Coco v. Winston Industries, Inc.

• Citation: 341 So.2d 332
• Decision Date: 13 December 1976
• Docket Number: No. 57969,57969
• Parties: Gary James COCO v. WINSTON INDUSTRIES, INC., et al.
• Court: Louisiana Supreme Court

Page 332

341 So.2d 332

Gary James COCO v. WINSTON INDUSTRIES, INC., et al.

No. 57969.

Supreme Court of Louisiana.

Dec. 13, 1976.

Dissenting Opinion Jan. 12, 1977.

Rehearing Denied Jan. 21, 1977.

Gerard F. Thomas, Jr., Natchitoches, Sidney E. Cook, Cook, Clark, Egan, Yancey & King, Shreveport, for plaintiff-applicant.

Breard Snellings, Trial Atty., Jack M. Alltmont, Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, for defendant-respondent.

CALOGERO, Justice.

We granted a writ of certiorari in this personal injury damage suit to review the judgment of the Court of Appeal reducing substantially a significant jury award.

Plaintiff, a general laborer then twenty years old, was injured while operating an unguarded dado saw at Sherwood Homes, Inc. where he was employed in the business of constructing mobile homes. After a six-day trial, a civil jury returned a verdict in favor of plaintiff for $350,000.00, subject to a stipulated credit of $23,147.32 comprising workmen's compensation benefits earlier received by plaintiff.

Originally a three-judge panel of the Court of Appeal affirmed the quantum award. A rehearing was granted and thereafter a five-judge panel in the Court of Appeal reduced the award to $140,000, subject to the compensation credit. One judge concurred only to the extent of reducing the award to $200,000. Another judge dissented, believing that the judgment of the district court as affirmed on original hearing should have been reinstated.

We granted review (La., 332 So.2d 864) upon plaintiff's complaint that the drastic reduction violated Civil Code Article 1934(3) and the principles announced in Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indemnity Company of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967); and restated in a number of cases since, including these: Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974); Bitoun v. Landry, 302 So.2d 278 (La.1974); 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); and Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971).

In the foregoing cases we have repeatedly referred to the Article 1934(3) assertion that in the assessment of damages in cases of offenses, quasi offenses and quasi contracts, 'much discretion must be left to the judge or jury.'

And we have asserted, initially in Miller v. Thomas, supra at p. 19 that

'From these decisions, two principles emerge: (1) To modify the amount of an award for general damages, an appellate court must find that the trial judge or jury has abused the 'much discretion' accorded by the codal provision; (2) The awards in other cases serve only as an aid in determining whether there has been an abuse of discretion and rivet no steel frame of uniformity.'

Recitation of the principles governing the legal issue presents no problem for our appellate courts. It is the application of those principles to particular cases which has proved difficult on occasion. Two questions are especially troublesome. What, in a given case, constitutes an acceptable quantum judgment in the sense of its being neither excessive nor inadequate within the framework of the legally-directed 'much discretion' accorded judge or jury? When do awards in other possibly similar, reported cases properly aid (or erroneously mislead) an appellate court in determining whether there has been an abuse of discretion by a given judge or jury?

The appellate court is aided in answering these questions by such later expressions of this Court as these:

'Unless the record demonstrates that the trial court abused the 'much discretion' provided for in fixing damages (C.C.1934), the appellate court should not disturb the award. . . . The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify a change in the amount by the appellate court.' Bitoun v. Landry, supra at 279.

'A reviewing court might well disagree with the amount of the award fixed by the jury, but it is not entitled to substitute its opinion for that of the trier of fact.' Spillers v. Montgomery Ward & Company, Inc., supra at 809.

'The reduction (must be) supported by the record.' Walker v. Champion, supra at 46.

'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 disproportionate 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.' Anderson v. Welding Testing Laboratory, Inc., supra at 352.

'Adequacy or inadequacy of an award should be determined by the facts and circumstances peculiar to the case under consideration.' Boutte v. Hargrove, supra at 321--22.

Nonetheless, the ultimate determination by an appellate court as to whether a given judge or jury abused their 'much discretion' as a matter of law is a judgment call, a fact which, of course, explains why on rehearing in this case, of the five judges only three (and even one of the three had been of the contrary view on original hearing) concluded that $140,000 rather than $350,000 was the legally acceptable quantum judgment and why three members of this Court have dissented to this very opinion.

Further complicating the already difficult problem is that this Court is constantly acting on writ applications alleging error by appeal courts in judgments applying the principle of Article 1934(3). In its opinion, the Third Circuit Court of Appeal discussed many of the cases wherein this Court denied writs of certiorari following an adjustment in the quantum by a Court of Appeal, and it concluded from such study that this Court does not intend to take from the lower courts the right to review quantum awards made at the trial level. The Court of Appeal's conclusion that this Court intends for the appellate courts to continue to review quantum awards, is correct ¹ as is shown by all of the cases previously cited, as well as by our recent decisions in Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975) and Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976), wherein we reaffirmed the constitutional authority of appellate courts to review and render quantum awards. We are here concerned with the character of that review.

Realistically, in quantum issues, as in other issues, there must necessarily be a degree of uncertainty in predicting the ultimate result in a given case. Results will differ principally because of the myriad differences in the cases presented for review. And, of course, there will continue to be honest disagreement among appellate judges when they attempt to determine whether the 'much discretion' of Article 1934(3) has been abused in the trial court, and when they attempt to seek aid by looking to other possibly-comparable decided cases. Focusing an informed judgment tempered by a fair recognition of the discretion vested in the trial judge or jury (See the Chief Justice's comment in Miller v. Thomas, supra) is no simple task resulting in uniform result among judges engaged in appellate review.

We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Anderson v. Welding Testing Laboratory, Inc., supra; Bitoun v. Landry, supra; Fox v. State Farm Mutual Automobile Ins. Co., supra; Walker v. Champion, supra. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Bitoun v. Landry, supra; Spillers v. Montgomery Ward & Company, Inc., supra. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.

Further we believe that, heretofore, courts of appeal have placed too much emphasis on their review of other reported decisions. Certainly no two cases are ever fully alike. And whether two cases are so similar as to produce like quantum judgments is hardly discernible by gleaning the facts of the comparable decision from simply a written opinion of an appellate tribunal. Of course, another factor bearing on this matter is that significant change has been, and is taking place in our society not the least of which are changes in economic conditions (particularly rampant inflation), fluctuating job categories, employment opportunities, and even lifestyles. Furthermore, it is impossible for an appellate court to judge what evidence in a particular case was given special weight by the finder of fact.

These preliminary observations behind us, we proceed to examine the case under consideration in order to determine whether the Court of Appeal was wrong in finding as they did that the jury in this case abused the much discretion accorded it by law.

The following portion of the opinion of the Court of Appeal on original hearing in our view fairly describes certain of the facts pertinent to the case at hand:

'It was plaintiff's dominant right hand that was cut. He lost all four of the fingers...