LeBoeuf v. Theriot , 269 So. 2d 568 ( 1972 )

ELLIS, Judge:

This case arises out of an automobile accident between an automobile owned by Carl J. LeBoeuf, Sr. and operated by his wife, Mrs. Lucille G. LeBoeuf, and an automobile owned and operated by Claiborne J. Theriot. Plaintiffs are Mr. and Mrs. LeBoeuf and Mrs. Olevia Sailor, a guest passenger in their automobile. Defendants are Mr. Theriot and Hanover Insurance Company, his insurer. Trial was held on the question of quantum only, defendants having stipulated liability, and judgment was rendered in favor of Mrs. LeBoeuf for $4,036.22, including special damages, and in favor of Mrs. Sailor for $1,666.56, including specials. Plaintiffs have appealed, asking that the award of the trial court be increased as to both general and special damages.

Mrs. LeBoeuf suffered a whiplash type injury to her neck, as well as an injury to her low back. She was treated by Dr. Connie Major, a general practitioner. From December 28, 1970, the date of the accident, through the month of March, 1971, she received frequent treatment as an outpatient at White Castle Hospital in the form of ultrasound, diathermy, hot packs and massage. She also received treatment four times during the month of April and twice in May. Her last visit was on May 24, 1971, and she did not return to the doctor or the hospital thereafter. Her major complaint at the time of trial was of intermittent attacks of pain in her shoulder. Dr. Major testified that she had improved under treatment, and assumed her to be recovered since she did not return for treatment. Mrs. LeBoeuf testified she stopped treatment because it was doing her no good. Dr. Major did testify that the pain could be due to a preexisting arthritic condition which might have been aggravated by the accident.

The trial judge concluded that Mrs. LeBoeuf had not carried the burden of proving any damage beyond May 24, 1971, in view of her failure to continue treatment and the equivocal nature of Dr. Major’s testimony relative to the possible aggravation of an arthritic condition. He awarded Mrs. LeBoeuf $3,000.00 in general damages. We find this award to be well within the bounds of his discretion.

Mrs. Sailor suffered an injury to her low back, and was treated as an out patient at the White Castle Hospital almost daily from December 28, 1970, until March 8, 1971. On March 10, 1971, she was asymptomatic and was discharged as cured by Dr. Major. At the trial, Mrs. Sailor still complained of some difficulty with her back. There was no testimony that she had suffered any disability as a result of the injury. The trial judge awarded her $1,100.00 in general damages, and we find no error in his conclusion in this respect.

With respect to the medical charges, the bills for professional services introduced in evidence in this case showed 34 visits to Dr. Major by Mrs. LeBoeuf and 24 by Mrs. Sailor. Each of the plaintiffs testified that she only saw Dr. Major three or four times during the entire period of treatment. Dr. Major’s testimony was that the employee who was engaged in preparing the bills became mentally ill, and that the records were in a mess. However, she felt that her statement was correct as introduced in evidence. There were also some discrepancies in the hospital bills relating to charges, treatment administered, and frequency of visit by the plaintiffs. Because of the confusion, the trial judge awarded only one half of the total claimed, and we find no manifest error in his conclusion.

We note that the special damages were awarded to Mrs. LeBoeuf rather than Mr. LeBoeuf. However, since no complaint is made as to this error, we will not recast the judgment.

The judgment appealed from is affirmed, at plaintiffs’ cost.

Affirmed.