Welch v. Ratts

• Decision Date: 28 April 1970
• Docket Number: No. 11429,11429
• Citation: 235 So.2d 422
• Parties: Henry D. WELCH, Plaintiff-Appellant, v. Dr. Floyd S. RATTS et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 422

235 So.2d 422

Henry D. WELCH, Plaintiff-Appellant, v. Dr. Floyd S. RATTS et al., Defendants-Appellees.

No. 11429.

Court of Appeal of Louisiana, Second Circuit.

April 28, 1970.

Gordon Wellborn and Rex Houston, by Rex Houston, Henderson, Tex. Johnston, Johnston & Thornton, by J. Bennett Johnston, Jr., Shreveport, for appellant.

Mayer & Smith, by Charles L. Mayer, Shreveport, for appellees.

Before BOLIN, PRICE and WILLIAMS, JJ.

PRICE, Judge.

From a judgment awarding him $16,530.89 in a tort action, plaintiff has devolutively appealed to this court seeking an increase in the amount of the judgment. In answer to the appeal defendants do not question the court's finding of liability but contend the amount awarded is excessive.

On July 26, 1967, at approximately 11:30 A.M., Henry D. Welch, a resident of Henderson, Texas, was riding in the right front seat of his automobile being driven by Wayne Tippett on Interstate Highway 20 in Bossier City, Louisiana. Welch and Tippitt were proceeding easterly, intending to enter the exit for U.S. Highway 80. The Welch automobile was struck on the left side by another vehicle driven by Dr. Floyd S. Ratts of Ft. Worth, Texas, who was changing lanes in an attempt to enter the same exit.

Welch seeks damages for personal injuries, loss of past and future wages, medical expenses and costs of automobile repairs. He asserts that as a result of the accident he sustained a herniated intervertebral disc, and, as a result of worry and anxiety connected with disability caused by the ruptured disc, he developed a peptic ulcer, causing further disability. Welch contends he has become totally and permanently disabled because of these injuries and may be required to undergo corrective surgery for the disc injury. Plaintiff prayed for $50,000.00 for pain and disability; $50,000.00 for loss of wages, and $4,000.00 for medical expenses.

The evidence adduced on trial of the case shows that plaintiff made no complaint of injury at the scene of the accident. His testimony that he began hurting in the cervical and back area during the afternoon of the same day was corroborated by his driver, Tippitt. After returning to Henderson in the late afternoon on the date of the accident, plaintiff sought medical attention from his family physician, Dr. C. L. McShan of Henderson. Plaintiff was immediately hospitalized for observation and treatment. On the basis of X-rays Dr. McShan diagnosed plaintiff's difficulty as a sprain of the muscles and ligaments of the cervical and low back area. Pelvic traction was applied and pain relieving and muscle relaxing drugs were prescribed. On July 31, plaintiff was discharged for convalescence at home. Because of continued complaints of pain on out-patient visits, on October 19th Dr. McShan referred plaintiff to an orthopedic surgeon, Dr. Milton Frieberg of Tyler, Texas. This physician found plaintiff to have a low grade herniated disc at the fifth lumbosacral vertebrae on the left. A corset was prescribed, along with remedial exercises. As no progress was made by this treatment, on November 16th Dr. Frieberg advised that corrective surgery would be necessary and suggested a myelogram to confirm the locality of the affected disc prior to surgery. Plaintiff did not desire surgery at that time and conservative treatment was continued by Dr. Frieberg through the year 1968. In June, 1968, plaintiff was hospitalized for a flare-up of pain and traction was applied for a period of approximately four days.

Plaintiff was also examined by Dr. A. E. Deen, an orthopedist of Shreveport, who confirmed Dr. Frieberg's opinion. In November, 1967, plaintiff consulted Dr. Kerfoot P. Walker, an internist of Tyler, Texas, for digestive and abdominal disorders. Dr. Walker testified plaintiff had a peptic ulcer and hospitalization was necessary for a period of five days.

At the time of the accident plaintiff was employed as a security guard for a manufacturing concern in Henderson, Texas. His salary for this work was $300.00 per month. For several years prior to the accident plaintiff carried on multiple business pursuits. He operated a used car lot in Henderson, earning $4,153.00 in 1964; $1,478.53 in 1965, and losing $252.44 in 1966. In 1967 a profit of $673.45 was sustained. Plaintiff owns 200 acres of land near Henderson on which he engaged in a cattle raising venture. From this the evidence reflects a loss of $2,059.74 in 1964; a loss of $349.69 in 1965; a loss of $1,813.04 in 1966, and a profit in 1967 of $583.81. He also worked part-time for a finance company in making appraisals and repossessions. No evidence of earnings from this work was adduced by plaintiff.

Just prior to the date of the accident, plaintiff purchased a truck-tractor with the intention of engaging in transporting cargo for hire in interstate commerce. His mission to Bossier City on the date the accident happened was to buy a trailer from the Lufkin Trailer Sales in Bossier City, to operate with the tractor unit.

On the basis of the foregoing evidence the trial judge, in written reasons for judgment, allowed the plaintiff $10,000.00 for pain, suffering and any disability connected with the herniated disc. The court found that the evidence was sufficient to sustain the burden of proving that the disc injury was a result of the accident, even though the impact of...