Dark v. Brinkman

• Decision Date: 15 January 1962
• Docket Number: No. 425,425
• Citation: 136 So.2d 463
• Parties: Albert D. DARK et ux., Plaintiffs-Appellees, v. John B. BRINKMAN et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

Page 463

136 So.2d 463

Albert D. DARK et ux., Plaintiffs-Appellees, v. John B. BRINKMAN et al., Defendants-Appellants.

No. 425.

Court of Appeal of Louisiana, Third Circuit.

Jan. 15, 1962.

Simon, Carroll, Fitzgerald & Fraser, by Richard A. Fraser, Jr., Shreveport, for defendants-appellants.

Gerard F. Thomas, Jr., Natchitoches, for plaintiffs-appellees.

Cook, Clark, Egan, Yancey & King, by Sidney E. Cook, Shreveport, for plaintiffs-appellees.

Before TATE, SAVOY, and HOOD, JJ.

TATE, Judge.

This is a tort suit in which the trial court awarded damages in the respective amounts of $13,275.29 to the plaintiff husband and $7000 to the co-plaintiff wife for their personal injuries. The sole issue upon this appeal by the defendants, the tortfeasor Brinkman and his liability insurer, concerns the amount of such awards. The defendants-appellants, of course, contend that they are excessive; and, by answer to the appeal, the plaintiffs pray for an increase in them.

Following perfection of the appeal the plaintiff husband died, and his heirs were substituted as plaintiff for him. See Thomas v. Checker Cab Co., 229 La. 1079, 87 So.2d 605. For convenience, however, we will in the following opinion refer to him as 'the plaintiff Dark' and to his spouse as 'the plaintiff wife'.

These plaintiffs sustained their personal injuries in an accident of October 8, 1959 which was caused by the obvious negligence of the defendant Brinkman. The Dark vehicle was slowed with proper signal to the speed of a slow-moving tractor which was preceding it, when it was struck from the rear with such force that the front bolts of the front seat of the Dark automobile were sheared from their mountings. The plaintiffs were examined immediately after the accident by a local physician in Natchitoches and, although hospitalization was recommended, they nevertheless proceeded back to their home in Edmond, Oklahoma, because they could not remain away longer from their two young children at home, from whom they had been absent for about two weeks.

The record reflects that both of the plaintiffs suffered fairly serious personal injuries with permanent residuals.

Our learned trial brother correctly stated that the trier of fact's function to determine the awards for personal injuries under these circumstances to be as follows: 'In awarding of damages to compensate these plaintiffs in their injuries, pain and suffering, and disability, which latter includes the diminution of activity in the whole of their life activities, are to be considered. Unfortunately, there is no certain and easily definable scale or measure to use. Whatever is finally determined as the amount to which they are entitled, it is, in part at least, arbitrary. Our law does not admit of exemplary or punitive damages, and the Court is necessarily limited to what it feels is justified as compensatory. No two cases are exactly alike, and too, no one case can be said to be controlling in any other given case. The burden is on the Court to award an amount which is feels does justice to both the injured claimant and to the tort-feasor.'

The principles applicable to the appellate review of awards for personal injuries were recently summarized in these words: "The award of damages for personal injuries is of necessity somewhat arbitrary and varies greatly with the facts and circumstances of each case; it is largely left to the discretion of the trial court, the award by which should ordinarily not be disturbed; LSA-Civil Code, Article 1934(3); Franklin v. Arkansas Fuel Oil Company, 218 La. 987, 51 So.2d 600; McGee v. Yazzo & M.V.R. Co., 206 La. 121, 19 So.2d 21. However, this is somewhat qualified by a doctrine generally announced similarly to the statement found in Thomas v. Great American Indemnity Company, La.App. 2 Cir., 83 So.2d 485, at page 487 as: 'Each case is to be determined upon its own facts, with the desire, however, for the attainment of some degree of uniformity in cases involving similar injuries and disabilities."' Humphries v. Delta Fire & Cas. Co., La.App. 1 Cir., 116 So.2d 130, 131.

