
    Robert SANDERS et al. v. Lev HALL, Jr. and New Orleans Public Service Inc.
    No. 8099.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Rehearing Denied May 17, 1977.
    Writ Granted July 1, 1977.
    Gerald P. Aurillo, Metairie, for plaintiffs-appellants.
    A. R. Christovich, Jr., New Orleans, for defendants-appellants.
    Before GULOTTA, STOULIG and SCHOTT, JJ.
   GULOTTA, Judge.

Plaintiffs in this action are the driver and four occupants of an automobile which was rear-ended by a NOPSI bus while stopped for a signal light at the intersection of South Claiborne and Carrollton Avenues in the City of New Orleans. Undisputed damages to the automobile amounted to $111.26. The sole issue on appeal is one of quantum with regard to the $2,000.00 general damage award rendered in favor of each plaintiff.

In claiming that the general damage awards are excessive, defendants draw attention to the facts that all of the injured plaintiffs complained of similar back pain, either to the cervical or lumbar areas; that all were administered practically the same course of treatment by the same physician for approximately the same amount of time; that all were discharged at approximately the same time; that all incurred approximately the same amount of medical expense; and, that all sustained exactly the same amount in loss of earnings during a 15-week course of treatment from April 5, 1974 to July 19, 1974.

Plaintiffs, on the other hand, seek an increase from $2,000.00 to $3,000.00 in the general damage award to each claimant. According to plaintiffs, the severity of the impact to their automobile caused the vehicle to move forward 6 feet after the collision and resulted in their sustaining muscle spasms, back, neck and shoulder injuries requiring a course of treatment involving prescriptions for pain relievers, muscle relaxants, and the use of diathermy treatments and office visits to the physician (depending on the individual) on some 27 to 30 occasions.

According to Dr. Sam Charles Macaluso, the treating physician, plaintiffs sustained the following injuries:

1. Robert Sanders, driver of the automobile — lumbosacral strain resulting in moderate tenderness and spasm over the lower back area.
2. John Canty, seated in right front of the automobile — cervical sprain and bilateral trapezoid strain resulting in moderate tenderness and spasm over cervical and shoulder areas.
3. Michael Conner, seated in the center rear of the automobile — lumbar sprain and lumbosacral strain resulting in severe tenderness over lower back area and restriction of movement.
4. Joshua Berry, seated in the left rear of the automobile — lumbar sprain, more severe on left side and strain of the left trapezoid. Dr. Macaluso testified that Berry suffered moderate tenderness and severe spasm over the lower back area with moderate restriction of movement and mild tenderness and spasm over left shoulder area.
5. Larry Hudson, seated in the right rear of the automobile — cervical and lumbar strain resulting in moderate tenderness over the neck area with restriction in movement moderately over this area and moderate tenderness and spasm over the upper back area.

Only Sanders required the use of lumbo-sacral support.

When we consider the medical testimony, the course of treatment and the jurisprudential guidelines set forth in Canter v. Koehring Company, 283 So.2d 716 (La.1973); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) and Robinson v. Graves, 343 So.2d 147 (La.1977), we are compelled to conclude that the $2,000.00 general damage award for each of the plaintiffs is within the judicial discretion of the trial judge. Accordingly, we affirm.

However, to render a decree to that end without further comment upon the peculiar nature of this case would be an abdication of our appellate judicial responsibility. In a case such as this one, we feel a sense of futility in not being able to amend the judgment.

We cannot simply close our eyes to the fact (supported by the record) that legal advise was sought prior to medical care on the same day that the accident occurred. Nor can we overlook similar injuries to five persons in the same or relatively close to the same areas of the anatomy. Further, we would be less than intellectually honest if we did not regard without suspicion virtually identical treatments administered to all five plaintiffs, on the same days, at the same hours and resulting in the simultaneous discharge of all plaintiffs on the same date by the same physician. As pointed out in brief submitted by counsel for the defendants, “It should stretch the imagination of any reasonable person that such coincidence could be present.”

We do not consider plaintiffs’ testimony that only one automobile was available to all five plaintiffs for transportation a satisfactory explanation for the frequency and extent of treatment and same date of discharge for all plaintiffs.

We are mindful that we do not have the benefit of observation of the demeanor of the witnesses and that we are not to substitute our judgment for the reasonable conclusions reached by the trial judge. We recognize also that no contrary medical evidence was presented by defendants. Nevertheless, we believe that the suspicious circumstances call for a substantial reduction of the general damage awards granted by our learned brother on the trial court. However, we are admonished not to substitute our judgment for that of the trial judge. See Canter v. Koehring Company, supra. Were it not for the requirements of the jurisprudence cited above, we would deem a proper general damage award to each of the plaintiffs, under the circumstances, to be the sum of $300.00. In view of the controlling law, however, we have no choice but to affirm the judgment of the trial court awarding a $2,000.00 general damage award to each of the plaintiffs.

AFFIRMED.

SCHOTT, J., concurs.

STOULIG, J., dissents.

SCHOTT, Judge,

concurring.

