Ehrhardt v. Cummins

369 So. 2d 213
CourtLouisiana Court of Appeal
DecidedApril 23, 1979
Docket6868
StatusPublished
Cited by7 cases

This text of 369 So. 2d 213 (Ehrhardt v. Cummins) 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
Ehrhardt v. Cummins, 369 So. 2d 213 (La. Ct. App. 1979).

Opinion

369 So.2d 213 (1979)

Dennis EHRHARDT, Individually and for and on Behalf of his minor daughters, Deanna and Cindy Ehrhardt, and Shirley Ehrhardt, Plaintiffs-Appellees,
v.
Robert L. CUMMINS, Sr., Individually and as Administrator of the Estate of his minor son, Shawn T. Cummins, and Government Employees Insurance Company (GEICO), Defendants-Appellants.

No. 6868.

Court of Appeal of Louisiana, Third Circuit.

March 7, 1979.
Writ Refused April 23, 1979.

*214 Voorhies & Labbe, William M. Bass, Lafayette, for defendants-appellants.

J. Minos Simon, Lafayette, for plaintiffs-appellees.

Before DOMENGEAUX, GUIDRY and CUTRER, JJ.

GUIDRY, Judge.

Plaintiffs were involved in a vehicular accident on August 15, 1976 in the city of Lafayette. Mr. Dennis Ehrhardt and his wife, Shirley, and their two minor daughters, Cindy and Deanna, were riding in their family car when it was struck from the rear by an automobile owned by Robert Cummins and operated by his minor son, Shawn Cummins. At the time of the accident, defendant's vehicle was insured by Government Employees Insurance Company (GEICO). Suit was instituted by plaintiffs against Robert Cummins individually and *215 as administrator of the estate of his minor son and GEICO to recover damages allegedly suffered by plaintiffs as a result of the accident. Defendants stipulated liability and trial was held solely for the purpose of fixing the amount of plaintiffs' damages. After hearing lay and medical testimony, the trial court awarded Mrs. Ehrhardt the sum of $15,500.00 for past and future pain and suffering resulting from "cervical strain of a mild or moderate nature" and an "aggravation to the low back problem which she had prior to the accident". The trial court also awarded Dennis Ehrhardt, on behalf of his minor daughter, Deanna, the sum of $750.00 for several "postconcussion headaches" which it found she had suffered as a result of the accident. In addition the court awarded Dennis Ehrhardt special damages in the amount of $2711.04. From this judgment defendants have appealed. The assignments of error urged by appellants are as follows:

I. THE AWARD OF $750.00 TO DENNIS EHRHARDT ON BEHALF OF DEANNA EHRHARDT WAS EXCESSIVE.

II. THE AWARD OF $15,500.00 TO MRS. SHIRLEY EHRHARDT WAS EXCESSIVE.

III. THE SPECIAL DAMAGES AWARDED FOR "MAID SERVICES" EXCEEDED THE AMOUNT PRAYED FOR BY PLAINTIFFS, AND SHOULD THEREFORE BE REDUCED.

Although LSA-Const. Article 5 Sec. 10(B) imposes upon the appellate courts the duty of reviewing damage awards, the character of our review function in this area is limited by LSA-C.C. Article 1934(3)[1], which gives the trial court great discretion in fixing such awards. In the often quoted case of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) the Supreme Court stated:

"We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351, supra; Bitoun v. Landry, 302 So.2d 278, supra; Fox v. State Farm Mutual Automobile Ins. Co., 288 So.2d 42, supra; Walker v. Champion, 288 So.2d 44, supra. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Bitoun v. Landry, supra; Spillers v. Montgomery Ward & Company, Inc., 294 So.2d 803, supra. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence."
at pg. 335.

It is with consideration of the above principles applicable to appellate review of quantum awards that we have reviewed the record to determine if the trial court's much discretion was abused in the instant case.

I. WAS THE AWARD TO DENNIS EHRHARDT ON BEHALF OF DEANNA EHRHARDT EXCESSIVE?

The accident in question took place at approximately 11:45 a. m. on a Sunday. The record reveals that immediately after the accident, Cindy and Deanna, who were seated in the back seat of plaintiff's vehicle, were taken directly home and were not examined by a physician. That same afternoon Deanna went swimming. On August 28th, some twelve days after the accident, Deanna was taken to the emergency room of Lafayette General Hospital complaining of having occasional headaches. Dr. James Rivet, a neurosurgeon, examined Deanna on that date in the emergency room. Dr. Rivet *216 testified at trial that he took x-rays of Deanna which he found to be normal. He stated that he also did a detailed neurological examination on her, which he found to be completely normal. He testified that Deanna's headaches ". . . were probably secondary to a very mild concussion— cerebral concussion", which he termed incident to a "light blow to the head". Deanna again saw Dr. Rivet on September 16, 1976, at which time she told him that she had only had one minor headache since her previous examination on August 28th. Dr. Rivet nevertheless performed an electroencephalogram on her, the results of which were normal. He saw her again on June 27, 1977, at which time she complained of headaches when she was out in the heat and after participating in gymnastics. Dr. Rivet testified that he found it to be normal for a ten year old child to experience headaches after stressful activities, and that he was unable to associate this recurrence of headaches with the accident. On October 24, 1977, Deanna made her last visit to Dr. Rivet, at which time he was informed that she no longer suffered from headaches. It appears from the record that Deanna saw Dr. Rivet four times relative to complaints following the accident.

At trial, Deanna testified that along with headaches, she suffered from dizziness which made her unable to stand or walk. Her mother testified that Deanna's dizziness and headaches caused her to keep Deanna out of gymnastics for a year. Dr. Rivet testified that his records on Deanna included no complaint of dizziness although he did state that dizziness was often associated with postconcussion headaches. The record does not reflect that Mrs. Ehrhardt's decision to keep Deanna out of school gymnastics was made pursuant to doctors' instructions.

The record reflects that Deanna saw no doctor other than Dr. Rivet concerning her complaints following the accident. In sum, Dr. Rivet's testimony reflects that from the date of the accident until August 28th, Deanna suffered from an occasional headache, and that thereafter she only suffered one headache which he could reasonably associate with the accident. After his initial examination, he told Deanna to take it easy, but he apparently put no restrictions on her activities. Considering both the lay and medical testimony and applying the principles set forth in Coco, supra, we are unable to categorically conclude that the award exceeds the highest amount which was reasonably within the discretion of the trial court to award. We therefore will not disturb this award.

II. WAS SHIRLEY EHRHARDT'S AWARD EXCESSIVE?

The record reflects that prior to the accident, Mrs. Ehrhardt suffered with a degenerative back condition.

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