{ "id": 8723332, "name": "Jamison v. Spivey", "name_abbreviation": "Jamison v. Spivey", "decision_date": "1939-01-30", "docket_number": "4-5344", "first_page": "698", "last_page": "703", "citations": [ { "type": "official", "cite": "197 Ark. 698" }, { "type": "parallel", "cite": "125 S.W.2d 453" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "113 Am. St. Rep. 85", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "91 S. W. 763", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "76 Ark. 184", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1501110 ], "opinion_index": 0, "case_paths": [ "/ark/76/0184-01" ] }, { "cite": "38 Am. St. Rep. 254", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "21 S. W. 1062", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "57 Ark. 461", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1324614 ], "opinion_index": 0, "case_paths": [ "/ark/57/0461-01" ] }, { "cite": "68 S. W. 153", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "67 S. W. 75", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "70 Ark. 385", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1509516 ], "opinion_index": 0, "case_paths": [ "/ark/70/0385-01" ] } ], "analysis": { "cardinality": 673, "char_count": 10981, "ocr_confidence": 0.564, "pagerank": { "raw": 1.0768207311960754e-07, "percentile": 0.5613089797899414 }, "sha256": "d4b0c8c2d4d4d5c1740031cf9d55cee21e6f9c89ebf0bce190e2cb3e67de4cb6", "simhash": "1:a849fa334e0580aa", "word_count": 1896 }, "last_updated": "2023-07-14T22:44:13.530812+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Humphreys and Mehaeey, JJ., dissent." ], "parties": [ "Jamison v. Spivey." ], "opinions": [ { "text": "GtrippiN Smith, C. J.\nWe determine whether judgment shall stand on a verdict to compensate personal injuries appellee claims she sustained December 20, 1937.\nTwenty-three errors are assigned. Those urged are: (1) That because of appellee\u2019s contributory negligence a verdict should have been instructed for defendant. (2) That defendant\u2019s cause was prejudiced through the court\u2019s refusal to give requested instruction No. 3. (3) That the verdict and judgment are grossly excessive.\nAppellee alleges she was injured while proceeding south on Cedar street in Hot Springs, occasioned when a truck owned by appellant backed out of a driveway. It was estimated that repairs to appellee\u2019s car would cost $37.50. Both the truck and appellee\u2019s car were moving slowly \u2014 perhaps seven or eight miles per hour \u2014 when the impact occurred. Appellee\u2019s oar was pushed \u201cforward and over\u201d about eighteen inches or two feet. Ap-pellee was driving.. Her husband occupied the front seat with her and testified that the thrust of the collision forced him against appellee, and that she, in turn, was \u201cknocked against the left-hand door.\u201d Appellee claims to have been stunned; that \u201ceverything turned black,\u201d and she \u201chad no recollection of anything,\u201d but thought the glass \u201ccoming in all over me\u201d restored consciousness.\nA verdict signed by nine of tbe jurors allowed compensation of $6,500. The court found this sum excessive and ordered a reduction of $1,500; or, in the alternative, a new trial if the remittitur were not entered within five days. This conditional order was set aside and judgment entered on the verdict. By certiorari there was brought to this court an order entered almost five months later amending the orders of June 20 and June 29. The amended order shows that in the absence of appellant and his attorneys, and without notice to them, one of appellee\u2019s attorneys consented to the remittitur.\nThe accident occurred in circumstances which presented a question of fact for the jury. Appellee and her husband testified that as the truck backed into the street it was observed. Appellee says she constantly sounded her car horn; that the truck stopped, then started again, and that she thought the driver heard her signals and stopped on that account. From this and other evidence the jury was warranted in finding that appellant\u2019s driver was negligent.\nSnit was filed January 7, 1938, alleging that . . . \u201cthe plaintiff suffered a severe and permanent injury in the region of the lumbar portion of her back.; also an injury to the back of her spine near the base of her head.