Opinion
No. 3164.
November 4, 1968. Rehearings Denied December 4, 1968. Dissenting Opinion December 5, 1968. Writ Refused February 24, 1969.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, JEFFERSON PARISH, JOHN C. BOUTALL, J.
C. Cyril Broussard, Fritz H. Windhorst, New Orleans, for plaintiff-appellant.
Porteous, Toledano, Hainkel Johnson, William A. Porteous, III, New Orleans, for defendants-appellees.
Before REGAN, SAMUEL, and REDMANN, JJ.
The plaintiff, John W. Apffel, filed this suit against the defendants, the Greyhound Corporation, and John A. Guillory, the operator of one of Greyhound's busses, endeavoring to recover the sum of $155,515.15 representing damages for personal injuries and medical expenses incurred by him as the result of the negligence of Guillory in striking the plaintiff's automobile with the bus.
The defendants answered and denied that they were guilty of any negligence which formulated the proximate cause of the accident.
After a trial on the merits, the lower court rendered judgment in favor of the plaintiff and against the defendants solidarily in the amount of $3,704.76. From that judgment, the plaintiff has prosecuted this appeal.
The record discloses that on March 15, 1962, the plaintiff was driving his automobile in U.S. Highway 61 in the general direction of Kenner, Louisiana. In the intersection of Jackson Street and Highway 61, the plaintiff's vehicle was truck in the rear by a bus owned by the Greyhound Corporation and operated by John A. Guillory. As a result of this collision, the plaintiff was injured, and he was treated by his family physician, Dr. Isadore Yager, who subsequently referred him to Dr. Irwin Cahen, an orthopedic surgeon, for consultation. An examination revealed that the plaintiff evidenced injury to his cervical spine and to the lumbosacral area of his back. He was treated by Dr. Cahen, who saw him intermittently until late June, 1962, when he was discharged.
In the course of treatment for this injury, the plaintiff worked intermittently for about three weeks; thereafter, he took an eleven day vacation, which ended on July 9, 1962, at which time he had no pain in his back.
On July 10, 1962, the plaintiff returned to work at his place of employment, Pellerin Laundry Machinery Sales Company. On that day, he was assigned together with a fellow employee to install some heavy machinery in a local laundry. In the course thereof, it became necessary for him to remove a large pipe, which was approximately three inches in diameter. Since the pipe was rusty, he was required to strike it with a large wrench, after which, he used a heavy Stilson wrench in an effort to unscrew the pipe. When he was in the act of applying great pressure on the wrench, he felt pain in the lumbar area of his back. He discontinued working and visited the offices of Dr. J. T. Nix.
Dr. Nix examined the plaintiff, found muscle spasm and advised him to wear a lumbosacral support for approximately one month. Dr. Nix suggested that the plaintiff could return to light work on July 16, 1962, and to regular duty with unrestricted activity on July 20, 1962.
From that day on, the plaintiff's condition worsened, his primary symptoms being low back pain which radiated down his right leg. On September 4, 1962, he consulted Dr. Byron Unkauf, who concluded that there was some involvement of the fibers of the annular ring in the disc between the L4 and L5 vertebrae.
Dr. Unkauf eventually referred the plaintiff to Dr. Raeburn Llewellyn, an expert in the field of neurosurgery. Dr. Llewellyn performed a myelogram, which was negative. Conservative treatment was then tried which proved unsuccessful. Thereafter a procedure described as a discogram was performed on the plaintiff, which revealed the presence of a ruptured intervertebral disc. Surgery ensued for the removal thereof, and the plaintiff now insists that the rupture of this disc was caused by the accident of March 15, 1962, and seeks to have the lower court's award raised in conformity with this reasoning.
The defendants concede liability for the accident of March 15, 1962, and, since they have not taken an appeal from the judgment awarding damages for the plaintiff's cervical injuries, that question is not before us for review. The sole question which is now posed for our consideration by virtue of this appeal is one of fact, and that is whether the accident of March 15, 1962, was the legal cause of the plaintiff's ruptured intervertebral disc.
The defendants contend that there was no causal connection between the accident on March 15, 1962, and the lower back injury sustained on July 10, 1962. In support of this argument, they point to the testimony of Dr. Irwin Cahen, who in testifying as an expert in the field of orthopedics, asserted that as of the date of discharge of the plaintiff by him in late June, 1962, he was completely recovered from any symptoms of injury to his lower back; however, it is significant to point out that no myelogram or discogram was performed by Dr. Cahen, and his testimony of necessity ends as of the date of his last examination and discharge.
The testimony of Drs. Unkauf and Llewellyn both establish unequivocally that the injury of March 15th caused some damage to the fibers of the plaintiff's annular ring, which structure forms the inside circumference of the intervertebral disc. They also point to the fact that before the rear end collision the plaintiff never complained of any back symptoms, was active in his trade and was unrestricted in his movements by pain or other symptoms of disc involvement. Following the accident, he complained of pain in the area of the ruptured disc, and eventually the disc had to be removed. Both doctors agreed that the rear end collision did cause some damage to the annular ring at the injured site.
