Anderson v. Welding Testing Laboratory, Inc.

• Decision Date: 02 December 1974
• Docket Number: No. 54963,54963
• Parties: Henry W. ANDERSON, Plaintiff-Appellee-Relator, v. WELDING TESTING LABORATORY, INC., et al., Defendants-Appellants-Respondents.
• Court: Louisiana Supreme Court

Page 351

304 So.2d 351

Henry W. ANDERSON, Plaintiff-Appellee-Relator, v. WELDING TESTING LABORATORY, INC., et al Defendants-Appellants-Respondents.

No. 54963.

Supreme Court of Louisiana.

Dec. 2, 1974.

W. Luther Wilson, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-respondents.

Mary Olive Pierson, McKernan, Beychok, Cooper, Screen & Pierson, Baton Rouge, for plaintiff-applicant.

TATE, Justice.

The court of appeal reduced from $25,000 to $10,000 an award by the trial court to the plaintiff of general damages. 294 So.2d 298 (1974). We granted certiorari, La., 299 So.2d 351 (1974), to review whether this reduction was an unwarranted interference with the great discretion accorded the trier of fact in the award of such damages. Civil Code Article 1934(3).

The plaintiff, a 57-year-old welder, suffered permanently disabling injuries as the result of the defendant tortfeasor's negligence. The latter's employee left a radio-active pill at the plaintiff's premises, which the plaintiff picked up, handled, and kept for several days in order to return it to the tortfeasor. As a result, his right hand suffered radiation burns, which comprise the basis of this claim for personal injuries.

The trier of fact is granted much discretion in the award of general damages, i.e., those which may not be fixed with any degree of pecuniary exactitude but which, instead, involve mental or physical pain or suffering, inconvenience, the loss of gratification of intellectual or physical enjoyment, or other losses of life or life-style which cannot really be measured definitevely in terms of money. Civil Code Article 1934(3) and the decisions to be cited below.

Our jurisprudence has established certain principles of review of such awards by the appellate courts, in their performance of the fact-review function assigned to them by the Louisiana constitution. La.Const. Art. VII, Sections 10, 29 (1921, as amended in 1958). These principles, as extensively summarized recently in Revon v. American Guarantee & Liability Ins. Co., 296 So.2d 257 (La.1974), include:

The appellate review of awards for general damages is limited to determining whether the trial court abused its great discretion. The adequacy or inadequacy of an award should be determined on the basis of the facts and circumstances peculiar to the case under review, having in regard also that the trier of fact has the advantage of seeing the witnesses and evaluating their testimony, including that of residual pain. The awards made in other cases provide no scale of uniformity; their use is limited to serving as an aid to determine, if the present award is greatly dis-proportionate to similar awards (if Truly similar), whether an issue of abuse of discretion may exist in the present case. In any event, an abuse of trial-court discretion must be clearly demonstrated by the record before an appellate court will tamper with an award of general damages.

See: Bitoun v. Landry, 302 So.2d 278 (La.1974, docket number 54,634); Revon v. American Guarantee & Liability Ins. Co., 296 So.2d 257 (La.1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1974); Boutte v. Hargrove, 290 So.2d 319 (La.1974); Fox v. State Farm Mutual Automobile Ins. Co., 288 So.2d 42 (La.1973); Walker v. Champion, 288 So.2d 44 (La.1973); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971); Lomenick v. Schoeffler 250 La. 959, 200 So.2d 127 (1967); and Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963).

In the present case, in reducing the trial court's award from $25,000 to $10,000, the intermediate court accepted the findings that the plaintiff had suffered a 50% Loss of function in the right hand, that he could no longer climb or perform other duties of his former occupation of welding, and that the plaintiff's right hand had a permanent intolerance to cold or heat. However, the court of appeal felt that the possibility of cancer and of future progression of the disability was reasonably remote, that the plaintiff's real fears of same were groundless, and that, despite the inability to work as a welder, the plaintiff could perform other work and receive earnings equal to those he could earn at welding.

In awarding the greater amount, unlike the appellate court, the trial judge had taken into consideration the permanent swelling and discomfort in the hand which had suffered radiation burns, the anxiety and mental anguish (the possibility of cancer, etc.) to be suffered by the plaintiff because of the undoubted 'fairly large exposure' to radioactive materials suffered by the plaintiff (with the frequency and duration of contact with the radioactive matter not definitely ascertainable, see Tr. 15--16, Riordan deposition), and the change of occupation forced on the plaintiff by the tort-caused disability. The trial court also gave greater weight than, apparently, did the appellate court to the opinion of a radiologist that a potential cause of the continued swelling in the affected hand years after the accident was a radiation-injury affecting the lymphatics.

As stated by the trial court, at the trial, five years after the accident, '* * * plaintiff (still) could not close his right hand or extend it entirely. This hand was still swollen. Plaintiff testified he could only grip with his last two fingers and that sometimes his hand would become so sore he could not sleep and on numerous occasions his hand got numb and very painful. He has quit welding and now does fitting only because he cannot...