Hill v. Sills
| Decision Date | 29 September 1981 |
| Docket Number | No. 14661,14661 |
| Citation | 404 So.2d 1323 |
| Parties | Natalie HILL and Lewis H. HIll, Plaintiffs-Appellees, v. Irving L. SILLS and Southern Farm Bureau Casualty Insurance Company,Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Davenport, Files, Kelly & Marsh by Thomas W. Davenport, Jr., Monroe, for defendants-appellants.
Hudson, Potts & Bernstein by Jesse D. McDonald, Monroe, for plaintiffs-appellees.
Before PRICE, MARVIN and FRED W. JONES, Jr., JJ.
This appeal by a defendant automobile driver and his liability insurance carrier presents for our consideration the contention that damage awards to plaintiffs, husband and wife, were excessive. We answer in the negative and affirm.
Appellants do not contest the trial judge's adjudication of liability or his awards for medical expenses. However, they assert that he abused his discretion by (1) awarding the plaintiff husband $2,500 in general damages; (2) awarding the plaintiff wife $20,000 in general damages; and (3) awarding the plaintiff wife $16,240 for lost wages and $32,500 for diminished earning capacity.
According to the record, on February 28, 1977, Lewis Hill, accompanied by his wife, Natalie Hill, as a passenger, was driving a Datsun pickup truck north on 18th Street in Monroe. While stopped in a line of traffic the pickup truck was struck from the rear by a Lincoln automobile driven by Irving Sills and knocked forward about eight feet. As a result of the impact both Mr. and Mrs. Hill sustained whiplash injuries to their necks. They sued Sills and his liability insurance carrier. Trial was had on February 4, 1980, followed by rendition of the judgment in favor of plaintiffs. Those awards, about which the appellants complain, will be discussed separately.
Hill, 47 years of age at the time of the accident, testified that he felt no immediate adverse physical effects but awoke the following morning experiencing pain and soreness in his neck and shoulder areas. This was alleviated when he took some pain medication his wife had on hand.
Prior to the accident Mrs. Hill had scheduled a regular physical examination with her gynecologist in Birmingham, Alabama (where they resided before moving to Monroe) for March 4, 1977. In view of this commitment she did not seek medical attention in Monroe for neck complaints which developed immediately after the accident, preferring to consult a Birmingham neurosurgeon who had treated her for a low back ailment several years before.
Hill accompanied his wife to the office of Dr. Donald Sweeney, the Birmingham neurosurgeon, and, because of continuing discomfort in the cervical area, requested that he be examined also.
Dr. Sweeney testified that his examination of Hill revealed a good range of neck motion but some restriction of shoulder movement accompanied by tenderness in the rhomboid muscles. X-rays of the cervical spine showed a condition described by Dr. Sweeney as preexisting mild cervical spondylosis. It was Dr. Sweeney's opinion that Hill had strained the muscles in his cervical region as a consequence of his involvement in the accident. The doctor's prognosis was that Hill's symptoms would last only two or three weeks provided there had been no aggravation of the underlying cervical spondylosis a contingency upon which Dr. Sweeney refused to speculate because the one time he examined Hill was too soon after the accident to make a determination of this nature.
About three months after the accident Hill was transferred by his employer to Jacksonville, Florida. Although muscle relaxants prescribed by Dr. Sweeney afforded him a measure of relief, Hill stated that he still had discomfort in the shoulder area when engaging in strenuous physical activities and, particularly, those requiring lifting his arms above his head. Therefore, on October 4, 1977, Hill consulted his wife's Jacksonville neurosurgeon, Dr. Edward Sullivan.
Dr. Sullivan stated that his examination of Hill revealed a full range of neck motion, an absence of tenderness in the cervical area and no palpable neck spasm. After reading the X-ray report prepared for Dr. Sweeney, Dr. Sullivan concluded that Hill had sustained a strain of the cervical spine superimposed upon preexisting degenerative changes. The prognosis was that Hill should expect maximum recovery from his injury within a time frame of from 12 to 18 months from the date of the accident.
Hill returned to Dr. Sullivan for a final visit on August 4, 1978, complaining again of pain across his shoulders following extended automobile trips or activities involving arduous physical exertion. Dr. Sullivan testified that this examination was essentially negative, with no abnormal neurological findings. He reaffirmed his original diagnosis that Hill suffered from dormant arthritis which had been activated by the trauma of the accident. It was recommended that Hill take aspirin for relief when needed.
At the trial Hill testified that he habitually avoided any physical activity which required raising his arms above the shoulder level. He declined to characterize his physical problem as either severe or "all that serious."
In view of the described circumstances, we cannot state that the trial judge's fact-finding that Hill suffered a minor cervical strain as a result of the accident was clearly wrong or that the general damage award of $2,500 was an abuse of his broad discretion.
(1) General Damage Award
The force of the impact between the Sills car and the truck occupied by the Hills was such that Mrs. Hill was thrown back, striking the left side of her head on a gun rack, and then forward, moving her neck in a whiplash fashion. She testified that she immediately felt pain in the left side of her neck. By the time she arrived at her residence she was also experiencing pain in the other side of her neck, and went to bed right away because of her extreme discomfort.
As previously explained, Mrs. Hill decided to delay seeking medical attention for her neck complaint until she visited Birmingham a few days later, and could be examined by Dr. Sweeney.
Mrs. Hill was seen by Dr. Sweeney in connection with her cervical injury but one time and then on March 4, 1977. Dr. Sweeney stated that she complained of severe pain in her neck muscles, radiating down into both shoulders. His examination revealed some restriction of neck motion and tenderness at the midpoint of her neck. X-rays showed a narrowing of disc interspace in Mrs. Hill's neck, with spurring, a condition described as characteristic of degenerative arthritic changes. Dr. Sweeney concluded that Mrs. Hill had sustained a cervical ligamentous strain superimposed upon a preexisting degenerative condition. He anticipated full recovery within two or three weeks if there was only soft tissue injury. Just as with Hill, Dr. Sweeney stated that the question of whether there was an aggravation by the accident of the preexisting degenerative condition could not be determined that soon after the accident and upon the basis of one examination. He prescribed medication for the relief of Mrs. Hill's pain.
Approximately three months after the accident Hill's employer transferred him to...
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