Douglas Fowler, his wife, Abbie Fowler and Fred Schlesinger sustained personal injuries in a vehicular collision which occurred on December 4, 1975 when their automobile driven by Mr. Schlesinger, was struck head-on by a vehicle being operated by an employee of defendant, Western Union Telegraph Company (Western Union). Mrs. Fowler died on July 20, 1976 from severe personal injuries and complications attributable to the accident.
In this suit, Douglas Fowler seeks recovery for personal injuries and medical expenses as well as damages for the wrongful death of his wife and for her conscious pain and suffering from the time of the accident until her death.
Jerry Fowler and Douglas Fowler, Jr., the adult children of Douglas and Abbie Fowler, seek damages for the wrongful death of their mother and for her conscious pain and suffering from the date of injury until her death.
Fred Schlesinger seeks recovery for personal injuries, medical expenses, lost wages and loss of sick leave incurred as a result of the accident.
Houston General Insurance Company (Houston General), the workmen's compensation insurer of the State of Louisiana, intervened in the suit, alleging that Douglas Fowler and Fred Schlesinger were engaged in the course and scope of their employment with the State of Louisiana at the time of the accident. Houston General further alleged payment of certain benefits and medical expenses in the amount of $7,956.16 to Douglas Fowler and $971.00 to Fred Schlesinger, and prayed that it be allowed recovery of these sums, together with any additional sums that may be paid in the future, by preference and priority out of any judgment awarded in favor of these plaintiffs.
Western Union admitted liability, leaving only the issue of quantum to be decided by the trial court.
The parties stipulated to Houston General's subrogation rights to the aforementioned sums as set forth above. Plaintiffs' medical expenses were also stipulated to be as follows:
Mrs. Abbie Fowler ----------- $67,565.58 Douglas Fowler -------------- 4,016.75 Fred Schlesinger ------------ 2,588.91
Following a trial limited to the issue of quantum, the trial judge made the following awards:
The judgment recognized Houston General's subrogation rights to the extent prayed for in its petition of intervention. Western Union was cast for all costs.
Appellant does not contest the general damage award of $15,000.00 in favor of Douglas Fowler. Accordingly, we will not disturb this portion of the trial court's judgment as our review of the record discloses no abuse of discretion in the quantum of this award. We likewise find no error in the trial court's award of medical expenses in accordance with the stipulation contained in the record.
However, appellant does assign error to the remaining awards, contending that the trial judge abused his judicial discretion in awarding damages which are excessive and punitive. Plaintiffs have not appealed nor answered the appeal.
CONSCIOUS PAIN AND SUFFERING ENDURED BY MRS. ABBIE FOWLER
Mrs. Fowler was admitted to Opelousas General Hospital on December 4, 1975 for treatment of severe injuries sustained in the accident. She was hospitalized there until her transfer in April, 1976 to Natchitoches Parish Hospital where she remained until her death on July 19, 1976. During the approximately seven and one-half months from the accident until death, Mrs. Fowler was essentially bedridden. Her injuries caused her intense pain and suffering during this period of time for which the trial judge awarded the sum of $500,000.00.
The trial judge summarized Mrs. Fowler's injuries in his written reasons which we quote:
Appellant strenuously argues that the award of $500,000.00 to the husband and children of Mrs. Fowler for seven and one-half months pain and suffering is completely unreasonable and punitive in nature. Plaintiffs ask that the award be affirmed in its entirety, pointing to defendant's ability to pay, Barrett v. State Farm Mutual Automobile Insurance Company, 236 So.2d 900 (La.App. 3rd Cir. 1970), and to the magnitude of suffering presented in this case.
While a defendant's ability to respond in damages may properly be considered in making an award, it is well settled that damage awards in tort actions are compensatory in nature and must be reasonable. Punitive damages are not allowed in this State in the absence of specific statutory provision. Universal C. I. T. Credit Corporation v. Jones, 47 So.2d 359 (La.App. 2nd Cir. 1950); Post v. Rodrigue, 205 So.2d 67 (La.App. 4th Cir. 1967).
