Malone v. YagerMalone v. Yager
This is а tort suit instituted by plaintiff-appellee Joseph Malone against John Harold Yager and his public liability insurance carrier, Agricultural Worker’s Mutual Automobile Insurance Comрany, as a result of an automobile accident which occurred at about noon on July 12, 1971, in the city of Opelousas, Louisiana. Defendant Ya-ger, while driving his insured 1968 Mercury automobile, ran a red light and struck plaintiff’s 1969 Chevrolet automobile, thereby causing the latter to be pushed into a third vehicle, and ultimately involving a fourth vehicle. Plaintiff, who was driving his vehicle, was injured.
At trial, liability was not seriously contested. The District Judge held in favor of plaintiff and against both defendants in solido in the amount of $7,819.64 which was broken down as follows: Mental and physical pain and suffering — $5,000.00; medical bill of Dr. A. E. Williams, plaintiff’s treating physician- — $625.00; medical bill of Dr. Ladislas Lazaro, III, the orthopedist who examined plaintiff twice — • $95.00; drug bill — $195.14; laboratory fees — $85.00; total loss of automobile— $1,800.00; car storage — $7.00; and wrecker service — $12.50.
From said judgment defendants have appealed to this court. Plaintiff has neither appealed nor answered the appeal.
The only question before us is the reasonableness of the $5,000.00 award for mental and physical pain and suffering.
Plaintiff was at the time of the accident in his early or middle fifties and was employed as a janitor by the St. Landry Parish School Board at the Opelousas Junior High School. Although the evidence is sсanty as to the forcefulness of the impact with which plaintiff’s vehicle was struck by the defendant vehicle, we do know that ultimately two additional vehicles were struck in sequence aiid that plaintiff’s vehicle suffered a total loss.
At trial plaintiff testified as to the effects of the trauma, his immediate reaction of being upset and nervous, and of the generalized pains in his hands, neck, and back which commenced shortly after the accident. In addition, he spoke of dizziness and headaches which persisted fоr a .few weeks, as well as neck and back pains
Plaintiff’s treating physician, Dr. A. E. Williams, a general practitioner and surgeon, examined plaintiff shortly after the accident on July 12, 1971. From his examination the doctor found sensitivity in the neck and low back area, with a lesser dеgree in the thoracic area. In addition, he found muscle spasm in the neck and low back area. X-rays were also taken which indicated significant signs of arthritis, more or less consistent with plaintiff’s age. As a result of his findings, Dr. Williams prescribed ultra sound treatment, muscle relaxants, pain preparations, and analgesics. Malone was examinеd and treated weekly through November 29, 1971, which treatment included eight injections at varying intervals during that time, and ultra sound treatment applied daily Mondays through Fridays during the same period. Doctor Williams further testified that the aforementioned muscle spasm lasted a month or so, but that the pain symptoms persisted at least until he discharged plaintiff on November 29th. At that time, the doctor stated he was not able to help Malone any further; however, he was not sure that all of plaintiff’s accident oriented problems hаd ceased. A close perusal of Doctor Williams’ testimony indicates to this court that plaintiff’s temporary neck and back problems were caused by the accident and that some of the problems complained of were due to an aggravation of plaintiff’s pre-existing osteoarthritis.
During the aforementioned four and оne-half months of treatment Doctor Williams referred plaintiff to Doctor Ladislas Lazaro, III, an orthopedic specialist for consultation. Doctor Lazaro saw plaintiff twice, once in September and then again in October, 1971. X-rays were taken in the first instance showing degenerative disc disease at C-6, C-7, and L-5 S-l. In addition the doctоr found upon examination minimal tenderness in the cervical and lumbosacral area, however, with no muscle spasm indicated. Doctor Lazaro concluded that plaintiff’s difficulty was caused by the changes of his pre-existent arthritic condition.
The record shows that although plaintiff did not miss any significant amount of work, he used his son and stepsоn, with the permission of his employer, to do the heavy janitorial work of mopping, waxing, buffing, cutting grass, and painting through November, 1971. During that period, plaintiff more or less oversaw thеir work. After that time plaintiff began to gradually perform more of his work, although still aided by his children.
It is evident that the trial judge relied more heavily on the testimony of Doctor Williams thаn on that of Doctor Lazaro. We cannot say that he erred in that regard. In the case of Theriot v. Transit Casualty Company,
“ . . . But we find no error in the trial court’s having accepted instead the testimony of the attending general practitionеr, because of the latter’s much greater opportunities for observation over his extended period of treatment of the plaintiff, as compared with thosе of the specialists who saw the plaintiff briefly and chiefly for the purpose of forensic examination . . . ”
See also Touchet v. Fidelity & Casualty Company of New York,
Appellant suggests that the amount of $5,000.00 awarded plaintiff for mental and physical pain and suffering experienced as a result of the injury is grossly excessive.
Recently the Supreme Court in Boutte v. Hargrove,
“Adequacy or inadequacy of an award should be determined by the facts and circumstances peculiar to the case under consideration. Additionally, the jury or trial judge has the advantage of seeing the witnesses and hearing and evaluating the testimony given at trial. Also, thе fixing of an award for pain and suffering cannot be calculated with any mathematical precision. From a review of the record, we conclude that there was no abuse of the ‘much discretion’ vested in the jury when it awarded plaintiff $6,000.00 in compensatory damages. Moreover, we have considered the cases cited by defеndants to support their contention that the jury award in this case was excessive and conclude that the jury did not abuse or exceed its discretion herein. Hence, thе Court of Appeal erred in reducing the award for compensatory damages.” (290 So.2d at 321— 322)
Defendants-appellants have cited two cases to support their cоntention that the District Court award in this case is excessive, namely Summerlin v. Hardware Mutual Casualty Co.,
Such being the case we opine that the trial judge did not abuse or exceed his discretion.
For the above and foregoing reasons the judgment of the District Court is affirmed at defendants-appellants’ costs in both courts.
Affirmed.
Notes
. Miller v. Thomas,