Spizer v. Dixie Brewing Co.Spizer v. Dixie Brewing Co.
SAMUEL, Judge.
Individually and in his capacity as administrator of the estate of his minor daughter, Dale Ann Spizer, plaintiff instituted this suit for injuries sustained by the minor and expenses incurred by him as a result of an automobile-truck collision. Subsequent to this appeal the minor was emancipated by notarial act and, by order of this court, was substituted as a party plaintiff in the place and stead of her father insofar as he appears on her behalf. Defendants are Dixie Brewing Company, Inc., the owner of the truck involved in the accident, which vehicle was being operated by a Dixie employee in the course of his employment, and United States Fidelity & Guaranty Company, Dixie‘s liability insurer.
Defendants stipulated liability and the matter was tried to a jury which rendered a verdict in the sum of $150,000 for the minor‘s injuries and $7,779 for plaintiff individually. The verdict was made the judgment of the court on February 3, 1967. Defendants then filed a motion for a new trial and the trial judge, being of the opinion the damages awarded for the minor‘s injuries were excessive, ordered that the verdict and judgment be set aside and a new trial granted unless, within 10 days, plaintiff consented to a reduction of the $150,000 award to the sum of $75,000, in which event the motion for a new trial would be denied.
Plaintiff filed a consent to the remittitur (see
Defendants have prosecuted this appeal from the judgment of March 20, 1967, contending both the awards for the minor‘s injuries and for special damages are excessive and should be reduced. Plaintiff answered the appeal praying: (1) that the judgment of March 20, 1967 be set aside and the verdict and judgment of February 3, 1967 be reinstated; or alternatively, (2) that the judgment of March 20, 1967 be amended by increasing the award for the minor‘s injuries from $75,000 to $125,000. Defendants then filed a motion to dismiss plaintiff‘s answer to the appeal. We will consider the issues, defendants’ motion to dismiss the answer to their appeal and quantum, in that order.
The motion to dismiss is based on the argument that plaintiff‘s consent to a reduction of the award in favor of the minor constitutes a voluntary and unconditional acquiescence in that reduction, which effectively prevented defendant from obtaining a new trial, and plaintiffs therefore have no right to seek an increase in the award by appeal or by answer to defendant‘s appeal under
In pertinent part
Here, under the threat of a new trial if he did not accept the remittitur, plaintiff consented to a reduction in the damages awarded by the jury only to avoid the expense, delay and uncertainty of a new trial or an appeal; there was no intention of abandoning, in fact he specifically reserved, his right to answer a defendant appeal in order to seek an increase in the reduced award. This is not the voluntary and unconditional acquiescence contemplated by
Clearly it would be inequitable to allow the defendants to seek a further reduction of the award by appeal and at the same time deny plaintiffs the equivalent right of seeking an increase by way of answer to that appeal. See Plesko v. City of Milwaukee, 19 Wis.2d 210, 120 N.W. 130, 16 A.L.R.3d 1315. This is especially true in Louisiana (it appears to be the minority view in the common law states) where the effect of the denial of a new trial is less disadvantageous to either litigant than it is in many other jurisdictions. For in this state the appellate courts review both the law and the facts and, upon proper showing, have the authority to grant greater or lesser awards than did the trial judge or jury.
Miss Spizer was found unconscious after the accident and rushed to a hospital where an operation of several hours duration was performed by Dr. Richardson, a neurosurgeon, and Dr. Vincent, a plastic surgeon. She had at least four fractures in the facial area, several of which were either sutured or wired, and a fracture of the clavicle. Almost one inch of bone was missing in the lower rim of the eye orbit which supports the eye and that eye had descended into the sinus or inner cavity of the face. The eye is now supported by a piece of molded silicon rubber which was wired into place below the eyeball and replaces the lost bony structure. The principal laceration began on the right upper eyelid below the eyebrow and descended down toward the nose, through the inner canthus (the inner angle of the eye), to the outside angle of the mouth. The muscles holding up the lip had been cut and the nerve supplying the upper lip was damaged. While in the hospital following surgery she developed cardiac arythmia (improper heartbeat rhythm). She suffered a loss of memory of events which occurred on the day preceding the accident and recalls nothing for several days thereafter. Dr. Garcia-Oller, a neurosurgeon, termed this loss of memory pretraumatic amnesia, neurologically indicative of a moderately severe brain injury. Her neurological injuries were a contusion and bruising of the temporal lobe of the brain.
When the bandages were removed there was a lag or lack of full movement of the muscles on the right side of the face, resulting in an obvious difference in the use of those muscles. The series of complex muscles which produce a natural smile were all cut. Because of excellent surgery and good physiotherapy consisting of 17 electrical stimulations of the face, the muscles were approximated and she has regained partial use thereof. She has had a partial return of sensation of the upper lip on the right side but this sensation is abnormal. Dr. Garcia-Oller stated a nerve which has been damaged and scarred can be a source of pain in that part of the face in later life due to scar tissue. As a result of nerve damage the side of Miss Spizer‘s face is very sensitive due to irritation of the skin and her upper lip has a feeling of coldness or numbness commencing at the middle and extending to the right side. At the time of trial she had passed maximum recovery and these residuals will remain and perhaps increase.
