Doreen HOOD, wife of/and Reginald E. Hood, and Viola Hood v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
No. 10599.
Court of Appeal of Louisiana, Fourth Circuit.
October 4, 1979.
376 So. 2d 328
Lobman & Carnahan, Edward P. Lobman, Metairie, for defendants-appellees.
Before REDMAN, LEMMON and BOUTALL, JJ.
LEMMON, Judge.
Plaintiffs’ appeals question the sufficiency of a jury award for damages sustained in an automobile accident for which liability was admitted.
Two days after the November 26, 1977 (Saturday) accident all three plaintiffs consulted Dr. Norman Hunt, a specialist in radiology and in “acceleration and deceleration injuries“. Although they improved rapidly, all three were administered extensive diathermy treatments (there were six diathermy machines in the office) for muscular injuries, all three incurred medical bills approaching $1,000.00, and all three were discharged on February 20, 1978, completely asymptomatic (although each was that day administered one more treatment).1
The Robinson case, involving an itemized special verdict, reasoned that a jury‘s response of “none” to the interrogatory on general damages was not an exercise of discretion, but a refusal to award any general damages when the plaintiff was clearly entitled as a matter of law to some amount. However, this reasoning is inapplicable in the present case, which involves a general verdict.
When there is an unitemized general verdict in a tort case involving several claims for special and general damages, the appellant‘s burden of showing an abuse of the jury‘s discretion is even more difficult because the jury‘s intention as to a specific amount for any particular item of damages is not readily ascertainable. In such cases each appeal must be decided according to its particular facts and circumstances. Roy v. Schneider, 367 So. 2d 1314 (La.App. 4th Cir. 1979).
Here, the jury was apparently unimpressed with plaintiffs’ claims as to the seriousness of their injuries or as to the necessity of certain charges for extended treatment.2 One could reasonably conclude from this record that the jury‘s award of the total amount of medical expenses was intended to compensate each plaintiff for some minimal pain and suffering and for those medical expenses necessitated by the accident, based on the reasoning that plaintiffs sustained injuries sufficient to warrant seeking medical attention and would not suffer an out-of-pocket loss with an overall award in the amount of the total medical bills. The jury‘s award of the exact amount of medical expenses, under these circumstances of exaggeration and overtreatment, would constitute an exercise of discretion, rather than a refusal to award general damages, and the record does not establish any abuse of the “much discretion” accorded by
We distinguish this case from the Roy case, in which there were objective symptoms of injury until the date of discharge and no suggestion of overtreatment. Here, defendants’ attorney argued overtreatment to the jury from the opening statement, and the doctor‘s records showed no details of any examination after the initial visit.
Finally, we note that the jury‘s apparent omission of stipulated special damages does not compel a conclusion that the jury omitted an award of general damages. The stipulation of the amount for loss of wages and property damage appears of record only in plaintiffs’ counsel‘s opening statement, with counsel‘s declaration that “(t)hese are things that, though they are evidence for you to consider, that you need not decide“. The trial court‘s charge instructed the jury to consider only the evidence and did not mention the stipulation. Therefore, the jury‘s apparent failure to award the stipulated damages may reasonably be regarded as an oversight resulting from confusion, without any compelling inference of a deliberate refusal to award the stipulated damages or any general damages. We accordingly simply correct the award to include the stipulated damages which apparently were inadvertently omitted.
AMENDED AND AFFIRMED.