Cook v. Kolb , 9 So. 2d 868 ( 1942 )

The claim of the above plaintiff against W.E. Kolb and his insurer is for the total sum of $4,597.54, and this claim arises out of the same accident wherein we found Kolb and his insurer liable in the opinion this day handed down in the case of Antoine Ashey, on behalf of his minor daughter, Asine Ashey, against these same defendants, 9 So.2d 865. It only remains to discuss the claim of plaintiff for damages in this suit.

The above plaintiff's claim is made up of damage to his automobile in the sum of $518.05, the sum of $79.49 for medical and drug bills, and $4,000 for personal injuries, pain and suffering. The trial court awarded plaintiff $300 for damages to the car, $1,000 for the injuries received by him, including pneumonia contracted as a result of injuries, and the sum of $500 for pain and suffering, making a total award of $1,800. A reconventional demand was filed by defendant Kolb against Cook for damages to the former's car in the sum of $535. While no mention is made in the judgment of this reconventional demand, the judgment in favor of plaintiff had the effect of rejecting it.

While there is some testimony in the record tending to show that the car driven by Cook was owned by him and Antoine J. Ashey jointly, yet throughout Cook's testimony he referred to the car as belonging to him. Moreover, Ashey not only failed to claim any interest in the car in his testimony but actually filed a suit against these defendants on his own behalf and in behalf of his minor daughter in which he made no reference to this car as belonging to him and Cook jointly. Under these circumstances, we do not see how the defendants could be prejudiced by permitting Cook to collect for damage done to the car. The defendants do not seem to seriously question the award of $300 for this item, and as the proof supports the award, we are not disposed to change it.

Cook suffered the fracture of two or three ribs with rather severe chest bruises. He was confined to the hospital for eight or nine days and developed pneumonia from the injuries. His chest was strapped for the fractured ribs, and sedatives given him while in the hospital for the relief of pain. He came back several times after leaving the hospital for a check-up and apparently fully recovered from the injury. We think an award of $1,200 for the injuries, pain and suffering would be ample. His medical bill was $61, making the total allowed the sum of $1,561.

For the reasons assigned herein, as well as the reasons assigned in the case of Antoine J. Ashey, for the benefit of his minor daughter, Asine Ashey, v. W.E. Kolb et al., 9 So.2d 865, this day decided, it is ordered that the judgment herein appealed from be amended by reducing the amount of the award from $1,800 to the sum of $1,561, and as thus amended, the same is affirmed; appellee to pay the costs of the appeal, and appellants to pay all other costs.