author: TATE, Judge.

text:
    Allene Hopwood DUREE, Individually and as Tutrix, Plaintiff-Appellee, v. STATE of Louisiana through Department of Institutions, Defendant-Appellant, et al.
    No. 4464.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Rehearing Denied Sept. 23, 1957.
    Writ of Certiorari Granted as to State’s Exceptions Nov. 12, 1957.

      L. C. Parker, Baton Rouge, for plaintiff-appellee.
    Major & Ponder, Percy & Macmurdo, Baton Rouge, for defendants-appellees.
    Jack P. F. Gremillion, Atty. Gen., Harry Fuller, Asst. Atty. Gen., J. L. Madden, Asst. Atty. Gen., for defendant-appellant.
   TATE, Judge.

At about noon on October 27, 1954, a State ambulance was proceeding south on the Airline Highway, through the outskirts of Baton Rouge, when it ran into a westbound Chevrolet driven by Roy Larson at the Greenwell Springs Road intersection. As a result of this collision, Jack W. Duree, a front seat passenger in the Chevrolet, was killed. The present damage suit is by Duree’s widow, individually and as the tu-trix of the surviving minor child of the union.

Made co-defendants were: The State of Louisiana, through the Department of Institutions, which appeals from adverse judgment; the State’s- liability insurer, which is not a party to this appeal, having paid off its full policy limits subsequent to adverse judgment below; Louis Lang, the State’s ambulance driver, who (not having taken an appeal from adverse judgment) is likewise not a party to this appeal; and Roy Larson and his liability insurer, who are before this Court by virtue of plaintiff’s devolutive appeal from the judgment below insofar as it dismissed plaintiff’s demand against these latter two parties.

The Airline Highway is a main and much-travelled four-lane thoroughfare. Its western two lanes (21.5' in width altogether) are reserved for southbound traffic and are separated by a wide (30') neutral ground from the eastern two lanes thereof (also 21.5' in width) used by northbound traffic. The Greenwell Springs Road is a hard-surfaced two lane thoroughfare, 20' in width. Signal lights control the flow of traffic at the intersection in question.

The right rear of the Larson Chevrolet was struck after it had entered the intersection from Greenwell Springs Road going from the east towards the west, and had crossed the eastern two lanes, the neutral ground, and most of the western two lanes. (The point of impact involving the rear of the vehicle was 5' south of the north curb line of Greenwell Springs Road, 14'3" east of the west curb line of the Airline Highway, and 7'Z" west of the west curb line of the neutral ground.) The front center of the ambulance, which was proceeding south on the western two lanes of the Airline Highway, struck the Chevrolet with such force as to overturn and hurl it 71' southwest of the point of impact, the Chevrolet landing upside down in the ditch.

The chief factual dispute is which of the two vehicles had the favorable green “Go” light and which the inhibiting red “Stop” light, the southbound State ambulance or the westbound Larson Chevrolet?

The applicable law is not in dispute. As specifically noted in the very similar case of Roll Osborn & Sons, Inc. v. Howatt, La.App. 2 Cir., 167 So. 466, under LSA-R.S. 32:247 municipal ordinances within municipal limits regulate the speed of emergency vehicles such as ambulances and their duties with regard to traffic signals; rathe.r than the pertinent State enactments, LSA-R.S. 32:230, 237, subd. F, 238.

The applicable ordinance of the City of Baton Rouge provides that emergency vehicles “shall not drive through an intersection where a traffic signal is exhibiting the signal ‘Red’ or 'Stop’ without first slowing down and ascertaining that such can be done safely and without endangering those who might be in, or entering such intersection, and provided further that drivers of ambulances shall in no event drive same at a speed in excess of forty miles per hour,” Title 11, Chapter 1, Section 6, Code of the City of Baton Rouge adopted September 19, 1951. As in the Roll Osborn case, the ambulance was required to respect the right of way of those who were proceeding across the intersection in obedience to the green “Go” traffic signal in their favor and in reliance upon the red “Stop” traffic signal regulating transverse traffic.

The vast preponderance of the evidence supports the trial court’s factual determination that the ambulance, at high speed, its siren inaudible or just pressed a split-second before the impact, ran the red light inhibiting its entrance into the intersection which the Larson car had almost completed crossing.

