Opinion
No. 73 C 641(1).
June 24, 1974.
Cox Moffitt, St. Louis, Mo., for plaintiffs.
J. Patrick Glynn, Asst. U.S. Atty., Eugene K. Buckley, St. Louis, Mo., for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This matter was tried to the Court. The Court makes the following findings of fact and conclusions of law:
Findings of Fact
1. On March 29, 1972, plaintiff Caroline R. Wellhouse and her husband, plaintiff Olin Wellhouse, were involved in an automobile accident on Highway 67 near Garner, Arkansas. The other automobile was driven by William C. Harrison, an employee of the United States Postal Service, while delivering the United States mail. Harrison was acting within the scope of his employment. The Government has admitted that Harrison was negligent and the defendant is liable to plaintiffs for any injury and damages sustained by plaintiffs as a direct and proximate result of the negligence of Harrison.
2. Claims in the amount of $100,000 for plaintiff Caroline R. Wellhouse and $15,000 for plaintiff Olin Wellhouse were presented to the Postal Service by the plaintiffs more than six months before the suit was filed and no disposition was made of the claims prior to filing suit.
3. As a direct result of the collision, plaintiff Caroline R. Wellhouse sustained a fracture of the left femur in the area of the knee and a fracture of the distal radius in the right wrist, necessitating hospitalization from March 29, 1972, through May 2, 1972, and again from June 19, 1972, through June 29, 1972.
4. Immediately after the automobile accident of March 29, 1972, Caroline R. Wellhouse was taken by ambulance to Little Rock, Arkansas, where surgery was performed on her knee. Her leg was suspended with a pulley and her right wrist was in a cast. For five weeks after the automobile accident, she was flat on her back and on tranquillizers for pain. Thereafter, she spent seven weeks in bed and in a wheel chair. She was in the hospital for ten days from June 19 to 29, 1972, taking water therapy and walking with bars. She was permitted to return to work on July 6, 1972, using crutches to get around.
5. Mrs. Wellhouse earned $1,000 a month and worked nine months out of the twelve, for a total of $9,000 per year. She was employed in a portrait studio: she trained and supervised photographers.
6. On August 24, 1972, while at her place of employment, Caroline R. Wellhouse turned to the left, her leg gave way, and her crutches slipped. She fell. She was taken to Deaconess Hospital in St. Louis where she remained until September 9, 1972. As a result of this fall, she sustained injuries to her left hip and her left wrist.
7. On October 14, 1972, Mrs. Wellhouse returned to work at the photography shop, using a wheel chair; she remained there until May 1, 1974, at which time she was discharged because she is unable to do the work required of her.
8. Caroline R. Wellhouse has sustained medical expenses in the proximate amount of $7,000. She is thirty-five percent totally and permanently disabled. Additional operations will be required on her hip and knee to relieve the pain. It is recommended that an artificial knee joint replace her present knee. Mrs. Wellhouse was fifty-eight years old in May 1974, and had a life expectancy of fifteen years.
9. Plaintiff Olin Wellhouse, as a result of the automobile collision of March 29, 1972, suffered injury to the muscle tissue in his neck and cervical vertebrae causing stiffness in his neck and arms, as a result of which he has lost the normal rotation of his neck. He was required to use traction on his neck and manipulations to his cervical and dorsal spine. On the advice of his physician, he did not return to work after the accident until November 1, 1972. His medical expenses were approximately $400.
10. Prior to the accident and afterwards, he was employed as a clerk in the camera department of Famous-Barr, receiving approximately $350 per month. Plaintiff Olin Wellhouse's injuries are permanent and he will have some loss of motion in his neck. Olin Wellhouse was fifty-one years of age in May 1974, with a life expectancy of twenty years.
11. Count I of the complaint asks for damages for injuries to Caroline R. Wellhouse. The Court finds she is entitled to damages in the sum of $75,000. Count II asks for damages suffered by plaintiff Olin Wellhouse as a result of the loss of services of his wife. The Court finds he is entitled to damages in the sum of $5,000. Count III asks for damages for plaintiff Olin Wellhouse as a result of injuries and lost wages. The Court finds he is entitled to damages in the sum of $5,000. Count IV asks for damages for Caroline R. Wellhouse for the loss of services of her husband. The Court finds she is entitled to the sum of $5,000.
Conclusions of Law
1. This Court has jurisdiction under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671 et seq.
2. The injuries suffered by plaintiff Caroline R. Wellhouse, including the fall of August 24, 1972, which would not have happened except for the injuries she had previously sustained, were a direct and proximate result of the negligence of the Government employee Harrison. See Restatement (Second), Torts 2d, § 460(3). The injuries suffered by plaintiff Olin Wellhouse were a direct and proximate result of the negligence of the Government employee Harrison.