Harding v. Hellman

• Decision Date: 21 January 1935
• Docket Number: 14851
• Citation: 158 So. 595
• Court: Court of Appeal of Louisiana — District of US
• Parties: HARDING v. HELLMAN

158 So. 595

HARDING v. HELLMAN

No. 14851

Court of Appeal of Louisiana, Orleans.

January 21, 1935

Johnston Armstrong, of New Orleans, for appellant.

Edw Rightor, of New Orleans, for appellee.

OPINION

WESTERFIELD Judge.

This is a suit by a tenant against a landlord for damages for physical injuries caused by the breaking of a plank in the floor of the bathroom on the leased premises, which resulted in an injury to plaintiff's left leg. $ 1,000 is asked for pain and suffering and $ 36 for doctor's bills. The defendant admitted liability and the court below awarded $ 150 for pain and suffering and $ 24 for medical expenses. Plaintiff has appealed.

Two physicians testified, Dr. Gilbert for the plaintiff and Dr Ficklen for the defendant. Both agreed that the skin of plaintiff's left leg had been scraped off above the knee in two places, one of about five inches in extent and the other slightly smaller. The wounds became infected due, perhaps, to the fact that soiled rags were used to bandage the wounds.

There is little conflict in the medical testimony, but, according to plaintiff, her sufferings were quite extraordinary. She testified that she lost 40 pounds in weight, having declined from 220 to 180 pounds; that her back was injured and that she was compelled to remain in bed for seventy days and obliged to walk with crutches for a year and eight months after she got out of bed, during which time she could wear no shoes and could not support herself on the injured leg; and that, at the date of the trial, two years later, she was still suffering.

It is obvious that the award of the trial court was inadequate for so severe an injury as plaintiff claims to have suffered, and it can only be explained upon the ground that her account of her injuries was not acceptable to the judge, a quo. Her physician, Dr. Gilbert, while apparently more sympathetic than Dr. Ficklen, falls far short of supporting her claim from a medical standpoint. We have, then, only the testimony of plaintiff herself. It is true that there is no countervailing proof except that of Dr. Ficklen's testimony to the effect that he could find no evidence of any injury to plaintiff's back and knew of no reason for the use of crutches, which, at best, is of little probative value as against plaintiff's positive declarations.

The plaintiff is an humble negress, a circumstance which we mention only for the purpose of noting its irrelevance. Humility is a most exalted virtue and truth knows no color line. But she is an interested witness, a party-plaintiff and, under modern procedure, is permitted to testify. However, it is interesting to recall that interested witnesses were not always competent and their disqualification only removed at a comparatively recent date (in England in 1843 and in America in 1848) and that of parties more recently (...