Andrus v. Security Ins. Co. of New Haven
| Decision Date | 18 February 1964 |
| Docket Number | No. 1064,1064 |
| Citation | 161 So.2d 113 |
| Parties | Merdic ANDRUS, Plaintiff-Appellant, v. SECURITY INSURANCE COMPANY OF NEW HAVEN et al., Defendants-Appellees, (Great American Insurance Company, Intervenor-Appellant). |
| Court | Court of Appeal of Louisiana — District of US |
Tate & Tate, by Paul C. Tate, Mamou, for plaintiff-appellant.
Lewis & Lewis, by Seth Lewis, Opelousas, for intervenor-appellee.
Voorhies, Labbe, Fontenot, Leonard & McGlasson, by Donald Labbe, Lafayette, for defendant-appellee.
Before TATE, SAVOY and HOOD, JJ.
On July 26, 1961, while at work for his employer, the plaintiff Andrus was injured by a truck belonging to another firm. As a result of this accident, the plaintiff filed two suits: the present suit in tort against third persons responsible for operation of the truck; and also, a claim for workmen's compensation benefits against his own employer's insurer, Andrus v. Great American Insurance Co., La.App. 3 Cir., 161 So.2d 109. These two suits were consolidated for trial and on appeal.
In the present tort suit, Andrus sues the employer and the insurer of the truck driver who backed onto his right foot as he knelt. The negligence of the driver is unquestioned, and the defendants do not appeal from adverse judgment holding them liable in the sum of nearly three thousand dollars.
The other parties to the suit, however, have taken appeals questioning as insufficient the amount of the award in this tort suit. These appellants are the plaintiff Andrus and also his employer's compensation insurer ('Great American', the defendant in the cited compensation suit), which intervened in the present suit to recover workmen's compensation benefits paid and to be paid to the claimant on account of the accident caused by the negligence of the present defendant's driver.
The principal question of this appeal concerns whether the trial court properly limited the award against the third person tortfeasor because the employer's compensation carrier failed or refused to afford the plaintiff-employee reasonable medical treatment which should have minimized the plaintiff's disability.
In the companion compensation suit against Great American, cited above, we have affirmed an award in plaintiff's favor holding him to be entitled to workmen's compensation benefits by reason of total and permanent disability.
The medical evidence in such compensation suit is identical to that in the present suit, with an important exception, namely, the deposition of Dr. Ambrister, an orthopedist (Exhibit PC--1 in the companion compensation suit, Andrus v. Great American Insurance Co., 161 So.2d 109). We have more fully discussed the plaintiff's injuries and disabilities in the companion compensation suit, cited above.
Although the plaintiff was still disabled at the time of the trial and was therefore entitled to a larger award on the basis of such continued disability, the trial court based the tort award of $2,743.08 herein on what the plaintiff should reasonably have received If he had received timely the physiotherapy, which the evidence in the tort suit indicates should have totally ended the disability within six months, had the physiotherapy been afforded as recommended in the early stages of the disability.
The trial court based this reduction of damages otherwise awardable, upon the jurisprudence holding that, where an injured person unreasonably refuses to minimize his damages by accepting non-dangerous and customary medical treatment which is recommended by his attending physicians, the damages against a tortfeasor may be limited to that which the injured person would have reasonably recovered if he had undergone the recommended treatment. Donovan v. New Orleans R. and Light Co., 132 La. 239, 61 So. 216, 48 L.R.A.,N.S., 109; Dark v. Brinkman, La.App. 3 Cir., 136 So.2d 463; Bowers v. Lumbermens Mutual Cas. Co., La.App. 2 Cir., 131 So.2d 70, certiorari denied.
The plaintiff contends that the evidence does not show that He himself unreasonably refused to minimize his injuries by receiving the treatment. In fact, he unsuccessfully sought this treatment from his attending physician, from the compensation insurer responsible for his compensation claim, and from Charity Hospital.
Although only $300 of medical treatment was needed, the claimant himself was not reasonably able to secure same under his impoverished circumstances--he being the father of nine children in school, disabled, with mortgaged home, and enjoying a marginal existence at best even when fully employed. Nor could the treatments be secured in the town of the plaintiff's residence or from doctors acquainted with him, which further presented certain credit and transportation problems.
As noted in the Annotation, Duty of injured person to minimize tort damages by medical or surgical treatment, 48 A.L.R.2d 346 at 371:
'The fact that a medical treatment recommended to minimize the effect of personal injuries would have involved the injured person in unreasonable expense or effort has been recognized in a number of cases as at least a factor affecting the determination whether, in refusing to obtain or submit to the treatment, plaintiff acted as a reasonably prudent man.
'The Restatement of Torts § 918, Comment e, recognizes that the duty to seek or follow medical attention may be modified where an unreasonable expenditure of money or effort would be required to repair the hurt or prevent further harm.'
Further, 25 C.J.S. Damages § 144 e, p. 791. News Pub. Co. v. S. B. Barrett Rubber Co., 13 La.App. 285, 127 So. 749. Cf., Bertrand v. Ducote, La.App. 3 Cir., 128 So.2d 809, syllabus 4.
Considering that the evidence shows not only that the plaintiff was a person of no financial means, but also of no great intelligence or social standing, we think that the evidence in the record does not preponderantly prove that the damages awarded to the plaintiff should be reduced on any ground that he himself unreasonably failed to mitigate the damages by securing medical treatment, especially since he did in fact unsuccessfully attempt to secure medical assistance through the means reasonably available to a person of his station and means.
The defendants-appellees point out, however, that the claimant's injuries and disability were indeed prolonged by the failure of Great American, the employer's compensation insurer, to furnish reasonable medical services, which the evidence shows should have minimized the disability. See Andrus v. Great American Insurance Co., companion suit, 161 So.2d 109. Great American has intervened in the present suit to recover for compensation benefits paid to the claimant; and counsel points out that, if this tort-award is increased, then such increase will benefit, not the injured claimant, but only the intervening compensation insurer, the very party which could have mitigated the damages by affording reasonable medical services. .)
There is much force in this contention.
However, the Louisiana jurisprudence has consistently characterized the compensation-reimbursement rights of the employer as merely a right to share in the award which the injured employee is entitled to recover upon his own cause of action for his own personal injuries. As stated by our Supreme Court, in its most recent statement on the subject in Marquette Casualty Co. v. Brown, 235 La. 245, 103 So.2d 269, 271: ...
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...are also proper considerations in determining the reasonableness of a person's refusal to submit to treatment. Andrus v. Security Ins. Co., 161 So.2d 113 (La.App. 3d Cir.1964), writ denied, 163 So.2d 358, 246 La. 81 (1964). Moreover, an unreasonable refusal of medical treatment which does n......
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