Jordan v. Travelers Ins. Co.

• Decision Date: 24 February 1971
• Docket Number: No. 50508,50508
• Parties: Joseph H. JORDAN, Plaintiff-Appellant-Relator, v. The TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees-Respondents.
• Court: Louisiana Supreme Court

Page 151

245 So.2d 151

257 La. 995

Joseph H. JORDAN, Plaintiff-Appellant-Relator, v. The TRAVELERS INSURANCE COMPANY et al Defendants-Appellees-Respondents.

No. 50508.

Supreme Court of Louisiana.

Feb. 24, 1971.

Ronald A. Curet, Hammond, for plaintiff-appellant.

Macy, Kemp & Newton, Duncan S. Kemp, III, Hammond, for defendants-appellees.

TATE, Justice.

In this tort suit, the court of appeal found total and permanent disability, but it denied recovery for loss of earnings and for future medical expenses. 231 So.2d 678 (La.App.1st Cir. 1970). On the plaintiff's application, we granted certiorari to review this denial, 256 La. 65, 235 So.2d 95 (1970). At the same time, we refused the defendant's application for certiorari to review, inter alia, the court of appeal's holding that the permanent disability was tort-caused. 256 La. 68, 235 So.2d 96 (1970).

Scope of Review

At the threshold, we are confronted with a question of the scope of our review. This arises because the defendants-respondents now re-urge before this court contentions rejected by the court of appeal (such as that the plaintiff's permanently disabling condition was not caused by the accident) and as to which we denied the defendants' application for writs of review.

The defendants-respondents rely upon the provision of La.Const. Art. VII, Section 11 (1921) that, when certiorari is granted to review a court of appeal judgment, the Supreme Court shall have 'the same power and authority in the case as if it had been carried directly by appeal to the said court * * *.'

This provision confers upon this court the authority to review all questions and grant any relief in favor of a party to whom it may grant a writ to review a court of appeal judgment, the same as if the matter had been appealed directly here. Rigouts v. Larkan, 244 La. 479, 153 So.2d 363 (1970). It was not intended, however, to confer upon this court power to change the previous court's decree in favor of a party to whom a writ of review is Not granted.¹

Thus, where certiorari is granted on the application of one party to a suit, the judgment (decree) cannot be amended or changed to the benefit of other parties who have failed to apply for such review. Madison v. American Sugar Refining Co., 243 La. 408, 144 So.2d 377 (1962); Pennington v. Justiss-Mears Oil Co., 242 La. 1, 134 So.2d 53 (1961); D. H. Holmes Co., Ltd. v. Morris, 188 La. 431, 177 So. 417, 114 A.L.R. 905 (1937); and the many decisions cited therein.²

Further, at the time a writ of certiorari is granted, this court may itself restrict its subsequent review. When, in granting a writ of review, this court limits it to certain issues and denies it as to all other specifications of error, the court of appeal judgment is final as to the latter and cannot be reconsidered. Deposit Guaranty National Bank v. Shipp, 252 La. 745, 214 So.2d 129 (1968).

Similarly, when [as here] both parties apply for review, this court's denial of the application of one constitutes its final determination upon the matters included therein. This court then will not pass a second time upon these matters at the hearing on the review granted through the application of the other party. Gastauer v. Gastauer, 152 La. 958, 94 So. 897 (1922).

Under the present circumstances, therefore, our denial of the defendant's application for certiorari constitutes a final determination by us as to the issues presented therein. Thus, for purposes of our present review, we do not consider, inter alia, the defendant's contention (previously rejected by our denial of certiorari) that the court of appeal erred in finding that the defendant's tort caused the plaintiff's severe and permanent disability.

Issues for Review

Our review is therefore limited to the issues raised by the plaintiff's successful application for writs of certiorari:

(a) That the court of appeal erred in denying the plaintiff an award for loss of past and future wages; and (b) That it erred in denying him an award for future medical expenses.³

Facts

Having denied the defendants' application for review as to their correctness, we accept the facts as found by the court of appeal and supported by a preponderance of the evidence before us. These facts show:

The plaintiff Jordan was injured in an accident on April 23rd, 1965 through the negligence of the driver of the defendants' truck. He was then 60 years of age, an active and productive individual, a carpenter by trade. He worked regularly at this trade and, in addition, he assisted his wife in the operation of a retail bakery business.

As a result of the accident he sustained a severe cervical neck sprain (whiplash), from which he eventually recovered. In addition, however, the tort-caused trauma caused or activated a chronic brain syndrome associated with cerebral arterial sclerosis, which caused a psychotic reaction.

