Johnson v. International Ins. Co.

347 So. 2d 1279
CourtLouisiana Court of Appeal
DecidedJune 13, 1977
Docket11359
StatusPublished
Cited by11 cases

This text of 347 So. 2d 1279 (Johnson v. International Ins. 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
Johnson v. International Ins. Co., 347 So. 2d 1279 (La. Ct. App. 1977).

Opinion

347 So.2d 1279 (1977)

Diane Allen JOHNSON, as natural tutrix of the Estate of her minor son, James V. Johnson, Jr.
v.
INTERNATIONAL INSURANCE COMPANY.

No. 11359.

Court of Appeal of Louisiana, First Circuit.

June 13, 1977.
Rehearing Denied July 11, 1977.

*1280 Paul H. Due, Baton Rouge, of counsel for plaintiff-appellant Diane Allen Johnson, et al.

James E. Moore, Baton Rouge, of counsel for defendant-appellee International Ins. Co., et al.

Before SARTAIN, COVINGTON and LOTTINGER, JJ.

COVINGTON, Judge.

This is a devolutive appeal by Diane Allen Johnson, as natural tutrix of the estate of her minor son, James V. Johnson, Jr., whom the family called "Jamie", seeking an increase in the award of damages made by the trial court and recovery of elements of damage denied by the trial court. The appeal also seeks reversal of the judgment dismissing the claim for the wrongful death of Dominick Johnson.

This action arises out of a motor vehicle accident which occurred on May 16, 1975, when Diane Allen Johnson was driving a car in which her husband, James V. Johnson, and their one year old son, Dominick Johnson, were guest passengers. Mrs. Johnson lost control of the automobile and collided with the rear of a truck parked on the shoulder of the roadway, as a result of which both her husband, James, and also her son, Dominick, were killed. Mrs. Johnson sustained severe personal injuries.

The suit instituted by Diane Allen Johnson was brought solely in her capacity as natural tutrix of the estate of the surviving child, James V. Johnson, Jr., asking for damages for the wrongful death of the child's father, damages for the wrongful death of his brother, and recovery of funeral expenses for both. Named defendant in the suit was International Insurance Company, the liability insurer of the vehicle being operated by Mrs. Johnson.[1] At trial, liability of the defendant was admitted; also, applicable insurance coverage was stipulated at $100,000.00 per person and $300,000.00 per accident. The matter remaining to be determined by the court was the value of the loss sustained by the minor.

The trial judge rendered judgment in favor of plaintiff, in her representative capacity, for and on behalf of James V. Johnson, Jr., awarding general damages to the minor for the wrongful death of his father in the principal sum of $17,500.00, and further awarding him $17,500.00 for loss of support and services flowing from the wrongful death of his father, or a total of $35,000.00. Judgment was also rendered dismissing the claim for the wrongful death of the minor's brother, Dominick Johnson, and denying recovery of funeral expenses. From this judgment, plaintiff-appellant has perfected *1281 this appeal. Defendant has not appealed or answered the appeal.

The plaintiff-appellant first contends that the trial judge erred in awarding an inadequate amount as general damages. We agree. The trial judge manifestly abused his much discretion in making this award.

A review of the record in this case convinces us that the award for general damages should be increased. The trial judge's award for this item of damages does not measure up to the minimum allowable award in accordance with the standard provided by our Supreme Court in the case of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

We, of course, take cognizance of and apply the rule, pursuant to instruction from our Supreme Court, that awards for damages lie within the "much discretion" of the trier of fact and are not to be disturbed on appeal unless there is a "manifest abuse" of the discretion. Coco v. Winston Industries, Inc., supra; Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974).

We are also mindful of the principle that awards in similar cases of this nature do not provide a scale of uniform awards in other cases involving comparable injuries. Such awards serve only as aids in determining whether a particular award is so greatly disproportionate to awards for similar injuries that a manifest abuse of discretion is evident. Temple v. Liberty Mutual Insurance Co., 336 So.2d 299 (La.App. 1 Cir. 1976), writ ref. La., 339 So.2d 23.

In considering the award for general damages, we find that the evidence shows James V. Johnson, Jr., had just made six years of age five days before the death of his father. The testimony demonstrates that Mr. Johnson was a living and attentive father, and the loss sustained by this young son of his father was a grievous one. In view of his work and the ages of his children, this father spent a substantial amount of time with them, taking them out shopping, to parks and the zoo and to watch sailboats race at the city park, taking the entire family to baseball games, playing football and other games with Jamie, having family outings and holiday trips, regularly accompanying them to church and Sunday School at the church were Mr. Johnson served on the board of deacons, and assisting his older son with his school homework. He had actively participated in festivities in celebration of Jamie's sixth birthday just five days before the tragic wreck and his resultant death.

Thus, we have a close-knit and loving family which enjoyed doing things together. The evidence shows that the deceased was a fine man, a good, hard-working husband, and a conscientious and loving father. Of course, the law realizes that such a loss is irreparable and that such a father is irreplaceable to a young son. Thus, it tries to provide merely a measure of recompense by means of a monetary award. It is not easy for a trial judge to determine the amount of such damages, or for the reviewing court to resolve whether the trier of fact has abused his much discretion in fixing damages of that character. We do know that past decisions do not serve as a scale of uniformity. We also are aware that at some point an award must be said to be too low, and we, as an intermediate appellate court, must raise the award to the lowest acceptable discretionary level. Further, we are conscious of the fact that there are general guidelines which a reviewing court must follow. Moreover, we know that each case for decision must ultimately turn on its own unique facts. In this respect, certain human values become important. For example, a devoted parent is worth more than an indifferent parent; the death of a dutiful father during a son's formative years is a greater loss than the death of a father to an adult son. Admittedly, this creates the necessity for a value judgment, but it is primarily the value judgment of the trier of fact which must be exercised. As a reviewing court, we do not substitute our value judgment for that of the trial judge; we merely review his award to determine if it falls within the acceptable range of awards indicated for a particular injury or death.

*1282 In applying the "much discretion" rule within the scope of our reviewing authority to the facts in the instant case, we find that the trial judge has manifestly abused his much discretion in fixing the amount of the award. After checking the awards in other cases of some similarity, used only as an aid in ascertaining whether or not there has been such abuse, thoroughly reviewing the evidence in the record, and studying the helpful briefs of counsel for all parties, and taking into account the particular facts and circumstances in the instant case, we can only conclude that the trial judge's award is inadequate and should be increased to the principal sum of $30,000.00.

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