Rice v. Traders & General Ins. Co.

• Decision Date: 30 June 1959
• Docket Number: No. 4848,4848
• Citation: 114 So.2d 92
• Court: Court of Appeal of Louisiana — District of US
• Parties: Mrs. Elizabeth RICE, Plaintiff-Appellant, v. TRADERS & GENERAL INSURANCE COMPANY, Defendant-Appellee.

Page 92

114 So.2d 92

Mrs. Elizabeth RICE, Plaintiff-Appellant, v. TRADERS & GENERAL INSURANCE COMPANY, Defendant-Appellee.

No. 4848.

Court of Appeal of Louisiana, First Circuit.

June 30, 1959.

Rehearing Denied Aug. 31, 1959.

Leon A. Picou, John R. Rarick, St. Francisville, for appellant.

Durrett, Hardin, Hunter, Dameron & Fritchie, Baton Rouge, for appellee.

Before ELLIS, LOTTINGER, and TATE, JJ.

TATE, Judge.

Plaintiff was involved in an intersectional collision on the afternoon of November 30, 1957, while riding as a passenger in a car driven by her husband. Alleging that the negligence of her husband caused the accident, Mrs. Rice brought this action against her husband's liability insurer to recover for personal injuries thereby sustained. By this devolutive appeal, she seeks an increase in the amount awarded by the judgment in her favor below.

In this court, the defendant moves to dismiss the appeal; and, reserving his rights under such motion, also answers the appeal, praying that the judgment below be reversed and plaintiff's suit dismissed and, alternatively, that the amount awarded plaintiff be reduced as excessive.

Motion to Dismiss.

The motion to dismiss the appeal is based upon the following circumstances: The trial court judgment was rendered on December 8, 1958. After the delays for suspensive appeal had expired, plaintiff on January 14, 1959, took this present devolutive appeal, without specifically restricting her appeal to the quantum. On January 21, 1959, by writ of fieri facias plaintiff caused execution of his judgment, the sheriff's return showing said judgment to be fully paid and satisfied.

The defendant contends that, by executing such judgment voluntarily, the plaintiff has acquiesced therein and no longer has any right of appeal. Code of Practice Art. 567. Earlier jurisprudence to such effect was, however, specifically overruled by our Supreme Court in Foster & Glassell Co. v. Harrison, 173 La. 550, 138 So. 99. Pointing out that the cited codal article provides that 'the party Against whom judgment has been rendered' cannot appeal if he acquiesces in the same by executing it voluntarily (C.P. Art. 567), the court held that a plaintiff does not lose his right to appeal from a judgment in which all of his claim was not allowed, if he proceeds to secure execution of that portion of the monetary demand for which defendant is cast. See also State v. Bernard, 204 La. 844, 16 So.2d 454; Merrill v. Louisiana Materials Co., 187 La. 259, 174 So. 349; H. F. Hinricks & Son v. Lewis, 180 La. 898, 158 So. 11; Trimble v. Employers Mut. Cas. Co., La.App. 1 Cir., 32 So.2d 479.

The motion to dismiss is denied.

On the merits, the issues of this appeal involve (a) the negligence of the defendant's insured and (b) the quantum.

Negligence.

The facts show that the Nash automobile driven by defendant's insured and in which plaintiff was riding as passenger was, prior to the accident, approaching an intersection on an unfavored street. Its entrance into the intersection was inhibited by 'yield' stop signs. Defendant's driver came to a complete stop, made observation to his left and then to his right, and then proceeded into the intersection, towards which a car driven by one Aime was also approaching on the superior thoroughfare and from the left of defendant's car.

Although Aime's car was approaching at a speed in excess (5--15 mph) of the legal speed limit, we think that the trial court correctly decided that a proximate cause of the accident was the negligence of defendant's driver in failing to perceive the oncoming Aime vehicle on the right of way street and in his subsequent entrance into the intersection when Aime was in such close proximity thereto and in derogation of Aime's superior right of way. Janice v. Whitley, La.App. 1 Cir., 111 So.2d 852; Johnson v. Southern Bell T. & T. Co., La.App. 1 Cir., 106 So.2d 22; Lumber Mutual Fire Ins. Co., v. Kemp, La.App. 1 Cir., 102 So.2d 248; Varisco v. Taramino, La.App. 1 Cir., 101 So.2d 453; Oswalt v. Transcontinental Ins. Co., La.App. 1 Cir., 96 So.2d 233. The negligence of the driver is not imputable to plaintiff, his passenger, who was entitled to rely upon her driver's lookout and care in the absence of unusual circumstance not present in this case. Rodriguez v. State Farm Mut. Ins. Co., La.App. 1 Cir., 88 So.2d 432.