In considering the propriety of the awards in this case, we are guided by certain legal principles governing appellate review of damage awards. It is well settled that before an appellate court may disturb an award made by a trial court, an abuse of discretion by the trier of fact must be clearly revealed by the record. Even upon a showing of a clear abuse of discretion, an appellate court is not at liberty to render
Louisiana intermediate appellate courts, in the exercise of their judicial functions, are constitutionally mandated to review general damage awards. LSA-Const. Art. 5 § 10(B); Temple v. Liberty Ins. Co., 330 So.2d 891 (La.1976). Our review of such awards, however, is severely limited by the Coco-Schexnayder line of cases which has, in effect, clothed trial court quantum awards with a "presumption of correctness" which is rebuttable only by a clear showing of an abuse of discretion. Thus, appellate courts are often faced with the perplexing problem of according appellant his constitutional right to a just and adequate review of a quantum award, while at the same time remaining within the jurisprudential guidelines set forth above. With all due respect to the Supreme Court, we have some doubt as to whether or not this practice allows an appellant the full and adequate review to which he is entitled under our Constitution.
As we proceed to determine whether or not a clear abuse of discretion is evidenced by the record in the instant case, we fully realize the difficulty of the task facing both trial and appellate courts in attempting to value human pain and suffering in terms of dollars and cents. Pain and suffering, by its very nature, is not susceptible of any precise monetary valuation. Far too often, no amount of money could possibly compensate a victim for the agony which he has endured. Even so, it is the solemn duty of courts to attempt to do the impossible; to somehow arrive at a monetary sum that will hopefully indemnify the victim for his shattered life, and yet not be so harsh as to constitute a punitive award.
Able counsel for appellant, in his brief before this court, refers us to numerous cases in which sums considerably less than that allowed by the trial court in the instant case were awarded. While other reported decisions provide no concrete standard for the assessment of damages, similar cases may serve as aids for determining if an abuse of discretion is presented. Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971); Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974).
However, we draw only meager assistance from these cases. Much can be said for the proposition that no two cases are exactly alike. Indeed, the Supreme Court, in Coco, supra, cautioned us against placing too much reliance on these decisions. Words on a printed page cannot reflect the varying pain thresholds presented in different persons. Injury which causes excruciating pain to one individual may have a milder effect on another person who has a higher tolerance of pain. These and other variables, such as the length of the period of suffering, age and general physical condition of the victim and the degree of consciousness only further compound the difficulty of any attempt of reconciling these cases.
The phrase "abuse of discretion" is at best an elusive term that is subject to varying interpretations. We note that in Coco, supra, the Supreme Court stated that a determination as to whether or not an abuse of discretion exists is a "judgment call". Considering the evidence in the record, we must conclude that the award of one-half million dollars for seven and one-half months of pain and suffering is so excessive as to constitute a clear abuse of discretion. We are not indifferent to the acute pain and suffering endured by Mrs. Fowler. Most assuredly, no one could be found who would willingly undergo such an ordeal even for the payment of that amount of money. However, fairness to the defendant necessarily requires that damage awards have reasonable limits. This award exceeds those limits.
Having found an abuse of discretion on the part of the trier of fact, we must now determine the highest amount which could have reasonably been awarded by the trial
WRONGFUL DEATH OF MRS. FOWLER
The trial court awarded Mr. Fowler the sum of $90,000.00 for the loss of love and affection of his deceased wife. The two adult sons of Mrs. Fowler, Jerry Fowler and Douglas Fowler, Jr., were each awarded the sum of $25,000.00 for the loss of their mother. Appellant contends that these awards are excessive and should be reduced.
Turning first to the $90,000.00 award to Mr. Fowler, the record reveals that at the time of her death, Abbie and Douglas Fowler had been husband and wife for forty-one years. After retiring from a teaching position in the public school system, Mrs. Fowler had become her husband's constant companion, often accompanying him to various meetings and conventions. She was always very active in her husband's election campaigns. They enjoyed a very close relationship with the two children born of their marriage, often taking trips to visit them. They were a happy couple, both content to spend the rest of their natural lives with each other. The loss of his wife caused Mr. Fowler, an active person prior to the accident, to become withdrawn and depressed.