That the light was red as to the ambulance and green as to Larson seems certain, and that it had turned green for Larson about six seconds before the impact (when he was 150-200’ from the intersection, and he crossed almost 70' of the intersection at 30 mph, i.e., at 44’ per second) seems equally certain, from the court-accepted testimony (corroborated by surrounding circumstances) of Larson and of a disinterested northbound motorist who had drawn to a stop as the light switched against him and in favor of Larson. By the testimony of the traffic supervisor in charge thereof, the three-cycle lights had therefore been red for approximately 24 seconds as to southbound traffic. Several witnesses,, including Larson, a northbound motorist,, and the ambulance driver himself testified that at least one southbound vehicle preceding the ambulance had stopped at the intersection; and several northbound vehicles were stopped or stopping.

Indeed, with commendable candor the ambulance driver does not seriously deny an adverse light; he merely states that as he approached the intersection slightly slowing from 60 mph to 40-45 mph, the red light flicked to a yellow caution (an impossibility, according to the traffic supervisor, since the caution light always preceded, never followed, the red) and thereupon he accelerated, not seeing the Larson vehicle; immediately following which occurred the fatal accident.

The excessively high speed of the ambulance is indicated by its driver’s testimony, his admission to the investigating police officer at the time of the accident to a speed of 65 mph, the testimony of virtually all witnesses, and the physical facts surrounding the impact. In extenuation, it should be added that the ambulance was transporting a sick and believed dying child to the State’s Charity Hospital in New Orleans, the oxygen supply was running-low, and the ambulance driver’s mind was upon getting his patient to the destination without delay.

The State further argues that the decedent and Larson, his driver — or at least the latter, so that Larson and his insurer are solidarily liable with it — were negligent in not perceiving the oncoming ambulance or hearing its siren. Although the occupants of the ambulance stated that the siren was blowing, the testimony is virtually undisputed that as to other traffic, the siren was inaudible or not sounding except a split-second or so before the ambulance smashed into the Larson vehicle.

In Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292, our Supreme Court had occasion to discuss the relative duties of the drivers at an intersection regulated by traffic signals. Holding that the sole proximate cause of the accident was the negligence of the driver who ran the red light, the Court held that the driver who proceeds into an intersection on a favorable traffic signal “has the right to assume that the signals are understood and will be observed and he is not required to anticipate that pedestrians or other motorists will, in violation of law, enter a crossing on a wrong signal,” for “under the traffic light system a motorist, who is proceeding on a proper signal, should not be held to the same degree of care and vigilance as if no such system prevailed,” 24 So.2d 294. To hold negligent the conduct of a motorist proceeding in response to a favored traffic light, “the courts should be convinced that the dereliction was most substantial,” 24 So.2d 295.

In the Kientz case, as in this, the favored driver had almost completely crossed a four-lane roadway with a wide neutral ground, and the Court specifically commented upon the fact that having done so, “there was no reason for him to believe that it would be dangerous to continue over the short distance of the intersection yet to be traversed,” 24 So.2d 295.

The Kientz case cited with approval the Roll Osborn decision, supra cit., in which the sole proximate cause of an accident involving a motorist proceeding under a favored traffic signal was held to be the negligence of the ambulance driver in running a red light at high speed. It should be added that in the Roll Osborn case the ambulance was struck by the. favored motorist, 167 So. 468, whereas in the present instance the motorist was hit in the rear of his vehicle by the ambulance after almost completely crossing all four lanes and the neutral ground, a circumstance indicating that the ambulance in the present instance was relatively further from the intersection at the time the present motorist entered same.

The following cases also support the District Court’s determination that Larson, a motorist proceeding with the green light, was not negligent in failing to keep a watchout for those who might enter the intersection from the unfavored direction and was not required to anticipate that others would, in violation of law, enter the intersection on an unfavorable light: White v. Travelers Ins. Co., La.App. 2 Cir., 94 So.2d 564; Stevenson v. Williams, La.App. 2 Cir., 76 So.2d 345; Niagara Fire Ins. Co. v. Schouest, La.App. Orleans, 58 So.2d 739; Fitzpatrick v. New Orleans Public Service, Inc., La.App. Orleans, 22 So.2d 473; Seiner v. Toye Bros. Yellow Cab Co., La.App. Orleans, 18 So.2d 189; Clark v. De Beer, La.App. 2 Cir., 188 So. 517, certiorari denied; Saks v. Eichel, La.App. 2 Cir., 173 So. 558 (involving an emergency vehicle, the fire chief with siren allegedly blowing, held to be solely negligent in running the red light); Manuel v. Bradford, La.App. Orleans, 166 So. 657; Buckley v. Featherstone Garage, 2 Cir., 11 La.App. 564, 123 So. 446.

