Duhon v. Cormier

• Decision Date: 18 January 1966
• Docket Number: No. 1618,1618
• Citation: 186 So.2d 645
• Parties: George DUHON, Plaintiff-Appellant-Appellee, v. Aurelian CORMIER, Jr., and Firemen's Insurance Company of Newark, New Jersey, Defendants-Appellants, Third-Party Plaintiffs-Appellees, Lee J. MONLEZUN and Pan American Fire and Casualty Company, Third-Party Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 645

186 So.2d 645

George DUHON, Plaintiff-Appellant-Appellee, v. Aurelian CORMIER, Jr., and Firemen's Insurance Company of Newark, New Jersey, Defendants-Appellants Third-Party Plaintiffs-Appellees Lee J. MONLEZUN and Pan American Fire and Casualty Company Third-Party Defendants-Appellees.

No. 1618.

Court of Appeal of Louisiana, Third Circuit.

Jan. 18, 1966.

On Rehearing April 27, 1966.

Mouton & Roy, by H. Purvis Carmouche, Jr., Lafayette, for plaintiff-appellant-appellee.

Stockwell, St. Dizier, Sievert & Viccellio, by Robert W. Clements, Lake Charles, for defendant-appellee-appellant.

Plauche & Plauche , by S. W. Plauche , Jr., Lake Charles (A. Lane Plauche , Lake Charles, on rehearing) for third-party defendant-appellee.

Before FRUGE, SAVOY and HOOD, JJ.

SAVOY, Judge.

Plaintiff allegedly sustained two accidental injuries, one on June 4, 1963, and the other on June 13, 1963. Plaintiff filed separate suits. For the June 4th accident, plaintiff filed a workmen's compensation suit. For the injury which he claimed occurred on June 13th, he filed an action in tort.

Plaintiff alleged that the June 4th accident occurred while he was working as a carpenter on a residence owned by Mr. Lee J. Monlezun, and this accident resulted in injuries to his head and back. Made defendants were Mr. Monlezun and his compensation carrier, Pan American Fire and Casualty Company.

For the June 13th injury, plaintiff alleged that while employed by Mr. Monlezun and while returning from Lake Charles to Lake Arthur, he suffered injuries to his head and back resulting from a collision between a vehicle driven by a co-employee, Isaac Duhon, and owned by Monlezun, and a vehicle owned and driven by Aurelian Cormier, Jr. Made defendants in this suit were Mr. Monlezun and his liability insurer, Pan American Fire and Casualty Company, Cormier and his liability insurer, Firemen's Insurance Company of Newark, New Jersey, and Isaac Duhon.

Pan American filed a third-party action against Cormier and his insurer. Cormier and his insurer filed a third-party demand against Mr. Monlezun, Isaac Duhon and Pan American.

The cases were consolidated for trial; and after trial on the merits, the district judge dismissed the compensation suit for the reason that the work being done was not in the course of Mr. Monlezun's usual trade, business and occupation. No appeal was taken from this judgment.

In the instant case the court granted judgment in favor of plaintiff and against Aurelian Cormier, Jr., and his insurer, and dismissed the suit against Duhon, Monlezun and his insurer, holding that Cormier's negligence was the sole, proximate cause of the automobile accident.

Plaintiff appealed to this Court. His counsel concedes that the question of liability was correctly resolved by the trial judge, but he has asked for an increase in the award made by the district judge.

Defendants, Cormier and Firemen's Insurance, have also appealed from the judgment of the district court in all respects.

The trial judge found that the accident in question occurred about 4:00 P.M. on June 13, 1963. He stated that prior to the accident Aurelian Cormier, Jr. was driving his car in an easterly direction on Louisiana Highway 14; that he was looking for a private driveway located on the north side of the highway; that when he was approximately one block from the driveway, he looked in his rear view mirror and saw an overtaking vehicle (this truck was being driven by Isaac Duhon), but never again looked in said mirror before making his left turn. As he was making his left turn, the vehicle driven by Cormier and the one driven by Duhon collided in the north lane of Highway 14.

Defendants-appellants contend that Cormier made a slow turn and had his signal indicator working at this time; and that if Duhon had exercised a degree of caution, the accident could have been avoided. On the other hand, plaintiff and appellees contend that Cormier made a sharp left turn and could not have avoided the accident.

The trial judge resolved this important fact in favor of plaintiff and defendants-appellees. After a careful examination of the record, we find sufficient evidence to support the finding of fact by the trial judge. Cormier was grossly negligent in not looking in his rear view mirror before making this dangerous turn. We believe the driver of the Monlezun vehicle did everything possible to avoid the accident. This is borne out by the small amount of damages suffered by both vehicles.

The next and more troublesome problem for decision is whether plaintiff has made a sufficient showing to allow him to recover damages in the instant case.

The record reveals that in the June 4, 1963 accident, plaintiff suffered head injuries and possibly an injury to his back. Counsel for plaintiff contends that the head and back injuries suffered by plaintiff on June 4th were aggravated by the accident of June 13, 1963.

Plaintiff was seen and treated by Dr. Charles D. Brunt after both accidents. For his hear injury plaintiff was referred to Dr. Joseph M. Edelman, a specialist in neurological surgery. He examined plaintiff and had X-rays made of his head. The doctor concluded that plaintiff had not suffered brain injury because of either accident. The doctor could not account for plaintiff's headaches over a long period of time.

As to the back injury, plaintiff was seen by Dr. Brunt on the day after the second accident, or on June 14, 1963. He never did complain about his back until July 29, 1963. On September 6, 1963, Dr. Brunt referred plaintiff to Dr. Edmond C. Campbell, a specialist in orthopedic surgery. Dr. Campbell examined and X-rayed plaintiff's back. The cervical spine was normal. There was some narrowing of the lumbosacral spine with no evidence of bony injury. Dr. Campbell could not find any objective evidence of law back injury. He felt that the symptoms complained of by plaintiff were due to some degree of lumbosacral sprain, and that plaintiff should return to his work as a carpenter within three months from the examination. Dr. Campbell did not prescribe a brace or suggest any type of treatment for the back condition. This was the only time Dr . Campbell saw plaintiff. The doctor did not say whether the plaintiff's condition resulted from the first or from the second accident.

Defendants had plaintiff examined on March 12, 1965, by Dr. Jerome W. Ambrister. Plaintiff was still complaining of pain in the low back region. The doctor could not find any objective symptoms and was of the opinion that he had recovered from any injuries which he might have received at an earlier date.

At the time of the accident of June 13, 1963, plaintiff was sitting in a cab with three other co-employees. He was not seated next to either door. The two vehicles suffered minor damages, and struck each other side to side. None of the occupants of the Monlezun vehicle suffered any injuries with the exception of a small cut on the arm of one co-employee.

After considering all of the circumstances of the accident of June 13, 1963, and the medical testimony in the record, we are of the opinion that the trial judge committed error in awarding plaintiff damages for personal injuries, loss of wages, etc. resulting from the accident of June 13, 1963. We do not believe he has proven his case with that certainty required by our jurisprudence.

For the reasons assigned, the judgment of the district court is reversed, and judgment is hereby rendered in favor of defendants, Aurelian Cormier, Jr. and Firemen's Insurance Company of...