Moss v. Security Nat. Ins. Co.

350 So. 2d 247
CourtLouisiana Court of Appeal
DecidedNovember 23, 1977
Docket6123
StatusPublished
Cited by17 cases

This text of 350 So. 2d 247 (Moss v. Security Nat. 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
Moss v. Security Nat. Ins. Co., 350 So. 2d 247 (La. Ct. App. 1977).

Opinion

350 So.2d 247 (1977)

Theophile O. MOSS, Jr., Plaintiff-Appellant,
v.
SECURITY NATIONAL INSURANCE CO. and Karl A. Fortier, Jr., Defendants-Appellees.

No. 6123.

Court of Appeal of Louisiana, Third Circuit.

September 2, 1977.
Rehearing Denied October 11, 1977.
Writ Refused November 23, 1977.

*248 Roy & Forrest by Leon E. Roy, Jr., New Iberia, for plaintiff-appellant.

Landry, Watkins, Cousin & Bonin by Wm. O. Bonin, New Iberia, for defendants-appellees.

Before CULPEPPER, GUIDRY and FORET, JJ.

FORET, Judge.

Plaintiff filed suit against Karl A. Fortier and his insurer, Security National Insurance Company, alleging that he suffered severe cervical, lumbar and anterior chest pains as a result of an automobile accident. All parties stipulated as to the negligence of defendant Fortier and the lack of contributory negligence of plaintiff Moss. Trial was held before a jury, and the only issue to be resolved was that of the extent of damages, if any. From the judgment of the jury which returned a verdict of "No Amount", plaintiff-appellant, Moss appeals.[1]

On May 18, 1974, in the early morning between the hours of 1:30 o'clock and 2:30 o'clock A. M., near the community of Broussard, Louisiana, a vehicle operated by plaintiff, Theophile O. Moss, Jr., occupied also by his wife Sandra, and proceeding in an easterly direction in the right outside lane of U. S. Highway No. 90, a four-lane thoroughfare, was rear-ended by the 1973 Dodge automobile owned and driven by defendant, *249 Karl A. Fortier, Jr. The Moss vehicle, which was inoperable after the collision, was shoved sixty-five (65') to seventy-five (75') feet from the point of impact and rolled into a gulley on the right-hand side of the roadway.

In order to fully appreciate the damages alleged—lumbar, and chest and cervical pain, in that order—and the evidence presented as to their extent, we shall separately discuss them.

I.

LUMBAR PAIN

On the same day of the accident, and but a few hours later, Moss was examined and treated by Dr. Joseph A. Musso, who was accepted by the trial court as a specialist in the field of family medicine. Moss complained to the doctor of pain in his low back. The physical examination consisted of tests which were conducted to determine the range of motion in Moss' back. He was required to lay on his back and raise his legs. Although plaintiff complained of soreness in his low back, his range of motion was not restricted. X-rays of plaintiff's lumbar spine were taken, and they revealed a slight dextroscolosis (curve to the left) and the straightening of the lumbar lordosis (abnormal forward curvature). No other physical infirmity was seen. The clinical part of the examination consisted of those x-rays. From his clinical and physical examination, Dr. Musso concluded that Moss "had a muscle strain in his low back. . ." For a complete recovery therefrom, Dr. Musso recommended that Moss lay off his brick laying job for a period between four (4) to six (6) weeks and get plenty of rest.

Dr. Musso examined plaintiff two (2) more times. On June 3, 1974, plaintiff did not complain of back pain. The examination of his back revealed that he had a normal range of motion. He was told to miss work for at least four (4) more weeks. On Monday, June 17, 1974, plaintiff made no complaints about his back, and even told Dr. Musso that he had returned to work on June 14. Conducting no physical and clinical examinations, Dr. Musso discharged him from his care.

If, after June 17, Moss suffered low back pain, Dr. Musso believed that the recurrence would have been the result of a new incident, and not the automobile collision.

On July 26, 1974, plaintiff was examined and treated by Dr. Homer Kirgis, a neurosurgeon at Oschner Foundation Clinic in New Orleans, Louisiana. To this expert, plaintiff presented the following history: He was injured on May 18, 1974, in an automobile accident in which the vehicle which he operated was thrown forward about seventy-five (75') feet into a ditch. On the day of the accident, he suffered no physical problems. On the following day, his entire body was sore, and he visited a local physician, Dr. Musso. His greatest discomfort was situated in his lower back. No fracture was revealed by the x-rays taken of that part of his anatomy. Dr. Musso concluded that he sustained a severe strain or sprain of his lower back. Since there was recurrence of pain in his lower back, plaintiff continued to consult Dr. Kirgis. (Although Dr. Kirgis had a note in his records that the symptoms Moss manifested were not present prior to the accident, he did not know whether the note meant that the symptoms never existed or that they did not exist immediately prior to the accident.)