In Calvert Fire Ins. Co. v. Hall Funeral Home, La.App. 2 Cir., 68 So.2d 626, and Hardy v. Daigre-Gilbert Undertaking, Inc., La.App. 1 Cir., 42 So.2d 158, the ambulance drivers were held clearly negligent in equivalent circumstances in proceeding into the intersection; but the favored motorists were held to be contributorily negligent in failing to hear a clearly blowing siren and to take steps to give way if possible, a situation not presented to us by the facts of the present case.

We think the District Court was correct in holding that the sole proximate cause of the present accident was the negligence of the State’s ambulance driver in failing to observe the red traffic light inhibiting his entrance into the intersection and the Larson car crossing same in obedience to a favorable signal, and in holding Larson free of any negligence which contributed to this accident.

That a northbound driver (facing the ambulance) whose attention happened to be directed to the ambulance within split seconds or seconds before the collision, knew at once that an accident was almost simultaneously to occur, does not (despite the State’s able argument) indicate that Larson, who had entered the intersection in response to a favorable traffic light and upon observing that the north- and southbound Airline traffic had stopped or was stopping in obedience to the unfavorable traffic signal, should also have observed same, he being under no duty to expect the continued approach of the ambulance towards the intersection (especially in the absence of an audible siren) — nor does it prove, if Larson had observed the ambulance at the same time as the motorist did, that he had the physical opportunity to avoid the accident: At his speed of 30 mph (44' per second), Larson’s front had completely crossed the intersection (70'), in seconds.

We likewise do not find merit in the State’s contention that the State’s employee, driving the State’s ambulance at the time of the accident, pursuant to the orders of his superiors in the State's service, was not at the time within the course and scope of his employment. We think such a showing to be sufficient to render the State liable for the negligent acts of its employees, when legislative authorization to consent to suit against the State has been granted, as is any other employer under Article 2320, LSA-C.C.

The State again urges on appeal its preliminary exceptions, overruled below, to citation, to jurisdiction ratione materias, of misjoinder, of no right and cause of action, and of the unconstitutionality of the legislative authorization for this suit.

The plaintiff joined the State as a party to this suit by virtue of House Bill 387 of the Regular Session of 1956, which was passed by both houses of the Legislature, but which was vetoed by the Governor. Legislative consent to suits against the State is authorized by Article 3>, Section 35, La.Const., LSA. Such enactments should be liberally construed to accomplish the legislative intention. Lewis v. State, 207 La. 194, 20 So.2d 917, St. Julian v. State, La.App. 1 Cir., 82 So.2d 85, and authorities therein cited.

The State’s exceptions to citation and to jurisdiction ratione materias are essentially based upon the alleged invalidity of the statutory authorization to suit against the State “through the Department of Institutions”, and of the service upon “the State of Louisiana through. * * *• Dr. Edward D. Grant, Director of Institutions and/or Director of the State Dept, of Hospitals.” The legislative authorization provides that the State should be served or cited through the Governor, Attorney General, and “the Director of the Department of Institutions of the State of Louisiana."

The State’s argument is chiefly based upon the assertion that the constitutional designation of the corporate body exercis-' ing administrative functions over State institutions such ás that employing the tort-feasor in the present action is “The Louisiana Board of Institutions"; Art. 6, Section 30, as ratified by the people of Louisiana in the November 1952 general election. But like the “State Board of Education” with its constitutional function of supervision and control over public educational facilities and institutions, Art. 12, Sections 4, 6, La.Const., whose operating functions are performed by a “department of education”, LSA-R.S. 17:6; and the Board of Highways, with general control over the State highways, Art. 6, Section-19.2, La.Const., the operational arm of which is the Department of Highways, Art. 6, Section 19.2(7), LSA-R.S. 48:11.-21; the work of the Board of Institutions is performed through what is referred to as the “department” in the constitutional provision creating the Board of Institutions itself, cf. Art. 6, Section 30(4), subds. 10, 11, and as the “Department of Institutions” in various legislative enactments concerning it, see, e. g., LSA-R.S. 3:1103, 15:867 (see title of Act), 28:445, 28:562 to 28:566, 46:1304.

The constitutional provision regulating legislative authorization of suits against the State does not -require that the State should be cited only through constitutional boards and not through operating departments created by the administrative boards or by the legislature. It is only required that the authorization “shall provide the method for citing the State” without requiring service through any particular governmental agency, Art. 3, Section 35, La.Const.; although usually to facilitate notice of the suit to the appropriate agency, the special acts require the State to be served through same. The State was served through its “Department of Institutions” in the following recent cases of this Court, Webb v. State, 91 So.2d 156, Green v. State, 91 So.2d 153, and St. Julian v. State, 82 So.2d 85. Cf. also, Day v. Department of Institutions, 228 La. 105, 81 So.2d 826.

