#### Ernest WILLIAMS, Individually and on Behalf of his Minor Children, et al. v. Mrs. Alma HOLLOWAY et al.

No. 4934.

Court of Appeal of Louisiana, Fourth Circuit.

April 4, 1972.

*329Steven R. Plotkin and John P. Cosenti-no, New Orleans, for plaintiffs-appellants.

James F. Holmes, Christovich & Kear-ney, New Orleans, for defendants-appel-lees.

Before REGAN, GULOTTA and BAILES, JJ.

REGAN, Judge.

Plaintiffs, Ernest and Clara Williams filed this suit to recover damages for personal injuries to Clara Williams and their two minor children, James and George, and for special damages, incurred as the result of a two car collision in the intersection of St. Bernard Highway and Paris Road on December 31, 1968. Plaintiffs alleged that the defendant driver, Samuel Steele, negligently caused the accident by attempting to illegally pass the Williams’ vehicle as its driver, Clara Williams, was endeavoring to execute a left turn. Also named defendants were Alma Holloway, owner of the automobile and her liability insurer, Fidelity and Casualty Company of New York.

The defendants answered and denied that its driver was negligent. They asserted that the accident occurred through the negligence of the plaintiff operator in that she attempted to execute a left turn from the right traffic lane while the defendant driver was passing her car legally in the left traffic lane. In third party pleadings, defendants alternatively alleged that the plaintiff driver was guilty of contributory negligence and requested that if judgment be rendered in favor of the minor guest passengers, then the plaintiffs should be held liable in solido with the defendants.

From a judgment awarding Ernest Williams $410.69 for medical expenses and property damage; $100 as natural tutor of, and for the use and benefit of George Williams;- and $250 as natural tutor of, and for the use and benefit of James Williams; and awarding Clara Williams $1400 for her personal injuries, the plaintiffs have appealed.

Their sole complaint is that the quantum awarded Mrs. Williams and her minor children for personal injuries was too low. Defendants have answered the appeal, requesting reversal by us on the question of liability, or alternatively, asking for a reduction in quantum.

Our review of the evidence convinces us the lower court properly concluded that the defendant driver’s negligence was the proximate cause of the accident. Immediately before the impact, plaintiff was driving northward on St. Bernard Highway and had stopped in obedience to a red traffic signal light at the intersection of Paris Road with her left turn indicator flashing so as to alert other motorists of the fact that she intended to execute a left turn. At this point the highway has one northbound and one southbound lane. When the signal light changed, Mrs. Williams began to execute a left turn; the defendant vehicle, also proceeding in a northerly direction, crossed illegally into the southbound lane and attempted to pass the Williams vehicle as it was turning left.

The defendant driver’s testimony was unconvincing since he could not explain how the accident occurred nor could he recall whether his vehicle was moving or stopped at the time. Considering the fact that there was only one lane of northbound traffic, defendant’s contention that Mrs. Williams turned improperly from the right lane into the defendant’s vehicle proceeding legally in the left lane is obviously without merit. Therefore, we affirm the lower court’s finding relative to liability.

*330Turning our attention to quantum, the record discloses that Mrs. Williams and her minor children were treated by Dr. Emile Bertucci, a physician and surgeon. They first consulted him two weeks after the accident. Both children complained of pain in the cervical region. George, who was awarded $100, had no objective findings to support his complaints of slight pain. He was discharged after the initial visit. On that same day, James was examined and Dr. Bertucci testified he noted a slight muscle spasm in the neck region. He returned to the doctor four more times, twice in the latter part of February and twice in the beginning of March. However, there is no testimony concerning the duration of complaints of pain James is alleged to have suffered. His mother testified that he started bleeding from the ear some time after the accident; however, Dr. Bertucci’s records do not indicate that this complaint was made to him. In view of these facts we find no abuse of discretion by the lower court in fixing the award for James’ injuries in the amount of $250.

Mrs. Williams suffered more severe injuries. She first visited Dr. Bertuc-ci on January 14, 1969 and complained of pain in the back and the neck. He testified that he found muscle spasm in the lumbar and cervical region and an X-ray reflected a loss of the normal cervical lordotic curve. Dr. Bertucci stated this loss is attributed generally to muscle spasm. Her next visit was more than one month later on February 24th and this was the last time Dr. Bertucci made objective findings to support plaintiff’s complaint of pain. She visited Dr. Bertucci three times in March and once in June 1969, and although she was not discharged at this time, she did not return to his office until February 2, 1970. At that time she complained of back and neck pains again. From the medical testimony, the extent of treatment is not clear. And Mrs. Williams’ own testimony does not establish her duration of pain. It is apparent that she was injured as a result of the accident, however, she failed to adduce clear testimony as to the pain or disability resulting therefrom. Therefore, we find nothing in the record to warrant our concluding that the trial judge abused his discretion in awarding her $1400 for pain and suffering.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.

GULOTTA, Judge

(concurring in part, dissenting in part).

I concur with the majority in its conclusion affirming the judgment of the trial court on the question of liability; however, I respectfully dissent regarding the question of quantum. The amount of the awards by the trial judge, in my opinion, are inadequate.

According to the testimony of Dr. Emile A. Bertucci, Mrs. Clara Williams was first seen on January 14, 1969. She complained of pain in the area of the neck and low back. Examination revealed that muscles on the left side of the neck showed marked spasm and flexion was limited to 80 percent. Pain was experienced in this area when turning the head left and right. There was also considerable tenderness of the lumbar area and in the lower back. X-rays revealed loss of the normal cervical lordotic curve. Dr. Bertucci stated that the vertebra was straighter than usual indicating muscle spasm.

The diagnosis was “sprain of the para-vertebral muscles most marked on the left side. This is the neck sprain with the muscles and the strain of the paravertebral low back area and an acute lumbar strain at the function of the lumbar area”.

Mrs. Williams was treated periodically with diathermy until June 14, 1969, and advised to use a brace. She returned eight months later complaining of recurring neck and back pain. Dr. Bertucci said that her recurring discomfort was related to the muscle injuries sustained in the accident and that recurring problems are quite common with this type injury. He indicated *331the probability oi Mrs. Williams having future difficulties.

James was also seen by Dr. Bertucci on January 14, 1969. He complained of tenderness of the neck and difficulty with movement in any direction without resultant pain. A slight muscle spasm was noted on both sides of the neck. His symptoms continued or increased, and he returned for subsequent visits through March, 1969.

Dr. Bertucci testified that George had some tenderness in both paravertebral muscles in the cervical area. He also had a mild flexion extension injury to the cervical spine.

In view of the foregoing, I am of the opinion that the injuries received warrant an increase in award so as to adequately compensate the parties. While the trial judge is afforded broad latitude and discretion in the determination of quantum, the amount awarded in my view is woefully inadequate1 and constitutes an abuse of discretion. Accordingly, I respectfully dissent.

1

. Fish v. Martin, 201 So.2d 341 (La.App. 3rd Cir. 1967).