Moreover, both of these physicians reasoned that it was not unusual for a disc rupture to be initiated by an accident such as the one which occurred on March 15th, with an intervening period of relative normalcy, and an eventual aggravation of the injury by returning to work or engaging in other physical activities.
A careful analysis of the record has created considerable doubt as to whether the actual cause of the ruptured disc was the unusual effort exerted in loosening the pipe or the trauma resulting from the automobile-bus collision. The evidence clearly preponderates to the effect that some injury was incurred by the plaintiff in the automobile-bus collision, which weakened the plaintiff's annular ring. Obviously, this condition was not diagnosed after the occurrence of the foregoing accident.
The law is clear that the plaintiff bears the burden of proving that the ruptured disc was the natural and proximate result of the injury incurred in the automobile collision and was not the result of the separate, independent and intervening act of loosening the rusty pipe for which the defendant was in no way responsible. In this case, the plaintiff's own testimony with respect to the severe strain he placed upon his body in an effort to loosen the rusty and corroded pipe creates a substantial doubt in our minds whether or not this unusual exertion was an independent and intervening act which caused the ruptured disc. In short, the whole tenor of the record lead us to the inevitable conclusion that while the preponderance of the evidence discloses that some damage was done to the plaintiff's annular ring in the automobile accident of March 15, 1962, the plaintiff has failed to bear his burden of proof to establish a direct causal connection between that accident and the ruptured intervertebral disc.
Rainwater v. Timothy, La. App., 87 So.2d 11 (1956); Livaccari v. United Jewish Appeal, Inc., La. App., 126 So.2d 67 (1961); Waggoner v. Marquette Casualty Company, La. App., 181 So.2d 475 (1965); and Bolin v. Hartford Accident Indemnity Company, La. App., 204 So.2d 49 (1967).
However, since the lower court did not consider the injury to the plaintiff's annular ring, which was incurred in the automobile accident, in its award of damages, the amount thereof is inadequate. Therefore, we are of the opinion that the judgment in favor of the plaintiff should be increased by the sum of $3,000.00 to compensate him for this injury to his annular ring.
For the foregoing reasons, the judgment of the lower court is now amended by increasing the amount thereof from $3,704.76 to $6,704.76, and, as amended, the judgment is affirmed.
Amended and affirmed.
On Rehearing.
The plaintiff, in his application for rehearing, contends that the court erred in omitting to increase the amount of his award for lost wages. Any amount due for unawarded lost wages was included in the $3,000.00 by virtue of which the lower court's judgment was raised on appeal.
Both applications for rehearing are denied.
Denied.
I respectfully dissent from the refusal to grant a rehearing.
After reconsideration prompted by the applications for rehearing, I now believe it most probable that defendant's negligence which resulted in the bus-car collision and the damage to plaintiff's annular ring also immediately rendered him permanently incapable of returning to work as a laundry machinery mechanic, the proof of which is that the very first time he attempted his normal heavy work he ruptured a disc at the very site of the original injury. When a doctor says, judging from his diagnosis tests only, a back is completely well, but the back breaks the first time one tries to use it as one has for many years, I believe the doctor has been proven wrong and I believe we were probably wrong in saying the normal (for plaintiff) use of his back was an intervening cause of the ruptured disc. And there is ample other medical testimony in the record to justify this conclusion.
Restatement Torts 2d § 460 declares the case law from other jurisdictions:
"If the negligent actor is liable for an injury which impairs the physical condition of another's body, the actor is also liable for the harm sustained in a subsequent accident which would not have occurred had the other's condition not been impaired, and which is a normal consequence of such impairment."
See also the annotations at 9 A.L.R. 255 and 20 A.L.R. 524.
Some Louisiana cases have recited (and even overstated), in dicta only, a principle similar to the Restatement's: "If a person receives an injury through the negligent act of another, and the injury is afterwards aggravated and recovery retarded by a subsequent accident not resulting from the failure of the injured person to use ordinary care, the subsequent accident becomes a sequence or natural result of the original injury and the tort-feasor is liable for the entire damage sustained." Rainwater v. Timothy, 87 So.2d 11, 13 (La.App. 1956); Waggoner v. Marquette Cas. Co., 181 So.2d 475, 478-479 (La.App. 1965); Bolin v. Hartford Acc. Indem. Co., 204 So.2d 49, 51 (La.App. 1967).
Perhaps the closest Louisiana case is Livaccari v. United Jewish Appeal, Inc., 126 So.2d 67 (La.App. 1961), where we denied recovery for injuries suffered in a subsequent fall. However, there it appears the claimant may have in fact been successfully utilizing his formerly injured right knee after the first accident and prior to the fall when he injured his left knee, which distinguishes that case from the present. If plaintiff here had been successful in using his back for his heavy work even for one day and had injured some other area, we might reasonably conclude he had recovered from the original injury and the wrench incident was a separate new injury. But plaintiff here never regained the normal use of his back, but instead suffered further injury at the original injury site the first time he tried full normal use.
I conclude it is strongly possible we erred in denying plaintiff damages for his proven loss of future earnings, and therefore we should at least grant a rehearing; and I respectfully dissent from the refusal to do so.