Winfree v. Consolidated Underwriters

• Decision Date: 21 April 1964
• Docket Number: No. 1118,1118
• Citation: 163 So.2d 377
• Parties: Charles WINFREE et al. v. CONSOLIDATED UNDERWRITERS.
• Court: Court of Appeal of Louisiana — District of US

Page 377

163 So.2d 377

Charles WINFREE et al. v. CONSOLIDATED UNDERWRITERS.

No. 1118.

Court of Appeal of Louisiana, Third Circuit.

April 21, 1964.

Rehearing Denied May 13, 1964.

Writ Granted June 30, 1964.

Hall, Raggio & Farrar, by R. W. Farrar, Jr., Lake Charles, for defendant-appellant.

Nathan A. Cormie & Assoc., by Richard Cappell, Lake Charles, for plaintiff-appellee.

Before FRUGE , HOOD and CULPEPPER, JJ.

CULPEPPER, Judge.

This is a suit for damages arising out of a rear end collision. A jury in the district court held for the plaintiffs. The defendant appealed. The sole issue is the quantum of damages awarded to each plaintiff.

The accident occurred on April 4, 1962. Charles J. Winfree and his then fiancee, Miss Lynn Tullos, whom he later married, were stopped at a red light in the city of Lake Charles when they were struck from the rear by a vehicle driven by the defendant's insured. The blow caused only $173.75 in damages to Winfree's automobile but it was sufficient to break the rear bumper guards. Both Mr. Winfree and Miss Tullos suffered whiplash injuries.

Mr. Winfree did not seek medical attention until five days after the accident. On April 9, 1962 he consulted Dr. Fritz Lacour, a general practitioner, complaining of soreness in his neck and headaches. Dr. Lacour found no muscle spasm or other objective symptoms but he did diagnose a whiplash injury for which he prescribed conservative treatment consisting of muscle relaxants and medication for pain. This type of treatment was continued for about three weeks until April 28, 1962, on which date it was discovered that Winfree had fever. Dr. Lacour, being concerned about a possible complication from the neck injury, hospitalized Mr. Winfree for observation and treatment. However, while in the hospital it was determined that the fever was caused by a virus infection unrelated to the injury. The virus was treated and cured with antibiotics.

While in the hospital Winfree was examined by Dr. George P. Schneider, a specialist in orthopedics, who found no muscle spasm or other objective symptoms of a whiplash injury except that he interpreted an X-ray to show a slight increase of the cervical curve. From this he diagnosed a moderate whiplash injury with a prognosis of full recovery in five to eight weeks under physiotherapy. Corroborating Dr. Schneider's opinion as to the minimal nature of the injury is the testimony of Dr. Elwyn Cavin, the radiologist who took the X-rays in the hospital. He interpreted the X-rays as showing no abnormality whatever in the cervical spine.

Mr. Winfree received several physiotherapy treatments while in the hospital. He was discharged on May 5, 1962, after a total stay of seven days, and thereafter continued physiotherapy for a period of about two months, after which he returned to work and lost no more time from his employment.

Mr. Winfree remained under the care of Dr. Lacour until July 13, 1962. Winfree and Miss Tullos were married on September 15, 1962. However, in the early part of January, 1963, Winfree again complained of pain and headaches, so Dr. Lacour referred him to Dr. Robert C. L. Robertson, a neurosurgeon in Houston, Texas. Dr. Robertson found no muscle spasm or other objective symptoms except that his X-rays showed a 'minimal' abnormality of the cervical curve which he interpreted as showing a minimal residual of the whiplash injury. Dr. Robertson recommended further physiotherapy which was actually continued until March 3, 1963, a period of eleven months after the date of the accident.

Further evidence of the minimal or moderate nature of the injury is the testimony of Dr. Norman Morin, a specialist in orthopedics of Lake Charles, who examined Mr. Winfree on January 15, 1963 and expressed the opinion that the X-rays taken on that date showed no abnormality in the cervical curve. Dr. Morin, like the other medical experts, found no muscle spasm or other objective symptoms. He concluded Winfree had fully recovered.

