Collier v. Fireman's Fund Ins. Co., 3464

• Decision Date: 07 July 1969
• Docket Number: No. 3464,3464
• Citation: 225 So.2d 9
• Parties: Irma Love COLLIER v. FIREMAN'S FUND INSURANCE CO. and State Farm Mutual Automobile Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

Page 9

225 So.2d 9

Irma Love COLLIER v. FIREMAN'S FUND INSURANCE CO. and State Farm Mutual Automobile Insurance Company.

No. 3464.

Court of Appeal of Louisiana, Fourth Circuit.

July 7, 1969.

Kierr & Gainsburgh, Raymond H. Kierr and Warren C. Fortson, New Orleans, for plaintiff-appellee.

Porteous, Toledano, Hainkel & Johnson, Benjamin C. Toledano, New Orleans, for State Farm Mutual Automobile Ins. Co., defendant-appellant.

Before YARRUT, SAMUEL and CHASEZ, JJ.

SAMUEL, Judge.

This is a suit for personal injuries incurred in an automobile accident. Plaintiff was a guest passenger in an automobile driven by her husband. Defendants are Fireman's Fund Insurance Company, liability insurer of the vehicle in which plaintiff was a passenger, and State Farm Mutual Automobile Insurance Company, liability insurer of the other vehicle involved. The matter was tried to a jury. The judgment, which was rendered in accordance with the jury's verdict, is in favor of plaintiff and against State Farm in the sum of $7,500 and in favor of Fireman's and against the plaintiff, dismissing her suit as to that defendant. After filing a motion for a new trial, or alternatively a remittitur, both of which were denied, State Farm appealed therefrom. In this court appellant concedes liability and contends only that the $7,500 award for personal injuries is excessive. As plaintiff has neither appealed nor answered the appeal, that is the sole question presented for our determination.

The accident, a head-on collision, occurred in the City of New Orleans on September 10, 1965. At that time plaintiff was 29 years of age and resided with her husband in Miami, Florida. She was a diabetic, usually taking 38--40 NPH--40 insulin a day, and had a congenital back abnormality described by the medical experts as an incompletely sacralized transverse process on the right side of the 5th lumbar vertebra.

Evidence in the record concerning the injuries consists of the testimony of plaintiff, her husband (who only corroborated some of his wife's testimony) and Dr. Irving Redler, a local orthopedic surgeon who examined plaintiff first at the request of appellant and later at plaintiff's request; the deposition of Dr. C. A. Zarzecki, an orthopedic surgeon of Miami, who treated plaintiff following the accident; and the medical reports of Dr. Janice M. Burr, an internist, also of Miami and a treating physician, and Dr. H. R. Soboloff, a local orthopedic surgeon who examined plaintiff at her request.

Relative to her personal injuries, plaintiff's testimony was as follows: She had been sitting in the front seat next to the driver and was wearing a seat belt. The collision threw her forward and her face struck the windshield. She was taken to Touro Infirmary where x-rays were made. There she complained of injuries to her head and nose and pain in the back of her neck. She was given a muscle relaxant for pain and instructed to consult her own physician upon her return home. Upon returning to Miami she was unable to see her regular physician, Dr. Burr, until after the intervening weekend . She saw that doctor two days later, remaining in bed during the interval. At that time she had back and neck pain, her head and nose were black and blue as a result of striking the windshield, and she had a black and blue mark across her abdomen from the seat belt. Her diabetic condition had been knocked out of control as a result of the accident and she was required to take extra insulin. Dr. Burr prescribed medication for the pain in the back of her neck and later recommended that she see Dr. Zarzecki, the orthopedic specialist.

Dr. Zarzecki recommended exercises at home and physiotherapy in his office, which she received on six occasions. When these proved ineffective electrical wave massage was administered. Her head injuries gradually subsided but her lower back commenced to pain her and that pain has continued. Prior to the accident she had exercised strenuously, frequently swimming, riding horseback and dancing, important and necessary functions because of her diabetic condition. At the time of trial, slightly more than two and one-half years after the accident, she was still unable to take these exercises except to a very limited extent.

She had injured her back after a sneezing episode in 1963. At that time she restricted her activities for three months, then experienced a dull ache and later only an awareness. The effects of that prior injury had disappeared four or five months before the occurrence of the accident in suit. She continues to complain of uncomfortable back aches. Her discomfort is less now and she has improved, but not to the extent that she can resume all of her activities. She missed only three days work following the accident and her neck troubled her for only about one month. After that time all of her complaints have been concerned with the low back pain.

Dr. Burr's medical report indicates she saw plaintiff on September 13, 1965 (three days after the accident) at which time Mrs. Collier complained of pain in the back of the neck as a result of the automobile accident. Plaintiff was a diabetic patient and additional insulin was necessary while the diabetic status was altered by pain. In addition to the effect on the diabetes, Dr. Burr diagnosed plaintiff's injuries as mild contusion of the face and cervical sprain. The report is silent as to any complaints relative to the back.

The deposition of Dr. C. A. Zarzecki indicates he saw plaintiff for the first time on October 13, 1965 slightly more than one month after the accident. A history was taken and an orthopedic examination performed. Mrs. Collier complained of general intermittent headaches and pain in the neck on extension and side-to-side rotation and stiffness and discomfort in the back while standing, similar to a back spasm she had experienced after the sneezing episode. The doctor found bruises on her nose and right eyebrow. Pressure on her head made her uncomfortable. There was localized pain in the neck and low in the back posteriorally. There was muscle spasm in the sternocleidomastoid from the mastoid to the sternum. Forward bending was 25% Limited at the C-7 area; backward bending was 75% Limited with pain at the site; right and left rotations were 50% Limited with pain. X-rays of the cervical spine and lumbosacral region were made. In the former, forward flexion view, there was a tendency toward straightening, confirming her complaints in the neck region. X-rays of the back were normal except for the congenital butterfly transverse process on the right.

Treatment consisted of back exercises, restriction of strenuous activities and physiotherapy in the form of heat...