Because of these tort-caused mental residuals the plaintiff is and has been permanently unable to return to work. In addition, the plaintiff contends, the medical evidence shows that he must be institutionalized in a nursing home to receive 24-hour attention.

The court of appeal awarded $31,500.00 for Jordan's past, present and future physical and mental pain and suffering.⁴ However, it denied an award for his loss of earnings following the 1965 accident, and it additionally denied an award for future medical expenses. We granted certiorari to review the denial of awards for these damages, in the face of the court of appeal finding of permanent and total disability.

Loss of Earnings

In denying an award both for the loss of earnings between the accident and the trial and also for future loss of earnings after the trial, the court of appeal held that such loss was not proven with reasonable certainty. Essentially, any award at all was denied for this loss (as to which he, his wife, and his employer testified) because of his failure to prove it by corroborative evidence such as income tax returns or employment records.

In denying this award, the court of appeal sought to apply a line of jurisprudence developed by the intermediate courts to the effect that an uncorroborated general estimate by a plaintiff as to his loss of earnings May not constitute sufficient proof of such loss, where corroborative evidence is shown to be available but is not produced. The court relied upon Stevens v. Dowden, 125 So.2d 234 (La.App.3d Cir. 1960) and decisions therein summarized.

The cited decision itself demonstrates, however, that the principle does not provide a mechanical rule denying any recovery, whenever a plaintiff's own testimony as to his loss of earnings is not corroborated by records. There, the plaintiff's own detailed testimony was accepted as sufficiently proving his loss of earnings during a period of disability.

Other intermediate decisions likewise hold, correctly, that a claim for loss of earnings need not be proved with mathematical certainty, but only by such proof as reasonably establishes the claim. This may even consist only of the plaintiff's own reasonable testimony, if accepted as truthful; although of course the better practice is to introduce corroborating testimony. See, e.g.: Charles v. Phoenix Insurance Co., 229 So.2d 467 (La.App.3d Cir. 1969); Hughes v. New Orleans Public Service, Inc., 221 So.2d 331 (La.App.4th Cir. 1969); Clouatre v. Toye Bros. Yellow Cab Co., 193 So.2d 344 (La.App.4th Cir. 1966); Colton v. Hartford Fire Ins. Co., 135 So.2d 489 (La.App.2d Cir. 1961).

There are, however, other intermediate decisions, similar to the present, which disallow any award for loss of earnings in the absence of records corroborating the plaintiff's testimony. These decisions seem to indicate that such testimony, no matter how unsuspicious nor how consistent with proven disability, can never by itself prove an earnings-loss with reasonable certainty. See, e.g.: Craig v. Burch, 228 So.2d 723 (La.App.1st Cir. 1969); Radecker v. Phillips, 223 So.2d 468 (La.App.4th Cir. 1969); Smith v. Brekeen, 216 So.2d 90 (La.App.1st Cir. 1968).

In requiring this artificial prerequisite for recovery for loss of earnings, the courts so holding overlook fundamental general principles regulating the burden of proof and the award of damages in tort cases.

One injured through the fault of another is entitled to full indemnification for the damages caused thereby. La.Civil Code Art. 2315. Another general principle deduced therefrom and applicable here may be stated as follows:

Where there is a legal right to recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess same based upon all the facts and circumstances of the case. Civil Code Art. 1934(3); Brantley v. Tremont & Gulf Ry. Co., 226 La. 176, 75 So.2d 236 (1954), and decisions therein cited. This latter principle is also applicable, where the fact of loss of earnings or earning power, past or future, is proved, but not any exact amount. Goode v. Hantz, 209 La. 821, 25 So.2d 604 (1946); Clouatre v. Toye Bros. Yellow Cab Co., 193 So.2d 344 (La.App.4th Cir. 1966), certiorari denied 250 La. 270, 195 So.2d 147 (1967); Hidalgo v. Dupuy, 122 So.2d 639 (La.App.1st Cir. 1960), certiorari denied.

The Present Award for Earnings and Future Medical Expenses

In the present instance, the court of appeal held that the loss of earnings and the future medical expenses were not proved with sufficient certainty. It therefore denied recovery; even though it also held that the evidence did prove the plaintiff to be permanently and totally disabled by a mental condition, and that this disability had been caused or aggravated by the defendants' driver's tort.

In Louisiana tort cases, the plaintiff must prove by a preponderance of the evidence both the negligence of the defendant and the damages caused by the latter's fault; but proof need be only by a preponderance of the evidence, not by some artificially created greater standard. This burden...