Likewise, we regard as an immaterial variance, and as sufficient compliance with the legislative provision for citation in this suit, the service and citation of the State through the Department of Institutions through the Board (and Department) of Institutions’ executive officer, in his constitutional title of “Director of Institutions”, Art. 6, Section 30(5), rather than as “Director of the Department of Institutions” as described in the legislative authorization: for among other reasons, the “Director of the Department of Institutions” is. also officially denominated as the “Director ■of Institutions.” No complaint is made of the additional citation of and service upon the State through the Attorney General and the Governor, as additionally provided for by the legislative authorization of this suit.

For these reasons, and also because it is well settled that the constitutional provision only requires legislative consent to the suit against the State without necessity ■of approval by the Governor, Jefferson Lake Sulphur Co. v. State, 213 La. 1, 34 So.2d 331, we cannot accede to the State’s argument that the Governor’s veto bars the present suit authorized by the legislature, ■or that the Act is unconstitutional because ■of these circumstances.

The State’s exception of misjoinder is based upon the joining of the State as codefendant by amended petition with other ■defendant alleged tortfeasors or liability insurers, against whom suit had earlier been filed to interrupt the peremptive year. It is argued that the special act conferring legislative consent to this suit did not authorize this. We think plaintiff-appellee ■correctly answers this argument by pointing to the provision in the constitutional ■section regulating legislative consent to ■suits against the State, wherein it is stated: * * * The procedure is such suits, except as regards citation and original jurisdiction, shall be the same as in suits between private litigants. * * * ” Art. 3, Sec. 35, La.Const.

The exceptions of no right and -no cause of action were likewise, we feel, ■correctly overruled by the trial judge. The allegations of the petition amply show negligence on the part of the State’s ambulance ■driver, and Articles 19 and 36 of the petition allege that such employee was operating the ambulance as the agent and employee of the State Institutions agency, for whose acts of negligence the State was responsible. We think this adequately ■states a tort action and the facts by which the State was liable as the tortfeasor’s employer, Articles 2315, 2320, LSA-C.C.; and, as stated, the proof shows that the employee was acting in the course of his employment as directed by his superiors. In St. Julian v. State, 82 So.2d 85, certiorari denied, we discussed and found untenable the argument (again urged before us herein) that the State is immune from liability herein since the negligent act was committed in the performance of a governmental rather than a proprietary function. By virtue of enactments pursuant to Art. 3, Sec. 34, La.Const. the legislature waives, as it did here, not only the State’s immunity from suit, but also its immunity from liability. See also Marler v. State, La.App., 2 Cir., 78 So.2d 26, certiorari denied.

Aside from special damages, which are not contested, the District Court awarded plaintiff, widow of Jack W. Duree, individually $60,000 for loss of her husband’s future earnings, and $10,000 for loss of his “love, affection and companionship”. Additionally as tutrix of and for the use and benefit of the minor child of the marriage she was awarded $15,000 for the minor’s loss of the future earnings and the support of her deceased father, and the further sum of $5,000 for the minor’s loss of her father’s love, affection, and companionship.

The State, appellant urges that these damages are excessive. Plaintiff has answered the appeal, requesting that the awards be materially increased.

At the time of his death, decedent was 29 years of age, and had a life expectancy of 36.03 years according to the American Experience Tables of Mortality, introduced in evidence without objection. (At the time of decedent’s death, plaintiff, his widow, was 27 years of age, and their only child was six years of age.) The evidence shows that he was in good health, a very active young man, and an outstanding success in his occupation as a senior salesman for the National Cash Register Company. The evidence further shows a happy and contented home, to which he was a good husband and father.

The award of damages for personal injury or death is of necessity somewhat arbitrary; loss of the love, companionship, support (both spiritual and financial), understanding, and guidance of a good father and husband has no monetary equivalent. While the damages should be compensatory of the loss sustained, Article 231S, LSA-C.C., in cases such as the present, where the damage is certain but of uncertain pecuniary value, much discretion must be left to the trier of fact, Article 1934, subd. 3, LSA-Civil Code, and many cases cited thereunder. Although awards so made may vary greatly with the facts of each case, likewise they should be made with some degree of uniformity with those made for similar losses. See, e. g., Higginbotham v. Frazier, La.App. 1 Cir., 92 So.2d 89.

