Nobile v. New Orleans Public Service, Inc.

419 So. 2d 35, 1982 La. App. LEXIS 7850
CourtLouisiana Court of Appeal
DecidedJuly 30, 1982
DocketNo. 12826
StatusPublished
Cited by8 cases

This text of 419 So. 2d 35 (Nobile v. New Orleans Public Service, Inc.) 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
Nobile v. New Orleans Public Service, Inc., 419 So. 2d 35, 1982 La. App. LEXIS 7850 (La. Ct. App. 1982).

Opinion

CIACCIO, Judge.

Plaintiff, F. A. Nobile, brought an action for damages for injuries sustained in an automobile accident which occurred on May 21, 1975, near the intersection of Magazine and Foucher Streets in the City of New Orleans. The case was referred to the Commissioner for trial and after an extensive trial on the merits, the Commissioner awarded judgment in favor of the plaintiff, F. A. Nobile, and against the defendant, New Orleans Public Service, Inc., in the sum of $89,387.02.1 This judgment was amended by the district court judge and the award to the plaintiff was increased to the amount of $142,281.09.2 The plaintiff appealed the judgment. We find no error in the district court’s judgment and affirm.

The issues to be considered on appeal are: (1) Did the district court err in its refusal to award damages for loss of past income? (2) Did the district court err in its refusal to award damages for loss of future income, which income is comprised of loss of salary and loss of profits and benefits?

The facts are uncontested: On May 21, 1975, at 8:30 A.M. the plaintiff was operating his vehicle in a westerly direction on [37]*37Magazine Street. When he approached the intersection of Magazine and Foucher Streets, he was forced to stop because of congested traffic. The plaintiff’s vehicle stopped some three feet from a van truck and was in this position one to two minutes when the plaintiff’s vehicle was struck by the defendant’s bus which was being driven by a New Orleans Public Service employee. The impact pushed the plaintiff’s car into the rear of a van truck that had stopped ahead of it.

The plaintiff sustained a sprain of his right thumb, soreness of the left shoulder, neck and low back pain. He was initially treated at the Emergency Room of Mercy Hospital. He was admitted to the hospital and remained there for treatment for five days. The plaintiff’s provisional diagnosis was acute cervical and lumbar strain, degenerative arthritic condition of the lumbar spine, and an acute strain of the right thumb. While in the hospital, the plaintiff was treated with physical therapy, muscle-relaxant medication and pain killing medications. After release from the hospital, the plaintiff recuperated at home for a period in excess of two weeks. He continued to suffer low back pain. The pain in the neck and thumb had subsided. On June 9, 1975, approximately three (3) weeks after the accident, plaintiff returned to his contracting business on a limited basis.

Throughout the next year he complained of continuous pain in his lower back and was treated on a regular basis by Dr. Wil-not Ploger, an orthopedic surgeon. He was treated with muscle relaxants and pain killers, and a cloth corset was prescribed for support of his lower back. On June 14, 1976 the plaintiff was again admitted to Mercy Hospital where he remained until June 21,1976. He was diagnosed as having acute lumbar disc syndrome and was treated with traction, physical therapy and pain killing medication. Upon his release from the hospital, the plaintiff continued periodic office visits to Dr. Ploger. A metal corset and other patient support aids were prescribed on May 12, 1977. It was Dr. Plo-ger’s opinion that the trauma of the accident of May 21, 1975, aggravated the arthritic condition of the plaintiff’s back and initiated the back complaints.

On January 24,1979 the plaintiff consulted another orthopedic surgeon, Dr. Bernard Manale. He diagnosed the plaintiff as suffering from degenerative spondylosis, apon-dylolesthesis, narrowing of the disc spaces, osteophyte formation with the possibility of spinal stenosis. Dr. Manale found that as a result of the condition, the plaintiff had a thirty percent (30%) impairment of the body as a whole. Dr. Manale and Dr. Ploger felt the plaintiff’s condition suggested the possibility of a ruptured disc. Dr. Manale, unlike Dr. Ploger, was of the opinion that the plaintiff should undergo surgery for correction of his back problem.

On March 16, 1979, the plaintiff was examined by Dr. George Berkett, an orthopedic surgeon. Dr. Berkett was of the opinion that at the time of the examination, the plaintiff had recovered from the effects of the accident.

The plaintiff, who formerly had a very active lifestyle, both socially3 and in business, was severely restricted in his activities after the accident.

Plaintiff, an architect, owned and operated a business known as F. A. Nobile, Inc., a successful engineering and contracting corporation. He was involved with designing, engineering, cost estimating, purchasing of materials and supervising every job his company performed. The plaintiff contends that since the accident he has sustained a great reduction in the volume of his business, a proportionate reduction in salary and in the retained earnings of the company.

The district court stated in its reasons for judgment:

“In addition, the Court is of the opinion, that the award of $80,000.00 for pain and suffering, past and future, as well as for permanent disability should be increased [38]*38to the sum of $105,000.00. The Court is further of the opinion that plaintiff has not satisfactorily proven his future loss of earnings. The Court is of the opinion, however, that he has established losses in the amount of $27,894.07, and the Court will amend the Commissioner’s report accordingly.”

The plaintiff argues that the award of $27,894.07 only compensates for the loss of corporate profits and benefits and does not take into account plaintiff’s loss of salary in the amount of $63,331.74. He further argues that loss of future income was proven and that he proved such losses in the amount of $132,226.15.

Before a trial court award can be disturbed as inadequate, the reviewing court must consider the award in light of the facts and particular circumstances of the case. Reck v. Stevens, 373 So.2d 498 (La.1979). The reviewing court will not disturb the award unless, based upon the particular facts involved, the trier of facts abused his great discretion. Perniciaro v. Brinch, 384 So.2d 392 (La.1980); Reck v. Stevens, supra. Likewise, the reviewing court must give great weight to the conclusions of the trier of facts and should not disturb the trier of facts reasonable evaluation of credibility and the reasonable influences he draws from the facts. Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977).

One element of the damages from a permanent partial disability, which results from an accident, is any loss of earnings attributable to that disability. Gobin v. Kogel, 375 So.2d 755 (La.App. 4th Cir., 1979) writ ref. 388 So.2d 486. Plaintiff must prove the past and future loss of income by a preponderance of the evidence. Hardie v. Pylant, 375 So.2d 189 (La.App. 2nd Cir., 1979) citing Jordan v. Travelers, 257 La. 995, 245 So.2d 151 (1971).

Moreover, the law is well settled that loss of future profits are recoverable when it is proven that such loss has actually been sustained, even though the amount of the loss cannot be established with mathematical certainty. Schwartz v. United States Fire Insurance Co., 375 So.2d 718 (La.App. 4th Cir., 1979). Such damages must be proven with reasonable certainty in order to be recovered. Landvoight v. La. State Employees Retirement System, 337 So.2d 881 (La.App. 1st Cir. 1976).

The expert utilized by the plaintiff to evaluate his business losses was Dr.

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419 So. 2d 35, 1982 La. App. LEXIS 7850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nobile-v-new-orleans-public-service-inc-lactapp-1982.