WOOD v. STATE DEPT. OF HIGHWAYS, 338 So.2d 739 (La.App. 3 Cir. 1976)

WILLIE LEE WOOD, PLAINTIFF-APPELLEE-APPELLANT, v. STATE OF LOUISIANA THROUGH DEPARTMENT OF HIGHWAYS ET AL., DEFENDANTS-APPELLANTS-APPELLEES.

No. 5569.Court of Appeal of Louisiana, Third Circuit.
September 22, 1976. Rehearing Denied November 4, 1976. Writ Refused January 12, 1977.

APPEAL FROM 10TH JUDICIAL DISTRICT COURT, PARISH OF NATCHITOCHES, STATE OF LOUISIANA, HONORABLE W. PEYTON CUNNINGHAM, JR., J.

William J. Doran, Jr., Baton Rouge, for defendants-appellants-appellees.

Watson, Murchison, Crews Arthur by William P. Crews, Jr., Natchitoches, Cook, Clark, Egan, Yancey King by Herschel E. Richard, Jr., Shreveport, for plaintiff-appellee-appellant.

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Before HOOD, CULPEPPER, MILLER, DOMENGEAUX and WATSON, JJ.

MILLER, Judge.

[1] Defendant Department of Highways appeals the judgment awarding $120,149.57 to plaintiff Willie Lee Wood for personal injuries. Wood also appealed seeking to increase the award and to hold defendant Joseph Michael Mondello jointly liable for his injuries. We reverse the judgment against the Highway Department and award judgment to Wood against defendant Mondello. [2] This case was consolidated for trial and appeal wit Mondello v. State, through Department of Highways, 338 So.2d 730 (La.App. 3 Cir. 1976) in which a separate opinion is being handed down this date. [3] For reasons there assigned, we find Mondello’s negligence to have been the sole legal cause of the accident. Wood’s response to the sudden emergency was immediate and reasonable. He was free from negligence and is entitled to recover damages from defendant Mondello. [4] Counsel for defendant Joseph Michael Mondello has not suggested that the $120,149.57 should be reduced, so the quantum issue is limited to Wood’s contention that the award should be increased. [5] This 22 year old plaintiff suffered serious and permanent disabling injuries. He was unconscious and on the critical list for several days after the accident. He sustained a brain stem injury causing seizures and convulsions; contusions over his lower extremities; a fracture of the left elbow; and perineal nerve palsy resulting in a drop of his left foot requiring a leg brace. During hospitalization he developed an ulcer which required plastic surgery. At discharge from the hospital, his memory recall was very poor. His treating physician was of the opinion seven months post accident that plaintiff should not return to his job of driving a truck. [6] Wood was awarded $10,179.57 for his medical expenses; $10,000 for loss of earnings and $100,000 for general damages. The trial judge saw plaintiff Wood at trial; he knew that the objective symptoms of his disability were limited, and the psychological evidence indicating total disability was qualified by the statement that Wood might improve in the following seventeen months. [7] While we find the award on the low side, we are unable to conclude that the trial court’s large discretion in these matters has been breached. We therefore affirm the amount of the award assessed by the trial court. LSA-C.C. art. 1934(3); Lester v. Employers Mut. Liability Ins. Co. of Wisconsin, 333 So.2d 672
(La.App. 3 Cir. 1976); Ogaard v. Wiley, 325 So.2d 642
(La.App. 3 Cir. 1975). [8] The judgment in favor of Joseph Michael Mondello and against the State of Louisiana, through the Department of Highways is reversed and set aside. Plaintiff, Willie Lee Wood, is awarded $120,149.57 in damages against defendant Joseph Michael Mondello, together with legal interest from date of judicial demand. All costs both at trial and on appeal are taxed to defendant Mondello. [9] QUANTUM AFFIRMED; remainder of judgment REVERSED and RENDERED. [10] DOMENGEAUX, J., concurs in the result. [11] WATSON, J., concurs in part and dissents in part, and will assign written reasons in Mondello v. State Dept. of Highways, La.App., 338 So.2d 730. [12] ON APPLICATION FOR REHEARING [13] PER CURIAM. [14] In an application for rehearing, plaintiff Willie Lee Wood directs our attention to an oversight in the trial court’s decree and in our affirmation. All parties stipulated that the expert economist, Dr. David Townsend, was entitled to an expert fee of $300. [15] We amend the trial court’s judgment and our decree to award this expert fee and tax it as costs. With this amendment, the application for rehearing is denied.

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[16] DECREE AMENDED; REHEARING DENIED. [17] WATSON, J., concurs in amending the decree.