Clouatre v. Toye Bros. Yellow Cab Co.

• Decision Date: 05 December 1966
• Docket Number: No. 2364,2364
• Citation: 193 So.2d 344
• Parties: Russell CLOUATRE v. TOYE BROTHERS YELLOW CAB COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 344

193 So.2d 344

Russell CLOUATRE v. TOYE BROTHERS YELLOW CAB COMPANY.

No. 2364.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 5, 1966.

Rehearing Denied Jan. 9, 1967.

Writ Refused Feb. 24, 1967.

George J. Kambur, New Orleans, for plaintiff-appellee.

Deutsch, Kerrigan & Stiles, Lansing L. Mitchell and Charles F. Seemann, Jr., New Orleans, for defendant-appellant.

Before YARRUT, SAMUEL, and CHASEZ, JJ.

SAMUEL, Judge.

This is an action for personal injuries sustained by plaintiff, a taxicab driver, in an automobile accident. The manner in which the accident occurred is not in dispute. On January 11, 1964, without putting the car in gear or setting its hand brake, the driver of a defendant Yellow Cab left his vehicle six or eight feet behind plaintiff's Checker Cab in front of a New Orleans hotel. The unattended Yellow Cab rolled forward while plaintiff was unloading luggage from the trunk of his vehicle, crushing his legs between the bumpers of the two cars.

The case was tried to a jury whose verdict of $10,000 was made the judgment of the district court. Defendant has appealed therefrom. In this court defendant concedes negligence on its part and limits this appeal to quantum. It contends: (1) the judgment should be reduced by such amount as was awarded for lost earnings, or in the alternative, the matter should be remanded for a new trial, because of the admission in evidence, over timely objection, of hearsay testimony relative to loss of earnings; and (2) the award for personal injuries is excessive.

The alleged hearsay testimony was given by Lloyd Mumphrey, a vice-president of Checker Cab Company, the owner of the cab plaintiff had been driving at the time of the accident. Mr. Mumphrey testified plaintiff rented his cab from Checker for $10 a day, paid the cost of gasoline himself, and retained all of the money he collected in excess of the rental and gasoline costs. This witness stated of his own knowledge he knew plaintiff worked 12 hours per day and 6 days per week prior to the accident, that his records indicated plaintiff was unable to work from January 11 to March 30 of 1964 at which latter time he attempted to do part-time work for 3 or 4 days, was unable to continue and did not return to work until April 27, 1964. He did not know how many hours per day plaintiff worked following the accident. He also stated that prior to the accident he knew plaintiff had been a hard, vigorous worker, who probably had earned more than the average driver, and the net earning of the average driver was approximately $15 per day. He admitted no records were kept of what Checker's drivers earned, he did not know of his own knowledge what such earnings amount to, either for the plaintiff or for any other driver, and such information as he had on the subject of driver earnings was based upon a period of 15 years in the taxicab business and on what he had been told by cab drivers. The defendant made timely objection to the testimony relative to the net earnings of cab drivers and it is this part of the testimony which defendant contends was hearsay and prejudicial.

In connection with the question of earnings plaintiff testified: He rented a taxicab from Checker for $10 per day and paid for the gasoline used, approximately $3 per day. Prior to the accident he worked 6 days each week and 12 hours a day, earning a net income for himself of $15 per day or $90 per week. He was unable to work at all from the date of the accident, January 11, 1964, until March 30, 1964, when he tried to return. But he suffered so much from his injured legs that after 4 days he again had to stop entirely. He did not return to work until April 27, 1964 some three and one-half months after the accident. But, because of his legs, he was unable to work his customary 12 hours each day. From April 27, 1964 to the date of trial, April 6, 1966, he has been able to work only 6 or 7 hours daily and his net earnings during that time have amounted to $40 per week.

The only other evidence in the record relative to plaintiff's earnings is some testimony given by the plaintiff concerning his income tax returns for 1963. While those returns were not introduced in evidence, it appears from the testimony that plaintiff had gross earnings of $3,166.40 and net earnings of $1,200 during 1963. However, plaintiff also testified that from January to April 30, 1963 he did very little work because he spent practically all of his time with his 8-year-old son who was hospitalized and subsequently died following heart surgery. After the boy's death he was depressed and became ill himself, first with double pneumonia and then with 'flu', and was unable to work full time until September, 1963. Under these circumstances the 1963 tax returns are of little or no evidentiary value in determining plaintiff's average income prior to the accident.

Although it is better practice to introduce corroborating evidence, where such corroborating evidence is not produced and is not shown to be available, a plaintiff's detailed and uncontradicted testimony as to loss of earnings may by itself constitute sufficient proof thereof if the same be reasonable and if it be so accepted by the trial court or jury; a claim for loss of earnings need not be proved with mathematical certainty, but only by such proof as reasonably establishes the claim; and in cases where there is a legal right to recover, and the exact amount of damages cannot be determined, a court or jury has discretion to assess reasonable monetary damages based upon all the circumstances of the loss. Stevens v. Dowden, La.App., 125 So.2d 234, and cases cited therein at page 237.

In the instant case we are of the opinion, as the jury also must have been, that a net earning of $15 per 12-hour day is a reasonable and not an excessive amount. As no showing has been made that there was corroborating evidence available to the plaintiff, and as there was no evidence to the contrary, nor any reason to disbelieve the plaintiff on this question, his testimony alone was sufficient to establish the fact that prior to the accident he did earn $15 per day. The only portion of Mr. Mumphrey's testimony which properly could be considered hearsay was that concerned with the average daily net earnings of taxicab drivers. In this he merely corroborated plaintiff's testimony. Since plaintiff's average daily net income was established by plaintiff's testimony alone, the defendant has not been prejudiced by the alleged hearsay.

Testimony relative to the injuries sustained by plaintiff was given by plaintiff himself, Dr. Philip P. LaNasa, a general practitioner and the treating physician, and three orthopedic specialists, Drs. Raymond F. Kitziger, Irvin Cahen and O. L. Pollingue.

Plaintiff's testimony is that immediately following the accident he was unable to walk or stand and was taken to a hospital where he remained for 5 days. He suffered pain in the back...