Viewed in the light most favorable to Mr. Winfree, we see that he suffered a moderate whiplash injury which never required any more than conservative treatment with muscle relaxants, pain drugs and physiotherapy. The pain was not initially nor subsequently of sufficient severity to require more drastic treatment such as traction or a cervical collar. The seven days hospitalization was not causally related to the injury but was required by a virus infection. The duration of the residuals was eleven months.

The jury awarded Mr. Winfree $8,795.75, of which at least $8,000 must be calculated as being for pain, suffering and disability. It is our opinion that this award is manifestly excessive and that the jury abused its discretion in making such an award which is out of all proportion with previous awards for similar injuries.

We are of course fully aware of the recent case of Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149, in which our Supreme Court enjoined the appellate courts from over emphasizing uniformity of awards. The court cites LSA-C.C. Art. 1934(3) for the proposition that 'much discretion must be left to the judge or jury' in the assessment of damages. However, the court also quotes with approval from White v. Robbins, 153 So.2d 165 (3rd Cir.App.1963) the rule that 'It is true that awards made should not be all out of proportion with previous awards made for somewhat similar injuries.'

We believe that this award of $8,000 to Mr. Winfree for pain, suffering and disability is all out of proportion with previous awards for similar injuries. The defendant cites Cassreino v. Brown, 144 So.2d 608 (4th Cir.App.1962) which categorizes awards for whiplash injuries as follows:

'Without pretending to make a detailed analysis of the innumerable whiplash injury cases, we think that whiplash awards fall into approximately three main groups:

'(1) Awards in excess of $5000 are common for those producing permanent disability or severe pain of prolonged duration. See, e.g.: Self v. Johnson, La.App. 3 Cir., 124 So.2d 324 (9,327.50); Dillon v. Pope, La.App. 1 Cir., 110 So.2d 229 ($5000); Bartholomaus v. H. G. Hill Stores, Inc., La.App. 4 Cir., 97 So.2d 82 ($6000); Baker v. U.S. Fire Ins. Co., La.App. 1 Cir., 89 So.2d 405 ($5,600).

'(2) Awards in the area of $2500--$3500 are common for those producing severe initial pain and with however only a short period of residual discomfort, or for those producing less severe pain but a relatively long period (e.g., a year or two) of residual discomfort or disability. See, e.g.: Ford v. State Farm Mut. Auto. Ins. Co., La.App. 2 Cir., 139 So.2d 798 ($3,000); Hilton v. Bankers Fire and Marine Ins. Co., La.App. 3 Cir., 134 So.2d 82 ($3,000); Landry v. Southern Farm Bureau Cas. Ins. Co., La.App. 3 Cir., 125 So.2d 474 ($3500); Frass v. Marquette Cas. Co., La.App. 4 Cir., 125 So.2d 174 ($2,500); Downs v. Hartford Accident and Ins. Indemnity Co., La.App. 2 Cir., 116 So.2d 712 ($3,000).

'(3) Awards in lower amounts for whiplash injuries producing moderate or slight pain, which are cured without residual in a matter of weeks. Doyle v. McMahon, La.App. 4 Cir., 136 So.2d 89 ($2,000); Townsend v. Mainscalco, La.App. 2 Cir., 128 So.2d 906 ($1,500); Elder v. Travelers Ins. Co. La.App. 1 Cir., 125 So.2d 694 ($750); Degeyter v. Trahan, La.App. 1 Cir., 113 So.2d 808 ($1,150, involving minor or moderate pain and complete recovery within two months).'

Under the above quoted general rule of thumb, and the cases cited therein, it is apparent that Mr. Winfree's injury falls into the second category, i.e., it did not cause severe pain requiring traction, braces or hospitalization and it lasted only about one year. Later cases in this category are: Doyle v. Central Mutual Ins. Co., 139 So.2d 766 (3rd Cir.App.1962) which awarded $2,000; Hilton v. Bankers Fire & Marine Ins. Co., 134 So.2d 82 (3rd Cir.App.19...