Opinion
No. 10138.
November 30, 1979.
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH, DIVISION "J", STATE OF LOUISIANA, HONORABLE GEORGE C. CONNOLLY, JR., J.
Robert Morlas Schoenfeld, New Orleans, for plaintiff.
Robert J. Young, Jr., Young, McMahon Levert, New Orleans, for defendants.
Before REDMANN, BEER and GARRISON, JJ.
We deemed $22,500 general damages an abuse of the jury's discretion for the injuries described in our original opinion. The Supreme Court's grant of writs and remand "for reconsideration of the award in the light of Reck v. Stevens, 373 So.2d 498 (La. 1979)," establishes that the Supreme Court does not agree.
Our view that $22,500 exceeded the jury's discretion is not, we concede, rationally defensible in any scientific sense. There is no rational basis for transmogrifying dolor into dollars. And there is no market price for pain.
We might nevertheless note that that award represented, at its time in March 1978, more than four times the value of a new, full-sized American automobile (about $5,000). It was the view of this panel of this court that the price of one new car would have been proper "reparation" for plaintiff's suffering — and the tortfeasor's duty under La.C.C. 2315 is only to "repair" the damage his fault causes. It has been the rule in Louisiana that punitive damages are not awardable.
The jury's award was over four times what we would have awarded as reparation. We therefore deemed the award abusive in the light of our experience with other awards — notwithstanding that there is not now, never has been, never will be, and never can be a rational yardstick for measuring misery with money.
We cannot, then, rationally defend our having reduced the award to $10,000 — which, at twice our own evaluation, we thought was about the upper limit of appropriate monetary reparation. We tried to follow Coco v. Winston Ind., Inc., La. 1976, 341 So.2d 332, in its appellate quantum review hints, which we respectfully suggest have not revealed to us a clear path to follow because there is no clear path. We cannot, we say, rationally defend reducing $22,500 — any more than we could rationally defend reducing $225,000.
It is only our intuition as informed observers that perceives an award as abusively high or low; and it is only the informed intuition of the Supreme Court Justices that perceives the same award as not abusively high or low. The Supreme Court is, however, the supreme court.
The judgment appealed from is therefore affirmed.
BEER, J., dissenting.
On May 4, 1979, we amended and, thereafter, affirmed the district court's award in this case, observing, in support of our opinion, that the award for general damages was so excessive as to constitute a clear abuse of discretion. Following the Supreme Court's guidelines (Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976), we limited our modification in order to decrease the award only to an amount "that is the maximum which would not have constituted such an abuse. . . ."
On September 28, 1979, with the Chief Justice and Justices Marcus and Blanche dissenting, the Supreme Court remanded this matter to us "to reconsider (our) reduction of the award in the light of Reck v. Stevens, 373 So.2d 498 (La. 1979)." This I have done, carefully considering the straightforward attack which the Supreme Court opinion leveled against my opinion in that case. Accepting, as I must, the correctness of the Supreme Court's position in Reck, supra, I still find no basis, within the four corners of that opinion, to support or suggest any basis for changing our award in this case.
Here, in performance of our constitutionally-mandated function, we concluded that the award was manifestly excessive, manifestly erroneous and unsupportable on the record. Indeed, our consensus view was that the award should be no more than $5,000, but, applying the Coco rationale, we concluded that double what we felt to be a conscionable award would, giving every possible benefit of every reasonable doubt to Rogers, bring the matter within the Coco guidelines which we have tried and are still trying to follow.
Thus, my reconsideration of the reduction "in the light of Reck v. Stevens" results in a determination that the amount set in our opinion of May 4, 1979, is valid and correct and follows the Supreme Court's mandate announced in Coco. I would, therefore, respectfully reaffirm our opinion of that date and must dissent from increasing same.