Opinion
No. 3000.
May 6, 1968.
APPEAL FROM CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, NO. 435,863, DIVISION "G", PAUL P. GAROFALO, J.
Plotkin, Sapir, Bradley Krasnoff, Steven R. Plotkin and Richard M. Troy, Jr., New Orleans, for plaintiff-appellee.
Jones, Walker, Waechter, Poitevent, Carrere Denegre, John C. Combe, Jr., New Orleans, for defendant-appellant.
Before SAMUEL, CHASEZ and BARNETTE, JJ.
This is a suit for damages resulting from a rear end automobile collision. The two plaintiffs, Emanuele Augello and Gaetano Augello, are brothers. The former, a passenger in the plaintiff automobile, sues for his personal injuries; the latter sues individually and for the use and benefit of his minor son, whose name is Emanuele Augello (he and his plaintiff uncle have the same name), for personal injuries suffered by the child.
The suit originally was against only Richard J. Call, the owner and driver of the defendant car. Call answered, denying negligence and alleging the sole cause of the collision was a latent defect in the braking system of his automobile. He also filed a third-party demand against Walter K. Ruppert and Walter K. Ruppert, Jr., d/b/a Foreign Car Service Center, alleging said third-party defendants were the sole cause of the accident because the defect in the braking system was due to their negligent or faulty repair work.
Subsequently plaintiffs filed a supplemental and amended petition naming as an additional defendant The Travelers Insurance Company, automobile liability insurer of the plaintiff car, and seeking judgment against Travelers under the terms of its uninsured motorist coverage. Travelers answered denying negligence on the part of Call and alternatively made a third-party demand against Call for indemnity for any sums for which it might be cast on the main demand. Thereafter plaintiffs filed a second supplemental and amended petition naming the two Rupperts as defendants.
After trial there was judgment against Call, Travelers and Walter K. Ruppert, Jr., in solido, in favor of plaintiff Emanuele Augello in the amount of $2,000 for his injuries and in favor of Gaetano Augello, individually and for the use and benefit of his minor son, in the amount of $300 for both the child's injuries and a $24 doctor's bill incurred as a result thereof; Travelers was awarded judgment over against Call for any amount it became obligated to pay to the plaintiffs; and the elder Ruppert was dismissed from the suit on the ground he had not been connected with Foreign Car Service Center. Travelers alone has appealed, conceding however that the dismissal of the elder Ruppert from the suit is correct. Accordingly, that dismissal is not before us.
In this court appellant contends: (1) the trial court erred in finding negligence on the part of Call; and alternatively, (2) the awards for personal injuries are excessive. Plaintiffs have answered the appeal seeking: (1) an increase to $3,000 in the award to the plaintiff Emanuele Augello; (2) an increase to $1,000 in the award in favor of Gaetano Augello for the use of his minor son; and (3) to have that judgment corrected so as to tax as costs against all defendants cast the fees of three doctors at $100 each and the fee of an interpreter at $75.
The accident occurred on May 20, 1964 between 9 and 10 a.m. on Dauphine Street in the City of New Orleans. There are two lanes for moving traffic on Dauphine. The plaintiff car was stopped in the left lane facing Canal Street awaiting a favorable semaphore signal when it was struck in the left rear by the right front of the defendant automobile. Gaetano Augello, the owner of the plaintiff automobile, was its driver. The other plaintiff, Emanuele Augello, was in the front seat to the driver's right holding the minor child, Emanuele Augello, on his lap.
The defendant automobile was a 1959 Hillman Minx convertible, a small car of foreign manufacture with four forward gears. It had been purchased by Call approximately five weeks prior to the date of the accident. On April 22, 1964 Call brought the car to Walter K. Ruppert, Jr. for repairs, primarily a complete brake job with the exception of the master cylinder. Subsequently, on May 6, 1964, he returned to Ruppert with the complaint that the brake pedal continued to go down too far and the brakes needed further attention. Ruppert installed a new master cylinder and again adjusted the brakes. On May 18, 1964, following installation of the master cylinder, Call again brought his vehicle to Ruppert complaining about the brake pedal. On the morning of the accident Call picked up his car from Ruppert's place of business in the 400 block of North Galvez Street after being told the repairs had been effected.
Call testified as follows: After picking up his car he drove it from North Galvez Street to Orleans Avenue to Dauphine Street and then, on Dauphine, in the direction of Canal Street to the point where the accident occurred. During this drive, which consumed approximately 10 or 15 minutes, he had no difficulty with the braking mechanism in the midmorning city traffic. He first saw the stopped plaintiff automobile about 200 or 300 feet ahead of him in his traffic lane. Traveling in fourth gear at a speed of approximately 10 miles per hour he attempted to apply his brakes for the first time when he was a distance of approximately two car lengths from the plaintiff vehicle. The brakes failed to respond, the pedal went all the way to the floor, and in the few seconds left before the collision he pumped the pedal once and swerved his car left into the curb which stopped the vehicle after it had struck the plaintiff automobile. He did not attempt to apply his emergency brakes nor did he consider swerving to the right into the other traffic lane.
The record establishes, and the litigants before us concede, that the brakes suddenly failed as a result of the fact that the hydraulic flex line had broken and allowed the hydraulic fluid to run out. The record also reveals there was no deterioration of the flex line which Call could or should have observed and the line could burst, and apparently did, without the driver being able to foresee that possibility.