1. Plaintiff Albert Dark.

Aside from general bruises and contusions about the head and body and a lumbar strain--injuries which were of a transitory nature and which, although painful for a short period of time, were cured without residual several weeks after the accident--, the plaintiff Dark sustained a serious knee injury in the accident. This consisted of a torn cartilage, also denominated as a ruptured medial meniscus, of the right knee and the traumatic formation of a Baker's cyst, a lemon-sized cystic mass underlying the knee joint. This injury caused pain upon use of the right leg, producing a limp and an inability to climb or to bear his full weight upon the injured joint, and, according to the medical testimony, produced a permanent disability of 25 to 30% Of the right limb. Locking and swelling of the knee result from overuse of the right leg, and plaintiff Dark is occasionally forced to undergo complete bedrest for a day or so to receive relief. This disability could, however, be to a large extent relieved by a major operative procedure involving surgical repair of the torn cartilage and removal of the cystic mass; if it were, the permanent disability would be reduced to about ten per cent, a percentage mostly representing the slightly lessened longevity of full use of the knee and the possibility of future complications.

At the time of the accident, the plaintiff was a safety engineer employed by a major oil company at a salary of $750.00 per month. Because of the knee injury, he could only perform about fifty per cent of his duties, since he could not climb and had to avoid prolonged use of the injured member. After the accident, he resigned from his position, not because of the injury but because he did not wish to accept a transfer to Ohio. With the present serious permanent disability of his knee he cannot be employed in the field of his experience or in any similar high-paying position for which he is qualified; but, if the knee disability were diminished by the recommended surgical repair, he could successfully return to such employment, despite the theoretical slight partial permanent disability.

Plaintiff Dark also contends that, as a consequence of the accident and the consequent worries and tension during the following months, he suffered a heart attack about a year after the accident. We find that the trial court correctly concluded, however, that the preponderant medical opinion does not prove any causal relationship between the after-effects of the accident and the heart condition manifesting itself a year after the accident.

The trial court awarded ten thousand dollars to the plaintiff Dark for his personal injuries at the time of the accident and thereafter, principally being for the right knee injury, the pain and suffering and complications resulting therefrom including the formation of the Baker's cyst, the limitation of activities during fourteen months prior to trial, and the estimated permanent disability residual after the recommended surgery was performed. (Included also in the award was the pain and suffering incident to the surgery.)

The trial court thus took into consideration be relaxed in the interests of justice, crippling, undoubtedly entitling the plaintiff to a far greater award, could be reduced by surgery customarily done to relieve such a disability, unaccompanied by any substantial hazard to the injured plaintiff; the award was thus made upon the basis of the reduced disability which with reasonable expectation could be accomplished by undangerous and customary remedial surgery, on the theory that the award should be based upon the reasonable minimization of the damages by the plaintiff. The trial court also additionally awarded the plaintiff damages of $2,750.00, the estimated cost of the surgery and of the loss of earnings during the recuperative period.

Under the circumstances, we find no error in this basis for the computation of the award for the personal injuries. Donovan v. New Orleans Ry. & Light Co., 132 La. 239, 61 So. 216, 48 L.R.A.,N.S., 109; Williams v. Parker, La.App. 1 Cir., 130 So.2d 711; Jenkins v. American Auto. Ins. Co., La.App. 2 Cir., 111 So.2d 837. Furthermore, the award is neither manifestly excessive nor manifestly inadequate. See, e.g., Jenkins v. American Auto. Ins. Co., above-cited; Matherne v. Crowther, La.App. 1 Cir., 96 So.2d 89.

Able counsel for the appellants argues that the award should be reduced because, inter alia, the plaintiff Dark did not accept surgery immediately after the accident, when it was recommended in November of 1959, but delayed in his decision to accept same until the trial in December of 1960, a year later. The plaintiff Dark explained that he was afraid of surgery and was familiar with other instances where knee surgery had been unsuccessful and delayed in accepting it until he saw there was absolutely no hope of cure or further employment without same. We do not think that under the circumstances the plaintiff Dark unreasonably failed to minimize the damages sustained by him as a result of the accident by not immediately accepting surgery, especially since as late as April 1960 he was advised by an orthopedist to try two or three months of restricted activity before submitting to surgery.

Appellants additionally urge that the award should be reduced because the plaintiff Dark died following perfection of the appeal, insofar as it included any items for permanent disability beyond decedent's date of death and for the surgery and the consequences thereof (which the appellants presume was not performed prior to the plaintiff Dark's death).

The present suit, alleging injuries received in an accident of October 8, 1959, was filed on July 11, 1960. The judgment in favor of the plaintiffs was signed on March 29, 1961. The defendants perfected their suspensive appeal by filing...