Defendants-appellants argue persuasively in their brief to this court as follows:

“This appeal is taken by the defendants with full recognition and appreciation of the workload of this Court, but with a concomitant feeling of duty and obligation to illustrate to this Court what is happening almost daily in the trial courts with respect to claims such as have been made here. If something constructive could be done about discouraging the procedures that are present in the instant case, in the plaintiffs’ preparation of their claims, it could go a long way to reducing the workload of all the Courts. We say this because what has become ‘standard operating procedure’ in the presentation of plaintiff’s claims on soft tissue injuries, is underlined and multiplied by five in the instant case. There are five plaintiffs. They are all represented by the same counsel. They all went to the same doctor. Within $10, they all incurred the same medical bills. They all began treatment on the same day. They were all discharged on the same date. It should stretch the imagination of any reasonable person that such coincidence could be present.”

Considering these facts which are borne out by the record, a reversal of the trial court’s judgment or a substantial reduction of quantum would seem to be in order except for the standards for appellate review imposed upon us by the Supreme Court in Canter v. Koehring Company, 283 So.2d 716 (1973).

There it was said that reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. It may be argued in this case that to award these five plaintiffs the same $2,000 each under the circumstances constituted an unreasonable evaluation of their credibility, but that approach seems to lack merit when we consider the Supreme Court’s stated reasons for the rule:

“The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Applying these principles to this case, it is true that we can only read what these five witnesses told the trial judge, and without a doubt when this testimony is reduced to writing it is unbelievable. But as live witnesses they must have been quite persuasive because the trial court saw fit after observing them to reward them generously for their performance. In the final analysis, it is impossible for us to say that his evaluation of their credibility was not reasonable because we did not see the performance. It is analogous to the dramatic effect on an audience by the performance of a powerful orator. The audience may be moved to tears or passion but when this is reduced to print it may not have the same effect. Perhaps if we had a videotape of plaintiffs testifying we could say that the trial judge’s evaluation of their credibility was not reasonable, but in the absence of such a tool we are at a disadvantage. Following the Supreme Court’s mandate in the Canter case we cannot substitute our own evaluation of these plaintiffs’ credibility. When these plaintiffs climbed on the witness stand and each said, “I am hurting,” who is to say that they were not hurting? We can say that we don’t believe they were hurting, but the trial judge by awarding these plaintiffs $2,000 each said, “I believe they are hurting.” In the final analysis their awards are supported exclusively by his belief of their testimony. Objective pain is not always subject to confirmation or contradiction by physical evidence, so that, in a sense, the final decision as to whether plaintiffs were hurting or not before, during and after their course of treatment was for the trial judge alone to decide.

I also concur with Judge Gulotta to the effect that $300 would be adequate for each of these plaintiffs but I do not believe a reduction is supportable under the prevailing jurisprudence of the Supreme Court.

Under the Louisiana Constitution of 1974 appellate jurisdiction of a Court of Appeal extends to facts as well as law, Art. 5, § 10(B). In two recent cases, Robinson v. Graves, 332 So.2d 303 (La.App.4th Cir. 1976) and Coco v. Winston Industries, 330 So.2d 649 (La.App.3rd Cir. 1976), careful reviews of the facts presented at the trial were made by the appellate courts and reductions in the quantum of the awards were made. In both cases, the Supreme Court reversed the courts of appeal and reinstated the judgments of the trial court. Coco v. Winston Industries, Inc., 341 So.2d 332 (1977), Robinson v. Graves, 343 So.2d 147 (La.1977). The primary basis for the Supreme Court’s action in both cases was that abuse of the “much discretion” in making awards for general damages afforded to the trial court by LSA-C.C. 1934(3) was not demonstrated by the record. In these cases, the Supreme Court restated and reaffirmed principles repeatedly announced since the Court’s decision in Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963). See cases cited in the Supreme Court’s decision in Coco v. Winston Industries, Inc., supra.

One definition of the word “discretion” is the “Power or privilege of the court to act unhampered by legal rule.” Black’s Law Dictionary revised 4th ed. 1968. Another is “Freedom to act or judge on one’s own.” The American Heritage Dictionary of the English Language, 1969. One definition of the word “abuse” is “to make an extravagant or excessive use, as to abuse one’s authority.” Black’s Law Dictionary, revised 4th ed. Another is “to use wrongly or improperly.” The American Heritage Dictionary of the English Language, 1969. Thus, when we speak of abuse of discretion we are in a sense using a phrase which is inherently self contradictory. If a trial court’s discretion under C.C. Art. 1934 means that he can set awards for general damages “unhampered,” how can it ever be said that he has made extravagant or excessive use of that discretion. If it means that he is free to make awards on his own, how can it be said that he has misused his authority even though everyone else considers the award he made to be excessive. Furthermore, under the definitions given for discretion it would seem that the use of the word “much” preceding “discretion” in Art. 1934 is a redundancy. If the trial judge is to act unhampered and if he has the freedom to act on his own in making general damage awards these expressions are absolute, and the word “much” does no more than emphasize what is said by the word “discretion.”

