Noland v. Liberty Mutual Insurance

96 So. 2d 360, 1957 La. App. LEXIS 729
CourtLouisiana Court of Appeal
DecidedJune 28, 1957
DocketNo. 4454
StatusPublished
Cited by7 cases

This text of 96 So. 2d 360 (Noland v. Liberty Mutual Insurance) 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
Noland v. Liberty Mutual Insurance, 96 So. 2d 360, 1957 La. App. LEXIS 729 (La. Ct. App. 1957).

Opinion

LOTTINGER, Judge.

This is a suit for damages sustained by the plaintiff as the result of a collision between the car he was driving and a bakery truck driven by defendant Jack B. Goudeau, and owned by defendant Wm. Wolf Bakery, Inc. which was insured by defendant Liberty Mutual Insurance Company. When the matter was before us originally we denied recovery being of the opinion that the truck driver was free fronr negligence. The Supreme Court, however,, granted writs in the matter, concluded that the truck driver was negligent and that the plaintiff was free from contributory negligence and hence entitled to recover. See, La.App., 89 So.2d 428 and 232 La. 569, 94 So.2d 671. Thus, the sole question before us now is that of quantum.

The plaintiff in his petition itemizes his damages as follows:

“Reasonable sound value of bis Ford automobile, which was so badly damaged as to be of no use whatever after the accident $ 895.00

Paid for wrecker service 15.30

Bill for Clinton Infirmary, Inc. for medical care and hospitalization 114.02

Bill of Dr. Charles McVea for examination 15.00

Bill of Drs. Robert and Geheber for X-rays 17.50

For loss of income and earnings due to accident 500.00

For physical pain and suffering and mental anguish 3,500.00

For permanent injuries 3,500.00 $8,656.82'*

We will consider the various items in the order set out above.

With respect to the automobile the record contains the testimony of two witnesses. One was Julian Kent, who had sold the car to the plaintiff for $895 on March 30, 1954. He estimated the value of the car as of the date of the accident (August 7, 1954) at the sum of $750. This witness at one time had offered the sum of $150 for the car for salvage. Counsel for plaintiff suggests in his brief that a fair award would be this witness’ estimate less his salvage offer, or the sum of $600. Counsel for defendant, on the other hand, point to the testimony of George D. Wilson, an expert automobile damage appraiser, who valued the car at $695 and suggests that the award should be that amount less the salvage value or the sum of $545. There is not a great deal of difference between the two estimates and considering that Kent was the more familiar with the vehicle we are of the opinion that substantial justice will be served by an award of $600 for the automobile.

[362]*362The next item is the bill for wrecker service in the amount of $15.30. The record contains the uncontroverted testimony of the plaintiff that that was the amount of his bill and the item should, therefore, be allowed.

The bill of Clinton Infirmary, Inc. in the amount of $114.02 is not contested by defendants and should, therefore, be allowed.

The next items are the bills of Drs. McVea and Gehebee in the amount of $30 and $17.50 respectively. Counsel for defendants, while not citing any authorities in support thereof, advances the argument that as these items of expense were not incurred for treatment, but rather in the preparation of the case for trial, they should not be allowed. We think counsel’s position to be correct. The expense was clearly incurred as an incident of trial and to our way of thinking, is no more an allowable item of damage than would be attorney fees. This item will, therefore, be disallowed.

We come now to the claim of $500 for loss of income and earnings. The record discloses that at the time of the accident the plaintiff was a cattleman, farmer and operator of a butcher shop. He owned some 2,000 acres of land, about 40 acres of which were in cultivation. His cattle herd numbered approximately 200 head. He was hospitalized until August 10th and, according to his testimony, was completely disabled for about 15 days and partially disabled thereafter. While so incapacitated he claims to have suffered the loss of $500 as the result of the following:

(1) Approximately 3,000 bales of hay rotted in the field because he could not get it in
(2) Cattle got through the fence into his corn crop and consumed about 100 barrels of corn.
(3) Bugs ate up one-half acre of a fall tomato crop.

We are not disposed to allow this claim or any part of it. It is too well settled to require citation that one is obligated to minimize his damages. The record is completely barren of any evidence which would show why plaintiff did not employ someone to assist him in his farming and ranching activities while he was unable to conduct same and contains only the uncorroborated testimony of the plaintiff himself that the above enumerated things happened and that they cost him $500. Under the circumstances we feel that it would be putting a premium on negligence to allow the plaintiff anything at all for this alleged loss when he was apparently content to take no steps whatever to protect his holdings.'

The last items are those concerned with physical pain, mental anguish and permanent injuries. It was agreed that the written report of Dr. Paul Jackson of Clinton, Louisiana be introduced in lieu of his oral testimony. The report (P4) reads as follows:

“Paul Jackson, M.D.
“Rs. Phone 139
“Clinton Infirmary, Inc.
“Telephone 33
“Clinton, Louisiana
“October 25, 1955
“Medical report on Mr. Leon. Noland of Jackson, Louisiana:
“Mr. Noland came into my office in the Clinton Infirmary at Clinton, Louisiana, about 7 or 7:30 A.M. August 7, 1954. He gave a history of having been in an automobile or truck accident that morning. He was able to walk into the office and was entirely conscious and well oriented. He showed evidence of contusions and abrasion of the head, face, chest and left leg. He was hospitalized for further study and observation. The things that he complained of mainly were the abrasions of the forehead, right ear, left side of the chest anteriorly, and left leg near the knee. X-rays were taken that day [363]*363of his skull, chest and left knee, hut no evidence of bony injury was found.
“Mr. Noland was kept in bed that day and his general condition was satisfactory. The next day, August 8th, he was allowed to sit up some and was able to walk to the bath room and sit in the lobby. He had some generalized pain and soreness, but his general condition was good. On August 9th, he complained of some pain in his left chest anteriorly, but this was relieved with a mild sedative. On August 10th, his general condition was good and he felt better. Another X-ray of his chest was taken but no evidence of injury was found. He was discharged from the hospital on August 10th, to return to the office for further treatment and observation.
“He returned to the office on August 17th, 20, 25 and September 1, 8, 13 and 22nd. He made satisfactory improvement, but continued to have some • pain in his left chest anteriorly. On September 8th, he stated that he felt much better except for ulcer on left leg just below the knee which hadn’t quite healed. On September 13th, he complained of pain, soreness and tenderness of the left chest. He was seen again September 22nd, at which time he still had slight soreness and pain in the left chest anteriorly.

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Bluebook (online)
96 So. 2d 360, 1957 La. App. LEXIS 729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/noland-v-liberty-mutual-insurance-lactapp-1957.