Spizer v. Dixie Brewing Co., 2859

• Decision Date: 15 May 1968
• Docket Number: No. 2859,2859
• Citation: Spizer v. Dixie Brewing Co., 210 So.2d 528 (La. App. 1968)
• Parties: David SPIZER, Individually and for the Use and Benefit and on Behalf of his minor daughter, Dale Ann Spizer v. DIXIE BREWING CO., Inc., and United States Fidelity and Guaranty Company.
• Court: Court of Appeal of Louisiana

Page 528

210 So.2d 528

David SPIZER, Individually and for the Use and Benefit and on Behalf of his minor daughter, Dale Ann Spizer v. DIXIE BREWING CO., Inc., and United States Fidelity and Guaranty Company.

No. 2859.

Court of Appeal of Louisiana, Fourth Circuit.

May 15, 1968.

Kierr & Gainsburgh, Raymond H. Kierr, New Orleans, for plaintiff-appellee-appellant, J. D. Dresner, Harvey J. Lewis, New Orleans, of counsel.

Sessions, Fishman, Rosenson, Snellings & Boisfontaine, Curtis R. Boisfontaine, New Orleans, for defendants-appellants, Arthur A. De La Houssaye, New Orleans, of counsel.

Before REGAN, SAMUEL and JANVIER, JJ.

ON MOTION TO DISMISS ANSWER TO APPEAL AND ON MERITS

SAMUEL, Judge.

Individually and in his capacity as administrator of the estate of his minor daughter, Dale Ann Spizer, plaintiff instituted this suit for injuries sustained by the minor and expenses incurred by him as a result of an automobile-truck collision. Subsequent to this appeal the minor was emancipated by notarial act and, by order of this court, was substituted as a party plaintiff in the place and stead of her father insofar as he appears on her behalf. Defendants are Dixie Brewing Company, Inc., the owner of the truck involved in the accident, which vehicle was being operated by a Dixie employee in the course of his employment, and United States Fidelity & Guaranty Company, Dixie's liability insurer.

Defendants stipulated liability and the matter was tried to a jury which rendered a verdict in the sum of $150,000 for the minor's injuries and $7,779 for plaintiff individually. The verdict was made the judgment of the court on February 3, 1967. Defendants then filed a motion for a new trial and the trial judge, being of the opinion the damages awarded for the minor's injuries were excessive, ordered that the verdict and judgment be set aside and a new trial granted unless, within 10 days, plaintiff consented to a reduction of the $150,000 award to the sum of $75,000, in which event the motion for a new trial would be denied.

Plaintiff filed a consent to the remittitur (see LSA-C.C.P. Art. 1813) pursuant to the conditions imposed by the court stating he did so 'in order to avoid a new trial or other further litigation' and reserving his right to answer any appeal the defendants might take in order to seek an increase in the reduced award. Thereafter, on March 20, 1967, judgment was rendered denying the motion for a new trial and amending the prior judgment so as to change only the award for the minor's injuries, that award being reduced from $150,000 to $75,000.

Defendants have prosecuted this appeal from the judgment of March 20, 1967, contending both the awards for the minor's injuries and for special damages are excessive and should be reduced. Plaintiff answered the appeal praying: (1) that the judgment of March 20, 1967 be set aside and the verdict and judgment of February 3, 1967 be reinstated; or alternatively, (2) that the judgment of March 20, 1967 be amended by increasing the award for the minor's injuries from $75,000 to $125,000. Defendants then filed a motion to dismiss plaintiff's answer to the appeal. We will consider the issues, defendants' motion to dismiss the answer to their appeal and quantum, in that order.

The motion to dismiss is based on the argument that plaintiff's consent to a reduction of the award in favor of the minor constitutes a voluntary and unconditional acquiescence in that reduction, which effectively prevented defendant from obtaining a new trial, and plaintiffs therefore have no right to seek an increase in the award by appeal or by answer to defendant's appeal under LSA-C.C.P. Arts. 2085 and 2133. Noting that the question presented is not one involving a party who has been awarded damages, consents to a remittitur and then attempts to appeal from the judgment resulting from such consent, we are of the opinion the motion to dismiss must be denied.

