Opinion
No. 7256.
April 5, 1950. Rehearing Denied April 28, 1950.
Thomas M. Comegys, Jr., Shreveport, for appellant.
Morgan, Baker Skeels, Shreveport, for appellee.
Plaintiff's six year old daughter, Frieda, suffered incision of the left cheek when she accidentally fell against a piece of sheet metal on top of a stack of lumber placed by the defendant upon a concrete walk on his property. For the use and benefit of the minor, plaintiff sued the defendant to recover damages, and, individually, sued to recover the expenses necessarily incurred by him to have the child treated for the injury.
The District Court rejected plaintiff's demands and on appeal to this court that judgment was affirmed. 37 So.2d 464. The Supreme court granted a writ of review in the case and reversed both of said judgments, holding that defendant was liable in damages to plaintiff. 216 La. 769, 44 So.2d 862. However, the case was remanded to this Court with directions that we fix the amount of damages to which plaintiff is entitled.
The wound was slightly curved, approximately two inches long, just below the left cheek bone, its ends nearly on a line between the corner of the mouth and lower end of the ear. The incision severed the skin and the underlying tissue but did not reach the bone. No other injury resulted from the accident, and no infection set up.
The child, immediately after the accident, was carried to a sanitarium where competent surgical service was rendered to her. Ether or gas was administered and the wound sutured. Several stitches were necessary. These were removed after the lapse of a few days. She returned home the following morning but visited the doctor several times thereafter for observation. It was then simply a matter of giving the wound time to heal. This took place as quickly and as efficiently as could have been expected. She was out of school two weeks. She did not suffer intense pain at any time but did experience some discomfort due to the itching of the wound while in the process of healing.
At time of trial, nearly nine months after the accident, the wound had completely healed. The scar tissue then was only one-sixteenth of an inch wide and pinkish in color. The healing did not affect the adjacent skin. No drawn or irregular surfaces followed. The medical testimony is to no one accord that as time passes the hue of the scar tissue will gradually grow lighter until it becomes white, possibly a little whiter than the adjacent skin; and that as the face grows larger, the scar area will become comparatively smaller and less noticeable. It is, nonetheless, permanent.
On account of the little girl's tender age, the wound healed more quickly with demarcation less vivid than would be the case of an adult. The record leaves little or no doubt that it will be but a few years before the scar tissue will be of such color and be blended with the adjacent skin in such way that its presence will not only be not conspicuous but little noticed by others.
The fixing of an award in damages in a case of this character is not free of difficulty. We have reviewed the numerous cases that involve face wounds, disfigurements, scars, etc., and found not one having facts as they appear in the case at bar. In no two is the award the same. In this connection, a statement by Judge McCaleb in Schultz v. Kinabrew, La. App., 177 So. 450, 454, is apropos, to-wit: "It is always difficult to gauge with exactness the measure of damages and it would serve no purpose to set forth in detail the amounts allowed in cases involving scars and disfigurements, for each case must stand upon its own particular facts, and the authorities cannot be looked to as a definite precedent by which we can be guided. * * *"
It is our belief that an award of $500 for the use and benefit of the minor child will be adequate.
Plaintiff proved that he incurred obligations in the sum of $63.50, necessary to have the child treated.
For the reasons herein given, there is now judgment in favor of plaintiff, for the use and benefit of his minor daughter, Frieda Salter, and against defendant, Harry L. Zoder, in the sum of $500 with legal interest from judicial demand until paid.
It is further ordered, adjudged and decreed that plaintiff, individually, have and recover judgment against the defendant for the sum of $63.50, with legal interest from judicial demand until paid. And, that defendant pay all costs of court.