Smith v. American Cas. Co. of Reading, Pa.
| Decision Date | 27 May 1970 |
| Docket Number | No. 3053,3053 |
| Parties | Eligh SMITH, Plaintiff and Appellant, v. AMERICAN CASUALTY COMPANY OF READING, PA., Defendant and Appellee. |
| Court | Court of Appeal of Louisiana — District of US |
Brame, Stewart & Bergstedt, by Frank M. Brame, Lake Charles, for intervenor-appellant-appellee.
Sylvia Roberts, Baton Rouge, for plaintiff-appellee-appellant.
Plauche Sanders & Smith, by Allen L. Smith, Jr., Lake Charles, for defendant-appellee.
Before TATE, HOOD and CULPEPPER, JJ.
This is a companion case to Fairfax v. American Casualty Company of Reading Pa., et al., La.App., 236 So.2d 243 in which a separate judgment is rendered by us this date. In that decision we find the accident was caused solely by the negligence of the driver of the truck insured by the defendant, American Casualty Company of Reading, Pa. Hence, Eligh Smith is entitled to recover from American Casualty for his personal injuries .
Immediately after the accident on July 26, 1968, Smith was taken to St. Patrick's Hospital in Lake Charles where he was seen by Dr. L . K. Moss, a general surgeon. X-rays and physical examination showed fractures of the 7th and 9th ribs, abrasions and contusions of the knees, lacerations about the face caused by small particles of glass and contusions of the abdomen and chest. Smith was in the hospital for 3 days. He was released on July 31, 1968 to return to his home in Galveston.
Since Smith began to complain of neck pain several months later and an old healed compression fracture of C--6 was found, Dr. Moss was questioned closely as to whether such an injury would cause pain immediately after the accident. This physician expressed the opinion that a neck injury, sufficiently severe to cause a compression fracture of a cervical vertebra, would be 'quite painful' within a few hours after the trauma. Dr. Moss stated that Smith made no complaints of neck pain.
On Smith's return to his home in Galveston, Texas, he was seen on August 1, 1968 by Dr. E. S. McLarty, Jr., a general practitioner. His complaints were pain in the chest area, contusions of the abdomen and knees, and the cuts on the face. X-rays on August 2, 1968 showed fractures of the 5th, 6th and 7th ribs and an old healed fracture of the 9th rib.
Dr. McLarty saw and treated Smith for these injuries. The rib fractures healed normally in a period of 3 or 4 months. Small slivers of glass in the face festered from time to time and were removed. There was some scarring of the face, but it was Dr. McLarty's opinion that these were cosmetically minimal and would need no future correction.
On October 31, 1968, Dr. McLarty discharged Smith as able to return to his work as a forklift operator. Smith did return to work, but on November 7, 1968 went back to Dr. McLarty and complained of neck pain for the first time. However, it is apparent that Dr. McLarty thought these neck pains were caused by the fact that Smith had not used his neck for some time and on returning to his work as a forklift operator, which required a lot of turning of the head, he developed some stiffness. Accordingly, he sent Smith back to work.
McLarty did not see the plaintiff again until January 29, 1969, at which time he made his first complaints as to his right shoulder. Physio-therapy treatments were begun and by February 3, 1969 Smith was again returned to work.
On February 14, 1969, Smith went back to Dr. McLarty complaining of pains in the neck. Finally x-rays of the cervical area were made on February 28, 1969 which showed an old compression fracture of C--6, with some arthritic spurring already commended. On April 3, 1969, Dr. McLarty again discharged Smith as able to return to his regular work.
On the issue of causal connection between the accident on July 26, 1968 and the compression fracture of C--6, Dr. McLarty's testimony is equivocal. He finally stated he could give no opinion one way or the other. The fact that Smith gave no history of neck injury before the accident indicates the fracture was causally related. However, this physician, like the others, said you would normally except considerable neck pain soon after such an injury.
Dr. McLarty referred Smith to Dr. A. D. Minyard, an orthopedic surgeon of Galveston, who saw plaintiff on February 17, 1969 and ordered the x-rays...
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