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LEMMIE A. STRATTON & CAMPBELL 66 EXPRESS, INC. v. RACHEL WEBB

SEPTEMBER 30, 1987

LEMMIE A. STRATTON & CAMPBELL 66 EXPRESS, INC.
v.
RACHEL WEBB



BEFORE HAWKINS, P.J., AND ANDERSON AND GRIFFIN, JJ.,

ANDERSON, JUSTICE, FOR THE COURT:

This is an appeal from the Circuit Court of Lowndes County wherein appellee Rachel Webb was awarded $245,000 damages for injuries resulting from an automobile accident. The trial court ordered a remittitur of $100,000 or in the alternative a new trial. Appellee agreed to the remittitur, but appellant brought this appeal alleging error in the trial below.

Appellee in response cross appealed alleging error in the order of remittitur.

 Rachel Webb was involved in a motor vehicle accident on November 1, 1978, on Highway 82 in Columbus, MS. Her pickup truck was struck from the rear after she stopped in the left lane of traffic in order to allow the car in front of her to make a left turn. Just after stopping, she felt an impact that caused her head to hit the windshield. She remembered nothing else other than feeling the impact and then immediate, severe pain in the lower back and leg area.

 The empty six-wheel tractor truck which struck Webb belonged to Campbell 66 Express, Inc. and was driven by Lemmie Stratton in the course and scope of his employment.

 As a result of the accident, Webb was hospitalized for seven days. She was treated by Dr. J. H. Holleman, given a myelogram, and diagnosed as having a severe sprain of her back and neck.

 When Webb's pain persisted, Dr. Holleman referred her to Dr. Wiley Hutchins, an orthopedic surgeon. He diagnosed

 Webb as having early hypertrophic arthritis of the lumbar spine with superimposed strain - his primary diagnosis being strain or sprain of the lumbar spine.

 Again, Webb's pain persisted and Hutchins then referred her to Dr. Thomas McDonald, a neurosurgeon. After examination, myelogram and x-rays, his diagnosis was sprain with an expectancy for full and complete recovery with no permanent disability.

 In September 1979, Webb went to Dr. John G. Gassaway, an orthopedic surgeon who continued to be her treating physician at the time of trial. His preliminary diagnosis, after the first examination was a chronic lumbosacral (lower back) strain. He noted her pain had not been alleviated by prior treatment and in January 1980 suggested the possible need for surgery. Webb at that time rejected the surgery, opting to continue working.

 On August 22, 1980, Gassaway noted that Webb demonstrated evidence of a ruptured L-5 at S-1 disc. [This was prior to a December 3, 1980, accident which appellants claim to be a superceding cause of injury.] He also stated that to a reasonable medical certainty Webb had significant injury or disease prior to the December 3 accident and her complaints had been consistent throughout this time.

 Dr. Gassaway subsequently performed surgery on Webb in May 1982 (hemilaminectomy at L-4, 5 in the lower spine). Webb's relief as a result of the surgery was short-lived. The pain returned after several weeks and Gassaway stated that to a reasonable medical certainty Webb had no significant recovery from the initial injury. He also testified that Webb, who was 38 years old at the time of the accident, had probably a 15-25% disability rate (as determined in worker's compensation cases).

 Webb had suffered several injuries after the November 1 accident and prior to trial. She was kicked in the head by a pony around November 19, 1979. She claimed this did not result in any serious injury to her head and did not affect her back at all.

 On December 3, 1980, while working as a security guard, Webb was injured in a moped accident. The only evidence introduced was that Webb was riding a moped but does not remember how the accident occurred, and there were no witnesses. She suffered a concussion and shoulder injury and was hospitalized for a ...


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