observing that "proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not"
How later courts described this case
- observing that "proof by direct or circumstantial evidence is sufficient to constitute a preponderance, when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not"
- observing that a tort victim has the burden of proving by a preponderance of the evidence the damages caused by the defendant's fault
- “[T]he appellate court may affirm on grounds different than those argued before or relied upon by the lower court.”
- tort victim diagnosed permanently disabled by treating physician due to tort-caused condition entitled to lost future earnings, although lost earnings shown only by lay testimony
Written by the judges who cited it.
The opinion
HAMLIN, Justice
(dissenting).
*1015 In this tort suit, the trial judge awarded plaintiff:
Personal injuries ......... $ 6,500.00
Special damages .......... 2,236.16
Total .................... $ 8,736.16
The Court of Appeal increased the award:
Personal injuries ......... $31,500.00
Special damages.......... 3,186.26
Total .................... $34,686.26
Deducting from this amount $ 8,736.16
I find an increase of...... $25,950.10
in the award of the Court of Appeal.
In justifying the above increase, the Court of Appeal stated:
"With respect to plaintiff’s claim for future medical expenses, we also conclude that plaintiff has failed to show with reasonable certainty what these expenses will be. The only evidence on this point is the testimony of the doctors that plaintiff’s condition will not improve and that at some distant date it may be necessary to place him in a nursing home where he can receive twenty-four hour attention. This testimony does not support an award for future medicals.
“Lastly, we turn to the question of quantum for plaintiff’s past, present and future physical and mental pain and suffering. Plaintiff was injured on April 23, 1965 and while he ultimately recovered from his whiplash injury his mental residuals have persisted with increasing severity. During the two years between the accident and the date of the'* trial-plaintiff had been confined to a mental institution on two occasions, totaling three and one half months.. The record is amply clear that he will never be able to return to nor enjoy the benefits of a natural and normal life. Considering all of the evidence and in an effort to do substantial justice under the circumstances we believe that he is entitled to an award as damages for such injuries in the amount of $31,500.00. See Faslund v. Kendrick, 169 So.2d 276 (1st La.App., 1964) and Allen et ux. v. Indemnity Insurance Company of North America, 137 So.2d 110 (3d La.App., 1962).”
The majority opinion amends the Court of Appeal award by an additional $17,-500.00, making a total award of $52,186.26, an increase of $43,450.10 over the $8,736.16 awarded by the trial judge, who saw and heard the witnesses.
With all due respect, this exceptional increase is an abuse of discretion.
Under the circumstances of this case, I-am of the opinion that the amount awarded-by the Court of Appeal should be accepted by this Court.
I respectfully dissent.