No. 8513 Precedential Processed

Cotton v. Needham

Louisiana Court of Appeal, First Circuit · Filed September 2, 1971 · 253 So. 2d 674

Also decided on this docket: La. Ct. App. 1st Cir., May 25, 1978 359 So. 2d 750; La., April 15, 1883 35 La. Ann. 475; La. Ct. App. 3d Cir., February 3, 1982 410 So. 2d 815; La. Ct. App. 4th Cir., March 27, 1978 354 So. 2d 572; La. Ct. App. 2d Cir., June 14, 1956 88 So. 2d 476

Cited by

Banner Chevrolet, Inc. v. Kelt 402 So. 2d 747 La. Ct. App. 4th Cir. 1981
Dillon v. Rice 375 So. 2d 742 La. Ct. App. 1st Cir. 1979
Melancon v. DRILLING MUD 282 So. 2d 532 La. Ct. App. 1st Cir. 1973
Williams v. Allied Chemical Corporation 270 So. 2d 157 La. Ct. App. 1st Cir. 1973
Dickson v. Zurich Insurance 261 So. 2d 350 La. Ct. App. 1st Cir. 1972
Cotton v. Needham 255 So. 2d 353 La. 1971

Authorities cited

Identified automatically; this list may not be exhaustive.

Bennett v. Achord 238 So. 2d 764
Germann v. 557 Tire Co. 167 La. 578
Gureasko v. Polders 111 So. 2d 580

Opinion text

ELLIS, Judge: Plaintiff Shirley Cotton was injured in an automobile accident on February 21, 1969, caused by the fault of defendant Gerald P. Needham, whose liability is conceded in this court. Defendant has appealed from the judgment against him, complaining that the award of $789.30 is excessive. The trial judge awarded plaintiff $500.00 for her personal injuries. Plaintiff complained of a “terrific” headache and neck pain after the accident. She was seen once by her doctor, who diagnosed a mild cervical strain and prescribed analgesics and muscle relaxants. X-rays of plaintiff’s neck proved to be negative. Her total medical expenses were $39.30. Plaintiff testified that she improved steadily and was entirely recovered in three weeks. We find the award of $500.00 made by the trial judge to be within the limits of his discretion in such matters. Plaintiff was driving a 1960 Dodge, which she had purchased for $595.00 about one and one half years before the accident. The expert mechanic who testified said that the labor alone to repair it would amount to that much, and estimated its salvage value at $100.00. There was no testimony as to the value of the car at the time of the accident. In cases in which it is obvious that the cost of repair exceeds the value of the automobile, the proper measure of damages is the difference between its salvage value and its value at the time of the accident. Bennett v. Achord, 238 So.2d 764 (La.App. 1 Cir. 1970). It is also true that when it is clear that a party has suffered damages but is unable to establish them with legal certainty, the courts have discretion to fix the amounts thereof. Germann v. 557 Tire Co., 167 La. 578 , 120 So. 13 (1928). Gureasko v. Polders, 111 So.2d 580 (La.App. 1 Cir. 1959). However, the latter rule has no application when the damages sought are easily proven, but such proof is simply not forthcoming. The plaintiff bears the burden of proving her claim, and, in this case, has failed to do so with respect to the damages to her automobile. The judgment appealed from is therefore reduced to $539.30, and, as amended, it is affirmed, with costs of the appeal to be equally shared by both parties. Amended and affirmed.