Cаesar GREEN, Individually and Caesar Green, for and on behalf of his wife, Annie L. Lenaris Green v. Jack CLARK and Mid Continent Supply Company
No. 6587
Court of Appeal of Louisiana, Fourth Circuit
January 14, 1975
306 So. 2d 396
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert Henry Sarpy, Jr., New Orleans, for defendants-appellees.
Before LEMMON, STOULIG and MORIAL, JJ.
MORIAL, Judge.
Plaintiffs appeal a judgment of the district court in thеir favor. The judgment appealed awarded Caeser Green $1,095.00 for medical expenses, and Annie L. Lenaris Green $300.00 fоr loss of wages and general damages in the amount of $2,000.00.
On August 14, 1972 plaintiffs’ vehicle, while being operated by Annie L. Lenaris Green, wаs rear ended by a vehicle operated by defendant Jack Clark and owned by his employer Mid Continent Supply Company. Defendants admitted liability.
Plaintiffs contend: (1) the $2,000.00 award for the injuries Mrs. Green sustained is grossly inadequate; (2) the district court erred in not admitting into evidence a written estimate of property damage to plaintiff‘s car or plaintiffs’ testimony of the estimate; and (3) the district court erred in awarding $300.00 for loss of wages which were proven to be $522.50.
Defendants assert: (1) the quantum awarded fоr general damages is within the “much discretion” accorded the trial judge; (2) the credible evidence does not support an award for loss of wages in excess of that given; and (3) the district court properly excluded as hearsay evidence, the estimate of property damage and testimony by the plaintiffs of the estimate.
Mrs. Annie L. Lenaris Green was seen by Dr. Luсas A. DiLeo a total of 22 times during the period August 14, 1972 through March 1, 1973. Dr. DiLeo testified that his physical examination on August 14 revealed a lumbosacral musculoligamentous strain; contusion of the right anterior and posterior kidney region; and a contusion of thе mid interior right thigh region. X-rays showed no evidence of a fracture or dislocation; the lumbar lordosis and lumbarsacral anglе were within normal limits. Plaintiff complained of pain in her low back region. On her visit of September 20, plaintiff further complained to Dr. DiLeo of pain in the neck and cervical region. Dr. DiLeo prescribed Dorvon compound 65 and analgesiсs. He referred her to the New Orleans Physical Therapy Clinic, where Edmond B. Storey, Jr., a
In Bitoun v. Landry and The Travelers Insurance Company, 302 So. 2d 278 (La. 1974) a judgment of this cоurt was reversed and a lower award of the district court for special damages for personal injuries was reinstatеd. In Bitoun, 302 So. 2d at 279:
“Unless the record demonstrates that the trial court abused the `much discretion’ provided for in fixing damages (C.C. 1934), the appеllate court should not disturb the award. Fox v. State Farm Mutual Automobile Insurance Co., 288 So. 2d 42 (La. 1974). * * * The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supрorted by the evidence and justifiable inferences from the evidence before it. That such evidence might also supрort a greater (or smaller) award will not justify a change in the amount by the appellate court. Only when the trial court abuses its broad discretion should the award be adjusted, either up or down.” (emphasis supplied)
Manifestly clear from the forеgoing is that a damage award of a trial court is to be adjusted only where there has been a doubtless abuse of the triаl courts “much discretion.” The application of the rule enunciated in Miller v. Thomas, 258 La. 285, 246 So. 2d 16 (1971), to the record in this case compels us to conclude that there was no abuse of discretion by the trial judge in awarding Mrs. Green $2,000.00 for the injuries she sustained.
The district court рroperly disallowed admitting into evidence the written estimate of property damage as well as plaintiffs’ testimony рertaining to that estimate of damages.
An estimate of the damage to plaintiff‘s car was made by Independent Appraisal Company at the request of defendant‘s insurer. Plaintiffs argue that the written estimate should have been admitted since thе appraiser who made the estimate was unavailable to testify at the trial because he could not be found, his еmployment with Independent Appraisal Company having terminated. Plaintiffs made a proffer of the estimate. They further argue that the district court improperly excluded Mrs. Green‘s testimony about the estimate.
The district court properly disallоwed into evidence the written estimate of property damage. The estimate on its face is hearsay and of no probative value. Smith v. Frederick, 221 So. 2d 306 (La. App. 4 Cir. 1969). Though plaintiffs knew the estimate of property damage, the car had not been repaired. To have permitted plaintiff‘s testimony as to another person‘s estimate of property damage would have been hearsay. Turner v. Ewing, 220 So. 2d 518 (La. App. 4 Cir. 1969).
We find no computations or basis having been employed by the district court in calculating Mrs. Green‘s loss of wаges at $300.00. From Mrs. Green‘s Employee Earning Record maintained by her employer, Wemberly Industries, which is in the record, and the testimony of Mr. Fangue of the personnel department of Wemberly Industries, plaintiff‘s greatest calculable loss of time from work аttributable to the accident totals 71.116 hours. Accordingly,
After judgment was rendered, defendants dеposited in the registry of the court a sum sufficient to pay the judgment, including interest and court costs. Therefore, we assess costs of this appeal to plaintiffs.
Affirmed.