Perry v. New Hampshire Insurance

233 So. 2d 362, 1970 La. App. LEXIS 5472
CourtLouisiana Court of Appeal
DecidedMarch 9, 1970
DocketNo. 7932
StatusPublished
Cited by2 cases

This text of 233 So. 2d 362 (Perry v. New Hampshire 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
Perry v. New Hampshire Insurance, 233 So. 2d 362, 1970 La. App. LEXIS 5472 (La. Ct. App. 1970).

Opinion

BLANCHE, Judge.

This appeal arises out of a suit for damages brought by Mrs. Shirley Perry, wife of Paul Perry, in which her husband initially appeared as a party plaintiff to recover damages attributable to the community of acquets and gains. By amended petition Mrs. Shirley Perry alleged the termination of the community by judgment of separation prior to institution of these proceedings and prayed that all damages be awarded to her individually. Made defendants in the suit are Francis Achee and his public automobile liability insurer, New Hampshire Insurance Company.

Plaintiff alleged that on April 21, 1964, the automobile she was operating was struck from the rear by an automobile owned and being operated by Francis Achee, which accident occurred on Main [363]*363Street in Houma, Louisiana. Plaintiff further alleged that as a result of this accident she sustained severe personal injuries especially to her back. Defendants denied the occurrence of the accident, denied any negligence on the part of Francis Achee, and further pleaded that in any event plaintiff sustained no injuries or only minor injuries of temporary duration as a result of the alleged accident. After the case was tried and taken under advisement, the presiding judge rendered judgment in favor of plaintiff and against the defendants, in solido, in the sum of $18,354.67 with legal interest from judicial demand together with all costs, no reasons for the judgment being assigned. Defendants perfected this sus-pensive appeal.

Plaintiff’s version of the accident was that she was proceeding in a westerly direction along Main Street in Houma, Louisiana, where she brought her automobile to a stop behind preceding traffic pursuant to the direction of a traffic officer, and while in this stopped position her vehicle was rammed in the rear by the Achee vehicle. As a result of this accident plaintiff contended she sustained a severe injury to her back which ultimately necessitated her undergoing a spinal fusion at Mercy Hospital in New Orleans, Louisiana, on February 1, 1965.

Defendants contend that there was no ramming of plaintiff’s vehicle by the Achee vehicle, but on the contrary there was merely a “nudging” of the Perry vehicle in the rear by the Achee vehicle when defendant Achee inadvertently permitted his foot to release the brake whereupon the “creeping” motion inherent in the automatic transmission of his automobile started the vehicle moving forward. Defendant Achee contended that as soon as the forward motion was observed he immediately applied the brake again but not before the vehicles had come into slight contact.

Plaintiff offered the testimony of Robert Foreman, a member of the Houma City Police Department, who testified that the Achee vehicle did in fact strike the Perry vehicle from the rear at a speed estimated by him of eight to ten miles per hour at the time of impact. The record contains evidence to the effect that there was no damage sustained by the Achee vehicle as a result of the contact between the automobiles, and that the only possible damage sustained to the Perry vehicle was a slight dent in the rear bumper thereof. The accident was of such a minor nature that the police officer who was directing traffic at the intersection immediately in the front of the Perry vehicle testified he was not aware that any accident had occurred until he was summoned by the plaintiff.

It is obvious that the trial court concluuded after considering all the evidence that the Achee vehicle did in fact hit the Perry vehicle from the rear and that Achee was negligent in permitting his vehicle to do so. We are satisfied from a review of the record that these findings by the trial court are not manifestly erroneous.

There remains for consideration the important question of what if any injuries plaintiff sustained as a result of this accident. Dr. Thomas Givens, a general practitioner in Houma, testified that prior to this automobile accident of April 21, 1964, he had been treating the plaintiff for the past several months for a sciatica condition in the left leg and for low back pain in the left hip area which was precipitated by a fall sustained by plaintiff on November 28, 1963, while she was pushing a box along the floor of a jewelry store with her leg. Dr. Givens stated that his associate saw the plaintiff at the emergency room of the local hospital after the automobile accident, and Dr. Givens first saw her thereafter on April 23, 1964, at which time he diagnosed plaintiff as having sustained lumbosacral muscle strain. Because of her severe pain and marked restriction of back movements, he hospitalized her on April 23, 1964, and ordered her placed in traction, which treatment she received until April 29, 1964. She was discharged from the hospital on April 30, 1964, as having no muscle spasm. Dr. Givens stated that the muscle spasm he de[364]*364tected in the hospital and shortly after her release therefrom was localized on the left side, and her pain went only down the left leg. He stated that he next saw Mrs. Perry on May 6, 1964, at which time his examination revealed continued muscle spasm for which he prescribed pain relievers and physical therapy. Dr. Givens testified he next saw the plaintiff on May 14, 1964, at which time she was still experiencing back pain and muscle spasm. Because of her failure to respond to treatment, he referred her to Dr. George C. Battalora, Jr., an orthopedist, for further treatment.

Dr. Givens voiced the opinion that the automobile accident aggravated plaintiff’s condition and was therefore the ultimate cause of the subsequent spinal fusion, and in conjunction with this opinion minimized and in effect refused to attribute any significance to the injury sustained by the plaintiff in November of 1963. In this connection the following excerpts from Dr. Givens’ testimony are relevant:

“Q Now, being aware of her past medical history, and of course, being aware of your own findings and treatment, and after the November, ’63, incident at White Brothers, and keeping in mind that she did not miss any work from November to April, and she was able to do her housework, and further knowing about the automobile accident that she told you about, and your findings of local pain and problems in the lumbar sacrum area, and knowing of her hospitalization and subsequent course, what would you say was the precipitating events [sic], which set into motion the severe pain and disability, which commenced with your findings and hospitalization in April?
“A I think in my mind there is no doubt that the accident aggravated all of her symptoms, and actually made them more extensive than they were before.
“Q That’s the automobile accident you are speaking of ?
“A Yes.”
“(Trans., pp. 215, 216)
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“Q Would an injury or a strain to the leg, or a pulled muscle, or what have you, as was sustained by Mrs. Perry in November, naturally result in a generalized backache?
“A Well, a strain could do that, but actually Mrs. Perry was getting better. She was working all the time that I was treating her for this condition, and her back complaint was minor. And she was actually getting a great improvement as the weeks went by until the accident.”

(Trans., p. 214)

In refutation of this opinion counsel for defendants elicited from Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
233 So. 2d 362, 1970 La. App. LEXIS 5472, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perry-v-new-hampshire-insurance-lactapp-1970.