Nesser v. Gage

LANDRY, Judge. This action in tort is the counter suit to that of Number 4995 on the docket of this court, entitled Gage v. Nesser, La.App., 119 So.2d 98, in which judgment was rendered in this court on this date affirming the judgment of the lower court dismissing the demand of plaintiff therein Alberta W. Gage against defendant W. F. Nesser and his liability insurer on the finding that the negligence of plaintiff therein, Alberta W. Gage, defendant herein, was the proximate cause of the accident, giving rise to the two lawsuits filed as a result thereof. In the instant case, defendant Alberta W. Gage has appealed the judgment of the trial court awarding damages against her in favor of W. F. Nesser, his wife, Cora Lee Nesser, and the three minors, Kenneth J. Nesser, Dennis W. Nesser and Lynn M. Nesser. Having disposed of the question of defendant’s liability in suit Number 4995 on the docket of this court, we shall confine our opinion to a consideration of the correctness of the damages awarded herein by the trial court. [98] The evidence shows that plaintiff W. F. Nesser sustained special damages in the sum of $3,298.32 consisting of damages to his automobile in the sum of $1,-791.61, hospital and medical expense in the amount of $1,506.71 which plaintiff concedes he is entitled to recover. The lower court awarded Nesser total damages in the sum of $4,798.32 but did not itemize same. It would appear to us (and we so assume) that the trial court awarded him the special damages prayed for in addition to the sum of $1,500 for physical injuries sustained in the accident consisting of a fracture of the left tibia, lacerations of the face and neck, paralysis of the larynx, the partial collapse of a lung and the pain, suffering, inconvenience and discomfort resulting therefrom. Obviously the sum awarded for such serious personal injuries is negligible. Undoubtedly the learned trial judge wisely and properly concluded any judgment rendered against defendant Alberta W. Gage would be virtually worthless considering her own demand arising from this action was prosecuted in forma pauperis. Conceding the judgment awarded plaintiff W. F. Nesser to be inadequate against a defendant better able to respond in damages, we feel it does substantial justice between the parties to the case at bar and will not disturb same. Plaintiff Cora Lee Nesser was awarded the sum of $1,500 for fracture of the third and fourth lumbar vertebrae, lacerations of the nose and chin necessitating corrective plastic surgery and the pain and suffering incident to such injuries. This award would also he deemed insufficient were it not for defendant’s impecunious circumstances. Flowever, under the facts of this case we are constrained to let the award stand. The sum of $1,500 was awarded W. F. Nesser for the use and benefit of the minor, Lynn M. Nesser, for nervous shock and hysteria resulting from the accident which amount, in view of the circumstances herein, we shall neither increase nor decrease. Award in the sum of $1,500 was made to W. F. Nesser for the use and benefit of the minor, Dennis W. Nesser, who sustained a compressed fracture of a vertebrae. We believe this award adequate under the circumstances. Finally, judgment for $1,500 was rendered in favor of W. F. Nesser for the use and benefit of the minor, Kenneth J. Nesser, who sustained severe lacerations of the face and forehead leaving permanent scars. This award is believed adequate under the circumstances and will be affirmed. Judgment is rendered herein affirming the judgment of the lower court. All costs in the lower court, as well as the costs of this appeal to be paid by defendant, Alberta W. Gage. Affirmed.