Wexler v. MartinWexler v. Martin
Defendants’ appeal in this personаl injury litigation essentially questions the quantum of the jury verdict, although several significant procedural issues are also presented.
I
The original petition, filed in November, 1976, demanded $20,000.00 in general damages for past and future pain and suffering resulting from unspecified injuries sustained by Mrs. Nathan Wexler and $239.47 in medical expenses. After the jury was impaneled on the first day of trial in October,
After presentation of the evidence was completed, but before closing arguments and jury instructions, Mrs. Wexler‘s counsel filed a “Motion to Amend Pleadings to Conform with the Evidence“. This pleading, which was allowed by the trial court over defendants’ objection, increased the demand for pain and suffering to $100,000.00 (the limits of defendants’ liability insurance policy) on the basis thаt the “evidence adduced at trial on the merits in this case reveals injuries and damages in excess of those pleaded in the original petition“.
The jury returned a verdict awarding $41,000.00 to Mrs. Wexler and $14,000.00 to her husband, which plaintiffs’ counsel concedes could only be for any proved past and future medical expenses.
II
Defendants first argue that since the judgment cannot exceed the demand, the award must be reduced at least to the amount demanded in the original petition. Implicit in this argument is the contention that the post-trial motion to conform the pleadings with the evidence was improperly allowed and therefore the only pleading properly before the court was the original petition.
Under
The purpose of
In the present case the issue of damages for past and future pain and suffering was raised by the original petition, and there was no point in the presentation of evidence on this issue at which defendants could have objected to an enlargement of the pleadings.
We therefore conclude the motion to conform the pleadings to the evidence was improperly allowed. Viewing the original petition as the only pleading properly addressed to this issue, we now turn to the naked issue of whether the amount of the judgment can exceed that of the demand of the prayer.
III
In their petition plaintiffs alleged items of general damages, estimating the amount thereof, and at trial they presented evidence to support the demand for relief. The judgment granted the relief in an amount grеater than the estimated amount listed in the original petition.
Pertinent to the decision of this issue is
“Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.”
The exception in the introductory clause of
Furthermore, the source of
We are aware of, but disagree with, the case of Watson v. Morrison, 340 So.2d 588 (La.App. 1st Cir. 1976), in which the First Circuit held, in a divided decision, that
We also acknowledge the argument that if the judgment is allowed to exceed the demand, an insured defendant who is sued for an amount below the policy limits will not be able to rely on the lesser demand as an assurance that he will have no liability above those limits. There are several answers to this argument. First, this argument has no specific applicability in this case, since the judgment does not exceed the policy limits. Second, as a practical matter and as a matter of present-day trial strategy, the demand usually exceeds the policy limits, unless the limits are extremely high and the damages are extremely slight. (And when the demand exceeds the policy limits in the cases which come before the court, seldom does the individual defendant seek separate representation.) Finally, any argument justifying the limitation of the judgment to the demand should have been addressed to the legislature prior to 1961, when that body changed the prior law by adopting
We accordingly reject defendants’ argument that the judgment should be reduced for the reason that the amount of damages for pain and suffering exceeds the amount demanded in the petition.
IV
Defendants next contend the trial judge erred in permitting evidence that they had paid the Wexlers’ automobile damage.
Defendants argue, nevertheless, that evidence of this apparent admission of liability prior to trial by a party contesting liability at trial had a prejudiciаl effect on the jury which set quantum. While not passing specifically on this doubtful argument, we note that any prejudicial effect on the jury was cured by the trial judge‘s admonition in admitting the evidence that the payment was not to be considered as an admission of liability.
V
Defendants next contend that counsel for plaintiffs usurped the function of the judge by instructing the jury as to the law in closing argument. This сontention must be discussed in the context in which the situation arose.
During closing argument counsel for defendants, in rebutting plaintiffs’ counsel‘s argument that asked for an award in the $200,000.00 range, pointed out that the original petition filed almost a year after the accident demanded only about $21,000.00.3 Then in rebuttal argument counsel for plaintiffs explained that since petitions are often hurriedly drafted from interview notes, the law in its wisdom allows amendment to the pleadings as the situation changes. When the court maintained an objection to counsel‘s instructing the jury on the law, counsel attempted to explain to the jury what had happened when the judge allowed his motion to conform the pleadings to the evidence and stated that the jury could now award any amount of damages it deemed proper on the evidence. Defendants’ counsel then objected, whereupon counsel then argued between themselves over whether the judgment legally could exceed the amount of the demand. In the course of the bickering plaintiffs’ counsel referred to an appellate decision by name and citation.
Undoubtedly, it wаs improper for counsel to state points of law and to cite appellate decisions to the jury. See discussion in Little v. Hughes, 136 So.2d 448 (La. App. 1st Cir. 1961). However, the main impropriety in this respect occurred when counsel argued with each other, rather than addressing objections and arguments to the court.
