Thibeaux v. Lewis

WATSON, Judge. This suit was consolidated for trial and appeal with Andrew v. State Farm Mutual Automobile Insurance Company et al., docket No. 5005, 316 So.2d 883, a matter arising out of the same collision. Plaintiff herein, Clarence Thibeaux, received a judgment in the trial court against the driver of the vehicle in which he was riding, Adam Andrew and Andrew’s liability insurer, Travelers Insurance Company, in the sum of $2,939.19. His claim against the driver of the other vehicle, William R. Lewis and Lewis’ insurer, State Farm Mutual Automobile Insurance Company, was dismissed. In Thibeaux’s case an order was signed on July 13, 1973 dismissing the claim against Lewis, (but not as to Lewis’ insurer), as of non-suit and without prejudice, on plaintiff’s motion. However, this dismissal was not reflected by the judgment of the trial court. Defendants, Adam Andrew and Travelers, as well as plaintiff Thibeaux, have appealed from the judgment of the trial court, all contending that the trial court erred in dismissing the claim against State Farm. Defendants Andrew and Travelers also contend that the trial court erred in finding Andrew’s negligence a proximate cause of the accident. Plaintiff also contends that the award of damages is inadequate. For the reasons assigned in Andrew v. State Farm Mutual Automobile Insurance Company et al., docket No. 5005, 316 So.2d 883, we find no manifest error in the trial court’s conclusion that the accident occurred as the result of Adam Andrew’s negligence and that William R. Lewis was not negligent. Therefore, the judgment of the trial court dismissing plaintiff’s suit against State Farm Mutual Automobile Insurance Company is affirmed. We will amend the dismissal as to Lewis to be as of non-suit and without prejudice. Plaintiff, Clarence Thibeaux, received judgment against defendants, Adam Andrew and Travelers Insurance Company, in solido, for $2,939.19, consisting of $750.00 general damages and the following special damages: (TR. 40) Dr. John Guidry: $ 55.00 Dr. E. S. Fields: 105.00 Dr. James R. Bush: 110.00 American Legion Hospital, Inc.: 203.14 Walter Schmid, physical theraptist: 114.05 Loss of wages: 1,602.00 Plaintiff’s injuries consisted of a cervical contusion and sprain, trauma to the chest and skull with abrasions and contusions about the face. He was treated with moist heat, massage and traction. Our review of the award for plaintiff’s injuries is limited to the question of whether or not [890] there was an abuse of the trial court’s discretion. Plaintiff herein was not severely injured. The award is adequate. For the foregoing reasons, the judgment of the trial court is affirmed, except that it is amended to show that Clarence Thi-beaux’s claim against William R. Lewis is dismissed without prejudice pursuant to the order of July 13, 1973. All costs of this appeal are taxed against appellants. Amended and affirmed.