Bynog v. Allstate Insurance Co.

286 So. 2d 151
CourtLouisiana Court of Appeal
DecidedNovember 30, 1973
DocketNo. 4389
StatusPublished

This text of 286 So. 2d 151 (Bynog v. Allstate Insurance Co.) 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
Bynog v. Allstate Insurance Co., 286 So. 2d 151 (La. Ct. App. 1973).

Opinion

FRUGÉ, Judge.

This action arises out of a suit instituted by John I. Bynog and his wife, Betty By-nog, for damages allegedly sustained by Betty Bynog when the automobile which she was driving was struck from the rear by a vehicle operated by Frank F. Middleton and insured by Allstate Insurance Company. After a trial on the merits, the lower court awarded plaintiff a total of $5,240.00 with legal interest from date of judicial demand plus court costs. This award was comprised of $4,500.00 in general damages, as well as $740.00 in special damages. Defendant has appealed solely as to quantum in regard to the $4,500.00 general damages award, but has not appealed the finding of actionable negligence on the part of Frank F. Middleton nor the special damages award of $740.00. We affirm.

The facts as established by the record are essentially as follows. On June 6, 1972, Mrs. Bynog was operating her 1965 Oldsmobile automobile on Church Street in the City of Natchitoches. It is sufficient for the purposes of this appeal to state that she had brought her vehicle to a halt in obedience to a semaphore-type traffic signal at the intersection of Church Street and Second Street which was indicating red [152]*152to traffic proceeding in the direction which she was traveling. While she was stopped, Frank Middleton drove up from the rear and in attempting to move into the left turn lane of Church Street struck the left rear of Mrs. Bynog’s car with the right front of his own car. Mr. Middleton originally approached the intersection in the same lane of traffic that the Bynog automobile occupied, but after deciding that he wished to turn left, first backed up, then proceeded in a forward direction and the accident transpired. Slight dents resulted in the rear steel bumper of the plaintiff’s vehicle, as well as in the front bumper of the defendant’s vehicle.

The defendant’s negligence not being contested on appeal, our attention is directed to the asserted abuse of discretion of the trial court in its general damages award. Defendant, by way of a concise and well-written brief, has asserted grounds upon which he has hoped to demonstrate the abuse of discretion of the trial court. Defendant has .relied upon certain testimony to illustrate the minor nature of the actual collision and the improbability of resultant injuries, which would justify the general damages awarded by the lower court and which are deemed excessive by defendant.

Defendant also relies upon statements made by Dr. Robert R. Sills, the treating physician, to the effect that he never found any muscle spasms in Mrs. Bynog’s neck or back and found no outward sign of any injury in the nature of a bruise or contusion. The doctor further admitted that his findings were based upon her complaints and responses elicited upon the manipulation of her body. Reliance is also placed upon a report by Dr. T. A. Norris, an orthopedist who examined Mrs. Bynog, which revealed that his findings were likewise predicated upon subjective complaints of the plaintiff’s. Dr. Norris also was unable to explain on an anatomical physiological basis medical reasons which would substantiate or explain certain of these complaints.

In regard to the numerous post-accident visits which were made to Dr. Sills by the plaintiff, defendant has pointed out that a number of these visits were not related to injuries allegedly sustained in the accident of June 6, 1972. Vigorous argument is also made that the need for plaintiff to wear a cervical collar and back brace for more than three months was totally unsubstantiated by medical evidence.

Lastly, the defendant has objected to the trial court’s exclusion of the notes made by Dr. Charles Cook in regard to treatments afforded plaintiff in 1970 and 1971. It is asserted by defendant that these notes reveal the plaintiff to be a chronic complainer whose complaints are neurotically inspired. The lower court correctly saw fit to exclude this testimony as irrelevant and we are in complete agreement, as Dr. Cook has never treated the plaintiff’s wife in connection with this accident.

Having found the lower court’s analysis of the factual circumstances to be complete and well supported by the record, we have excerpted several paragraphs from the written reasons for judgment and adopted them as our own findings. In regard to the injuries sustained and the medical treatment afforded, the trial court stated the following:

“This Court has held on the date of trial, February 20, 1973, that Middleton’s negligence was the proximate cause of the accident and resultant physical injuries to Betty Bynog.
“Mrs. Bynog advised the investigating officer that she felt pain in her neck. Both drivers then left the scene. Within a few minutes after Mrs. Bynog arrived home, she felt her injury was serious enough to call her husband, John, from [153]*153his work. She was then taken to see Dr. Robert Sills, the family physician. Dr. Sills testified that Betty stated her car had been struck from the rear; that her head hit the windshield and her chest hit the steering wheel.
“Dr. Sills diagnosed Mrs. Bynog’s injuries as mild to low moderate back and neck sprain; bruised and soreness of the chest and that Mrs. Bynog suffered from a moderate overlay of anxiety. Dr. Sills found her injuries and condition compatible with a rear-end collision.
“On June 9, 1972, Dr. Sills admitted Mrs. Bynog to the Natchitoches Parish Hospital. She remained there through June 15, or 6 days. Her treatment consisted of pelvic traction, hot pads and conservative medication. On her release, Dr. Sills prescribed a Thomas Type Cervical Collar for Mrs. Bynog to wear. Mrs. Bynog continued to complain and on June 19, 1972, an appointment was made by Dr. Sills for Mrs. Bynog to see Dr. T. A. Norris, an orthopedic surgeon, in Shreveport. Dr. Norris’ report was made on June 22, 1972, and he found ‘she has muscular and ligamentous strain of the posterior cervical region and posterior shoulder girdle region, as well as muscle and ligament strain to a moderate degree on the lower back.’ Dr. Norris saw no evidence of any degree of permanent disability.
“The doctors who observed and have treated Mrs. Bynog find her to be of a highly sensitive nature with a low tolerance of pain. Such being her state, the defendants have to accept it.”

From our review of the record, we have made the following findings of fact which we feel to be supported by a preponderance of the evidence, though not by evidence of a completely overwhelming nature. Subsequent to this accident and prior to hospitalization, Mrs. Bynog was given a medcosom-ulator treatment, muscle relaxants, pain-relieving medication, and Empirin. During her hospitalization of six days, she was rendered treatment in the form of pelvic traction, medco treatments, whirlpool baths, pain medication, and injections of Sparene and Demerol. Upon discharge from the hospital, she was fitted with a Thomas-type cervical collar, as well as a Williams-type back brace. Subsequent to discharge, Mrs. Bynog was prescribed medication in the form of Phenofin, which is similar to Empirin, and Valium, a central nervous system relaxant and muscle relaxant. Treatment was also afforded the plaintiff as late as September 13, 1972, by Dr. Sill in regard to accident-related injuries.

In regard to the need for- wearing the prescribed brace, Dr. Sill testified that the wearing time required was subject to the specific conditions of each patient.

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286 So. 2d 151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bynog-v-allstate-insurance-co-lactapp-1973.