Considering the close bonds existing between this couple, we are unable to find an abuse of discretion in this award. Our conclusion is supported by Aymond v. Department of Highways, 333 So.2d 383 (La.App. 3rd Cir. 1976, writ refused), in which this Court affirmed an award of $80,000.00 in favor of a widow for the loss of love, affection, mental pain and suffering for her 37 year old husband. In Cacibauda v. Gaiennie, 305 So.2d 572 (La.App. 4th Cir. 1974), the Fourth Circuit affirmed an award of $95,000.00 for the wrongful death of a husband.
The trial judge, in written reasons, remarked: "The Husband, being 70 at trial, does not have the resiliency of youth to accommodate to the loss of his wife. Nor, does he have the youth and time left to search for, find and accommodate to a second wife, and, in so doing to minimize his loss . . . Not only the evidence adduced, but the demeanor and the tears of the Plaintiff husband on the witness stand bear witness to the great loss of the Husband".
Considering the evidence in the record interpreted in the light most favorable to plaintiff, we cannot say that an award of $90,000.00 to Mr. Fowler for the loss of love and affection of his deceased wife is excessive.
Appellant argues that the award of $25,000.00 to each of the adult children of Mrs. Fowler is excessive by at least $5,000.00. A reduction of each award to $20,000.00 is suggested. Rodriguez v. Trebitz et al., 304 So.2d 396 (La.App. 1st Cir. 1974). Considering the close personal relationship which existed between Mrs. Fowler and her two sons, we find no manifest error in the trial court's award of $25,000.00 to each of them.
Following the accident, Fred Schlesinger was admitted to Opelousas General Hospital for treatment of his injuries. He was discharged about a week later. We quote from the trial judge's summary of Mr. Schlesinger's injuries:
Mr. Schlesinger was confined at home after his discharge from the hospital, and performed only light duties when he first returned to work around January 26, 1976. He still complains of pain in his left ankle and states that he can't get around like he used to.
A total of 256 hours of sick leave, having a monetary value of $1,711.76, were charged against Mr. Schlesinger during the period from December 6, 1975 through January 26, 1976. This sick leave, had it not been utilized, would have been left to accumulate until Mr. Schlesinger's retirement, where it would have increased his retirement pay.
The trial judge awarded Mr. Schlesinger the sum of $15,000.00 as general damages, apparently intending this amount to also include reimbursement of the value of the sick leave charged against him.
Although we consider the general damage award to Mr. Schlesinger high we cannot conclude that it does in fact exceed the highest amount which could have been awarded under a reasonable evaluation of the evidence. Accordingly, the award is not manifestly erroneous and will not be disturbed.
We find no merit in appellant's contention that recovery of Mr. Schlesinger's loss of sick leave should be disallowed because of its speculative nature. Appellant argues that this loss will not be sustained until Mr. Schlesinger becomes eligible to retire at some future time. If he does not live to retirement age, he will sustain no loss. Thus, recovery for this alleged item of damages should not be allowed as there is no proof that this loss will become a reality in the future. In answering appellant's contention, we need only state that an award for this item of damages is no more speculative than awards for future loss of wages, future pain and suffering, and future medical expenses, all of which are recoverable under our law. We find sufficient proof in the record that Mr. Schlesinger will sustain this loss upon retirement. Accordingly, we will allow recovery for his loss of sick leave.
For the above and foregoing reasons, the award of $500,000.00 in favor of Douglas Fowler, Douglas Fowler Jr., and Jerry Fowler for the physical injuries and conscious pain and suffering sustained by Mrs. Fowler is amended and reduced to the sum of $200,000.00. In all other respects, the judgment of the trial court is affirmed at the cost of appellant.
AMENDED AND AFFIRMED.
WATSON, J., concurs and assigns written reasons.
WATSON, Judge, concurring:
While I am extremely reluctant to alter the quantum award entered by the trier of fact, I agree that the half million dollar award is clearly an abuse of discretion. Therefore, I agree to the reduction to $200,000.
I note, however, my disagreement with the comments of the majority opinion critical of Coco and Schexnayder. I find no conflict between the jurisprudence and the constitutional duties of the intermediate appellate courts. The appellant is entitled to a review and not a re-trial under the "proper allocation of trial and appellate functions between the respective courts." Canter v. Koehring Company, 283 So.2d 716 at 724 (La., 1973).
I respectfully concur in the result.