Doucas v. Universal Underwriters Ins. Co.

• Decision Date: 06 July 1976
• Docket Number: No. 5495,5495
• Citation: 334 So.2d 767
• Parties: Steve G. DOUCAS, Plaintiff and Appellant, v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY et al., Defendants and Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 767

334 So.2d 767

Steve G. DOUCAS, Plaintiff and Appellant, v. UNIVERSAL UNDERWRITERS INSURANCE COMPANY et al., Defendants and Appellees.

No. 5495.

Court of Appeal of Louisiana, Third Circuit.

July 6, 1976.

Dubuisson, Brinkhaus, Guglielmo & Dauzat by Jimmy L. Dauzat, Opelousas, for plaintiff and appellant.

McLure & McLure by Thomas C. McLure, Jr., and John G. McLure, Alexandria, for defendants and appellees.

Before MILLER, DOMENGEAUX, and PAVY, JJ.

DOMENGEAUX, Judge.

This tort action arose from an intersectional collision on November 5, 1971, in Marksville, Louisiana, involving plaintiff-appellant, Steve Doucas, and defendant-appellee, O. J. Scallan, Jr. Also made defendants were Scallan Motor Company, the Estate of Ogere J. Scallan, Sr., and Universal Underwriters Insurance Company, the liability insurer of Scallan Motor Company. Following trial on the merits, the District Judge awarded plaintiff $3,500.00 for pain and suffering only. Plaintiff has appealed seeking an increase in the award for general damages and additionally an award for special damages for certain medical expenses allegedly incurred by him as a result of the accident. Defendants have answered the appeal seeking a reversal on the issue of their liability for the collision and alternatively petition this court to reduce plaintiff's award to $1,000.00.

THE ACCIDENT

On the morning of November 5, 1971, in Marksville, Avoyelles Parish, Louisiana, plaintiff was driving his automobile in an easterly direction on Action Road (La.Hwy. #1189) a paved two-laned highway running east and west. Defendant was driving north on Poret Drive, a graveled road running north and south. Acton Road and Poret Drive meet, forming a 'T-intersection' with Poret Drive coming to a dead-end at Acton Road. On the date in question, there was no stop sign at the above described intersection.

Plaintiff was traveling within the speed limit (40 to 45 miles per hour) and observed defendant's car approaching the 'T-intersection'. Defendant apparently stopped at the intersection and looked both ways, however his view was obstructed somewhat by an automobile which was parked on the southern side of Acton Road. Defendant pulled out from Poret Drive, attempting to make a left turn onto Acton Road and, seeing plaintiff's automobile approaching, stopped his vehicle at approximately the center line of Action Road. Plaintiff applied his brakes and after skidding for approximately 98 feet, collided with defendant's automobile.

We have no hesitancy in concluding that, although no stop sign was present on Poret Drive plaintiff was possessed with the right-of-way at the intersection. The evidence clearly indicates that Action Road was a main thoroughfare and that Poret Drive was merely a side road. A vehicle entering a main highway from a side road at a 'T-intersection' must yield the right-of-way, and a driver on the main road has a right to assume that the operator on the subordinate highway will stop and yield. Trahan v. Lantier,33 So.2d 136 (La.App.1st Cir. 1947). Generally speaking, a main road is favored and persons traveling thereon enjoy a right-of-way. McMorris v. Webb,67 So.2d 146 (La.App.1st Cir. 1953). The term 'main thoroughfare' is synonymous with 'favored street'. Butler v. O'Neal, 26 So.2d 753 (La.App.2nd Cir. 1946).

The rule is well settled in our jurisprudence that a driver entering a right-of-way street where the view is obstructed is under a duty to proceed with extraordinary caution. See Continental Insurance Company v. Duthu, 235 So.2d 182 (La.App.4th Cir. 1970), writ refused 256 La. 820, 239 So.2d 346; Berry v. Festervan, 215 So.2d 398 (La.App.2nd Cir. 1968); Crowe v. Allstate Insurance Company, 211 So.2d 369 (La.App.1st Cir. 1968), writ refused 252 La. 869, 214 So.2d 544; Taylor v. Haik, 208 So.2d 433 (La.App.4th Cir. 1968); Sunday v. United States Fidelity and Guaranty Company, 243 So.2d 310 (La.App.4th Cir. 1971); and Dowden v . Houston Fire & Casualty Insurance Company, 81 So.2d 103 (La.App.2nd Cir. 1955).

