Searcy v. Porter

381 So. 2d 540
CourtLouisiana Court of Appeal
DecidedFebruary 25, 1980
Docket14035
StatusPublished
Cited by3 cases

This text of 381 So. 2d 540 (Searcy v. Porter) 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
Searcy v. Porter, 381 So. 2d 540 (La. Ct. App. 1980).

Opinion

381 So.2d 540 (1980)

S. Alan SEARCY et al., Plaintiffs-Appellees,
v.
Lucien PORTER, Jr., et al., Defendants-Appellants.

No. 14035.

Court of Appeal of Louisiana, Second Circuit.

February 25, 1980.
Rehearing Denied April 3, 1980.

*541 Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Jr., Shreveport, for defendants-appellants.

James R. Malsch, Shreveport, for plaintiffs-appellees.

Before PRICE, JONES and McCLENDON, JJ.

En Banc. Rehearing Denied April 3, 1980.

JONES, Judge.

Plaintiffs, Alan and Dannie Searcy, sue defendants, Lucien Porter; his employer, Eagle Trucking Co.; and its insurer, Commercial Standard Ins. Co., for the wrongful death of their infant son Matthew. The father, as administrator of his son's estate, also asserts a survival action on behalf of his son against these defendants. Liability is now admitted and defendants' appeal seeks only a reduction of the amount of the judgment against them. Plaintiffs answer the appeal requesting increases in certain of the awards received by them. We affirm.

On August 1, 1977, decedent Matthew Ryan Searcy was riding as a passenger in a car which was collided into by a truck driven by defendant Porter who had run a red light. Matthew, a three month old child, sustained multiple cuts, abrasions, skull fractures and brain injuries in the accident. Matthew was taken to the hospital and remained conscious for 1½ hours. He then became comatose and suffered respiratory arrest and two heart failures. Matthew was operated on in an emergency procedure to relieve severe pressure on his brain, but the procedure was not successful. Matthew died eight hours after the wreck.

The jury before whom the case was tried rendered verdict in favor of plaintiffs and against the three defendants in solido in the following amounts:

Dannie Searcy—$50,000

Alan Searcy individually—$48,085.20 ($40,000 as general damages and $8,085.20 as special damages)

Alan Searcy as administrator—$8,000.

The judgment appealed from is the amount of the jury verdict.

Defendants urge that the general damages awarded each of the plaintiffs are an abuse of discretion and should be reduced to $20,000 each (the highest amount possible to not constitute an abuse of discretion of the jury). Plaintiffs answer the appeal urging that the father's general damage award should be equalized with the mother's, that the $8,000 survival award is inadequate, and that both awards are an abuse of the jury's discretion. The correctness of the amounts of these awards is the only issue on appeal.

Our codal guide to reviewing general damages is LSA-C.C. art. 1934(3).

"In the assessment of damages ... much discretion must be left to the [trial] jury."

The most recent Louisiana Supreme Court case analyzing this article and its application to the review of the appellate courts is Reck v. Stevens, 373 So.2d 498 (La.1979). Reck and Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), explained that before a reviewing court can change an award made by the trial court, the record must clearly reveal that the trier of fact abused its discretion in making the award. As stated in Coco at page 335:

"We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. [citations omitted] Only after making the finding that the record supports that the lower court abused its *542 much discretion can the appellate court disturb the award ..."

The initial inquiry to be made and the role that prior awards are to play in the inquiry was first discussed in Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963). At page 158 the supreme court stated:

"The primary question before the appellate court, then, is whether the judge or the jury in fixing the amount of the award has abused its great discretion vested in them by law ... [Prior decisional awards] relied upon may be similar in that each of them involves a similar injury such as a broken arm, the loss of an eye or eyes, or the loss of some member of the body. Thereafter, however, the similarity ceases for each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances peculiar to the case under consideration."

The method of using a scale of prior awards given for generically analogous injuries is condemned by Gaspard, supra, re-criticized by Coco, and exprobrated anew by Reck:

"Such a hypothetical scale of hypothetical awards cannot be used to determine whether or not this trier of fact has abused its discretion in the award to this particular plaintiff under the facts and circumstances peculiar to this case." Id. pp. 500-501.
"Thus the initial inquiry must always be directed at whether the trier court's award for the particular injuries and their effects upon this particular injured person is a clear abuse of the trier of fact's `much' discretion, La.Civ.C. art. 1934(3) in the award of damages. It is only after articulated analysis of the facts discloses an abuse of discretion, that the award may on appellate review, for articulated reason, be considered either excessive [citations omitted] or insufficient." Id. at 501.

See also Rogers v. Weiser Detectives & Security Services, Inc., 375 So.2d 942 (La.1979) and Rogers v. Weiser Detectives & Security Services, Inc., 378 So.2d 502 (La.App.4th Cir. 1979).

We, as the reviewing court, must find there has been an abuse of the trial jury's discretion before we can either raise or lower the award. To make this primary determination, the appellate court can examine prior awards only in an extremely limited role. They can be used only if the facts and circumstances of the past awards are closely similar to the award under review.

"The prior awards may serve as an aid in this determination [of whether the award constitutes an abuse of discretion] only where, on an articulated basis, the present award is shown to be greatly disproportionate to past awards (not selected past awards, but the mass of them) for (truly) `similar' injuries." Id. at 501.

If we do not find initially that the trial court's great discretion has been abused under the facts of this case, then we shall not disturb the awards for general damages.

Decedent Matthew was Alan and Dannie Searcy's youngest child. They have two older sons who were age four and seven at the time of trial, and there was no testimony as to their present inability to have future children. Dannie's sister, Alan's father, Dannie and Alan testified that for several months following Matthew's death Alan and Dannie visited his grave daily. At the time of trial (almost two years later) they still went weekly to the gravesite and trimmed the grass around it. Dannie baked a birthday cake for Matthew on what would have been his second birthday and for the past two Christmases she had a stocking for him. Both Dannie and Alan often wonder how Matthew would look and act as compared to their other boys. The other boys bring back sad memories of Matthew to Dannie because they frequently question her about their brother. Every day Dannie sees her friend's child, who is only two months older than Matthew would have been, and cannot help thinking how Matthew would look and act. Dannie testified that because Matthew was born on Mother's Day, he was a special child.

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