In retrospect the jury should never have become involved in the legal question of whether the judgment could exceed the amount of demand. However, while defendants contend in brief that the trial judge erred to their prejudice by failing to exercise proper control over closing argument, upon review of the record we cannot say that the improper bickering between counsel and the comments and arguments which led up to the bickering were more prejudicial to defendants than to plaintiffs.
VI
Defendants finally contend the awards for general and special damages were so excessive as to constitute an abuse of the jury‘s discretion.
Prior to the accident herein sued upon, Mrs. Wexler had suffered in May, 1973 a spontaneous onset of low back pain. Dr. Irving Redler, the treating orthopedic surgeon, diagnosed a ruptured lumbar disc and
Mrs. Wexler was again injured in a February 4, 1975 automobile accident, and Dr. Redler diagnosed acute strain of the neck and lower back and possible reactivation of the previous disc injury. After four treatments in two months Mrs. Wexler had back pain only when pressure was applied, and she was eventually discharged on May 20 as fully recovered.
Mrs. Wexler resumed normal activities with no problems until the injury in suit occurred on November 10, 1975, when a wrecker ran into her car. On the basis of spasm, restriction of motion, and a positive straight leg raising test, in addition to complaints of back pain radiating into the legs, Dr. Redler diagnosed acute back strain and possible aggravation of the previous disc injury. He prescribed bed rest, restriction of activity, and a lumbosacral corset.
Her condition remained essentially the same through January, 1976, at which time her main complaints of pain were at the end of the day. In April, 1976 X-rays revealed narrowing of the disc spaces, indicating degeneration of the disc. Since the narrowing was not there before and would not normally be expected at age 33, Dr. Redler attributed this change to the November accident. Noting that she had fully recovered from the previous incidents and was free of pain prior to the November accident, he stated that the degenerative changes seen on the X-rays would account for her persistent low back pain. He further described the condition as permanent and progressive.
Mrs. Wexler began exercises prescribed by Dr. Redler and improved by June. Although she still had nagging bаck pain which radiated into the right leg, he released her in October, 1976, advising her to return if the symptoms worsened.
She did return in October with the same complaints, but there were no objective findings. Then in May, 1977 she returned with severe complaints and exhibited spasm and limitation of range of motion, but she denied any intervening incident. By July she had improved somewhat with heat applications, bed rеst and continuation of the corset. On September 29, 1977, about six weeks before trial, she was still wearing the corset and still exhibited spasm, restriction of back motion, and pain on straight leg raising.
Dr. Redler assigned a 10 to 15% permanent disability of the back, attributable to the November, 1975 accident, and stated “(s)he probably will continue to have problems“. He added “I also think that somedаy she may have some surgery“. However, he testified he did not contemplate surgery “at this time“, but would recommend fusion if the disc continues to degenerate and the arthritic changes become more severe. He stated there had been no increase in the degree of change between April, 1976 and September, 1977, and he had not performed a myelogram or other tests to confirm a ruptured disc because he did these only when he contemplated surgery.
Another orthopedic surgeon examined Mrs. Wexler the week before trial and found no “definite spasm” and no significant narrowing on the September, 1977 X-rays. From the examination, history and review of Dr. Redler‘s records he concluded that in the November, 1975 accident Mrs. Wexler had aggravаted her original back problem, which he characterized as a low back sprain syndrome. However, he opined that the problem originated in 1973 and that 11 months after the November, 1975 accident, she had reached her pre-injury functional capacity.
Although there were obvious proof problems with causation and extent of disability attributable to this accident, there was ample evidence in the record to support a finding of injury caused or aggravated by this accident by which the jury could have awarded $41,000.00 without abusing its
The award of $14,000.00 to Mrs. Wexler‘s husband, however, cannot be supported. The evidence established past medical expenses of $334.69. While there was some estimate of the cost of future medical expenses (аbout 10% of the award), there was no showing that, more probably than not, these expenses will be incurred. The probability of surgery, based on this record, is far too speculative to support an award for future expenses in this regard. The award to Mrs. Wexler‘s husband must therefore be reduced to $334.69.
Accordingly, the judgment of the trial court is amended to reduce the judgment in favor of Nathаn Wexler from $14,000.00 to $334.69. As amended, the judgment is affirmed. Costs of the appeal are assessed against defendants.
AMENDED AND AFFIRMED.
SAMUEL, J., dissents in part and assigns reasons.
SAMUEL, Judge, dissenting in part.
In my view,
If a change of the rule referred to was intended to be made by
A liberal construction of pleadings to afford relief to an entitled party must be balanced against the сonsistent position of the Code in requiring fact pleadings, fair notice and the avoidance of surprise. Nor should we be unduly influenced by federal cases interpreting Federal Rule 54(c); the federal courts do not have our fact pleading requirement.
For these same reasons
While I agree with the majority‘s reduction of the trial judgment award to Nathan Wexler, I am of the opinion that Mrs. Wexler‘s award for pain and suffering should be reduced to the amount for which she prayеd. The reasons stated above and those cases cited in footnote 1 which were controlled by the provisions of the Code of Civil Procedure compel the latter conclusion.
Accordingly, to the extent expressed in the last preceding paragraph, I respectfully dissent.