Recent decisions of the Supreme Court seem to indicate that as a matter of law the “much discretion” afforded by Art. 1934 means that the trial judge has freedom to act on his own practically unhampered by the appellate court’s constitutional obligation to review the facts. While the Supreme Court opinions continue to state that appellate courts should reduce awards where there is an abuse of this “much discretion,” in practice the case is indeed rare where this appellate judicial authority has any application. This is demonstrated by the fact that the Supreme Court has seldom increased or decreased the quantum awarded by the trial court in recent years and has repeatedly granted writs of review to reinstate trial court awards where the courts of appeal have changed such awards. The fact that the Supreme Court has refused writs of review where changes have been made by the appellate courts is apparently of no significance whatsoever. See the Supreme Court’s discussion in Coco v. Winston Industries, Inc., supra, and compare with the coiirt of appeal opinion in the same case in which 19 writ denials are cited and discussed.

If each of the five plaintiffs in this case had filed separate suits and had recovered the same $2,000 appellants’ argument for a reduction would not be nearly as persuasive. Had the trial court attempted to make some distinction among them based on their appearance or age perhaps he could have awarded some amounts which varied by $100 or so. But, in the exercise of his “much discretion” he gave them the same amounts. Can it be said that this constituted an abuse of that discretion? Under the Supreme Court’s decisions I cannot say that it was.

In connection with appellants’ statement concerning the workload of this court, we do not hesitate to undertake the performance of our duty in connection with any individual case regardless of any backlog or workload, but we are constrained to decide cases within the jurisprudential guidelines announced by the Supreme Court. It has been said that intermediate appellate courts are concerned with the results, and it is the function of the Supreme Court to shape the jurisprudence. Canter v. Koehring spoke of “the proper allocation of trial and appellate functions between the respective courts.” It would not benefit the litigants, their attorneys, or the jurisprudence for us to make a painstaking analysis of the testimony of these witnesses in this case to explain a reduction in the quantum of the awards when in all probability the Supreme Court would grant a writ of review, write still another opinion reiterating the principles they have expressed before, and reinstate the judgment of the trial court. Appellants’ argument more properly should be addressed to the Supreme Court and not to this court.

I concur in the result.

STOULIG, Judge,

dissenting.

I respectfully dissent.

La.Const. Art. 5, § 10(B) requires this court to review facts and law.

In this case there are two possible results I could reach in good conscience: (1) reducing quantum to a nominal award on a finding that plaintiffs possibly suffered inconsequential injury; or (2) affirming on liability but making no damage award because the plaintiffs evidence is not credible. The first approach requires our explaining why Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963), and that line of jurisprudence is not applicable, the second requires an application of the exception to the manifest error rule recently explained in Canter v. Koehring Company, 283 So.2d 716 (La.1973).

I prefer the result denying recovery because it is evident from the record that five claimants have been run through assembly-line type medical treatment to either create or exaggerate soft tissue back and spine injury claims. Every judge on this panel has been impressed by the marked similarities in the complaints and course of treatment of all five, specifically in that:

1. All have soft tissue injuries.
2. None consulted treating physicians known to them prior to the accident.
3. All were referred to Dr. Sam Macalu-so by the attorney who represents them all.
4. All consulted Dr. Macaluso on April 5, 1974, the date of the accident.
5.' All had 30 diathermy treatments.
6. None were x-rayed.
7. All were discharged the same day, July 19, 1974.

I do not believe this similarity is coincidental. My suspicion does not rest on the evaluation of the testimony of one witness. When I review this record, I cannot conjure up any reasonable circumstances or conclusions upon which the trial judge may have based his result. I do not propose to substitute my own theory with an opposite one, equally reasonable, reached by the trial judge. Instead, I point out there is only one obvious conclusion, i.e., that the courts have been cynically used to reward opportunists attempting to capitalize on an accident with a General Motors approach to building a claim of medical evidence. Thus I fall within the exception to the general rule I now quote from Canter:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” 283 So.2d at 724.

The key to Canter is reasonableness. An appellate court should not substitute an opposite factual conclusion that might be equally reasonable or a shade more reasonable. However this does not mean that Canter requires us to abdicate our constitutionally conferred jurisdiction to review factual findings and/ or damage awards. Where the result is manifestly wrong and/or where quantum is greatly excessive or inadequate, we should modify a judgment. It making this observation I am aware of the rebuke of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), as to quantum modification by appellate courts.

Yet the facts in this case demand these plaintiffs should not be rewarded for their deceit. The accident could have produced these injuries. Conceding this I could agree to a nominal award of $200 and point out, percentagewise, the reduction is sufficiently significant to fall within an exception to Gaspard.

Plaintiffs must prove their claims with credible evidence. Viewed in the light most favorable to plaintiffs, they were slightly injured and they attempted to exaggerate the extent of their damage rather than to simulate injuries that were nonexistent. On this basis I could award $200 per plaintiff. 
      
      . The medical bills of the plaintiffs were as follows: Sanders, $350.00; Canty, $340.00; Hudson, $350.00; Conner, $380.00; Berry, $360.00.
     
      
      . Virtually all of the time missed by plaintiffs from work was occasioned by their visits to Dr. Macaluso. Plaintiffs all worked for the same employer.
     