Morgan v. Kreppier

60 So. 2d 139, 1952 La. App. LEXIS 677
CourtLouisiana Court of Appeal
DecidedJune 30, 1952
DocketNo. 3561
StatusPublished

This text of 60 So. 2d 139 (Morgan v. Kreppier) 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
Morgan v. Kreppier, 60 So. 2d 139, 1952 La. App. LEXIS 677 (La. Ct. App. 1952).

Opinion

ELLIS, Judge.

On the morning of September 12, 1950* S. J. Bergeron was on his way to work in his automobile, and being in the need of help stopped his car when he saw the plaintiff, James Morgan, standing on the street and engaged him to go to work for him,, whereupon Morgan got into the car with Bergeron and soon afterward Bergeron’s automobile was involved in an intersec-tio'nal collision with a car driven by the defendant Kreppier, which car was insured by defendant, American Policy Holders Insurance Co.

The liability of the defendant Kreppier was admitted and the case was submitted to the lower court solely on the question of the amount of the award to be made to the plaintiff. The lower court with well written reasons for judgment awarded the plaintiff damages for the loss of 10 days work at $1.07 an hour dr $85.60, and the sum of $250 for pain and discomfort and doctor bills totalling $61, fixing as the total, $396.-60, together with interest at the legal rate-from judicial demand until paid and for all costs including the expert fees of the four doctors at $25 each or $100. '

[140]*140The plaintiff has appealed from this judgment and the only question before this court is the quantum.

Plaintiff suffered as a result of the collision a laceration of his forehead, slight injury to his left knee, and injury to his left thumb. The injury to his forehead and knee were in no way serious and the extent of the injury to his thumb is really the only question before the Court.

Immediately after the accident the plaintiff was taken by Bergeron to Dr. H. W. A. Lee who testified with regard to his left thumb that: “It was sore. I thought it had been dislocated. It was painful to motion and what I thought had happened was he had dislocated it and it had popped back in place. I didn’t have to get it back in place at all.” Dr. Lee last saw plaintiff October 3, 1950 at which time he did not think he would have any permanent injury. This doctor stated that the plaintiff suffered some pain and that he was still complaining on October 3, 1950.

On September 12, 1950, the date of the accident, Dr. Lester J. Williams now deceased, x-rayed plaintiff’s thumb and according to a copy of this report the thumb showed no evidence of fracture or other signs of boney pathology.

Dr. David S. Malen, a radiologist of Baton Rouge, at the request of Dr. James R. Godfrey, x-rayed the left thumb of the plaintiff on or about November 6, 1950, and testified that he found old ununited fractures head of first metacarpal without joint involvement. This doctor positively testified that he found no evidence of any new fracture in the plaintiff’s thumb but that the appearance of the old fractures were of a longer duration than September 12, 1950. In fact, his positive testimony was that these fractures probably could not have been caused by the accident of September 12, 1950.

, As counsel for the plaintiff is basing his request for an increased amount upon the supposition that the plaintiff’s thumb was fractured in the accident of September 12, 1950, it might be well’to go somewhat into detail with regard to, the testimony. '

On re-direct examination by counsel for plaintiff, Dr. Malen testified- as follows :

“Q. As I understand it you really can’t say for certain when that fracture did take place? A. From the appearance I would be more apt to consider that those fractures occurred possibly years previously. If however, it was a period of six months it might 'be more difficult to assess definitely. It is more unlikely that these could have occurred some two months prior to the date of the examination.
“Q. But even though unlikely and unusual it could have happened? A. No, I don’t think so in my own experience.
“Q. If you had the pictures taken right after the accident for comparison you could be better able to express an opinion about that, couldn’t you? A. Its a difficult position to be .placed in. However, in my opinion and in my experience as a radiologist and having been in radiology since 1940, .based, upon that experience I would say the shadows probably would have been the same in appearance if they had been made shortly after the examination, that is if the examination had been made immediately after the injury.
“By the Court: Q. And in your, opinion and from their appearance it indicates to you they are older than the date of the accident here involved? A. I would say the likelihood is the pictures would have indicated at that time an old injury.”

Dr. Louis Mayer, witness on behalf of defendant, who practised general surgery in Baton Rouge, testified that he examined the plaintiff on September 17, 1950, and testified as follows:

“The man had a one and one-half inch abrasion on the right side of his forehead, and he had evidence of mild braises of both knees and a moderate degree of swelling of the left thumb, and he had dental caries (cavities) with poor upper and lower partial dental plates.”

He further testified that he had occasion 'to examine an x-ray of plaintiff’s left thumb taken by Dr. Lester Williams on the 12th of September, 1950 and that the report of Dr. [141]*141Williams as a result of these x-rays stated that they revealed no evidence of fracture or other honey pathology in the left thumb. He again examined the plaintiff on October 15th, three days prior to the trial of this case, and found no evidence of residual injury to his knees or to his head, some stiffness of the left thumb, including the metacarpal of the thumb, no evidence of swelling however was present. His range of motion appeared to be limited voluntarily. This doctor was asked by the Court if he thought the plaintiff was “putting on” and he answered, “I think he was afraid to move his hand. This man to me has the impression he has an ununited fracture there,” and because of this the doctor did not think that plaintiff had been using his thumb and that the stiffness was the result of this nonuse.

Dr. Malen sent plaintiff to Dr. Robert and Dr. Ball for further x-rays of the thumb and they could find no interference with the cartilagenous joint surfaces. They did find some medical evidence which merited the taking of x-rays of the opposite thumb for comparison, and after doing that they concluded that the changes which were visible in the left thumb could conceivably be due to an old fracture, but Dr. Robert and Dr. Ball were also of the opinion that there was nothing to interfere with the free motion of the joints and because of this Doctor Mayer concluded that any stiffness existing in the plaintiff's thumb was caused by voluntary nonuse.

The x-rays taken by Dr. Williams, who reported no evidence of fracture, were lost and were, therefore, not available for comparison.

Dr. Mayer was of the opinion that the range of motion in the plaintiff’s thumb was •definitely less than it should be but when the doctor attempted to move the thumb plaintiff would resist.

Dr. Geheber, who specialized in the practice of radiology, was practicing with Dr. Lester J. Williams in Baton Rouge on September 12,. 1950, and made x-ray pictures of the left thumb of plaintiff along with Dr. Williams. He testified that there was no ■evidence of a fracture or other signs of .osseous pathology.

In the record we have the report of Dr. James Godfrey who examined the plaintiff at the request of his counsel on the 6th of November, 1950.

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Cite This Page — Counsel Stack

Bluebook (online)
60 So. 2d 139, 1952 La. App. LEXIS 677, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-kreppier-lactapp-1952.