In his reasons for judgment the trial judge stated:

'The Court has no difficulty in arriving at the conclusion that defendant, O. J. Scallan, Jr., who was the driver of one vehicle, was negligent, and that his negligence was the cause of the accident forming the bases (sic) of this suit.'

We find that the evidence supports the trial judge's finding that the defendant Scallan, failed in his duty to exercise extraordinary care in entering the favored street (Action Road) after stopping at the T-intersection on Poret Drive, and that his negligence caused the accident.

Although the trial judge did not discuss the issue of contributory negligence in his written reasons for judgment, it is obvious that he concluded that plaintiff was not negligent in causing the accident. After carefully reviewing the record, we find that the evidence amply supports the trial court ruling that the accident was caused solely by the negligence of the defendant Scallan.

DAMAGES

The trial judge awarded plaintiff $3,500.00 for 'added pain and suffering only' and denied all claims for special damages. We note at the outset that the damages issue presents a problem which is infinitely more complex than the one concerning liability.

Plaintiff was an extremely poor candidate for an automobile accident. Several years prior to the accident he underwent major cancer surgery which entailed the removal of a portion of his jaw and numerous muscles in his neck and right shoulder. Furthermore, he suffered from an extremely bad back, with disc problems at several levels and general degenerative disc disease.

For some time prior to his accident plaintiff had been under the care of Dr. John Jackson, an orthopedic surgeon in New Orleans, Louisiana. On September 10, 1971, Doctor Jackson removed the L--3, L--4, L--5, and S--1 discs from plaintiff's back. At that time Doctor Jackson was of the opinion that the C--5 and C--6 discs also needed rmoval. However, due to plaintiff's weak condition the surgeon felt that the cervical disc operation would have to be postponed until plaintiff was stronger. He testified, by deposition, as follows:

'Q. You didn't find that was feasible to have both operations at the same time?

A. I thought that it was too much considering his age, to do both . Both are big operations and to put him through a double operation might be a little too much for him.'

Plaintiff contends that the November accident aggravated his back condition and precipitated the cervical disc operation. As did the trial judge, we find no merit in this argument. The second operation was already tentatively scheduled to be performed as soon as plaintiff had sufficiently recovered from the first one. Doctor Jackson further testified:

'Q. Would it be fair to say that you are not in a position to say that this man's symptoms in the automobile accident of November 5, 1971, are related from the cause and effect standpoint?

A. I can't be 100% Certain. I can say that he seemed to have more pain after the accident, but Neurologically I don't think he was any different.' (Emphasis added)

Doctor Jackson was also of the opinion that had plaintiff been a young, strong individual both operations would have been performed at the same time (September 10, 1971), prior to the accident. Plaintiff's claim that the accident aggravated his cervical disc condition and precipitated the operation thereon is simply unsupported by the evidence, and we find that the trial judge correctly denied any compensation therefor.

Doctor Jackson also found that plaintiff suffered from a degenerative disc disease and had been afflicted with that condition for some time. Plaintiff argues that the accident aggravated said condition and furthered the degenerative processes. When queried on this issue the only conclusion which Doctor Jackson could make was that a 'possibility' existed that the accident had some effect upon the degenerative disc disease. However, considering the totality of the doctor's testimony and without going into great detail on this matter, we find that the evidence is far too speculative to preponderate in plaintiff's favor relative to this issue, and we therefore concur in the trial judge's denial of any damages for said claim.

Shortly after the accident plaintiff complained continually of pains in and about his neck. On January 21, 1972, Doctor Jackson performed a second operation on plaintiff at which time he removed the C--5 and C--6 discs. Thereafter plaintiff continued to suffer from neck pains, but Doctor Jackson attributed such complaints to typical post-operative difficulties. However, on February 28, 1972, approximately one month after the operation, plaintiff continued to be plagued with difficulties in the neck area. At that time Doctor Jackson felt that plaintiff's condition was not connected with the...