The trial court in our opinion therefore correctly held the defendant insurer liable to plaintiff for the damages sustained by her in the accident resulting from the negligence of the defendant's insured, her husband.

Quantum.

The trial court awarded plaintiff the sum of $1,500 for her personal injuries resulting from the accident.

She is a lady 64 years of age. The medical testimony is uncontradicted that she had high blood pressure and an osteoarthritic condition of the spine pre-existing the accident. As a result of the accident, she sustained a mild soft-tissue sprain of the spinal area. However, because of her preexisting condition (including some degree of overweight) and her age, the effects of the sprain persisted some 6--7 months, during which time she also suffered from intermittent pain and discomfort as a result of a flare-up of the arthritic condition.

The defendant's liability for any traumatic aggravation of a previously dormant condition is of course unquestioned. See, e.g., Peppers v. Toye Brothers Yellow Cab Co., La.App. Orleans, 198 So. 177. And if indeed the aggravation of the arthritic condition were as permanent and as painful as plaintiff's able counsel contends, undoubtedly she would be entitled to a greater award.

Since the x-rays showed no objective changes in the arthritic condition along plaintiff's spine between the date of the accident and the date of the trial, all specialists agreed that a determination of whether the arthritic condition had been aggravated as a result of the accident essentially depends upon an evaluation of the validity of the subjective complaints of pain by the plaintiff. Further, following termination of what the trial court held to be a temporary accident-caused flare-up of her arthritis and sprain, such pains as the claimant may then have noticed might also under the medical evidence be attributable to other causes, such as: a gall bladder condition, a subsequent minor accident, and/or her age and the natural progress of her bodily conditions.

Considering these circumstances, and also the superior position of the trier of fact to evaluate a claimant's complaints of pain, the award of the district court herein is found by us to be within his discretion and neither manifestly inadequate nor manifestly excessive. See, e.g., Fabre v. Grain Dealers Mut. Ins. Co., La.App. 1 Cir., 99 So.2d 380, 381; Green v. Southern Furniture Co., La.App. 1 Cir., 94 So.2d 525; Leger v. Southern Furniture Co., La.App. 1 Cir., 94 So.2d 529. Cf., Land v. Colletti, La.App. 1 Cir., 79 So.2d 641.

For the above and foregoing reasons, the judgment of the District Court is affirmed.

Affirmed.

TATE, Judge (concurring.)

In my opinion, a third and further issue is presented to us by the pleadings by the circumstance that the trial court, after awarding the sum of $1,500 for personal injuries to the plaintiff, amended the judgment so as to allow the defendant insurer credit for the sum of $200. This amount was paid by and on behalf of Aime, the other motorist, and his insurer, State Farm Mutual Automobile Insurance Company, to Both plaintiff and her husband by a 'covenant' not to sue.

The majority has concluded that the issue of whether or not credit should have been allowed is not before us, since the plaintiff-appellant did not complain of the allowance of such credit nor specify it as an error committed by the trial court. While this court does have the power to raise of its own motion this issue presented to us by the pleadings, I have come to the conclusion that the majority has correctly decided that the better appellate practice under the circumstances of this case would be not to consider this important issue of first impression in this court, which is not raised by the appellant and not briefed by either party.

However, the question of whether a tortfeasor cast in damages should be allowed credit for a settlement received from a stranger to the proceedings is one of some importance in everyday practice which, strangely enough, has never been squarely passed upon by any Louisiana appellate court (with the qualifications below to be noted). Therefore, in the interest of pointing up the issue for purposes of future consideration should the question be properly raised in subsequent litigation, I deem it not inappropriate to state why, in my tentative opinion, such credit was improperly allowed. It must be emphasized that the views expressed are those of the writer alone, and do not necessarily reflect the views of any other member of this court.

Under the terms of the covenant not to sue executed by plaintiff And her husband (who is not a party to this suit, being defendant's insured) they received the sum of $200 in return for Their agreement 'to forever refrain and desist from instituting or asserting' any claim against Aime or State Farm for injuries or damage arising out of the accident. In paying this sum, Aime and his insurer expressly denied that any negligence on their part caused or contributed to the accident in question.

The present defendant insurer was apparently allowed credit for the payment made by the other insurer on the theory that they were, as joint tortfeasors, solidary debtors; and that as such, defendant was entitled to deduct any payment made by another joint tortfeasor under LSA-C.C. Art. 2203. See State Farm Mut. Auto. Ins. Co. v. Bourne, 5 Cir., 1955, 220 F.2d 921, in which such is assumed with discussion to be the law.

LSA-C.C. Art. 2203 provides:

'The remission or conventional discharge in favor of one of the codebtors In solido, discharges all the...