Dickerson v. LeBlanc , 252 So. 2d 683 ( 1971 )

ELLIS, Judge.

This case arises out of an accident in which the car in which plaintiffs were riding hit two cows belonging to defendant, which were loose on the highway. Plaintiffs are Gloria Dickerson, for her personal injuries, and her husband, Freddie Dickerson, for his special damages as well as on behalf of their three minor children— Michael, Wanda, and Maurice Dickerson. Defendants are Clifford G. LeBlanc, owner of the cows, and Aetna Insurance Company, his insurer. After trial on the merits, in which liability was stipulated by defendants, judgment was rendered in favor of Gloria Dickerson for her personal injuries for $1,750.00, and in favor of Freddie Dickerson for the special damages and for injuries suffered by Michael Dickerson. No awards were made for Wanda, who was not injured, or for Maurice, who was born normal after the accident. From this judgment, only Gloria Dickerson has appealed, asking for an increase in her award.

The accident happened on the evening of November 23, 1968, and Gloria was seen that night by Dr. Connie Major. At the time, Gloria was seven months pregnant. She had a small laceration of her upper lip, which required no stitches, and was very nervous and upset and complaining of pain in her low back. Dr. Major found muscle spasm in the lumbar region of the back. Dr. Major diagnosed a severe sprain of the low back and prescribed medication for pain, muscle relaxant and sodium bu-tisol for nervousness. There were no complications involving the pregnancy, which terminated in a normal birth on January 27, 1969. Dr. Major felt that Gloria developed an anxiety reaction for which tranquilizers were prescribed. She continued to treat Gloria until July 22, 1969, when she was discharged as asymptomatic.

Dr. Charles McVea examined Gloria for the defendants on June 17, 1969. She was complaining of back pain, but he was unable to find anything to justify the complaints. He noted a mild scoliosis, or lateral curvature of the spine, which he did not feel was caused by the accident or related to the symptoms described by plaintiff.

Dr. Rhodes J. Spedale first saw Gloria on October 24, 1969. She was complaining of pain in the thoracic and lower lumbar regions of the spine. He found muscle spasm in the lumbar region, and a slight scoliosis to the right of the thoracic spine. He was unable to say if the scoliosis was caused by the accident, but said that if not, it was probably aggravated thereby. He was treating Gloria with diathermy, massage and exercise, and thought it might take her two or three years to get well. He was of the opinion that she would have difficulty in walking any distance.

Gloria Dickerson testified she had never had any trouble wtih her back or side before the accident. She testified that she had trouble walking and sleeping, and that she could not do all of her housework. At the trial, she testified she hurt all over her back.

Clifford A. LeBlanc testified that he had known Gloria nearly all of her life and that he saw her several times a week. He said that after the accident, both before and after the birth of her child, she walked regularly to and from her mother’s house, which was two or two and one half miles from her home. He said she appeared to walk straight and normally. This, of course, contradicts the testimony of both Gloria and Dr. Spedale.

Obviously, the district judge disregarded the testimony of the plaintiff and of Dr. Spedale in reaching his conclusion. He apparently felt that she was exaggerating her symptoms insofar as her back injury is concerned, and in this conclusion we cannot say he is manifestly erroneous. However, he failed to make any award for her anxiety reaction and nervousness resulting from worry over the possible effect of the accident on the unborn child, which is a com-pensable item of damages. For this reason, we feel the award should be increased to $3,500.00.

The judgment appealed from is amended by increasing the amount thereof to $3,500.-00, and, as amended, it is affirmed, at defendant’s cost.

Amended and affirmed.