The opinion of the court was delivered by: John E. Miller, Chief Judge.
This case arose from an automobile collision that occurred
in Hempstead County, Arkansas, on November 13, 1961, between
an automobile driven by the father of Louis Bernard Keaton,
plaintiff, and an automobile driven by Willie Dale McCook,
testate of defendant.
Liability was admitted by the defendant in open court, and
the question of damages only was tried to the court on
September 28, 1962. At the conclusion of the presentation of
the testimony, the question was taken under advisement by the
court subject to submission by the parties of briefs in
support of their respective contentions. The briefs have been
received, and the court, having considered the pleadings, the
testimony adduced at the trial, the exhibits and briefs of
counsel, now makes and files herein its findings of fact and
conclusions of law, separately stated.
The plaintiff, Louis Bernard Keaton, is now and was at all
times a citizen of Howard County, Arkansas. Norma Ethelyn
McCook, a citizen of Abilene, Taylor
County, Texas, is the duly appointed, qualified and acting
Executrix of the Estate of Willie Dale McCook, deceased,
having been duly appointed and qualified as such Testamentary
Executrix on December 27, 1961, by the County Court of Taylor
County, Texas, and Willie Dale McCook, deceased, was a citizen
of Abilene, Taylor County, Texas, at the time of his death on
November 13, 1961. The amount in controversy in this cause
exceeds the sum of $10,000, exclusive of interest and costs.
The plaintiff had prior to the time of the collision enjoyed
good health and had pursued all the normal activities of a
child of 12 years of age. At the time of the collision the
plaintiff was riding in the front seat of his father's
automobile, and at the instant of impact the plaintiff was
thrown forward, his chin and forehead striking the dashboard
of the automobile. He was knocked unconscious, and the most
serious injury that he sustained, the extent of which is at
issue in the present case, was the splitting open of his chin
and a fracture in two places of his lower jaw.
The plaintiff was taken to a hospital in Hope, Arkansas,
where he was treated generally for all of the injuries he
sustained and was administered medication to alleviate his
pain. At this time due to the double fracture of plaintiff's
lower jaw, it was immobilized with a temporary brace.
Plaintiff remained at the hospital in Hope for six days. He
then returned to his home where he remained for ten days.
During this time he could neither eat nor talk, and he endured
a considerable amount of pain and suffering notwithstanding
the medication which was administered to him. At the end of
this 16-day period plaintiff was taken to Texarkana, where his
jaw was X-rayed to ascertain the extent and location of the
fractures in his lower jaw. The X-ray photographs revealed
that the mandible or the lower jawbone was broken on each side
at the necks of its condyles, which are the heads or
connecting balls of the mandible which connect to the skull at
the locations known as the temporal sockets.
In Texarkana treatment was begun under the supervision of
Dr. Patterson, a dentist, who, after consulting with Dr.
Noble, an oral surgeon, undertook to restore the fractured
lower jaw to its original position, with relation to the
placement of the condyles in the temporal sockets and the
restoration of the proper occlusion, or alignment of the
teeth, by the placement of metal braces around the upper and
lower teeth and securing them into place by threading wire
through the braces into the gums and around the imbedded roots
of the teeth and out again through the gums to the braces on
the other side. The braces impounding the lower jaw were
affixed to the braces secured to the upper jaw by means of
elastic ligatures. These braces remained in place with the
upper and lower teeth incapable of separation for
approximately 75 days, at which time the elastic ligatures
were removed but the braces remained in place for an
additional two weeks. During the 75-day period that the
plaintiff's jaws were shut, his only nourishment consisted of
various liquid preparations and the only time that his mouth
was opened was when he went to Dr. Patterson for periodic
examinations of his progress.
After 106 days from the time they were installed, the braces
were removed. Needless to say, both the installation and the
removal of the braces, as well as his first efforts to move
his mouth, were painful to the plaintiff.
At the time of his accident the plaintiff weighed 140
pounds, and during the duration of his treatment he lost 22
pounds. After the braces were removed his diet was thereafter
upgraded from liquids to strained baby foods, ground meat, and
other soft food through which he progressed through six or
seven months prior to the trial of this case. During this time
he not only gained back the 22 pounds he had lost but he
gained an additional 18 pounds.
Plaintiff's response to treatment as of the date of trial
may be classified both objectively and subjectively.
The objective findings, as shown by X-ray photographs of his
temporomandibular joints, indicate that the fractures of the
necks of the condyles have completely mended, and the only
deformity noted is a slight bowing outward around the fracture
area on each side of his lower jaw. As a result of this bowing
at the base of the condyloid processes, the condyles have been
angulated anteriorly bilaterally, which may have affected the
natural gliding movement forward and backward of the condyles
as the mouth opens and closes. Although the X-ray photographs
indicate that the condyles have been returned to their proper
places in the temporal sockets, yet there has been indicated
an arthrosis or degenerative process which has taken place by
which the sacs containing fluid, which act as cushions, in
these particular joints are no longer present. As a result of
this condition, plaintiff contends that when he moves his
lower jaw to any extent, there occurs crepitation, i.e., a
rubbing noise caused by the ends of the bones, or a "clicking"
noise, and that the noise is especially noticeable when the
jaw is opened wide, but admitted that there is no pain
associated with this condition — just the sensation of the
noise. The medical testimony disclosed that most persons, or at
least many people, have the same "clicking" noise upon yawning
or the lowering of the lower jaw to its limit.
At the present time, since the plaintiff enjoys proper
occlusion, i.e., proper alignment of his teeth, and since
there is no indication of the occurrence of traumatic
arthritis in the temporal sockets, there is no further
operative procedure required to be undergone by the plaintiff,
merely an occasional ...