Court of Appeals of Kentucky.
James F. McBRIDE and Leon Bennett, Appellants, v. Geneva A. MOSS et al., Appellees.
Feb. 14, 1969.
ACTION: Affirmed.

Action for injuries and damages to automobile sustained in truck-automobile intersectional collision against truck driver and his employer. Truck driver and truck owner filed third-party complaint seeking damages, indemnity and contribution against automobile driver, and against construction worker, who had been directing traffic at intersection, and his employer. The Circuit Court, Taylor County, George Bertram, J., peremptorily instructed jury to find in favor of construction worker and his employer and rendered judgment in favor of plaintiffs. Truck driver and truck owner appealed. The Court of Appeals, Steinfeld, J., held that award of $10,000 to 46-year-old plaintiff who suffered ligament injury, mild compression fracture on seventh thoracic vertebra, who would have some permanent disability consisting of back pain and stiffness, and who after accident was unable to follow her babysitting activities, was not so excessive as to indicate that it was awarded through passion and prejudice.

On July 10, 1964, Geneva A. Moss with Donna Bohannon, age 17, as her passenger, was driving an automobile north on U.S. Highway 68 (Greensburg Road) a short distance west on Campbellsville. James F. McBride, a truck driver employed by Leon Bennett, was operating Bennett's Chevrolet truck west on U.S. 68 detour (Friendship Road). For several days before that date Thurman Finn Watson, an employee of Nalley & Gibson Construction Co., Inc. was directing traffic but he had left his position before the two vehicles entered the intersection without stopping and a collision ensued.

On June 9, 1965, a complaint was filed by Geneva A. Moss and by D. C. Moss as father and next friend of Donna Bohannon against McBride and Bennett seeking damages totaling $43,500.00 for the personal injuries suffered by Geneva and Donna and the property damage to the Moss automobile. McBride and Bennett answered, and among other defenses pleaded that D.C. Moss could not sue for Donna as she was a married infant. Bennett counterclaimed against Geneva for the damages he sustained in the collision.

McBride and Bennett filed a motion to dismiss the claim made on behalf of Donna asserting that her father could not sue for her and that the claim was barred by the statute of limitations. They also moved that they 'be permitted to file their intervening complaint '. The pleading was a 'third party complaint' in which McBride and Bennett sought damages, indemnity and contribution from 'Geneva A. Moss, Thurman Finn Watson and the Nalley & Gibson Construction Co., Inc.'. The court permitted them to file the third party complaint but the motion that the action be dismissed was overruled and Donna was permitted to substitute herself as the plaintiff in the action, nunc pro tunc as of the date when the suit was filed.

On the first trial the court peremptorily instructed the jury to find in favor of Watson and his employer. The jury awarded Geneva $2,493.80 and Donna $200.00 on their claims against McBride and Bennett who promptly tendered checks in satisfaction of those amounts but the checks were refused. Geneva, Donna, McBride and Bennett moved for a new trial and it was granted.

On the second trial the verdict in favor of Geneva for her personal injuries, expenses and loss caused thereby was $10,000, and for Donna $2,300.00. Geneva Moss was awarded $1,200.00 for damage to her automobile. This award was not challenged on this appeal. After unsuccessfully seeking relief below McBride and Bennett appealed from the judgment entered pursuant to those verdicts.

The first assignment of error is that the court erred in permitting Donna to substitute her name individually as the plaintiff. Appellants argue that the statute of limitation had run before the order permitting substitution was entered on the 6th day of September, 1965. Edward Garrett became an adult on February 14, 1953. He was injured the following December and a suit styled 'Dorsey Garrett, as father and next friend of Edward W. Garrett, an infant, plaintiff v. Robert Charles Lee, defendant' was filed about eleven months after the accident. The trial court sustained the defendant's motion for summary judgment based upon a defense that the action was a nullity and with two dissents this court affirmed. We consider it appropriate to re-examine the texts and authorities on this subject to determine if our holding in Garrett v. Lee, supra, should be overruled.

Donna was the person for whose benefit the suit was filed and she was the real party in interest. Even though the objection was timely made, since the cause of action was not changed the court did not commit error in permitting the amendment.

The Moss car was moving northwardly along U.S. Highway 68 (known as Greensburg Road) approaching Friendship Road which was serving as a detour during construction of U.S. Highway 68. Bennett's truck, driven by McBride, was going westwardly on the detour. The two vehicles collided in the intersection. It is not argued that there was insufficient evidence to sustain the verdict that Bennett's driver was negligent, but it is contended that the negligence of Thurman Finn Watson, who was the servant of Nalley & Gibson Construction Co., Inc., was a proximate cause of the collision.

