Roy v. Robin
| Decision Date | 24 March 1965 |
| Docket Number | No. 1377,1377 |
| Citation | 173 So.2d 222 |
| Parties | Louis ROY, Plaintiff-Appellant, v. Russell ROBIN, Defendant-Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Willis & Willis, Earl H. Willis, St. Martinville, of counsel, for plaintiff-appellant.
Domengeaux & Wright, by D. Mark Bienvenu, Lafayette, for defendant-appellee.
Before TATE, FRUGE , and SAVOY, JJ.
The defendant Robin struck the plaintiff Roy in the face in a dance hall fight. The plaintiff sues for personal injuries resulting from the fight. The trial court awarded the plaintiff $250 for minor cuts on the eyebrow. The plaintiff appeals this award as inadequate, contending that he is additionally entitled to recover for the subsequent loss of his left eye.
The evidence shows that the fight occurred near midnight on November 13th. The plaintiff and his wife testified that the chief initial injuries were three little cuts on the eyebrow, and that after the injury the plaintiff did not even sustain a black eye. About two days after the accident, however the plaintiff's eye commenced to swell; and on November 21st about seven days after the accident, the plaintiff reported to a local physician because of the gradual development of extreme swelling of his eye.
The local physician testified that an infection in the eye had progressed so far, in the five or six days since it had commenced, that the physician immediately sent Roy on to Charity Hospital for hospitalization for treatment of the grave condition. The Charity Hospital records are in evidence and show the severity of an infection of unstated cause in the eyeball and surrounding tissues. Finally, after extensive treatment over some fifty days, the plaintiff's left eye was removed on January 12, 1960, that is, about two months after the fight in which the plaintiff's face was punched.
The trial court allowed recovery only for the initial slight facial injuries. It disallowed recovery for the severe infection in the eye area and the subsequent loss of the eye, reasoning that this aggravation of the initial very minor injury resulted solely from the plaintiff's failure to seek medical assistance sooner.
Able counsel for the plaintiff-appellant correctly points out, in our opinion, that the damages for the aggravation of the initial injury should not be minimized for this reason.
The general principle sought to be applied is that a person injured by a tortfeasor cannot recover damages for such subsequent results of initial injury as he could reasonably have avoided by the exercise of due care on his part. Restatement of Torts, Section 918, and Louisiana Annotations to it, including the summary of Louisiana cases in Armistead v. Shreveport & R.R. Val. Ry. Co., 108 La. 171, 32 So. 456, 459; 25 C.J.S. Damages § 33, p. 499. In the application of this principle, Louisiana decisions have held that an injured person who unreasonably refuses recommended medical treatment is not entitled to recovery for any aggravation of the initial condition resulting from the unreasonable failure to undergo medical treatment recommended by competent physicians. Donovan v. New Orleans Ry. & Light Co., 132 La. 239, 61 So. 216, 48 L.R.A.,N.S., 109; Dark v. Brinkman, La.App. 3 Cir., 136 So.2d 463, and cases therein cited. The tortfeasor has the burden of proving that damages should be minimized because of the injured person's unreasonable failure to seek medical attention earlier. Andrus v. Great American Insurance Co., La.App. 3 Cir., 161 So.2d 113.
In the present instance, the injured plaintiff did not refuse medical treatment; he merely delayed securing same for some seven days after the injury. The infection did not set in until approximately two days after the fight, and the plaintiff...
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