Modisette v. Agricultural Insurance Co.

140 So. 2d 667 | La. Ct. App. | 1962

Lead Opinion

AYRES, Judge.

Plaintiff instituted, this action to recover damages for personal injuries sustained in a motor vehicle collision occurring June 1, 1959. There was judgment in favor of plaintiff in the principal sum of $6,728.00 and defendant appealed. Plaintiff has answered the appeal, praying that the award be increased to the principal sum of $10,-000.00. .

This is a companion case to that of Elton L. Wise v. Agricúltural Insurance Company, 140 So.2d 662, with which it was consolidated for the purpose of trial, and this day decided.

The question of liability was resolved adversely to defendant. Hence, for the reasons assigned in the companion case, only a question of quantum remains for consideration on this appeal.

Modisette sustained a contusion and fracture to his right knee joint; contusions and fracture of the left middle finger; laceration through the lower lip, and an aggravation of a pre-existing osteomyelitis of the 12th thoracic vertebrae, resulting in drainage from that vertebrae. He also sustained a whiplash type injury to his neck. There was some displacement of ■ the 12th thoracic vertebrae with a compression and kyphotic deformity. Some degeneration of the vertebrae was noted October 1, 1959, which with anterior compression was causing an abnormal angulation' of the spine. Plaintiff’s knee and leg were placed in a straight cast for a period of three months and a metal spine brace was prescribed and worn for a considerable period of time. Some difference of opinion existed between Dr. C. S. Sentell, the treating physician, and Dr. B. H. Young, an orthopedist, as to whether the accident attributed to or caused the abscess in the old back injury. Dr. Sentell had treated Modisette over a period of time and consequently had the benefit of a closer observation of the history and symptoms. For these reasons the court concluded that Dr. Sentell’s opinion as a treating physician was entitled to greater weight than that of the orthopedist, and, accordingly, concluded that the old injury was aggravated hv the accident.

Plaintiff was hospitalized for a period of nine days and was on crutches for a period of two months. The back injury continued to drain for a period of approximately eight weeks. Medical treatment was administered over a period of four months, light work was advised about October 1st, and a return to regular work was advised on or about November 2, 1959. Plaintiff continued to experience difficulty with and suffer pain in his neck and knee two years after the accident.

While no fixed rule can be prescribed for a proper determination of an award for personal injuries, as each case necessarily is to be adjudged upon its own particular and peculiar facts, we are, however, of the opinion, after giving thorough consideration to the duration and extent of plaintiff’s injuries and suffering, that the award as made by the trial court is inadequate and should be increased. Taking into consideration the medical expenses, we think an award in the limit of liability as prescribed in the policy is not excessive.

Accordingly, for the reasons assigned, the judgment appealed is amended by increasing the award to $10,000.00, and as amended, is affirmed at defendant-appellant’s cost.

Amended and affirmed.

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Rehearing

On Application for Rehearing

PER CURIAM.

On application for a rehearing, attention was called to the fact that we overlooked a stipulation that the defendant had paid to plaintiff, or for his account, medical and hospital expenses in the sum of $728.50 under the medical-expense coverage of defendant’s policy, and that, accordingly, we failed to give credit to defendant for said payment, which we should have done for the reasons assigned in the companion case of Wise v. Agricultural Insurance Company, 140 So.2d 662, bearing No. 9701 of the docket of this court.

Therefore, our original decree is amended by reducing the award therein by the sum of $728.50, or to the sum of $9,271.50, and, as thus amended, is reinstated and made the final judgment of this court.

The applications for a rehearing urged on behalf of both plaintiff and defendant are denied.

Rehearing denied; GLADNEY, J., dissents.