Macaffer v. State

¶1— Claimant Kenneth S. MacAffer appeals for inadequacy from a judgment in his favor against the State of New York amounting to $6,405.05, mad# up of the following items: damage to automobile, $800; to wife’s clothing, $23; medical, dental, hospital and nursing expenses for himself and his wife and son, $2,082.05; loss of wife’s society, $600; loss of son’s services, $500; pain and suffering, $2,500. The wife, Edna S. MacAffer, appeals for inadequacy from a judgment in her favor against the State of New York amounting to $2,160, made up of the following items: loss of compensation, $160; pain and suffering $2,000. The infant, Kenneth S. MacAffer, Jr., by his guardian ad litem, appeals for inadequacy from a judgment in his favor against the State of New York amounting to $2,000 for pain and suffering. The claimants were injured by a collision between an automobile in which they were riding and an Army tank under the control of and operated by the officers and members of the New York State Hational Guard, at the intersection of Horthern Boulevard and Central Avenue in the city of Albany.. The Court of Claims found that the State was responsible for the operation of the tank, and that it was operated in a negligent and careless manner. Ho appeal is taken by the State. The appellants make no claim as to the items of pecuniary damage other than for pain and suffering, and in each instance assert that the award therefor is inadequate. The injuries were received on October 15, 1939. The senior MacAffer suffered from shock, laceration of the eye and scalp, a fracture of a metacarpal bone in the right hand, contusions and abrasions of the knees and body, traumatic synovitis of the right shoulder joint, and a sprain of the right pectoral muscles. The cut in the eyelid was sutured; the fracture of the metacarpal bone reduced. His arm was in a cast until Hovember 27th, and it was carried in a sling until December 16th. He did not resume his work in the practice of law until' mid-December, 1939. He suffered pain for several months, and still suffers from nervousness when riding in an automobile. Edna S. MiacAffer suffered from shock, extensive subcutaneous hemorrhages of the right frontal region over the right eye and right eyelid, contusions and abrasions of the knees, severe lumbosacral sprain and cervical sprain; her eyes were ecchymosed, the right one being practically closed for some days. The right frontal region of the forehead was sore at the time *799of the trial. She was under the care of a physician until February, 1940.; For a long time she had frequent crying spells, tired easily, suffered from insomnia, and has been unable to continue singing in church as formerly, for which she received substantial compensation. Kenneth S. MacAffer, Jr., who at the time of the accident was eight years old, had lacerations on the forehead and face, contusions and abrasions of the body and limbs. The laceration on the forehead was about three inches long, ragged and irregular, and still quite conspicuous. He also had suffered from a type of epilepsy known as “ petit mal ”. There is testimony that this was exaggerated for at least six months following the accident. The award to Kenneth S. MacAffer for pain and suffering should be increased by the sum of $2,500, making his total judgment $8,905.05; the award in favor of Edna S. MacAffer for $2,000 for pain and suffering should be increased by the sum of $2,000, making her total judgment $4,160; the award in favor of Kenneth S. MacAffer, Jr., by his guardian ad litem, for $2,000 for pain and suffering should be increased by the sum of $3,000, making his total judgment $5,000. In the claim of Kenneth S. MacAffer, appellant, v. the State of New York, respondent, judgment modified on the facts by increasing the judgment to the sum of $8,905.05. The court reverses finding of fact numbered-43, and disapproves conclusions of law numbered “Third” and makes the following new finding of fact to be numbered 43: That by reason of the accident herein, he has been damaged, in addition to the damages herein-before found, in the sum of $5,000. In the claim of Edna S. MacAffer, appellant, V. the State of New York, respondent, judgment modified on the facts by increasing the judgment from the sum of $2,160 to the sum of $4,160. The court reverses finding of fact numbered 43 and disapproves conclusion of law numbered “ Second ” and makes the following new finding of fact to be numbered 43. .That by reason of the foregoing, claimant herein has suffered damages in the sum of $4,160. In the claim of Kenneth S. MacAffer, Jr., an infant, by Kenneth S. MacAffer, his guardian ad litem, appellant, v. the State of New York, respondent, judgment modified on the facts by increasing the judgment to the sum of $5,000. The court reverses finding of fact numbered 42 and disapproves conclusion of law numbered “ Second ” and makes the following new finding of fact to be numbered 42: That by reason of the foregoing the infant claimant herein has suffered damages in the sum of $5,000. All concur.