Dr. Kirgis' treatment of plaintiff Moss consisted of an examination of the stance, gait, movements of the extremities, strength, coordination, reflexes and movements of the back. The tests revealed a slight restriction of the lower back, which was secondary to the discomfort suffered and the slight degree of spasm in the lumbar paraspinous muscles. The findings suggested that Moss had sustained a strain or sprain of his lower back. We quote from Dr. Kirgis' testimony:

"The spasms of the muscles of these areas with the history presented by Mr. Moss suggested that he might have sustained a straining injury of the muscles or a straining injury of the ligaments in these *250 regions of the spine." (Tr., pg. 56. Emphasis added.)

At that time Dr. Kirgis was of the opinion that plaintiff Moss was slowly recovering. He advised his patient to apply heat to the pain area, to take mild analgesics as he needed them, to avoid physical activities that might unduly aggravate the pain, and to undertake those activities which he thought his body could endure and tolerate.

Moss reported to Dr. Kirgis' office on November 22, 1974. At that time, Moss stated that the pain in his lower back had continued, but at a lesser degree; that, although he had worked, he had been unable to perform his work at the same degree of efficiency; and that during the past few weeks, he experienced more discomfort than previously.

The examination conducted by Dr. Kirgis revealed the same symptoms as found on July 26. Accordingly, Dr. Kirgis advised the plaintiff to continue to apply heat, to avoid activities, and to take mild analgesics, and he believed that the plaintiff would recover if he followed that advice.

Dr. Kirgis examined plaintiff on January 15, 1975, at which time he was not working and was still experiencing pain in his lower back. On February 21, 1975, Dr. Kirgis recommended further diagnostic procedures, especially that a myelogram, or spinal puncture, be performed.

On March 2, 1975, plaintiff Moss, complaining of pain in his lower back, was admitted to Oschner Foundation Hospital. The next day, he underwent a spinal myelogram. Two (2) days later, on March 5, a bilateral laminectomy was performed. On March 10, the day of discharge, plaintiff Moss was transferred to an area of the hospital for physiotherapy.

The lumbar myelogram revealed a herniation of the fourth lumbar disc, which ruptured disc irritated the fifth lumbar nerve. Plaintiff Moss, suffering from pain in his back, knees and ankles, was advised to continue to rest, to sleep on a hard bed, to take hot baths, to exercise to tolerance (sitting up, back bending, walking, and isometric exercises), and to apply an electric heating pad to the areas of pain.

A month later, on April 15, 1975, plaintiff Moss visited Dr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Olivier v. Allstate Ins. Co.
663 So. 2d 207 (Louisiana Court of Appeal, 1995)
Langlinais v. Figueroa
636 So. 2d 983 (Louisiana Court of Appeal, 1994)
Walls v. Olin Corp., Inc.
533 So. 2d 1375 (Louisiana Court of Appeal, 1988)
Martin v. Hertz Corp.
533 So. 2d 1365 (Louisiana Court of Appeal, 1988)
Ammons v. St. Paul Fire & Marine Ins. Co.
525 So. 2d 60 (Louisiana Court of Appeal, 1988)
Irving v. State Farm Mutual Automobile Insurance Co.
517 So. 2d 868 (Louisiana Court of Appeal, 1987)
Labauve v. Central Mut. Ins. Co.
491 So. 2d 146 (Louisiana Court of Appeal, 1986)
Curry on Behalf of Curry v. Allstate Ins. Co.
435 So. 2d 1030 (Louisiana Court of Appeal, 1983)
Guthrie v. Rinker
414 So. 2d 837 (Louisiana Court of Appeal, 1982)
Bunkie Funeral Home, Inc. v. McNutt
414 So. 2d 1263 (Louisiana Court of Appeal, 1982)
Poland v. American Mutual Insurance
409 So. 2d 1292 (Louisiana Court of Appeal, 1982)
Avilez v. South Jefferson General Hospital
403 So. 2d 1260 (Louisiana Court of Appeal, 1981)
Brown v. Grigsby
394 So. 2d 847 (Louisiana Court of Appeal, 1981)
Andry v. CUMIS INS. SOC., INC.
387 So. 2d 1374 (Louisiana Court of Appeal, 1980)
Napoli v. State Farm Mut. Auto. Ins. Co.
387 So. 2d 1351 (Louisiana Court of Appeal, 1980)
Mora v. American Motors Leasing Corp.
364 So. 2d 1343 (Louisiana Court of Appeal, 1978)
Moss v. Security National Ins. Co.
352 So. 2d 239 (Supreme Court of Louisiana, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
350 So. 2d 247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moss-v-security-nat-ins-co-lactapp-1977.