290 So. 2d 699 | La. Ct. App. | 1974
Lead Opinion
The sole issue presented by this appeal is the adequacy of the trial court’s award of $500 for physical injuries received in a rear end collision involving the plaintiff’s lead passenger car and the defendant, Landry’s following pickup truck.
In addition to the $500 awarded for physical injuries, plaintiff recovered $934.-87 for damages to his vehicle, $107.01 for rental for replacement vehicle and $399 for medical expenses.
The record herein fully supports these facts:
Immediately after the accident the plaintiff was not aware of any injury. The next day he had headaches and pain in his neck and back. The second day following the accident a physician was consulted. On this examination of August 11, 1971, the physician found plaintiff to have tenderness in the front and back of his neck, marked spasm in the left back of the neck and tenderness of the lower spinous processes o'f the neck. He exhibited bilateral muscle tenderness of the lower parts of the back in the lumbosacral and sacroiliac area. X-rays confirmed the straightening of the normal curve of the cervical spine indicating some limitation of motion. Diagnosis was moderately severe cervical strain and moderate lumbar strain. The treating physician concluded that the plaintiff had suffered a flexion, extension injury. Medication was prescribed for pain and plaintiff was started on a daily infrared physiotherapy treatment administered at the physician’s office.
Plaintiff next saw his physician on August 25, 1971. Because of improvement in his condition, although some tenderness remained in' his neck and back, the infra-red treatments were reduced to three times per week.
On September 8th or 9th, 1971, the physician found the muscle tenderness was resolving. Infra-red treatments were continued as were the medications for pain and relaxation of the muscles.
The last examination of plaintiff by the physician was on October 10, 1971. At this time the plaintiff was found to be asymptomatic except for nervousness and headaches. Medication was continued for the two remaining complaints. At this time, plaintiff was discharged.
In all, plaintiff was treated for two months and complete recovery was obtained with the exception of his headaches. He lost one week of work as a result of his injuries. We conclude the award for the plaintiff’s injuries should be increased to $1,500. See LeBlanc v. Gulf States Asphalt Company (1972) La.App., 257 So.2d 773.
Dissenting Opinion
(dissenting).
There are two fundamental issues involved in an appeal on personal injury-quantum, namely (1) what are the injuries and (2) by what amount of money should those injuries be compensated.
Time and again the Louisiana Supreme Court has repeated the principles that (1) the trial court’s “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review * * * ”, Canter v. Koehring Co., La.1973, 283 So.2d 716, 724 and (2) “in the assessment of damages in tort cases, ‘much discretion must be left to the judge or jury.’ C.C. art. 1934(3)”, Fox v. State Farm Mut. Auto. Ins. Co., La.1973, 288 So.2d 42, 43.
If the trial judge had found the factual findings of the majority, I would affirm an award by him of $1,500 general damages.
But the trial judge presumably found (1) the collision was slight;
For a slight injury, the $500 general damages award by the trial judge was within his “much discretion”, C.C. art. 1934(3). The judgment should be affirmed.
“It has all been said before”, Fox complains, 288 So.2d at 43. If Canter and Fox are to be taken seriously even in $500 cases, it will apparently have to be said again.
. I disregard the majority’s reference to x-ray evidence. This was weak hearsay, over objection, in a deposition, and presumably the trial judge did not consider it. I would also deem reversible a finding that plaintiff missed work.
. Despite plaintiff’s uneontradicted evidence that his property damage cost $934 to repair, defendant testified that, except for a broken parking light, his own vehicle had “so little [damage], I’d have to get around there and point [out] to you where the damage is.”
. Plaintiff told his doctor on first examination that he was working. The doctor testified, “I have no note after that that he wasn’t working, so we may assume that he continued.” Moreover, plaintiff claimed and testified to automobile rental for work purposes for three days during the week he and his brother testified he did not work. And plaintiff proved that he did rent a car for those three days by a dated receipt from the car rental agency.
.The only objective evidence, muscle spasm, was gone by the second visit two weeks later, according to plaintiff’s own doctor. The $399 “medical” is largely for infra-red heat treatments. There was no complicated medical problem.