\u201d\nAt the time the complaint was filed appellee had not been told by any physician what her injuries were. The evidence indicates that perhaps Dr. G-arrett was called by appellee or her sister the day of the accident. Thereafter Dr. 'Bowman was in attendance. January 9, 1938, Dr. Randolph was called. None of the physicians found any bruises, abrasions, cuts, contusions, or other demonstrable injuries. Dr. Randolph testified: \u201cOf course there seemed to be quite a few sensitive spots along the spine and the lower part of the neck, and she was sore through the abdomen and chest. \u2019 \u2019\nAppellee had formerly weighed 230 pounds, but at the time of the accident was somewhat lighter. In response to a hypothetical question directed by attorneys for plaintiff, Dr. Randolph answered that concurrence of the conditions enumerated could have caused the injuries complained of. Included in the question was a statement that appellee had been thrown to the floor of the car. There was no testimony supporting this assumption.However, no objection was interposed.\nAppellee\u2019s blood pressure was from 230 over 110 to 250 over 125. December 26, 1937,. Dr. Ellis examined ap-pellee. Appellee told the physician she had not been bruised and that her condition was probably due to shock. At the time of Dr. Bowman\u2019s visit appellee did not complain of injury to her back or spine.\nThe following is from Dr. Randolph\u2019s cross-examination:\n\u201cQ. Did you, yourself, in your examination, find anything in particular that caused the injuries from which she suffered? A. Only subjective symptoms from the patient herself. Q. In other words, when you say \u2018subjective,\u2019 you mean only symptoms she tells you she suffered. A. Yes. Q. But your examinations have not revealed any injury in any form from which she was suffering? A. No.\u201d\nIt should be remembered Dr. Randolph was appel-lee\u2019s witness \u2014 her physician \u2014 the one upon whom she principally relied for professional support of her claim of injury. There was uncontradicted medical evidence that high blood pressure would not be attributed to an accident such as appellee experienced. On the contrary, it was testified that traumatic conditions (injuries or wounds) tend to produce low blood pressure.\nAlthough appellee vigorously denied that she was in any manner afflicted prior to the accident, there is this testimony: \u201cQ. What do you mean by nerve tonic? A. Aromatic spirits of ammonia. That is my medicine.\u201d\nIt seems certain, in the light of facts presented, that the collision between appellee\u2019s car and appellant\u2019s truck was not severe. The car door on the right side was bent in, its glass was broken, and some other damage was done; and yet, the car was not moved more than two feet. Ordinarily an impact throws passengers in the direction from which the force proceeds. For example, when head-on collisions occur, occupants of front seats are thrown against or through the windshield. Appellee\u2019s husband, however, says that in the instant case the rule of physics was reversed, and he was thrown or pushed to the left against his wife.\nIt was agreed, prior to trial, that X-ray pictures did not show injuries. In spite of this agreement, Dr. Randolph (without fault on the part of appellee\u2019s attorneys) stat\u00e9d: \u201cAll I base my stuff on is the X-ray.\u201d Asked if he saw the X-ray, the doctor replied: \u201cNo. It wouldn\u2019t have done any good for me to see it, because I can\u2019t read it.\u201d\nWe have grave doubts that the evidence is sufficient to sustain a recovery of more than nominal damages. This doubt, however, is resolved in favor of appellee by allowing a new trial \u2014 a trial to be had in circumstances free from the prejudice recognized by the trial court, as reflected in its finding that the verdict was excessive. It is our view that after deducting $1,500, the amount is still grossly excessive.\nIn Singer Manufacturing Company v. Rogers, 70 Ark. 385, 67 S. W. 75, and 68 S. W. 153, Mr. Justice Riddick, speaking for an undivided court, said: \u2018\u2018Even where there may be some conflict in the evidence, a new trial will be granted where the verdict is so clearly and palpably against the weight of evidence as to shock the sense of justice of a reasonable person; and the evidence here, we think, calls for the application of that rule.\u201d ,\nIn Catlett v. St. Louis, I. M. & S. Railway Company, 57 Ark. 461, 21 S. W. 1062, 38 Am. St. Rep. 254, we said: \u201cThe test is as follows: After drawing all the inferences most favorable to the verdict that the evidence will reasonably warrant, is it sufficient in law to sustain the verdict?