Viator v. Gilbert

• Decision Date: 16 December 1968
• Docket Number: No. 49127,49127
• Citation: 216 So.2d 821,253 La. 81
• Parties: Weldon VIATOR v. Thomas N. GILBERT, Coating Specialists, Inc., Westchester Fire Insurance Company and John E. Wilkinson.
• Court: Louisiana Supreme Court

Page 821

216 So.2d 821

253 La. 81

Weldon VIATOR v. Thomas N. GILBERT, Coating Specialists, Inc., Westchester Fire Insurance Company and John E. Wilkinson.

No. 49127.

Supreme Court of Louisiana.

Dec. 16, 1968.

Joseph A. Koury, Lafayette, for plaintiff-relator.

Ernest A. Carrere, Jr., L. Howard McCurdy, and James L. Selman, II, of Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for third-party defendant-respondent.

Schoemann, Gomes & Ducote, by Monte J. Ducote, New Orleans, for defendants-respondents.

McCALEB, Justice.

As a result of a four-car collision occurring on Highway 90 three miles east of Boutte, Louisiana on February 5, 1965, plaintiff received personal injuries while a passenger in the second car involved therein and was awarded $59,200 damages in solido against Thomas N. Gilbert, the driver of the third car, his employer, Coating Specialists, Inc., and their insurer, Westchester Fire Insurance Company. These defendants were also granted judgment for contribution against Travelers Insurance Company for its virile share, not to exceed the policy limits on a finding that its insured, Thadeus Martin, the driver of the fourth car, was guilty of negligence which was a proximate cause of the accident.

Following appeals by the defendants cast below and the third-party defendant to the Court of Appeal, Fourth Circuit, the judgment respecting liability was affirmed, but the amount thereof was reduced from $59,200 ¹ to $27,270, the court holding that a $20,000 award to plaintiff for his injuries and his pain and suffering was adequate and, further, that $7,000 for his claim for future loss of earnings due to his disability was proper. In addition, the court resolved that, although plaintiff was claiming $1,007 for medical and hospital expenses, he had only submitted proof of such expenses totalling $270, and this amount was accordingly allowed. See Viator v. Gilbert, La.App., 206 So.2d 106.

Plaintiff applied to this Court for a writ of review from the judgment of the Court of Appeal. The writ was granted but limited to a review of awards given plaintiff for future earnings and for his special damages. See 251 La. 1056, 208 So.2d 326.

The main question presented for decision under the restricted grant is whether or not the allowance of $7,000 to plaintiff for loss of future earnings is inadequate. This question, of necessity, involves inquiry into the extent of plaintiff's injuries resulting from the automobile accident and whether such injuries have incapacitated him permanently from doing work of a reasonable character, that is, work for which he was fitted by training and experience of the same or similar kind in which he was engaged at the time of the accident. His present disability is shown to stem from a congenital condition of his lower back due to the presence of an extra vertebra in the lumbosacral area, and the medical testimony (Drs. Meuleman, Bush, Boustany and Salatich) is that at the present time he has a 25 to 30 percent disability of the back which is of such a nature as to incapacitate him from the substantial performance of manual labor.

Thus it appears that plaintiff is entitled to recover for whatever loss of future earnings he will sustain as a result of the accident. In attempting to arrive at the correct measure of damages for this item, it is essential that we direct attention to plaintiff's physical condition prior to the accident, his work record, the amount of his earnings and the probability or improbability that he would have been able to earn similar amounts for a number of years but for the disability brought about or aggravated by the 1965 accident. Then, too, consideration must be given to the settled jurisprudence of this Court that allowance of monetary damages for loss of future earnings (or support of dependents in case of death) cannot be calculated with mathematical exactitude; that they are speculative in character and the '* * * most that the courts can do * * * is to exercise a sound judicial discretion and award such amount as, all the circumstances considered, may seem just to both litigants and not unduly oppressive to either.' Dobyns v. Yazoo & M.V.R. Co., 119 La. 72, 43 So. 934. See also Brown v. S. A. Bourg & Sons, Inc., 239 La. 473, 118 So.2d 891; McFarland v. Illinois Central Railroad Company, 241 La. 15, 127 So.2d 183, 87 A.L.R.2d 246; and Pennington v. Justiss-Mears Oil Company, 242 La. 1, 2, 134 So.2d 53.

The Court of Appeal, in arriving at the sum of $7,000 for loss of future earnings, unquestionably applied the above-cited jurisprudence, holding in effect that since plaintiff's prior work record was of a sporadic nature such an award would be adequate. A review of the evidence has convinced us that the appellate court did not err in its award for this item of damages.

Plaintiff was 34 years old at the time of the accident and had theretofore been wholly engaged in manual labor. Over a period of four months before the accident he had worked intermittently as a dumptruck driver. An investigation of plaintiff's work history shows that, after he was discharged from military service in September, 1953, he took a carpentry course in a trade school which he failed to complete. From that time to the latter part of 1959, plaintiff gave a general and rather vague description of his employment. According to his testimony, he was employed at various times as a workman in the oil fields. On one occasion, he worked for a meat packing company and was also employed by his father in some sort of work which he failed to describe in nature or duration. Actually, there is no evidence in the record of plaintiff's earnings between the years of 1953 and the latter part of 1959, at which time he was employed by Lane Wells Company and began to experience problems in his lower back. He was then referred to Dr. William Louis Meuleman, an orthopedic surgeon of Lafayette, Louisiana, whose testimony shows that he knows more about the condition of plaintiff's back than any other physician testifying in the case. Dr. Meuleman explained in detail that the presence of the extra or sixth lumbar vertebra caused plaintiff's vertebral column to slope or angulate with the result that his lower back is naturally and chronically unstable. In December, 1959 Dr. Meuleman prescribed a back brace for plaintiff to wear, and he saw him on a number of occasions during the next two years. He said that, while this brace afforded plaintiff some degree of help, a month or two later when plaintiff attempted to gradually discontinue its use and resume some of his activities, the low-back symptoms returned and required absolute bed rest for relief. During this period, Dr. Meuleman advised plaintiff that a spinal fusion should be performed in an effort to overcome the congenital defect and stabilize his low back. Plaintiff did not consent to the operation at that time.

There is no evidence produced by plaintiff that he was employed or realized any earnings between late 1959 when his low-back difficulties arose and October, 1961, a period of almost two years. Indeed, the record shows that, during the major part of this period, plaintiff was receiving weekly compensation benefits for temporary total disability from the compensation insurer of Lane Wells Company and that, on July 21, 1961, having already received $2,850, he entered into a workmen's compensation lump-sum settlement of his claim for total and permanent disability respecting his back condition and received an additional payment of $4,000 therefor.

Some two months later, plaintiff went to work for United Gas Pipeline Company as an operator of a buffer machine. But, after only a few days on the job, he experienced a recurrence of the acute low-back symptoms which caused his legs to collapse under him. He returned to Dr Meuleman in December of 1961, and it was again recommended by the orthopedist that plaintiff undergo a spinal fusion but pla...