Guillory v. Agee

465 So. 2d 222, 1985 La. App. LEXIS 8411
CourtLouisiana Court of Appeal
DecidedMarch 6, 1985
DocketNo. 84-117
StatusPublished
Cited by1 cases

This text of 465 So. 2d 222 (Guillory v. Agee) 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
Guillory v. Agee, 465 So. 2d 222, 1985 La. App. LEXIS 8411 (La. Ct. App. 1985).

Opinion

KING, Judge.

The sole issue presented by this appeal is the correctness of the trial court’s award of damages.

Plaintiff, August Guillory, (hereinafter Guillory) brought suit to recover damages, for medical expenses and personal injuries arising out of a motor vehicle collision, against defendants, J. Agee, R & J Trucking Co., Casualty Reciprocal Exchange, and Charles Edmund Fry (hereinafter defendants). By a separate suit August Guillory (hereinafter Guillory) brought suit for workmen’s compensation benefits, arising out of the same accident, against his employer, Michael Touchet, d/b/a Touchet Trucking Co., (hereinafter Touchet) and Touchet’s workmen’s compensation insurer, Insurance Company of North America (hereinafter I.N.A.). These suits were both consolidated for trial. After a trial on the merits judgment was rendered in favor of Guillory, for his damages for his medical expenses and personal injuries, and against the defendants, J. Agee, R & J Trucking Co., Casualty Reciprocal Exchange, and Charles Edmund Fry, in the sum of $4,798.68, for medical expenses, and in the sum of $5,000.00, for general damages, together with legal interest from date of judicial demand, until paid, and all costs of the proceedings. Judgment was also rendered in the consolidated workmen’s compensation suit in favor of Touchet and I.N.A. and against Guillory denying his claim for workmen’s compensation benefits. Guillory appeals from the judgment for damages rendered in the personal injury suit in his favor and against the defendants. We affirm.

[223]*223Since neither Guillory nor Touchet and I.N.A. have appealed the judgment of the district court in the consolidated workmen’s compensation suit it is now final insofar as it denies plaintiffs claims for workmen’s compensation benefits arising out of the same accident.

FACTS

The plaintiff, Guillory, was traveling southbound on U.S. Highway 167 between Opelousas and Lafayette on May 27, 1982, at about 1:45 P.M. He was driving a dump truck, owned by Touchet, and was accompanied by his girlfriend, Linda Castille. At that time an eighteen-wheel truck owned by defendants, J. Agee and R. & J Trucking Co., and driven by defendant, Charles E. Fry, struck the dump truck from the rear. The force of the impact did not damage the rear bumper of the dump truck but damaged the cast iron bell housing of the transmission of the dump truck. The eighteen-wheel truck, which left some 47 feet of skid marks, was damaged on the front part of the cab. The investigating officer, Trooper Darby D. Veronne, stated that after the accident Guillory reported to him that he was not injured. Guillory stated that he told Trooper Veronne that he felt a burning in his back but that “there wasn’t anything to it.” Linda Castille, who was riding in the dump truck, stated that she bumped her head upon impact but was not injured.

Guillory stated that he had performed manual labor all his working life and had never experienced back pain prior to this accident. This testimony was controverted by that of Linda Castille who stated that Guillory had previously injured his back in 1981 and that she ministered to his frequent complaints of pain by massaging his back.

Guillory testified that on the night of the accident he was unable to sleep because of a burning pain in his lower back. He further stated that, since the accident, he has suffered continual pain in his lower back, muscle spasms in his lower back and legs, and pain and numbness in both legs. He also testified that he cannot sit more than one hour without discomfort, cannot walk more than IV2 blocks without resting, and cannot perform heavy work.

Dr. Emile K. Ventre was the primary treating physician of plaintiff. He first examined Guillory on May 28, 1982 at which time the plaintiff reported a severe burning pain in his lower back, extending down to his left knee, as well as stiffness in his lower back. Dr. Ventre’s tests revealed tenderness upon manipulation of the lower lumbar area. He found Guillory’s neck was swollen and painful with a 70% loss of normal range of motion. X-rays revealed a two to three degree spondylolis-thesis (severe slipped disc in the lower lumbar area). Dr. Ventre concluded that the accident may have caused the disc to slip or the slipped disc may have been pre-existing and have been made symptomatic by the accident. Dr. Ventre prescribed rest, pain pills and muscle relaxants for Guillory.

On June 11, 1983, Dr. Ventre again examined Guillory and, having found no improvement, caused him to be hospitalized. A subsequent CAT scan revealed that Guil-lory had suffered a ruptured disc and that his condition was degenerating. The disc had slipped further and Guillory’s symptoms had not improved. Based upon his objective findings, Dr. Ventre concluded that Guillory was not exaggerating his complaints and that he was unfit for any manual labor. Dr. Ventre noted that this severe condition could not have occurred prior to the accident since the severe pain of a ruptured disc would have forced Guil-lory to abandon any form of manual labor and seek medical care.

Guillory was initially examined by Dr. Mayer, an orthopedic specialist, on June 14, 1982, at the request of Dr. Ventre. He found only a 20% restriction of normal movement in the lower lumbar spine area. He found that a lumbar muscle strain and contusion of the nerve root had aggravated a pre-existing spondylolisthesis (slipped disc), resulting in tenderness in the lower lumbar spine area and in the right gluteal area. His x-rays revealed a second degree [224]*224spondylolisthesis (moderately severe slipped disc). Dr. Mayer’s examinations on August 31, 1982 and November 8, 1982 revealed little change in Guillory’s condition. He concluded that Guillory must permanently abstain from any manual labor since any further injury would further aggravate the pre-existing spondylolisthesis.

The primary difference in the testimony of Dr. Mayer and Dr. Ventre is that Dr. Mayer stated that the aggravation of Guil-lory’s pre-existing spondylolisthesis could have occurred prior to the accident at issue. He stated that his conclusion that the aggravation of the spondylolisthesis was caused by the accident at issue was based upon Guillory’s statement that he felt no pain prior to this accident. However, he emphasized that he believed that Guillory had been truthful. Dr. Mayer further stated that in this type of back injury the victim may not experience immediate pain and that the onset of pain may be delayed up to 24 hours.

At the time of trial Guillory was incarcerated in the Louisiana State Penitentiary at Angola, after having pled guilty and being sentenced for the manslaughter of his wife.

The issue presented on appeal is whether the trial court erred in ruling that the accident caused a minimal aggravation of Guillory’s pre-existing congenital lower back deformity, and thus in awarding damages totaling $9,798.68 to Guillory.

Plaintiff, Guillory, argues that this award is insufficient.

Defendants argue that the ruling of the trial court was not clearly wrong, since the treating physician’s conclusion that the aggravation of the pre-existing condition was caused by the accident was based, at least in part, upon Guillory’s self-serving assertion to the effect that he had no back pain prior to the accident. Defendants urge that this assertion was contradicted by other evidence and on the basis of Guillory’s lack of credibility, which was assailed at the trial.

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Related

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516 So. 2d 1246 (Louisiana Court of Appeal, 1987)

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Bluebook (online)
465 So. 2d 222, 1985 La. App. LEXIS 8411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guillory-v-agee-lactapp-1985.