Warren v. Fidelity Mut. Ins. Co.

• Decision Date: 23 December 1957
• Docket Number: No. 4536,4536
• Citation: Warren v. Fidelity Mut. Ins. Co., 99 So.2d 382 (La. App. 1957)
• Parties: Hazel Carr WARREN, Plaintiff-Appellant, v. FIDELITY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Louisiana

Page 382

99 So.2d 382

Hazel Carr WARREN, Plaintiff-Appellant, v.FIDELITY MUTUAL INSURANCE COMPANY, Defendant-Appellee.

No. 4536.

Court of Appeal of Louisiana, First Circuit.

Dec. 23, 1957.

Roger Fritchie, Baton Rouge, for appellant.

Huckabay & Wall, Baton Rouge, for appellee.

TATE, Judge.

This is a suit for personal injuries.Plaintiff appeals as inadequate the award to her below of $3,500.Defendant has answered the appeal.

Even though plaintiff's appeal was restricted to the quantum, nevertheless under Articles 592 and 888 of the Code of Practice the answer of the appellee may bring the whole judgment before us for review, as was done in this instance by its re-urging the plea of contributory negligence in its answer to the appeal.Alengi v. Hartford Acc. & Ind. Co., 183 La. 847, 165 So. 8;Milner v. Louisiana Public Utilities, La.App. 1 Cir., 1 So.2d 443.Defendant-appellee alternatively prays by said answer for a reduction in the award on the ground that the accident was not the proximate cause of a thrombophlebitis for which recovery was allowed.

The accident upon which this suit was based occurred on the afternoon of Sunday, May 2, 1954, on a country gravelled road.The Buick in which plaintiff Mrs. Warren and several other ladies had been riding developed brake trouble.Both it and the truck which drew up behind it to help were parked well to the side of the wide (30 ) roadway.Mrs. Warren and the truck driver were standing at the front of the Buick, the latter looking under the hood, when defendant's insured crashed into the rear of the truck bumping it forward so that it struck the Buick and caused this vehicle to lurch about three feet forward, striking Mrs. Warren's left knee with force.

Defendant's insured was driving at a grossly negligent rate of speed and lost control of his car as he passed over a pontoon bridge, causing the accident in question.Defendant's argument that Mrs. Warren, standing in a safe place at the time of the accident, was contributorily negligent in not being entirely off the roadway overlooks that 'a person is not negligent for failing to anticipate that other persons will be negligent,'Law v. Osterland, 198 La. 421, 3 So.2d 680, at page 683.

Mrs. Warren, a widow of approximately 60 years of age employed as a house mother of an LSU dormitory, suffered severe pain in her knee at the time of the accident.She reported the following day to Dr. Ashton Robins, who based upon the contusion of the knee and upon a diagnosis of degenerated arthritis therein activated by the impact in conjunction with Mrs. Warren's age and excess weight, testified that he informed her from the first that 'I felt she would have a prolonged period of pain and discomfort, partial disability.'

Dr. Robins saw plaintiff several times in May and June of 1954.Mrs. Warren then left for a long sea voyage of about 30 days to get off her feet to ease the pain and to recover.

On August 27, 1954, her condition was diagnosed by Dr. Charles McVea as a 'deep vein thrombosis' or a thrombophlebitis caused by a blockage of the vein by the clotting of the blood therein.This caused a continuous aching pain in the leg, because of which he stated she could not walk even a block without a cramping pain in the leg.

To at least partially relieve this condition, a lumbar sympathetomy was performed on Mrs. Warren on December 28, 1954, which involved cutting the sympathetic nerves along her spinal column in the lumbar region in order to cause the arterial vessels to relax and thus to increase the blood supply to her leg, lack of which was a cause of her pain therein.

As a result of the operation, both Dr. McVea and Mrs. Warren felt there had been appreciable improvement in her condition, although she still sustained some pain and discomfort upon prolonged walking or standing.At the time of the trial, Dr. McVea felt that she had reached maximum improvement and that the residual condition was permanent.

The medical evidence is virtually conclusive that the deep vein thrombosis resulted either from the trauma or from the subsequent inactivity when, because of the pain caused through the trauma, Mrs. Warren stayed off her feet on the sea voyage.In either event, defendant is liable for damages sustained by Mrs. Warren through the thrombophlebitis, since it was a proximate consequence of the accident caused through the negligence of defendant's insured, both the trauma and the resulting inactivity being caused by the negligent injuring and the inactivity being a natural consequence of the trauma or naturally and reasonably induced by the earlier tort.Shaffer v. Southern Bell Telephone & Telegraph Co., 84 La. 158, 165 So. 651;Payton v. Great American Indem. Co., La.App. 2 Cir., 83 So.2d 575;...