145 So. 60 | La. Ct. App. | 1933
Dr. Crozat claims $8,732.84, which he itemizes as follows:
For pain and suffering at time of
the accident, treatment at Touro
Infirmary and during time petitioner
was confined to bed and
subsequently ....................... $5,000.00
Loss of earnings during absence
from business ...................... 3,000.00
Doctor's bills ....................... 99.00
Nurses ............................... 69.00
Medicine and supplies ................ 11.49
Rent and office expenses ............. 553.35
__________
Total .............................. $8,732.84
He was allowed by the judge a quo $2,179.49; that amount being made up by an allowance of $2,000 for physical suffering and $179.49 for medical expense. The claim for loss of earnings was not allowed.
Plaintiff suffered a fracture of two ribs. He was treated at his home by his physician, Dr. Gessner, from May 23d, to May 29th, and at the doctor's office until July 24th. The injury was quite painful, and resulted in considerable mental depression. It disqualified the plaintiff from working at his profession from the date he was injured, May 23d, to July 7th, at which time he was able to devote about two hours a day until July 24, 1930, when he resumed his customary duties in connection with his practice. We believe the amount which should be allowed for physical suffering would be more in keeping with similar cases if we were to reduce it to say, $1,500.
In regard to the loss due to plaintiff's enforced absence from his office, for which he claims $3,000, and for which no allowance was made by the trial court, we have no doubt that plaintiff's income was affected as a result of his injury. Counsel for defendant contends that lost profits should not be allowed as damages because too remote, uncertain, and speculative. If, however, the plaintiff had been employed upon a salary basis and he had lost some part of his salary during the period of his disability, there would, we feel sure, be no question of his right to recover this loss as an item of damages. We are constantly awarding damages on this account to laborers who are paid by the day, week, or month, and without objection as to the propriety of the allowance. In what respect then does the claim of plaintiff differ from salary or wages? Dr. Crozat is a dentist, or perhaps it would be more correct to say an orthodontist. He is recognized as one of the leading men in his profession, both as a teacher and as a practitioner. He maintains an office in the city of New Orleans, but three times each year he visits the city of Milwaukee for the purpose of treating patients in co-operation with other dentists in that city who make appointments for him for that purpose. It was while returning to his home from one of these periodical visits that the accident, for the effects of which this suit is brought, occurred. As we said before, we are convinced that his earnings were affected by his absence from his office during his recuperation.
Before discussing the sufficiency of proof in that regard, it would be well to note that, with the exception of an office assistant, whose duty does not involve care of patients, Dr. Crozat's entire business is personal. He alone plans and executes the treatment of his patients; his work being mainly concerned with what is colloquially known as "straightening teeth." We mention this circumstance because we deem it of importance in connection with a consideration of the law on the subject of an allowance of profits as damages which we will now discuss.
In Kelly Son v. Yellow Cab Co.,
In Jordon v. Cedar Rapids M. C. Ry. Co.,
In Singer v. Martin,
In Baxter v. Philadelphia R. Ry. Co.,
Has the plaintiff in this case established with sufficient certainty the amount of his loss of earnings due to the accident for which we have found the defendant Walet responsible? The degree of certainty required does not amount to mathematical exactitude, but is such as may reasonably establish the claim. C. J. vol. 17, verbo "Damages," § 112, pp. 785, 759, 760, and 761. See, also, Wall v. Hardwood Mfg. Co.,
The record shows the gross and net income of Dr. Crozat for the years 1928, 1929, 1930, and 1931, and a comparison of these figures indicate that during the year of his injury 1930 his income was less by $2,211.67 than the average for the other three years. This method of estimating the loss suffered by plaintiff on this account has received the approval of the Court of Appeal of New York in Ehrgott v. Mayor,
In Gray v. Boston Elevated Ry. Co.,
Our conclusion is that the plaintiff has shown with sufficient certainty a loss of earnings, attributable to his accident, in the sum of $2,211.67; the balance of his claim in this regard is for fees he would have received from four new patients which due to the accident he was obliged to refuse. However, we find that this claim has not been sufficiently proven and will be disallowed. Our conclusion therefore is that Dr. Crozat should be allowed the following items of damage.
Personal injury }
} ................ $1,500.00
Pain and suffering}
Medical expense .................... 179.49
Loss of earnings ................... 2,211.67
_________
Total ........................... $3,891.16
For the reasons assigned, the judgment appealed from is amended by increasing the amount awarded below from $2,179.49 to $3,891.16, and, as thus amended, it is affirmed.
*63Amended and affirmed.