Lalonde v. Weaver

360 So. 2d 542
CourtLouisiana Court of Appeal
DecidedJune 13, 1978
Docket8936
StatusPublished
Cited by5 cases

This text of 360 So. 2d 542 (Lalonde v. Weaver) 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
Lalonde v. Weaver, 360 So. 2d 542 (La. Ct. App. 1978).

Opinion

360 So.2d 542 (1978)

Mrs. Bertha M. Lalonde, w/o and Doris J. LALONDE
v.
Gavin E. WEAVER, Highlines Construction Company and Employers Mutual Liability Ins. Co. of Wisconsin.

No. 8936.

Court of Appeal of Louisiana, Fourth Circuit.

June 13, 1978.
Rehearings Denied July 26, 1978.

*543 Lawrence D. Wiedemann, Wiedemann & Fransen, New Orleans, for Gavin E. Weaver, et al., defendants-appellants.

James C. Cockfield, Cockfield & Gravolet, New Orleans, for Mrs. Bertha M. Lalonde, w/o and Doris J. Lalonde, plaintiffs-appellees.

Before BOUTALL, SCHOTT and GARSAUD, JJ.

BOUTALL, Judge.

Doris J. Lalonde and his wife Bertha Lalonde sue for personal injuries and damages as a result of an automobile collision. The trial court rendered judgment in their favor, and the defendants have appealed. They have answered the appeal seeking an increase in judgment.

On September 4, 1972 at shortly after 8:00 P.M., Doris J. Lalonde was operating his automobile on Louisiana Highway 23 in Plaquemines Parish, travelling north towards New Orleans. His wife Bertha accompanied him as guest passenger. At that same time Gavin E. Weaver was operating an El Camino Chevrolet owned by his employer, Highlines Construction Company and used in the scope of that employment. He was also travelling north and came upon plaintiff's vehicle from the rear and collided with it. The cause of the collision is at issue.

The testimony of plaintiffs is that they were proceeding in a northerly direction on the highway at a speed of about 45 miles an hour, when they were run into from the rear by defendant's automobile in a rather *544 violent fashion, throwing their automobile off of the highway, causing it to spin around and come to rest against a telephone post alongside the highway. The defendant disputes that they were travelling in this fashion, but testifies that they were stopped or nearly stopped in the roadway at an angle towards the right with the front of the car actually off of the paved portion of the road. It is contended that plaintiff driver was in the process of making a "U" turn in the roadway to retrace his path, and that this was the cause of the collision. Defendant testified that he was going approximately 55 miles an hour (the speed limit was 60 at that time) and that he saw the vehicle 100 feet or so ahead, and was unable to avoid the collision, although attempting to slow down and turn to the left. His testimony is supported in general by the two passengers accompanying him.

The issue of liability thus presented was necessarily resolved by the trial court in a determination of the credibility of the witnesses. The testimony is in direct conflict. We reach the same result as the trial judge, and we conclude that the record supports that result.

Photographs of the Lalonde vehicle were placed in evidence showing the damages sustained by that vehicle. Except for the side of the vehicle where it struck the telephone post, the damage is on the rear, most heavily toward the left side. These damages corroborate the explanation given by plaintiffs, and is at variance with the theory of the Lalonde car being at an angle to the right. Additionally, the investigating officer testified concerning his findings in the case, and the physical facts as expressed by him, that is the point of collision, a lack of skid marks, and relative positions of the vehicles after the collision, all tend to reinforce plaintiffs' testimony.

It is also noted that as a result of the collision, the officer caused Weaver to be charged with driving while intoxicated and negligent injuring, to which charges Weaver pleaded guilty. The officer testified that when he took Weaver to the hospital he noticed an odor of alcohol about him, and an intoximeter test was performed by another officer. The results of that test showed a .20 reading on the scale. Weaver concedes that he had had four bourbon and water highballs shortly before the accident, but contends that this had no effect upon him. His companions corroborate this testimony, pointing out that they simply relaxed for an hour or so after being required to work this particular Labor Day. However, we note that Weaver only saw the Lalonde vehicle when he was 100 feet away, when there was no impediment to his view on the highway in front of him except the darkness of the evening. His fellow passengers testified that he did not begin to slow until after one of them, Nata, yelled that there was a car in the road ahead of them. Considering these circumstances, together with the other facts discussed above, we conclude that the collision was attributable to the negligence of Weaver, and the defendants are liable for plaintiffs' damages.

DAMAGES OF MR. DORIS LALONDE

The trial judge awarded the following
amounts to Mr. Lalonde.
1.  Medical and Drug Bills for both
    Mr. and Mrs. Lalonde                    $44,730.59
2.  Future Medical and Drug Bills             7,638.40
3.  Property Damage                             100.00
4.  Loss of Past Wages                       23,332.07
5.  Loss of Future Wages                     38,547.78
6.  Cervical Strain                             750.00
7.  Lumbo Sacral Strain                       5,000.00
8.  Hernia                                    2,500.00
9.  Permanent Disability to Right
    Leg                                      20,000.00
10. Conversion Reaction                      25,000.00
for a total of $127,598.84.

Recounting the facts of the accident, the Lalonde vehicle was struck from the rear, knocking it off the road, swinging it around 180 into a utility pole. The force of the collision was such that the front seat broke and plaintiffs were jolted backwards, then forwards again when the vehicle hit the utility pole. Mr. Lalonde complained of blows and injury to his neck, back, abdomen and leg. Mr. Lalonde was taken to the Plaquemines Parish General Hospital for examination, and was released with instructions *545 to seek orthopedic treatment. The next day he went to Ochsner Foundation Hospital where he was examined for possible treatment. However he testified that he did not have much faith in Ochsner Foundation and instead was treated by Dr. Vernon Kroll, whom he first saw on September 14. Dr. Kroll treated him for a period of over 2 years.

In the initial examination, Dr. Kroll determined that Mr. Lalonde had suffered a cervical strain and a lumbo-sacral strain and diagnosed a right inguinal hernia. Appellant makes no serious issue as to the cervical and lumbo-sacral strain, but argues that the hernia was a developmental condition and not caused by the accident. Dr. Kroll agreed that such a hernia could be caused either by trauma or by repeated inter-abdominal pressure over a period of time, and that the past history of the patient would be a determinative factor as to the occurrence of the hernia. He was given no prior history relating to hernia by Mr. Lalonde, and the evidence preponderates that there was none. The doctor concluded that the trauma (Mr. Lalonde testified that when the seat was flipped back up he struck his stomach on the steering wheel) either caused the hernia or aggravated a pre-existing weakened condition into the patently symptomatic condition he discovered. Accordingly, we would affirm the award for the cervical strain, lumbo-sacral strain and hernia.

The course of treatment of Mr. Lalonde is not the usual one. Dr. Kroll noted that by December 28, 1972, the cervical area was symptom free and needed no further treatment, but that the lumbar-sacral sprain was still giving problems and necessitated further treatment.

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Bluebook (online)
360 So. 2d 542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lalonde-v-weaver-lactapp-1978.