Bernard v. Castille

197 So. 2d 731, 1967 La. App. LEXIS 5556
CourtLouisiana Court of Appeal
DecidedMarch 21, 1967
DocketNo. 1960
StatusPublished
Cited by2 cases

This text of 197 So. 2d 731 (Bernard v. Castille) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bernard v. Castille, 197 So. 2d 731, 1967 La. App. LEXIS 5556 (La. Ct. App. 1967).

Opinions

HOOD, Judge.

Mr. and Mrs. Willy J. Bernard, Jr., instituted this action for damages for personal injuries which were sustained by Mrs. Bernard as the result of a motor vehicle collision. The suit was instituted against Magdaline Castille and her liability [732]*732insurer, United States Fidelity and Guaranty Company. After trial on the merits, judgment was rendered by the trial court in favor of plaintiffs, awarding Mrs. Bernard $30,000.00 for her injuries, and awarding Mr. Bernard $5,620.30 as special damages. Defendants have appealed.

The sole issue presented on this appeal is whether the award made to Mrs. Bernard by the trial judge is excessive. Defendants contend that it should be reduced, while plaintiffs contend that it should not be disturbed.

The accident which precipitated this suit occurred on August 16, 1964. Mrs. Bernard was driving through an intersection of city streets in New Iberia on that date, and while in the crossing the right side of her car was struck by an automobile being driven by defendant Magdaline Castille. The defendants admitted liability in the trial court and the case was tried solely on the issue of quantum.

The evidence shows that as a result of this collision Mrs. Bernard sustained injuries consisting of a laceration of her chin, contusions of her chest wall and back, a large bruise or hematoma on her left leg just below the knee, and injuries to her right foot. The injuries to her right foot consisted of fractures of the first and second metatarsal bones and a fracture of the cuboid. She was examined by Dr. L. O. Broussard on the date of the accident and has been treated by him periodically since that time. She also has been under the treatment of Dr. Guy J. Dunning since April 7, 1965. Dr. Oscar M. Alvarez, an internist, treated her for pulmonary embolism for about two months, beginning on August 27, 1964. And Dr. Jack Wick-strom, a professor of orthopedic surgery at Tulane, examined her twice.

The evidence shows that within one month after the accident plaintiff had recovered fully from all of her injuries, except the injury to her right foot. She contends that the injury to that foot is painful and disabling, and that it is permanent. She was hospitalized initially for about four weeks, from the date of the accident until September 14, 1964. She was hospitalized again for a few days beginning on April 21, 1965, when surgery was performed on her foot. And, she was hospitalized a third time for about a week beginning on June 14, 1966, when surgery was again performed on her foot.

This case was tried originally on April 5, 1966, and judgment was rendered by the trial court on June 23, 1966. After judgment, all parties applied for a new trial on the ground that Mrs. Bernard had undergone surgery to her foot after the trial had been concluded. The trial judge granted a new trial, limited to the taking of the deposition of Dr. Guy J. Dunning, the orthopedist who had performed this additional surgery. The deposition of Dr, Dunning was taken on August 29, 1966, and was filed in the record. The trial judge however, refused to set aside or modify the original judgment.

Mrs. Bernard was 53 years of age at the time the accident occurred. She is married, she is the mother of six grown children and she has 21 grandchildren. Prior to the date of the accident she was active in her community, and she had had no prior difficulty with her right foot. She testified that she suffered pain in her foot, back and abdomen for several weeks after the accident, and that she was frightened and suffered “terrific pain” when she developed an embolism about nine or ten days after the accident occurred. She testified that since the accident she has never been comfortable in a pair of shoes, and that she recently developed pain in her groin and in the big toe of her right foot. She stated that frequently her foot swells after she has walked or stood on it for extended periods of time, that she has had to curtail her activities because she gets tired more easily than she did before the accident, and that she now does about one-third of what she did before she injured her foot

[733]*733Dr. Broussard, a surgeon, testified that Mrs. Bernard was in severe pain immediately after the accident, and that he administered narcotics to relieve her pain for a little more than three weeks. He performed surgery on August 21 to reduce the fractures in her foot, which included the inserting of a metal pin in one of the hones, and her foot was then placed in a cast. On August 25, she developed a pulmonary embolus to her right lung, which he stated is “quite painful.” Anticoagulants were administered by Dr. Alvarez for this embolism and she completely recovered from it within five days, although the doctor continued to give her anticoagulants until she was discharged from the hospital. She was started on ambulation a week before she left the hospital. The cast was removed on November 4, 1964, and by November 30, 1964, or about three and one-half months after the accident, she was walking without a cane or a crutch.

On December 16, Dr. Broussard noticed a bony prominence on the inner aspect of her foot, but he stated that “she was still able to walk without much pain,” and that “we were quite satisfied with how she was doing.” This prominence gradually increased and became more painful until April 9, 1965, when Dr. Broussard referred her to Dr. Guy J. Dunning, an orthopedic surgeon. Dr. Dunning performed surgery on her foot in which he “shaved off this excess bone.” Dr. Broussard stated, however, that after that operation, she continued to limp and she still had a prominence of the bone. The doctor felt that at the time of the trial this bony prominence in her foot was at least as large as it was before surgery was performed in April, 1965.

Dr. Broussard further testified that at the time of the trial, in April, 1966, the fractures of the bones of the foot had healed “with very good position of fracture,” and that “there was complete union and good position of fractured metatarsal bones and tarsal bones.” He stated, however, that Mrs. Bernard’s foot turns downward, causing her to have pain in her hip and swelling in her foot. He stated that she will have to wear an orthopedic type shoe, that further surgery may be necessary, and that she has a 30 to 45 percent disability in her foot.

Dr. Dunning, the orthopedic surgeon who has treated her since April 7, 1965, testified at the original trial, and as we have already pointed out, his testimony was also taken later by deposition. At the original trial he stated that on April 21, 1965, he resected the medical aspect of the first cuneiform bone and a portion of the navicular of Mrs. Bernard’s right foot to remove the bony prominence on her foot and thus to relieve her from the discomfort which she suffered when wearing a shoe. He thought she did well following surgery, and that there was some improvement, although it did not correct the turning in or pronation of her foot. An examination made on March 31, 1966, shortly before the original trial, however, showed that the area of the foot at the site of the operation was a little larger, and he explained that this may have been caused by swelling or from an increase in the size of the bone. He felt that she would continue to have trouble with her foot, that her foot tends to pronate inward, and that it might be necessary to fuse these arthritic joints at a later date. In his opinion she had a 15 percent disability of her right foot at the time of that examination.

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Related

Poston v. Firemen's Insurance Co. of Newark, NJ
256 So. 2d 700 (Louisiana Court of Appeal, 1972)
Bernard v. Castille
199 So. 2d 914 (Supreme Court of Louisiana, 1967)

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Bluebook (online)
197 So. 2d 731, 1967 La. App. LEXIS 5556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bernard-v-castille-lactapp-1967.