Deville v. Allstate Ins. Co.
| Decision Date | 15 January 1971 |
| Docket Number | No. 3272,3272 |
| Citation | 242 So.2d 909 |
| Parties | Minnie DEVILLE et al., Plaintiffs-Appellees, v. ALLSTATE INSURANCE COMPANY et al., Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
T. C. McLure, Jr., Alexandria, for defendants-appellants.
Neblett, Fuhrer & Hunter, by Robert B. Neblett, Jr., Alexandria, for plaintiffs-appellees.
Gold, Hall & Skye, by James D. Davis, Alexandria, for defendant-appellee.
Before FRUGE , CULPEPPER and MILLER, JJ.
This appeal is taken by the defendant solely on the issue of quantum of the award given to Mrs. Anise Morace, a guest passenger in defendant's automobile. We affirm.
In the first judgment rendered in this case, Mrs. Anise Morace was given an award of $8,012.18 for pain and suffering, this amount being the total amount left under the $10,000 policy after deducting the award to her husband of medical expenses of $817.82 and her loss of earnings at $1,170.
After the first judgment was rendered, the defendant timely made a motion for a new trial. This motion was based upon additional evidence in possession of the defendant. This evidence consisted of two medical witnesses, who had not been called to testify. There is no doubt that this evidence should have been brought out at the trial and the defendant-appellant did not contend that this was newly discovered evidence, but admitted that it was inadvertently left out at the trial. The trial judge ruled in favor of granting a new trial over an objection made by the plaintiff and stated the following as his reasons:
'In view of the fact that this Court was originally uneasy about the fact that Mrs. Morace's evidence as to pain, suffering, disability, etc. was unrebutted and uncontradicted and in view of this Court's reluctance to permit a rather large Judgment stand, where, if the true facts were known, the Judgment might be to some degree lessened and in an effort to seek proper justice for all concerned a new trial will be granted for the purpose, for the strict and limited purpose, of permitting introduction of medical evidence in the possession of defendant's attorney and in existence on the date that this matter was tried. It is further the holding of this Court that defendant should not be precluded from having its day in Court due to an omission or oversight on the part of its attorney.
Clearly the trial judge was not bound to grant the defendant a new trial for the defendant with reasonable diligence could have procured the testimony for trial. Orlando v. Polito, 228 La. 846, 84 So.2d 433 (1955). It is obvious that in this situation, he permitted the defendant to admit this evidence in order to obtain justice in the case. After hearing the additional evidence, the trial judge reduced the award from $8,012.18 to $6,000, which was in his words 'an attempt to do justice'. It is from this ruling that the defendant has appealed and is requesting us to reduce this judgment even more contending that the judge was manifestly erroneous in failing to give full effect to the medical testimony by more substantially reducing the plaintiff's award for pain and suffering. The appellant is also arguing on the basis of the newly admitted evidence that the trial court erred in awarding loss of wages for too long a period. The trial judge, based on the one year's loss of employment, granted her $1,170, based on the testimony that she was working for $20 to $25 per week. This contention is that since the trial court admitted this testimony, that he is bound by the testimony of the two doctors that Mrs. Morace could have resumed working approximately some three months after the accident, that her loss of earnings should be limited to that time, rather than to the one year under which she underwent treatment by Dr. Credeur.
An award given by a trial judge will not be disturbed unless it is apparent that he has abused his much discretion. Ballard v. National Indemnity Company, 246 La. 963, 169 So.2d 64 (1964).
In an effort to indicate that the trial court abused its discretion here, the appellant has cited Dugas v. Achord, La.App., 238 So.2d 761; Sanders v. Continental Insurance Company of New York, La.App., 238 So.2d 814; Gouta v. Madison, La.App., 238 So.2d 799; Strother v. State Farm Mut. Auto. Ins. Co., La.App., 238 So.2d 774; Anderson v. State Farm Mutual Auto Insurance Company, La.App., 238 So.2d 360; and Herndon v. Fidelity and Casualty Company of New York, La.App., 237 So.2d 723, for cases which gave much lower awards.
The appellee cites Stoltz v. Continental Insurance Company, 231 So .2d 443 (La.App.4th Cir., 1970); Billeaudeau v. Travelers Insurance Co., 232 So.2d 590 (La.App.3rd Cir., 1970); Tewis v. Zurich Insurance Co., 233 So.2d 357 (La.App.1st Cir., 1970); Davis v. Lesnack et al., 205 So.2d 77 (La.App.4th Cir., 1967); and Addison v. Traders and General Insurance Co., 212 So.2d 754 (La.App.3rd Cir., 1968) for cases which gave similar awards.
The facts of this case are significantly distinct from the cases cited by appellant and are sufficient to sustain the award given by the trial judge.
After the accident, Mrs. Morace was treated by Dr. L. J. Credeur who had been Mrs. Morace's family physician for almost 12 years and was in a good position to evaluate the injuries and resulting disability caused by the accident.
His original diagnosis was a brain concussion, whiplash injury to the neck, acute sprain to the cervical part of the neck, acute sprain and bruising of the right shoulder, and of the right chest area, and acute sprain of the right ankle. Since the accident, sh...
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