Kraus v. Osteen (135 So. 2d 885, 1961)

KANNER, Judge.

In a negligence action, jury verdict of $5,550 was awarded plaintiff for personal injuries. Upon motion of defendants, the court below, deeming the sum awarded to be “grossly excessive” under the evidence, granted a new trial as to damages, but denied it as to liability, the court determining this issue to have been correctly resolved by the jury. Plaintiff, as an aggrieved party, seeks review of the order granting new trial, contending that the trial judge incorrectly weighed the evidence as to damages and substituted his verdict for that of the jury; further, she asserts that the amount of damages in the light of the evidence is not excessive.

Defendants protest that the judge erred in limiting the new trial to the issue of damages by denying the motion with respect to liability. However, when this proposition is looked to on its merits, it is apparent in view of the evidence that the trial court correctly denied a motion for new trial on the issue of liability. Accordingly, this court will direct its attention to the issues raised by plaintiff in her appeal.

The accident from which the suit arose occurred on May 9, 1958, when Mrs. Kraus, while operating her vehicle was struck from behind by a vehicle being driven by defendant Osteen and owned by defendant Borden’s Dairy, Inc. Damage to the vehicle of Mrs. Kraus was slight, but she contends that she suffered whiplash injury. She was treated upon several occasions by a medical doctor and was examined once by a psychiatrist. During trial, she attempted to prove that her personality and temperament had suffered severe change as a result of the accident so that she had become very nervous, tense, and neurotic, necessitating substantial further treatment in order that she might be restored to a state of well-being. She complained, additionally, of a “clicking” noise in her neck whenever she moved it. Defendants dispute that her condition had been substantially changed and assert further that, had it been, the proximate cause was not the accident but rather the fact that during the period of treatment both her husband and mother had died.

A review of the testimony bearing upon ■damages reveals that immediately after the accident Mrs. Kraus was in discomfort and suffered some pain. She was directed to apply compresses to her neck by personnel at the hospital, and X-rays were taken. The physician who treated her was suggested by the defendant Borden’s Dairy, Inc. He prescribed a course of 24 treatments involving use of an electrical device and the wearing of a collar for approximately two weeks. Out of pocket medical expenses paid to this doctor were $150. Mrs. Kraus proceeded with the course of treatments. Within four to six weeks, her pain diminished, and the collar was removed, but the clicking noise in her neck and her nervousness persisted from the time of the accident to the trial.

Testimony of the medical doctor above mentioned was that first examination of Mrs. Kraus indicated that she was in moderate pain and that she had 80 percent of her normal range of hyperextension and lateral bending, a condition termed as “hyper-extension sprain of the cervical spine.” He described Mrs. Kraus as being in moderate distress and nervous. Following the series of treatments, she, according to that witness, gave indication of being cured. At the time of the initial examination, no “crackling” noise was ascertained by the doctor although on cross examination he testified that it could have been present without being apparent to him. Mrs. Kraus herself testified that she had resumed her household duties, although the clicking noise persisted, and that the pain no longer troubled her. As to her complaint of extreme nervousness, Mrs. Kraus had been given pills for nervousness by another doctor four years previously. A psychiatrist, recommended by the treating doctor upon request of plaintiff’s counsel as a reputable practitioner in his field, testified that he examined Mrs. Kraus on the day before the trial. The examination spanned an hour’s time and the psychiatrist, upon the basis of questions to the patient and responses from her, observations, and the medical record and case-history of Mrs. Kraus, testified that she wa