Windolph v. Harley

79 So. 2d 911, 1955 La. App. LEXIS 772

• Court: Louisiana Court of Appeal
• Decided: May 9, 1955
• Docket: No. 20461
• Status: Published

Opinion

McBride, judge.

Sellmirl J. Windolph sues Mrs. Hettie Ruth Burge Harley and Pacific Indemnity Company, in solido, for $46,711.75 for personal injuries and $2,148.48 for the loss of his automobile, which' damages were sustained by plaintiff dn the automobile collision which happened in Slidell on July 5, 1953, in the early morning hours.

Plaintiff recovered judgment against Pacific Indemnity Company for $1,920 for his property damage and for 10000/47675 of $10,000 or $2,097.54 for his personal injuries. Pacific Indemnity Company has appealed.

The jury was correct in its finding that Pacific Indemnity Company, the insurer of the Harley automobile, is liable unto plaintiff for his damages, as will appear from the reasons assigned in the case of Futrell v. Pacific Indemnity Company, an opinion and decree in which was handed down by us this day. 79 So.2d 903.

There is no dispute as to the award of $1,920 for the loss of his automobile.

As to the personal injuries, we are inclined to believe that the sum of $10,000 which the jury determined was the amount of Windolph’s damages is excessive. Win-dolph claims that he suffered a dislocation of the left hip with deep and extensive lacerations of both knee's, as well as a broken collarbone. ■ After the initial period of hospitalization óf some nineteen or twenty days, during which he was sometimes in traction, he developed' acute thrombo phlebitis in his left leg and again had to be hospitalized. The phlebitis resulted in permanent partial disability in his left leg and he is compelled to wear a knee-, high elastic stocking. Windolph is a carpenter and claims-he could not work for a period of six months and lost earnings of $300 per month.

Great difficulty arises in fixing the quantum for the personal injuries which Win-dolph claims he' suffered, because we have not the benefit of evidence -from medical experts and must rely only on plaintiff’s testimony given as a layman. There is nothing going to show that the phlebitis resulted from the injuries received in the automobile. However, the jury believed that Windolph had suffered'severe'injuries and 'with that we cannot disagree.

We believe that to hold that the amount should be fixed at $5,000 would be substantial justice in view of the uncertainties of the situation and, therefore, plaintiff is entitled to recover 5000/33300 of $10,000 or $1,501.50 for his personal injuries and loss of wages.

It is ordered, adjudged and decreed that the amount of the judgment be decreased to ,5000/33300 of $10,000 or $1,501.50 and affirmed.

Amended and affirmed.