Appellant's contention regarding an alleged absence of negligence on the part of Call is based on: (1) the rule that the driver of a motor vehicle is not responsible for an accident caused by latent defects in his car where he exercises reasonable care in having the car inspected or where the defect could not reasonably have been discovered by proper inspection, citing Delahoussaye v. State Farm Mutual Automobile Insurance Co., La. App., 202 So.2d 287, Dowden v. Jefferson Insurance Company, La. App., 153 So.2d 162, Trascher v. Eagle Indemnity Company of New York, La. App., 48 So.2d 695, and Hassell v. Colletti, La. App., 12 So.2d 31; and (2) the sudden emergency doctrine to the effect that a driver is not charged with negligence for failure to exercise the best judgment in an attempt to extricate himself from a perilous situation not of his own creation, citing Dane v. Canal Insurance Company, 240 La. 1038, 126 So.2d 355; Commercial Standard Insurance Company v. Johnson, 228 La. 273, 82 So.2d 8, and Frey v. DiMaggio, La. App., 153 So.2d 571.
The holding of the trial court is based on a finding that the sudden emergency doctrine was inapplicable because Call contributed to or caused the emergency. Although he did attempt to have his brakes repaired, the trouble with the braking mechanism continued despite two such attempts in a very short period of time and the court concluded he was negligent under the circumstances in applying his brakes for the first time when he was only two car lengths from the stopped plaintiff vehicle.
We agree with the trial court finding on negligence. Call gave the only testimony contained in the record relative to his actions just prior to the accident. Knowing that the braking system had been faulty even after two attempts to correct the same he should have realized the malfunction might continue. Despite this fact he relied entirely on that system, even to the point of no return, when he first applied the brakes just two car lengths behind the stopped plaintiff vehicle. We do not know whether the car lengths he referred to are the lengths of the small car he was driving or that of an ordinary American automobile. In either event he was negligent, especially in view of the fact that he continued to travel in fourth gear which, considering the low powered foreign car he was driving, casts some doubt on his testimony that he was proceeding at only 10 miles per hour.
Plaintiff Emanuele Augello resides in Sicily. He was in New Orleans visiting his brother at the time of the accident. He did not seek medical attention until slightly more than a month after the collision occurred. Then, on two visits only, he saw Dr. S. J. LoCoco, an orthopedic specialist. Although the doctor told him to return for further evaluation and treatment he failed to do so. He testified he did see other doctors when he returned to Sicily several months later. Because of some obvious inconsistencies therein we are not impressed by his testimony. However, as did the trial judge, we can and do determine the extent of his injuries from the testimony of Dr. LoCoco.
Dr. LoCoco testified he saw Augello on June 23 and 24, 1965. Augello complained of pain and discomfort in the neck area, of weakness, especially in the arms and hands although the pain did not radiate into that area, and of severe headaches. An orthopedic examination was performed, neurological testing was done and x-rays were taken on the second visit. Most of the objective physical findings were in the cervical spine. The doctor found Augello had a generalized weakness, particularly in the upper extremities, with a weakness of grip in both hands, which he associated with a cervical strain; there was some tenderness over the lateral aspects of the right parietal bone of the skull and muscle spasm behind the neck, which also was tender; and there was a marked degree of limitation of motion of the cervical spine in all directions. Dr. LoCoco was of the opinion that Augello had sustained a contusion of the skull and a severe, acute cervical strain. He prescribed bed rest and a muscle relaxant which also controlled nervousness and agitation. Although he told Augello to return in one week he did not see the patient again. Dr. LoCoco was of the opinion the delay in obtaining medical treatment ordinarily would prolong recovery. He felt Augello should have remained in bed for about two weeks after which he should have tried to regain his strength without returning to work for an additional three weeks and that Augello probably would suffer some periodic pain and discomfort for two or three months.
On the basis of Dr. LoCoco's testimony we are of the opinion that the award of $2,000 is neither excessive nor inadequate to the extent that it constitutes an abuse of the trial court's discretion under LSA-C.C. Art. 1934(3).
The minor, Emanuele Augello, sustained only what appears to be a slight blow to the head when he was thrown against the dashboard of the plaintiff car. His regular pediatricians could find no evidence of such a blow when they examined the boy shortly after the accident. However, the child did have some emotional symptoms, a common type of anxiety reaction in children following involvement in an accident with trauma. The child's injuries do appear to be slight. But the award of $300 (less $24) is correspondingly small and we find the same is neither excessive nor inadequate to the extent that it constitutes an abuse of the trial court's discretion.
The last question presented for our determination is contained in that portion of plaintiffs' answer to the appeal which seeks a correction of the judgment to the end that the fees of three doctors and the fee of an interpreter be taxed as costs against all defendants cast. The trial judge indicated from the bench that he intended to tax as costs the fees of the three testifying physicians referred to, Drs. David Spizer, Richard Bagnetto and S. J. LoCoco, at $100 each and the fee of a translator, Mr. William Dalzell, whose services were made necessary by the fact that one of the plaintiffs did not speak English, at $75. Apparently through inadvertence, the judgment made no mention of these items.
Subsequent to the date of the judgment plaintiffs filed a rule to tax those fees as costs against Call, the younger Ruppert and Travelers. Thereafter judgment on the rule was rendered as prayed against Call and Ruppert only; judgment was not rendered against Travelers because that defendant had taken its appeal prior to the filing of the rule and the trial court had lost jurisdiction over the matter; the judgment did reserve plaintiffs' rights against Travelers to tax costs and expert fees. Under these circumstances we are satisfied that the plaintiffs are entitled to the relief sought and we amend the trial court judgment accordingly.
For the reasons assigned, it is ordered that the judgment appealed from be amended to the end that the expert witness fees of Drs. David Spizer, Richard Bagnetto and S. J. LoCoco be set in the sum of $100 each, the expert fee of Mr. William Dalzell as interpreter be set at $75 and all of said fees be taxed as costs and charged to the defendant, The Travelers Insurance Company in solido with the other two defendants cast, Richard J. Call and Walter K. Ruppert, Jr. As thus amended, and in every other respect, the judgment appealed from is affirmed.
Amended and affirmed.