In pertinent part LSA-C.C.P. Arts. 2133 and 2085 provide that an appellee's answer to an appeal '* * * shall be equivalent to an appeal on his part * * *' and that an appeal cannot be taken by a party 'who voluntarily and unconditionally acquiesced in a judgment rendered against him. * * *' But, aside from the question of whether the judgment in the instant case is one 'against' the appellee within the intent and meaning of Article 2085, our firmly settled jurisprudence is that, in order to lose the right of appeal by acquiescence, such acquiescence must be voluntary, unconditional, absolute and accompanied by the intention to acquiesce and abandon the right to appeal. Succession of Franz, 238 La. 608, 116 So.2d 267; Scott v. Scott, 218 La. 211, 48 So.2d 899; Meyers, Whitty & Hodge, Inc. v. Popich Marine Const., Inc., La.App., 143 So.2d 739; Zeringue v. Administrator, Division of Employment Sec., Dept. of Labor, La.App., 127 So.2d 91.

Here, under the threat of a new trial if he did not accept the remittitur, plaintiff consented to a reduction in the damages awarded by the jury only to avoid the expense, delay and uncertainty of a new trial or an appeal; there was no intention of abandoning, in fact he specifically reserved, his right to answer a defendant appeal in order to seek an increase in the reduced award. This is not the voluntary and unconditional acquiescence contemplated by Article 2085.

Clearly it would be inequitable to allow the defendants to seek a further reduction of the award by appeal and at the same time deny plaintiffs the equivalent right of seeking an increase by way of answer to that appeal. See Plesko v. City of Milwaukee, 19 Wis.2d 210, 120 N.W. 130, 16 A.L.R.3d 1315. This is especially true in Louisiana (it appears to be the minority view in the common law states) where the effect of the denial of a new trial is less disadvantageous to either litigant than it is in many other jurisdictions. For in this state the appellate courts review both the law and the facts and, upon proper showing, have the authority to grant greater or lesser awards than did the trial judge or jury.

At the time of the accident Miss Spizer was a very attractive 17 year old high school senior. Her principal physical injuries incurred in the accident were to the eye, the face, the teeth and the nervous system. She also sustained a fractured clavicle and other less serious injuries including a laceration of the ear. She was required to undergo, and continues to receive, psychiatric treatment. At the time of trial, two years after the accident, she had been seen by more than twenty physicians, received treatment from a substantial number of that group and, in addition to the initial operation mentioned in the next paragraph, had undergone numerous surgical procedures including three operations under general anesthesia.

Miss Spizer was found unconscious after the accident and rushed to a hospital where an operation of several hours duration was performed by Dr. Richardson, a neurosurgeon, and Dr. Vincent, a plastic surgeon. She had at least four fractures in the facial area, several of which were either sutured or wired, and a fracture of the clavicle. Almost one inch of bone was missing in the lower rim of the eye orbit which supports the eye and that eye had descended into the sinus or inner cavity of the face. The eye is now supported by a piece of molded silicon rubber which was wired into place below the eyeball and replaces the lost bony structure. The principal laceration began on the right upper eyelid below the eyebrow and descended down toward the nose, through the inner canthus (the inner angle of the eye), to the outside angle of the mouth. The muscles holding up the lip had been cut and the nerve supplying the upper lip was damaged. While in the hospital following surgery she developed cardiac arythmia (improper heartbeat rhythm). She suffered a loss of memory of events which occurred on the day preceding the accident and recalls nothing for several days thereafter. Dr. Garcia-Oller, a neurosurgeon, termed this loss of memory pretraumatic amnesia, neurologically indicative of a moderately severe brain injury. Her neurological injuries were a contusion and bruising of the temporal lobe of the brain.

When the bandages were removed there was a lag or lack of full movement of the muscles on the right side of the face, resulting in an obvious difference in the use of those muscles. The series of complex muscles which produce a natural smile were all cut. Because of excellent surgery and good physiotherapy consisting of 17 electrical stimulations of the face, the muscles were approximated and she has regained partial use thereof. She has had a partial return of sensation of the upper lip on the...