Arceneaux v. Domingue

• Decision Date: 11 April 1979
• Docket Number: No. 6357,6357
• Parties: James C. ARCENEAUX, Plaintiff and Appellant, v. Drew DOMINGUE, Jimmy Bearb and Allstate Insurance Company, Defendants and Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 1262

370 So.2d 1262

James C. ARCENEAUX, Plaintiff and Appellant, v. Drew DOMINGUE, Jimmy Bearb and Allstate Insurance Company,

Defendants and Appellees.

No. 6357.

Court of Appeal of Louisiana, Third Circuit.

April 11, 1979.

Rehearing Denied June 6, 1979.

Raleigh Newman, Lake Charles, for plaintiff-appellant.

Davidson, Meaux, Sonnier & Roy by V. Farley Sonnier, Lafayette, for defendants-appellees.

Before DOMENGEAUX, SWIFT, and DOUCET, JJ.

DOMENGEAUX, Judge.

This rear-end collision tort suit was before us previously. In an unpublished opinion, authorized by Rule XII-A of the Uniform Rules, Courts of Appeal, and handed down March 7, 1978, we affirmed a unanimous jury verdict in favor of the defendants. Therein we stated, in pertinent part:

"Applying the rationale of Canter v. Koehring Company, 283 So.2d 716 (La.1973) our review of the record leads us to conclude that there is no manifest error or abuse of discretion on the part of the jury in holding for the defendants. Considering particularly the testimony of Domingue and Bearb, together with that of the expert Mel Falgout, the jury could reasonably have concluded that the defendant vehicle was possessed of a latent defect in the braking system which was not readily discoverable nor reasonably anticipated."

The Louisiana Supreme Court granted writs, 359 So.2d 1303 (La.1978), and ultimately reversed us in part. Arceneaux v. Domingue, et al., 365 So.2d 1330 (La.1978). This case is now before us on remand with instructions to fix the amount of damages in favor of plaintiff, James S. Arceneaux, and against the defendants, Drew Domingue and Allstate Insurance Company.

We are at a disadvantage in determining damages in this case because the jury, having found in favor of the defendants originally, made no factual findings with reference to damages. We, in effect, are in the position of making the original determination in this regard, even though we do not have the benefit of personally viewing the witnesses. Damages, therefore, must be fixed according to the manner in which the evidence in the transcript impresses us.

Plaintiff, while stopped behind a line of traffic on November 22, 1975, was struck from the rear by the defendant, Domingue. The impact was relatively light, and plaintiff drove his vehicle away from the scene of the accident. At the time of the accident, he was approximately forty years old.

Plaintiff sought no medical attention until December 9, 1975, at which time he presented himself to Dr. Ernest W. Kinchen, Jr., a general surgeon, complaining of neck and back pain. After the first visit, Doctor Kinchen saw plaintiff again on December 10, 1975, and for the last time on December 15, 1975. A review of Doctor Kinchen's testimony indicates that there were minimal problems in the neck area. At trial the doctor stated that, in view of plaintiff's complaints, and following his examinations, there was a possibility of a slipped disc at the L-4-5 level. He presumably considered this possibility because "there seemed" to be some positive findings upon administering the left leg raising test, although the neurological examination of the reflexes was normal. The doctor had x-rays taken, which were normal. He prescribed Tylenol, a non-prescription medication, which, according to the doctor, is similar to aspirin and has about the same potency. He also prescribed a lumbo-sacral support, but there is no evidence that plaintiff wore it. Doctor Kinchen gave plaintiff a return appointment, but it was never kept. Doctor Kinchen also stated that plaintiff told him of a previous accident in which he was involved about six years before the accident of November 22, 1975, and that he suffered some stiffness in his neck and back area from the earlier accident. The doctor did state, however, that plaintiff complained after the 1975 accident of numbness in his left leg if he sat too long, which complaints were different from those made previously.

Plaintiff sought no further medical attention for approximately seven months. His attorney referred him to Dr. Charles A. Borne, a neurosurgeon, who first saw plaintiff on July 6, 1976, and again on August 24, 1976, January 4, 1977, March 1, 1977, and for the last time on June 16, 1977. Doctor Borne stated that plaintiff had both a cervical and a lumbar spondylosis. He testified that spondylosis is a term which is employed to indicate degenerative changes in the spine. Basically, it refers to a normal aging process which occurs from wear and tear throughout an individual's life. He thought that the spondylosis was aggravated by trauma, and, based upon what plaintiff told him, the...