Miss Spizer was readmitted to the hospital on three occasions for further plastic surgery for excision and revision of facial scars to try to improve them. In addition, a surgical procedure was performed in Dr. Vincent‘s office when one of the scars was injected with kenalog, a substance used to flatten out elevated scars. On at least one occasion Dr. Vincent removed glass from her face. Although the maximum cosmetic restorations have been made, she still has obvious scars on the right side of her face above the angle of the lower part of the jaw. Her cosmetic condition at the time of trial is the end result of impressive medical procedures and care. But she has obvious facial scarring, there is a difference between the two sides of her face with less expression on the right side and, due to scar tissue and some nonfunctioning muscles, when she attempts to smile her lower lip does not elevate as high on the right side as on the left.
The injuries to the teeth were extensive. Dr. Allen Copping, the family dentist, testified she had a healthy set of teeth prior to the accident. Now she has a wire to hold parts of the upper jaw together and in this area there was a thickening of the membrane that cushions the teeth in the jaw. The teeth on the right side in the upper arch of the upper jaw will require extensive work to maintrain. Vitality tests show moderate to severely decreased vitality indicating those teeth will probably die. The first three teeth in the midline on the right side are moderately involved. From the biscuspid to the second molar they are moderately to severely involved. The decrease in vitality is due to an injury to the nerves which do not regenerate; the teeth discolor and must be capped. In the future she will require increased dental observation and care.
After returning home she was humiliated by her appearance, anxious and depressed, and had frequent nightmares. She clung to her parents and didn‘t want to engage in any activities, although she had been an active participant prior to the accident. Psychiatric treatment was administered by Dr. Burton White, a psychoanalyst particularly interested in teenagers, almost weekly from August, 1965 to the date of trial on February 1, 1967.
Arrangements were made for her to enter high school through a special gate to avoid being stared at by her classmates. Later she was encouraged to participate in college activities by living in the dormitory. She continued to be acutely aware of her appearance and most reluctant to be seen. During the year immediately prior to the trial her parents have noted some improvement in that she is now somewhat less anxious and depressed than she was before receiving the psychiatric treatment and they intend to have her continue the same for an additional two years or more.
It is conceded that Dale has made the maximum recovery to be expected from her serious injuries, but she has numerous permanent residual disabilities in addition to those already mentioned. She will continue to use many drugs for the rest of her life; the facial scars cannot be further improved; the diplopia and loss of visual field in the right side also are permanent; she cannot recover normal sensation in the involved part of the lip; the vitality in her teeth will not return and extensive future work will be necessary to maintain them, if indeed they can be saved; there is a deep pressure-like pain around the injured eye; she continues to be troubled by tearing from that eye; and mental anguish, particularly regarding her appearance, will remain.
In connection with our determination of whether the award for Miss Spizer‘s injuries is excessive or inadequate, and in accordance with the doctrine enunciated by the Supreme Court of Louisiana in Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149, and subsequent cases, we have considered the
We are in agreement with the trial judge‘s conclusion that the jury verdict in the amount of $150,000 was excessive. We are also of the opinion that the award of $75,000 is neither excessive nor inadequate.
Defendants’ contention that the special damages awarded to the original plaintiff in his individual capacity are excessive is limited to two items included in that award, which items they contend should be disallowed and the award reduced accordingly. The items referred to are: (1) a bill for professional services rendered by Dr. Vincent, the plastic surgeon, in the amount of $1,700; and (2) a bill for professional services rendered by Dr. White, the psychoanalyst, for $1,725. We find the contention is without merit.
Defendants argue the amount of Dr. Vincent‘s bill should be disallowed because the record reveals the original plaintiff is a medical doctor and Dr. Vincent‘s services to plaintiff‘s daughter were provided as a matter of professional courtesy with no intention of receiving payment for the same. Actually Dr. Vincent did render a bill and whether or not his services were extended as a professional courtesy is immaterial. For even if they would have cost plaintiff nothing, defendants cannot profit thereby. The value of nursing and physician‘s services, and of medical and hospital bills, incurred by the victim of a tort can be recovered from the tort feasor as an element of damages for the victim‘s injuries even though such services be gratuities rendered to the victim. Fullilove v. United States Casualty Company of New York, La.App., 129 So.2d 816; Williams v. Campbell, La.App., 185 So. 683; see also Bergeron v. Roberson, 224 La. 932, 71 So.2d 332; Wooten v. Central Mutual Insurance Company, La.App., 182 So.2d 146; Hughes v. Louisiana Power & Light Co., La.App., 94 So.2d 532. We note that Drearr v. Connecticut General Life Insurance Co., La.App., 119 So.2d 149, is a suit on an insurance contract and not in tort and Smith v. Foucha, La.App., 172 So.2d 318, is based on a subrogation.
Defendants challenge Dr. White‘s charges for psychiatric treatment on the ground that neither Dr. White nor any other psychiatrist testified as a witness and therefore the record contains insufficient proof that psychiatric care was needed, and if needed, to what extent, or that the charges were fair and reasonable. The only evidence offered by either side relative to psychiatric treatment and the need therefor was the testimony by Dr. Spizer. Defendants offered no medical evidence of any kind.
Dr. Spizer was qualified to, and did, testify as a medical doctor. His testimony and the other facts relative to his daughter‘s condition as established by the record leave no doubt at all in our minds as to the necessity for psychiatric treatment. Nor do we entertain any doubt concerning the fact that Miss Spizer needed all of the psychiatric treatment she was given; without contradiction of any kind, the evidence is that she continues to need such treatment. In view of the number of treatments administered almost weekly from August, 1965 to the date of trial on February 1, 1967, at $25 per visit or treatment, the charges appear to be reasonable. In any event, upon proper instructions from the court the jury found in favor of plaintiff on these matters and we see no error,
For the reasons assigned, the motion to dismiss the answer to the appeal is denied and the judgment appealed from is affirmed.
Motion denied; affirmed.