air, but as I started to go up in the air my knees caught the dashboard and it pushed me suddenly down and forward. I broke the gearshift off with my stomach and my knees, but I stayed down. I didn't go up very high. The gearshift was one of the old-fashioned ones, on the floor, and I broke it off even with the floorboard.

"We had to get out of our car on the right side because the left door was jammed. Mrs. Bryant got out first. As I started to put my weight on my feet I fainted and Mrs. Bryant caught me in front, my husband caught me behind, and they took me and layed me over on the sidewalk. When I came to there was a crowd of people around me. Our car was several feet from the curb and it was impossible to have stepped out of the car onto the curb as you would have to have mighty long legs. I had a severe pain in my left hip, but I didn't realize I was hurt. I had been living in Little Rock going on six years and I have not had a doctor since I have been here. Someone suggested that we go to Dr. Hayes, I don't remember who it was, but some man volunteered to take us to him. When we got there I was lifted out and carried to his office. From his office I went to the hospital in an ambulance. At the end of three days they put me in a cast. Before that I was so nervous they couldn't do it. They put wooden boards on the bottom of my feet and on each foot they hung a gallon water jug off the foot of the bed and layed me on a frame so I would be perfectly straight and stretched out. I was hurt on Wednesday and before they put me in a cast it was impossible for me to raise even a finger and I suffered the utmost misery. The cast was made of plaster of paris and was very stiff. I could not move from the position they had me in. I was in the cast for eight weeks. During that time the pain was almost unbearable. I had bed sores on every angle, from my feet to my head. After eight weeks the cast was taken off and I stayed in bed two weeks. The doctors then made me a brace and when I got it I could then get up and go to the table for my meals, but it wasn't sufficient support, although I tried to use it between two or three weeks. They then made me another brace and this is the picture of the second brace which I wear during the day all of the time. Sometimes the pain is so bad that I can't remove the brace at night. It is very uncomfortable to sleep in. I never take it off when I am up and around as it is too much support to my back. When I take it off I just slump clear over and I can't hold my shoulders up. I can't endure the pain. When I have the brace on there is pain and I haven't been free from pain

. . . The brace is made of steel covered with leather. I have the brace on now. At the place where these three strips hit the body there are big bruised spots and this place is rubbed raw. It rubs my arms, too, and I grit my teeth and endure it. My doctors have advised that I have an operation. At first I thought the brace would let this grow back, and I argued against an operation. I have suffered so much now that I am perfectly willing to go through with it. Aside from having an incision in my back I will have some comfort when it is all over. I realize the danger I am going through when I have the operation, but I am still willing to do it so that I can enjoy some of the things other people do. I cannot go to entertainments like I used to lots of times. I go to church on Sunday morning when I am able because I enjoy church and at night my husband always rides me around awhile. This is the only time I get out. I have tried walking down town a dozen times or more. One time down town I got so bad I didn't have the use of my limbs and if it hadn't been for a lady friend with me I would have dropped on the sidewalk. This was about the 10th of May, 1941, and the lady friend's name was Mrs. Rogers. She put her arms around me and practically carried me in Sears-Roebuck Co. I layed in the rest room for an hour or two and when I was able I went over to Dr. Hayes' office and took a light treatment. We just live a block and a half from town and my husband had to take me to town so that I can go into the stores. I have submitted to doctors' examinations by doctors representing the other side . . ."

Two reputable physicians testified that her back was broken and that her injuries are permanent and not temporary. There was much other evidence supporting the extent of her injuries and the amount of damages to which she was entitled. In view of her own testimony, and the testimony of the other witnesses in her behalf, I do not see how the court can reduce these verdicts or reverse and remand the cause for a new trial.

I might add that the testimony of Wayman Ward as to the damages he sustained and will have to sustain on account of the condition of his wife and the testimony of Melba Bryant, fully corroborated and supported, is just as convincing as to the damages they sustained as is the testimony in the record in support of the verdict of Fay Ward.

Mr. Justice Mehaffy authorizes me to state that he concurs in this dissenting opinion.