Watson, a third party defendant, had been directing traffic at the intersection for several previous days and he had been 'stopping cars going through the intersection to keep them from hitting trucks going north'. Geneva testified that traffic was very heavy on both roads and that she 'stopped and asked a flagman if it was all right for (her) to cross, * * * and he said it was all right to go right on.' He was stationed about 150 feet from the intersection and another flagman was 'flagging traffic on'. Watson had left his post and was talking to someone in a truck at the time the accident occurred. Witnesses stated that drivers had relied on his presence.

The appellants insist that the court erred in directing a verdict in favor of Watson and his employer. They urge that 'the issue of proximate cause should (have been) submitted to the jury under proper instructions of the court.'

In response appellees Watson v. Nalley & Gibson Construction Co., Inc., argue that no cause of action was proved against them and they rely on 'Indemnity between tort-feasors is allowed when the negligence of the person claiming indemnity is passive and secondary and the negligence of the person from whom indemnity is sought is primary and active.'

The traffic conditions were apparent to both drivers. Performance of their respective duties to keep a lookout would have disclosed the absence of a traffic guard. The lack of the guard was a condition, and if it was negligence it was not a proximate cause of the collision.

McBride and Bennett next contend that the court erred in granting a new trial to Geneva and Donna. It will be remembered that McBride and Bennett also asked for a new trial, however, they argued below 'there were no errors committed in the trial of this case that were prejudicial to plaintiffs, and that the plaintiffs are not entitled to a new trial, but that in the event a new trial is granted, the trial should be on all issues joined by the pleadings in this action.' The order granting a new trial read in part '* * * the Motion of the plaintiffs, Geneva Moss and Donna Bohannon, together with the Motion of the defendants, James F. McBride and Leon Bennett, be and the same is hereby sustained as to a new trial upon the plaintiffs' complaint, and the defendants' counterclaim, and as to defendants', James F. McBride and Leon Bennett, third party complaint as against the third party defendant, Geneva Moss.'

They were not entitled to try again against Watson and his employer, and they were granted that which they asked as to all other issues. The discretion of the trial court will not be reversed unless abused and we find no indication that it was as the record supports its ruling.

The last assignment of error is the claim that damages awarded were excessive. Geneva, age 46, with a life expectancy of 36.7 years, suffered an injury to her back and was required to wear a brace at least part of the time. Her medical expenses were $293.80. She said she could not do her housework and had to give up sewing and her other work and that she had to have help at home. The accident happened more than two years before the trial. She testified that she continues to be unable to sleep at night on occasions and if she engages in any 'overwork' she is unable to rest at night; that every four hours during the day and throughout the night she has to take various sedatives to relieve the pain. She had been working in a drugstore up until about five months before the accident and her average earnings were $50.00 per week. At the time of the accident, in addition to her household duties, she was earning about $30.00 per week babysitting but since the accident she was unable to follow her babysitting activities.

Dr. Allen F. Zoeller, an orthopedic surgeon, testified that he saw and treated Geneva on several occasions. His examination revealed that she had a 'ligament injury'. X-rays convinced him that Geneva sustained 'a mild compression fracture of the 7th thoracic vertebra which did heal'. The doctor explained that he ordered her to wear a metal back brace covered with leather to 'give the injured structures a chance to heal up and give the patient some relief from her pain'. He also prescribed pain-killing medication and other types of treatment. He said: '* * * she will definitely have some permanent disability consisting of back pain and stiffness which will vary in frequency and in intensity. In other words, she would have healed by now if she were going to.' From that testimony and other heard by the jury we are unwilling to say that the verdict for Geneva was so excessive, if excessive at all, as to indicate that the amount was awarded through passion and prejudice.

Donna, with a life expectancy of 55.9 years, was pregnant when the collision occurred. She too sustained a back and neck injury and spent $200.80 for treatment. The doctor stated that she had pain brought about by 'ligament injuries of the cervical and lumbo-sacral spine'. He expressed the opinion that 'she will never heal completely' and that 'she will have a partial permanent disability to the body as a whole of 15%.' The award of $2,300.00 to Donna was not excessive.

The judgment is affirmed.

All concur.
McBride v. Moss
437 S.W.2d 726


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