#### Eleanor Bordelon, wife of Warren BORDELON v. SENTRY INSURANCE COMPANY et al.

No. 8920.

Court of Appeal of Louisiana, Fourth Circuit.

May 10, 1978.

Rehearings Denied June 30, 1978.

*1047Gasper J. Schiro, New Orleans, for plaintiffs-appellees.

James S. Thompson, Porteous, Toledano, Hainkel & Johnson, New Orleans, for Reserve Ins. Co., Toye Bros. Yellow Cab Co. and Walter Moore, defendants-appellants.

Before REDMANN, LEMMON, GULOT-TA, SCHOTT and GARSAUD, JJ.

REDMANN, Judge.

Defendants appeal from a judgment fixing personal injury quantum upon their admission of liability. They complain of the trial judge’s expressly including within the injuries an ear drum perforation (described as “old” by the only medical witness who saw it at the time of the accident) and a knee injury (a torn meniscus, requiring surgery, that did not appear until 42 months after the accident).

The knee injury could, one doctor testified, have been caused by the accident. This testimony is neither self-contradictory- or otherwise so implausible as to require rejection. The trial judge could therefore believe it and we cannot substitute our credibility evaluation for his; *Canter v. Koehring Co.,*La.1973, 283 So.2d 716.

The ear drum perforation, however, is not attributed to the accident by anyone except plaintiff, and even plaintiff testified that no doctor has related the perforation to the accident. The only medical evidence from the time of the accident is to the contrary. Thus the inclusion of the perforation as an injury from the accident was error.

The trial judge gave the perforation prominence in his reasons for judgment, and his $15,000 award includes damages for the perforation and loss of hearing (and presumably for the later hospitalization and tympanoplasty). If he had itemized the award, we would be obliged to delete the amount attributable to the ear. The award is not itemized, but our obligation remains to delete the award for the ear despite the difficulty of determining its amount.

The principal other injury was that to the knee, although there were several minor items. We estimate that about a third of the $15,000 award is attributable to the ear perforation and we would therefore reduce quantum to $10,000 on defendants’ appeal,

Plaintiff’s answer sought increase in quantum. However, following *Coco v. Winston Ind. Inc.,*La.1977, 341 So.2d 332, we would leave undisturbed a $15,000 award for all the injuries found by the trial judge. That amount is within his “much discretion”, C.C. 1934(3) and we would not increase it. We decrease it only because it included damage not attributable to the accident.

Amended in principal to $10,000; costs of appeal to be equally divided.

LEMMON, J., concurs and assigns additional reasons.

GULOTTA, J., dissenting.

LEMMON, Judge,

concurring.

There are two reasonable approaches to the appellate court decision in a case where a trial court specifies the injuries on which an award is based, without itemizing the amount awarded for each injury, and the evidence fails to support a conclusion that one or more of the injuries is related to the accident.

*1048One reasonable approach would be *to accord no weight*whatsoever to the trial court’s award. Under that approach the appellate court would proceed to fix the award as if the trial court had rendered a judgment in favor of defendant on liability. The shortcoming of this approach is that the award fixed by the appellate court might be the same as, or either higher or lower than the award in the judgment from which the appeal was taken.

The second reasonable approach is the one taken in this case, which is *to accord some weight*to the award of the trial court if that award would be in the range of the trial court’s much discretion had causation of all specified injuries been proved. Under this approach the total award is simply reduced by some proportionate amount reasonably attributable to the one or more injuries which were not proved to be causally related to the accident.

I prefer the second approach because the fixing of an award for damages for personal injuries is and should be a function of the trial court. Furthermore, if the first approach were used so that no weight whatsoever would be accorded to the award set by the trial court, and the appellate court set an award which was higher than that originally set by the trial court, then the defendant who took the appeal based on the erroneous finding of causation would in effect be told by the appellate court that his victory on appeal is going to cost him more money. This could hardly be considered an equitable result.

GULOTTA, Judge,

dissenting.

I dissent.

Although I am in agreement with the majority that no causal connection was established between the accident and the eardrum perforation and resulting hearing loss, I do not find the $15,000.00 award to be excessive. Irrespective of the absence of causation with regard to plaintiff’s ear condition, the nature and extent of plaintiff’s other injuries (a torn ligament of the left ankle requiring a six weeks’ cast; a torn cartilage of the knee resulting in a 5% disability of the lower extremities; a sprained right ankle requiring elastic wrapping; a lumbar sprain; contusions of the right shoulder; the presence of a foreign body in the right wrist, causally connected to the accident and scheduled for surgical removal; and generally multiple contusions and abrasions) are such that the $15,000.00 award is warranted.

These injuries were sustained in an automobile accident in which plaintiff was thrown from the taxicab in which she was a passenger. Shortly after the accident, plaintiff lost consciousness and received emergency treatment at Charity Hospital.

Under the circumstances, I would affirm the judgment of the trial court.