Svaboda v. Moville

346 So. 2d 891, 1977 La. App. LEXIS 3834
CourtLouisiana Court of Appeal
DecidedMay 17, 1977
DocketNo. 7915
StatusPublished

This text of 346 So. 2d 891 (Svaboda v. Moville) 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
Svaboda v. Moville, 346 So. 2d 891, 1977 La. App. LEXIS 3834 (La. Ct. App. 1977).

Opinions

Before SAMUEL, SCHOTT and BEER, JJ.

BEER, Judge:

Keith Svaboda and Dana Kemp sued Ogden Moville, Jr., his employer, Santa Fe Engineering and Construction Company, and its insurer, Stonewall Insurance Company, Inc., for damages resulting from a vehicular collision on September 19, 1974. Trial on the merits resulted in judgment in favor of the plaintiffs, and defendants sus-pensively appeal. Appellants challenge the trial judge’s decision regarding liability and quantum. Svaboda and Kemp have not appealed, nor have they filed answer to the appeal.

On the date of the accident, at approximately 12:30 p. m., Svaboda, with Kemp as his guest passenger, was driving his motorcycle in a direction away from the river on St. Joseph Street, a two-way street in New Orleans. As they entered the controlled intersection of St. Joseph at St. Charles Avenue, the collision ensued with plaintiff’s motorcycle striking the left front side of an automobile owned by Sante Fe Engineering and Construction Company and being driven by Ogden Moville, Jr., in an uptown direction on St. Charles Avenue in the right hand lane. Moville was accompanied by his wife and mother, all of whom occupied the front seat of the car.

The plaintiffs, Svaboda and Kemp, testified at the trial that the traffic light was green in favor of traffic on St. Joseph Street just before the moment of impact.1 However, Ogden Moville, Jr., his wife and his mother all testified to the contrary: that the light favored the St. Charles Avenue traffic. Roger Ford, a claims adjuster by profession and the only completely disinterested witness to the accident, testified that he was traveling on St. Joseph Street “about a half or two-thirds of a block behind them (plaintiffs) for a couple of blocks.” As the plaintiffs approached the St. Charles Avenue intersection, Ford noted that the semaphore traffic light indicated green in favor of St. Joseph traffic. When he realized the imminence of the accident, he instinctively (as a trained accident claims adjuster) “looked back at the light” which he testified remained green for the plaintiffs. Immediately after impact, as Ford called over a Citizens Band Radio for assistance, he observed “the light was still green at that time.” On cross-examination, Ford admitted that he could not see the traffic light color indicated for St. Charles Avenue traffic at the time of the accident.

The trial judge, in written reasons for judgment, gave much weight to the testimony of Ford, whose testimony “seemed believable and sound.” We find no manifest error in the trial judge’s credibility call.

Appellants urge that plaintiffs failed to prove their case, contending that there is no evidence that Moville ran a red light. However, in our view, the plaintiffs’ burden of proof is not so onerous as, to disallow the method of deductive reasoning obviously exercised by the trier of fact.

Turning to the quantum issue, we note that several days after the accident, Svaboda was examined by Dr. Philip P. [893]*893LaNasa, who diagnosed his injuries as cervical sprain; contusion, abrasion, right arm; low back sprain; contusion, right hip; contusion, right calf; sprain, left knee; contusion, ecchymosis, left hip: and abrasion, infection, left leg. (Exh. P-3.)

Svaboda is a marine engineer, and belongs to a union. Shipping companies routinely advise the union of their manning needs for licensed engineers. These jobs were posted at the union hall and members with numbered “shipping cards” bid to acquire a particular job. The longer a shipping card is held unused, the lower that card number becomes, thus increasing the holder’s chances of securing a particular job. At the time of the accident, Svaboda had not shipped out for 9 months. The last union job Svaboda held prior to the accident ended in January, 1974. Thus, as of that date, he began to accumulate seniority such that by the time of the accident, he was in an excellent position to successfully bid for any job then offered.

On September 23, 1974, four days after the accident in question, a desirable assignment became available aboard the vessel SAM HOUSTON. It was filled by one A. Roch, who earned $35,412.01 in the course of that voyage. Svaboda wished to but was unable to take this assignment because he was “still hurting from the accident” although he had seniority over Roch as far as choice of jobs was concerned. A handwritten note from Dr. LaNasa dated October 6, 1975, indicates that Svaboda “was advised not to work because of his injuries.” (Exh. P-5.) Nevertheless, if not for the accident, Svaboda testified that he would have taken the job aboard the S.S. SAM HOUSTON as a permanent “watch standing” third assistant engineer because of “more pay” and “better chance of getting chief engineer.” Svaboda explained that he did not take a job assignment aboard the GREEN VALLEY on September 5, 1974, nor on September 16, 1974, because he “didn’t want to work for that company” even though the wages and duties would have been essentially the same as those aboard the S.S. SAM HOUSTON. On redirect examination, Svaboda clarified that he knew the S.S. SAM HOUSTON “was going to crew up in the next several weeks” after the GREEN VALLEY job was made available.

On October 4, 1974, Svaboda relinquished his seniority status and accepted employment as third assistant engineer aboard the MASON LYKES for financial reasons, even though he felt that he had not fully recuperated from the accident. His job, as a third assistant engineer, required “minimal physical effort” relative to his previous first assistant engineering. After Svaboda’s employment aboard the MASON LYKES, he transferred to the ULTRA SEA and after-wards to the DELTA MAR until May 29, 1975. From then until June 23, 1975, he was on vacation, at which time he worked a non-union job aboard the CAPTAIN FRANCOIS LECLERQ for Euro-Pirates International for 18 days at $70 per day. Svaboda had not worked since then up to the date of the trial on October 9,1975. At the trial, Svaboda testified that he was physically capable of working. This testimony was corroborated by the stipulated medical report of Dr. LaNasa, dated April 4, 1975, indicating that “he (Svaboda) seemed to have made a good recovery from all his injuries. However, he has a resultant scar on his left leg.” (Exh. P-4.)

On the basis of this evidence, the trial court awarded damages as follows:

Medical expenses $ 155.00
Property damage 536.31
Loss of wages 14,155.40
Pain and suffering:
cervical sprain, injury to right arm, low back sprain, right hip contusion, right calf contusion, left knee sprain, left hip contusion and ecchymosis, left leg abrasion, infection and small scar 5.000.00
$19,846.71.

Regarding the loss of wages, the trial judge reasoned that:

“. . . Keith Svaboda would have obtained employment on the S/S SAM HOUSTON had he not been injured. The job actually went to A. Roch, who earned $35,412.01. During this period of employment, Keith Svaboda earned $21,256.61. [894]*894The difference between these figures represent what the Court feels is a reasonable method of arriving at an amount which will compensate Keith Svaboda for his loss of wages. . . . The Court does not feel an award of future loss of wages is warranted because they are of a speculative nature.”

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Bluebook (online)
346 So. 2d 891, 1977 La. App. LEXIS 3834, Counsel Stack Legal Research, https://law.counselstack.com/opinion/svaboda-v-moville-lactapp-1977.