O'Liphant v. Fitzgerald Bros. Lumber Co.

265 So. 2d 266, 1972 La. App. LEXIS 6694
CourtLouisiana Court of Appeal
DecidedAugust 4, 1972
DocketNo. 3919
StatusPublished
Cited by1 cases

This text of 265 So. 2d 266 (O'Liphant v. Fitzgerald Bros. Lumber 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
O'Liphant v. Fitzgerald Bros. Lumber Co., 265 So. 2d 266, 1972 La. App. LEXIS 6694 (La. Ct. App. 1972).

Opinion

HOOD, Judge.

L. D. O’Liphant and his wife, Daisy O’Liphant, instituted this suit for damages allegedly sustained by them as the result of a motor vehicle accident in which Mrs. O’Liphant was injured. The sole defend[267]*267ant, Motor Vehicle Casualty Company, admitted liability, and the only issue presented at the trial related to quantum. The trial judge awarded $4500.00 as general damages, and $2594.80 as special damages. Judgment thus was rendered in favor of plaintiffs for the aggregate sum of $7094.-80. Defendant has appealed.

The sole issue presented here is whether the award made by the trial court should be reduced.

The accident occurred on July 17, 1970, in Natchitoches, Louisiana. While Daisy O’Liphant was riding as a passenger in an automobile being driven by her son, the automobile struck a log which had fallen or had been knocked from an approaching truck. The car was traveling at a speed of from five to eight miles per hour when it struck the log, and the only damage done to the automobile was a slight dent on the left side of the front bumper. The accident thus was a very minor one.

' Mrs. O’Liphant complained of pain in her neck and head immediately after the accident occurred. She testified that since that accident she has continued to suffer pain extending from the low back area to the top of her head, and pain in her left shoulder. She had been employed as a cook by the Natchitoches Parish School Board, but she worked only while the public schools were in session. The schools were not in session when this accident occurred, so she was not employed, at that time, although she expected to obtain the same type of employment beginning the following September. She stated that the pain which she suffered following the accident disabled her from working, so she did not apply for work the following fall.

Mrs. O’Liphant was 48 years of age when the accident occurred. She was somewhat obese, being five feet four inches tall and weighing 262 pounds. Prior to the accident she was afflicted with high blood pressure, an enlarged heart, hypertension’ and arthritis in the cervical and dorsal areas of her spine. She suffered an acute cervical sprain on February 27, 1969, about 16 or 17 months before this accident occurred. She received treatment for that injury for about three weeks, until March 20, 1969. Her treating physician testified that “her neck was still hurting” on the last mentioned date, but she apparently sought no additional medical treatment and she made no further complaints about her cervical spine injury from that date until the accident involved in this suit occurred. She testified that she completely recovered from her earlier neck injury before July, 1970.

She was treated by Dr. Archie Breazeale, a general practitioner, from the date of the accident until sometime in April, 1971. He apparently did not discharge her at that time, but instead she simply quit going to him for treatment. She also was treated by Dr. Charles Cook, a general practitioner, from February until September, 1971, and she has been under the treatment of Dr. Carson R. Reed, Jr., an orthopaedic surgeon, since September 29, 1971. Mrs. O’Liphant was examined by Dr. W. W. Fox, III, an orthopaedic surgeon, on October 29, 1970. She was seen by Dr. David T. Henry on two occasions, but Dr. Henry did not examine or treat her at any time, and he was unable to express an opinion as to the nature and extent of her injuries.

Plaintiff was confined to the hospital twice while being treated by Dr. Breazeale. She was hospitalized first from July 25 to August 19, 1970, a period of about 25 days. She was hospitalized again for seven days, beginning on October 27, 1970. On October 29, while in the hospital in Natchitoches, she was taken by ambulance from Natchi-toches to Shreveport to be examined by Dr. Fox. She was placed in cervical traction during a part of her first period of hospital confinement. A cervical collar was prescribed for her shortly after the accident occurred, and her treating physician advised that she wear it for about two weeks following her discharge from the hospital in August. She testified, however, that she wore that collar for about three months.

[268]*268Dr. Breazeale, plaintiff’s original treating physician, concluded that Mrs. O’Liph-ant sustained an “acute cervical sprain” as a result of the accident, and that her preexisting arthritis was aggravated by that trauma. He concedes that “it is unlikely that her accident has produced all of the symptoms that she complains of,” but he feels that at least some of the pain which she has suffered since the accident is related to the trauma which she experienced at that time. He stated that “My reason for her hospitalizations were related to her accident and residuals therefrom,” and that she was still complaining of pain in her head and neck when he last saw her in April, 1971.

The testimony of each of the other medical experts who treated or examined plaintiff tend to confirm the opinions expressed by Dr. Breazeale. Dr. Cook, for instance, found objective signs of injury while he was treating Mrs. O’Liphant, and he testified that “She had some definite neck pathology, and with the history that she gave me of having had trouble ever since the accident, the history correlates with the finding. I assumed that this was probably the cause of her neck bothering her.” He, like the other doctors who testified, felt that a part of her symptoms were due to other ailments, and he stated that he didn’t feel that at this time her neck injuries alone “would keep her from carrying on her normal activities.”

Dr. Reed stated that plaintiff “could have sprained her cervical spine and the lumbosacral joint and aggravated her arthritis of the thoracic spine at the time of her injury,” and that he related her present symptoms, at least insofar as her neck pain is concerned, to the accident which occurred on July 17, 1970, because she associated the onset of her pain with the occurrence of that accident.

Dr. Fox reported on October 29, 1970, that plaintiff “probably suffered a sprain of the cervical spine and also the dorsal spine. The sprains of the dorsal spine are superimposed on osteoarthritis. She also irritated the muscles of the scapulae which are usually fairly intimately connected with the cervical and dorsal spine. The left seems to be causing her more trouble. . . . . It is felt that this patient is not rehabilitating as fast as one might expect due to a basic personality defect which throws her easily into a dependent state.”

Defendant argues that plaintiff greatly exaggerated her symptoms, and that the principal cause of her present discomfort is her obesity, hypertension and arthritis, all of which existed before the accident and none of which was aggravated or made more symptomatic by the injury which she may have received in July, 1970. It is suggested that an award of $750.00 as general damages would be adequate.

Most of the doctors who testified felt that plaintiff had greatly exaggerated her symptoms. Dr. Fox stated that plaintiff is “pretty severely neurotic,” that he thinks “a lot of this will clear up after the litigation is settled,” and that he feels that “it is a sort of litigation neurosis, as well as a trauma neurosis.” The trial judge also observed that “Daisy seeks to magnify her injuries.” And we agree that plaintiff has greatly exaggerated her injuries.

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Bluebook (online)
265 So. 2d 266, 1972 La. App. LEXIS 6694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oliphant-v-fitzgerald-bros-lumber-co-lactapp-1972.