Kay v. Home Indemnity Company

313 So. 2d 303, 1975 La. App. LEXIS 4154
CourtLouisiana Court of Appeal
DecidedApril 21, 1975
Docket4853
StatusPublished
Cited by5 cases

This text of 313 So. 2d 303 (Kay v. Home Indemnity Company) 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
Kay v. Home Indemnity Company, 313 So. 2d 303, 1975 La. App. LEXIS 4154 (La. Ct. App. 1975).

Opinion

313 So.2d 303 (1975)

Ruth S. KAY et al., Plaintiffs-Appellees,
v.
HOME INDEMNITY COMPANY, Defendant-Appellant.

No. 4853.

Court of Appeal of Louisiana, Third Circuit.

April 21, 1975.
Rehearing Denied June 18, 1975.

*304 Gold, Hall, Hammill & Little, James D. Davis, Alexandria, of counsel, for defendant-appellant.

Gerard F. Thomas, Jr., Natchitoches, for plaintiffs-appellees.

Before FRUGÉ, CULPEPPER and DOMENGEAUX, JJ.

FRUGÉ, Judge.

This case arises out of an automobile accident between Mrs. Ruth S. Kay and Gary Cutright on March 23, 1973. Suit was filed by Mrs. Kay and her husband, Jerry Kay, against Cutright and his insurer, Home Indemnity Company. After trial on the merits the district court rendered judgment in favor of the plaintiffs. Jerry Kay was awarded the sum of $21,476 which included property damage, loss of earnings of Mrs. Kay for two years, and medical expenses incurred on behalf of the community. Mrs. Ruth S. Kay was awarded $35,000 in general damages. The defendants have appealed from this judgment contending that the trial court erred in finding that certain injuries received by Mrs. Kay resulted from the accident. We affirm.

We are concerned solely with the question of damages in this case. The accident *305 occurred on March 23, 1973, on State Highway 117 as Mrs. Kay was returning to her home in Provencal, Louisiana, from her job at Northwestern State University at Natchitoches, Louisiana. The defendant Cutright was also traveling on Highway 117 in the opposite direction from Mrs. Kay. As Cutright was approaching a bridge on Highway 117 his truck began skidding on the wet pavement. Although Mrs. Kay noticed Cutright's skidding truck and pulled to the extreme right of her lane, Cutright's vehicle crossed the center line of the highway into Mrs. Kay's lane of traffic and struck Mrs. Kay's vehicle. The trial court found that the accident was caused solely by the negligence of Cutright. Defendants do not appeal this finding.

Following the accident Mrs. Kay was brought to Natchitoches Parish Hospital where she was treated by Dr. Charles E. Cook, her family physician. Dr. Cook diagnosed Mrs. Kay as having an acute-thoracolumbar sprain with cervical involvement. She was given pain-relieving drugs.

After four days Mrs. Kay was transferred to Physicians and Surgeons Hospital in Shreveport on March 27, 1973. This transfer was made at Mrs. Kay's request so that she could be placed under the care of Dr. W. W. Fox, an orthopedic surgeon who had previously treated Mrs. Kay.

Mrs. Kay was confined to Physicians and Surgeons Hospital until April 11. At the hospital she was treated conservatively with traction and physical therapy and was given drugs for pain and muscle relaxation.

Following her discharge from Physicians and Surgeons Hospital Mrs. Kay remained under the care of Drs. Cook and Fox. She had scheduled office visits with Dr. Fox through the date of trial. In addition Mrs. Kay began to have menstrual difficulties and saw Dr. Oscar L. Berry, a gynecologist, for these problems. The record shows that Mrs. Kay had to undergo hospital care several times after her discharge from Physicians and Surgeons Hospital for various problems which she claims were accident-related.

The record shows that prior to the accident Mrs. Kay worked as a stenographer-clerical worker at Northwestern State University. She also was going to school there part-time, with the immediate intention of receiving a two-year degree in secretarial science.

The trial court awarded Mrs. Kay $35,000 in general damages. He awarded her husband Jerry Kay $21,476 which was divided as follows: (1) loss of future salary of Mrs. Kay for two years —$11,647.20; (2) loss of annual leave time and sick leave —$337.44; (3) loss of salary from the accident until March 1, 1974 —$3,602.42; (4) medical, drug, and travel expenses —$4,889.11; (5) automobile damage —$1,000.

Appellants contend that the trial court erred in finding that certain injuries were sustained by Mrs. Kay or that they were accident-related. Specifically they contend that the trial court erred (1) in finding that Mrs. Kay had suffered a herniated disc as a result of the accident, and (2) in finding that subsequent vaginal bleeding and a hysterectomy resulted from the accident. Appellants do not contend that the award of the trial court is excessive, given these findings. They contend that there is no basis for finding that she suffered those injuries as a result of the collision with Cutright.

We deal first with Mrs. Kay's menstrual difficulties. The record establishes that Mrs. Kay had a history of menstrual difficulty. She had experienced abnormal bleeding and at least two spontaneous miscarriages. The abnormal bleeding was associated with certain birth control methods employed by Mrs. Kay. When the birth control methods were discontinued her menstrual cycle returned to normal. It was established that for eleven months preceding the accident Mrs. Kay had not experienced any abnormal bleeding.

*306 Mrs. Kay testified that she began to have unexplained vaginal bleeding on the day after the accident and that the bleeding continued during the entire time she was hospitalized. Appellants contend that this testimony is incredulous since no hospital records show any such bleeding. However, Mrs. Kay clearly did have a bleeding problem when she saw Dr. Oscar L. Berry on May 14. On May 22 Dr. Berry performed an operation known as a D & C in an attempt to control and diagnose the problem. Following the operation Mrs. Kay's bleeding stopped until June 18. On that date the bleeding started once again and continued on an abnormal basis until October 25 when Dr. Berry performed a hysterectomy.

Appellants contend that there was no showing that the menstrual problems were accident-related and that the hysterectomy operation was elective on the part of Mrs. Kay.

We note that the trial court accepted Mrs. Kay's testimony that she began bleeding on the day after the accident. In this regard, Dr. Berry testified that he was not surprised that there was no hospital record of the bleeding because "for a woman to be in the hospital and have a menstrual period usually goes unnoticed." This is not a complete explanation in view of the fact that if Mrs. Kay's testimony is correct the bleeding continued for a considerably longer period of time than is normal.

However, it is clear from the testimony of Dr. Berry, as well as from Mrs. Kay, that she was having difficulty soon after she left the hospital. She saw Dr. Berry for the first time on May 14 which is a little over a month after her release from Physicians and Surgeons Hospital. Because of her difficulties he performed the D & C a few days later on May 22.

Dr. Berry testified that it was his opinion that, assuming Mrs. Kay did not have any problems in the past, her problem was accident-related. Appellants contend that when Dr. Berry made this statement he was not aware of her previous history of menstrual difficulty and that upon learning this history he retracted this statement. They cite the following testimony.

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313 So. 2d 303, 1975 La. App. LEXIS 4154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kay-v-home-indemnity-company-lactapp-1975.