\u201d It was then said that the legal sufficiency of testimony to support a verdict \u201cis not a question of fact nor one of law and fact, but is a question of law upon which this court must pass.\u201d\nIn the view that we have taken it becomes unnecessary to discuss the other assignments of errprs.\nWe reverse the judgment, and remand the cause for a new trial.\nHumphreys and Mehaeey, JJ., dissent.\n\u201cYou are instructed that if you find under the evidence in this case that the injury and damage complained of was the result of an accident which was unforeseen by the parties, plaintiff and defendant, and could not be reasonably foreseen by them, then your verdict will be for the defendant.\u201d\nAlthough appellee testified that when the collision occurred \u201ceverything turned black,\u201d and that she had no recollection of anything, her husband testified: \u201cAfter I was pinned up against Mrs. Spivey I asked her to get out, and she said she couldn\u2019t, and she kind of hesitated, I thought. I don\u2019t know whether she fainted or not, but finally she opened the door and some one helped her out.\u201d\nMr. Spivey also testified that his wife fell from a street car and hurt one of her knees. Asked if both knees were not swollen, he said: \u201cI don\u2019t know whether both of her knees are swollen, or not, because I never noticed; but I know one of them has been swollen. . . . She used a cane back on the farm to walk back and forth, but in the house she never used any cane.\u201d\nTestifying as to medical attention after the accident, Mr. Spivey said: \u201cDr. Randolph is the man we got after \u2014 what\u2019s-his-name?\u2014 didn\u2019t come.\u201d \u201cQ. Did he tell you she had a very high blood pressure? A. He never told me anything. Q. Do you know whether he told your wife that, or not? A. I don\u2019t know.\u201d\nAppellee testified: \u201cI had no trouble [before the accident] in walking. I carried this cane for protection, for fear I would fall. My knee bothered me some. It bothers me now and is worse since the accident.\u201d Asked if she and her husband, after the accident, stated to bystanders that neither was hurt, she replied: \u201cI said it this way: \u2018I am not hurt now as I feel.\u2019 ... I says, \u2018I don\u2019t know what tomorrow may bring forth.\u2019 \u201d\nThe court\u2019s order was: \u201cThe order entered herein on June 20, 1938, granting the defendant a new trial, is hereby set aside for the reason that the plaintiff has not offered to remit the sum of SI,500, and the defendant has not filed or offered to file and enter of record a release of all errors that may have occurred at the trial.\u201d.\nSection 1538 of Pope\u2019s Digest was declared invalid insofar as it curtailed the appellate jurisdiction of the Supreme Court. St. Louis & N. A. R. Co. v. Mathis, 76 Ark. 184, 91 S. W. 763, 113 Am. St. Rep. 85.\nTrial court\u2019s action November 7, 1938: \u201cThe orders of the court, made on June 20 and June 29, 1938, are hereby amended to show that on June 23, 1938, the plaintiff, Mrs. Jennie T. Spivey, by Richard M. Ryan, one of her attorneys, appeared before the trial judge and orally offered to file a remittitur in the sum of $1,500, but at said time neither the defendant nor his attorney was present and neither was notified either before or subsequent to said time of such tender. And it is further ordered by the court that said record be amended to show that after the court had made an order suggesting that the judgment was excessive in the sum of $1,500, that the defendant nor his attorneys offered to file and enter of record a release of all errors that may have occurred at the trial.\u201d [Note \u2014 It will be observed that this order states that plaintiff\u2019s counsel appeared before \u201cthe trial judge,\u201d as distinguished from the trial court].", "type": "majority", "author": "GtrippiN Smith, C. J." } ], "attorneys": [ "Martin & Wootton and Verne McMillen, for appellant.", "Leo P. McLaughlin and Richard M. Ryan, for ap-pellee." ], "corrections": "", "head_matter": "Jamison v. Spivey.\n4-5344\n125 S. W. 2d 453\nOpinion delivered January 30, 1939.\nMartin & Wootton and Verne McMillen, for appellant.\nLeo P. McLaughlin and Richard M. Ryan, for ap-pellee." }, "file_name": "0698-01", "first_page_order": 714, "last_page_order": 719 }