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GERMANN v. BLATCHFORD

May 25, 1990.

SHIRLEY GERMANN, Appellant,
v.
BONNIE BLATCHFORD and ERNEST E. GERMANN, Appellees.



The opinion of the court was delivered by

This is an appeal by the plaintiff, Shirley Germann, from an order of the district court which denied her motion for a new trial based upon the inadequacy of the jury verdict. In an unpublished opinion, Germann v. Blatchford, No. 62,680, filed November 9, 1989, the Court of Appeals reversed the judgment and remanded the case for a new trial on the issue of damages only. We granted petitions for review filed by both defendants, Bonnie Blatchford and Ernest E. Germann. We affirm the decision reached by the Court of Appeals.

On May 10, 1985, Shirley Germann was a passenger in the front seat of a station wagon driven by her husband, Ernest E. Germann, when their vehicle was involved in a head-on collision with a pickup truck driven by Bonnie Blatchford. The Germanns' daughter, Christy, was a passenger in the back seat. Plaintiff sued her husband and Bonnie Blatchford, claiming each was negligent

[246 Kan. 533]

      in operating their respective vehicles. Plaintiff also sued Coffey County, alleging the county was negligent in maintaining and signing the road. The claims against the county were settled before trial and all parties stipulated to the county's dismissal from the case with prejudice. At trial the district court ruled as a matter of law that there was no fault on the part of the plaintiff which contributed to the accident and the issue of fault was limited to that of the two individual defendants.

  The jury, utilizing a verdict form prepared in compliance with K.S.A. 1989 Supp. 60-249a, found each defendant 50% at fault and awarded damages as follows:
"3. Without considering the percentage of fault found in question 2, what total amount of damages do you find was sustained by Shirley Germann for each of the following items:
"A. Pain and suffering, disability or disfigurement and any accompanying mental anguish from the accident in question to date: $ -0-
"10 of the 12 of us agreed on the above answer.
"B. Pain and suffering, disability or disfigurement and any accompanying mental anguish reasonably certain to be sustained in the future: $ -0-
"12 of the 12 of us agreed on the above answer.
"C. Reasonable expenses of necessary medical care, hospitalization and treatment received from the accident in question to date: $5,500.00
"11 of the 12 of us agreed on the above answer.
"D. Reasonable expenses of necessary medical care, hospitalization and treatment reasonably certain to be sustained in the future: $ -0-
"12 of the 12 of us agreed on the above answer.
"E. Loss of time or income from the accident in question to date: $ -0-
"12 of the 12 of us agreed on the above answer.
"F. Loss of time or income reasonably certain to lose in the future: $ -0-
"11 of the 12 of us agreed on the above answer.
"G. Loss and impairment of her ability to perform services as a wife to her husband to date: $1,000.00
"10 of the 12 of us agreed on the above answer.
"H. Loss and impairment of her ability to perform services as a wife to her husband reasonably certain to be sustained in the future: $ -0-
"12 of the 12 of us agreed on the above answer.
TOTAL $6,500.00"
  Plaintiff has appealed the judgment entered upon the jury's verdict, asserting that she is entitled to a new trial because of the inadequacy of the verdict and the failure of the jury to award

[246 Kan. 534]

      appropriate damages. Although plaintiff, in her motion for a new trial and in her briefs on appeal, asserts the entire verdict was based upon passion and prejudice by the jury and is inadequate, she primarily contends that she is entitled to a new trial because of the jury's failure to allow any award for pain and suffering.

  The issue of plaintiff's damages was hotly contested throughout the trial. Plaintiff focused on her numerous injuries, their severity, and their effect upon her activities. The defendants focused on plaintiff's preexisting conditions, the lack of objective evidence that plaintiff's injuries were a result of the accident, and plaintiff's credibility regarding the truth and extent of her injuries.

  Evidence of what happened to plaintiff during the accident came primarily from her testimony and that of her husband. Plaintiff testified that, when she realized they were going to crash, she put her left hand on the dash and grabbed the handhold on the door. Although plaintiff did not recall hitting the dash with any part of her body, defendant Germann testified that plaintiff's knees hit the dash when she was thrown into it and that her head hit the windshield. Both he and Christy testified that Christy was thrown against the back of the front passenger seat, which shoved plaintiff forward into the dashboard. Plaintiff did remember that her head hit the windshield.

  After the accident, plaintiff was taken by ambulance to Coffey County Hospital. Although she was conscious or semi-conscious immediately after the accident, she was unconscious when the ambulance personnel arrived at the scene.

  According to plaintiff, when she woke up at the hospital she was suffering severe head pain; severe pain in the right ribs; pain in the right hip, knees, left hand, neck, and lower back; and numbness down the right side of her face. She could hardly open her mouth. Defendant Germann, in his testimony, confirmed his wife's complaints of pain and suffering.

  Dr. Smith, the physician who examined plaintiff at the emergency room, testified she complained of a headache, neck pain, lower back pain, and much pain in both knees. Upon his applying pressure to her scalp and both knees, Dr. Smith said plaintiff complained of "significant pain and tenderness." He confirmed that plaintiff had some contusions and some "relatively superficial abrasions" on both knees. Dr. Smith diagnosed plaintiff as having

[246 Kan. 535]

      a concussion syndrome, a cervical strain, and abrasions to the knees. She ...


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