In accordance with these principles, we find to be within the discretion of the trial court the awards of $10,000 and $5,000 respectively to the widow and child of decedent for loss of his love, companionship, and affection, which are neither manifestly excessive nor manifestly insufficient. In Marler v. State, La.App. 2 Cir., 78 So.2d 26, certiorari denied, an award of $10,000 for this item was made in favor of a 50-year widow. See also Stansbury v. Mayor, etc., of Morgan City, 228 La. 880, 84 So.2d 445; Guidry v. Crowther, La.App. 1 Cir., 96 So.2d 71; Keith v. Royal Indemnity Co., La.App. 2 Cir., 90 So.2d 534; and Payton v. Great American Indemnity Co., La.App. 2 Cir., 83 So.2d 575. We may add that we do not find that the District Court abused its discretion by lumping within this award such items, for which separate damages were itemized by the petition, as the loss of guidance by the father and the loss of the father as the head of the family.

Likewise, it appears to us that in accord with the Marler case, in which writs were denied by the Supreme Court, and with the principle of allowing compensatory damages (having due regard for the discretion of the trier of fact), were the District Court’s allowance to the widow of $60,000 for loss of her husband’s earnings and to the minor child of $15,000 for loss, of his support and his future earnings.

Decedent was a young man of proven financial success, with an apparently stable and expanding future before him. His net earnings were substantial and were increasing, and until his unfortunate demise his family seemed assured of a secure and comfortable, as well as happy, future.

In the Marler case, relying upon Jones v. Kansas City So. Ry. Co., 143 La. 307, 78 So. 568, faced with the same problem of giving a present monetary value to the wife’s share of the husband’s future earnings, our brethern of the Second Circuit first calculated his estimated future earnings by multiplying his annual earnings of $5,000 by his life expectancy of 13]4 years, arriving at a figure of $67,500; then, discounting same at the rate of 5'%, and assigning the widow a one-half interest in the discounted balance, an award was made to her of $30,000 for her share in the decedent’s community earnings.

In the present case, we have a young man of 29 years of age and a record of constantly increasing earnings. His life expectancy was 36.03 years. His actual earnings at the time of his death were $900 per month, or over $10,000 per year. The State argues that the gross figure to be used in computing this loss should be $650 because the petition’s allegations had alleged his monthly earnings to be “more than $650.00”. If so, this loss of earnings still totals a minimum of $7,800 per year during a life expectancy of over 36 years. This would amount to a gross loss of future earnings of $280,000.

But were the beneficiaries to receive immediately in a lump-sum this gross loss of future earnings which would have (but for the death of the wage earner) been spread over many years, as a mathematical proposition the beneficiaries would receive in present monetary value far above the pecuniary value of these future earnings. They would receive the substantial value of the use of the money (that is, the interest thereupon) for many years before they would actually have received said ■earnings in the normal course of events. It is for this reason that the Jones and Marler cases discounted the lump-sum to its present worth roughly by calculating the gross amount of future earnings at the rate of interest (or discount rate) used, so •as to calculate the amount needed to purchase the given annual income for the appropriate number of years for the beneficiaries through the interest earned thereupon (at the rate used) together with the annual withdrawals from the diminishing balance of the award.

“By the great weight of authority, where •the damages to be awarded for wrongfully •causing the death of a person are compensation to the designated relatives for their pecuniary loss, both immediate and prospective, so far as the loss is prospective, the gross amount thereof should be reduced to its present worth. The measure of damages is, therefore, commonly stated as the ■present value, to those entitled to recover, of the reasonable expectations of pecuniary advantage which they have lost by his •death.” 16 Am.Jur. 138, “Death”, Section 202.

There is no expert or actuarial evidence in the record as to the average percentage •of the income to be assigned to personal expenses of the head of a family of three, nor as to any current discount rate by which can be calculated the current cash value to be assigned such gross loss of earnings. In the Jones case, our Supreme Court from the evidence deducted 30% of decedent’s gross wages for his estimated personal expenses, and discounted the balance (to reach the present cash value) at the i/iew-current investment rate of 5%..

In the recent federal case of U. S. v. Guyer, 4 Cir., 218 F.2d 266, faced with the identical problem, the court deducted one-third of the decedent’s annual earnings for his personal expenses, and used a discount rate of 3(4%- — from decedent’s gross annual earnings of $7,500 was deducted $2,500 for his personal expenses, and this net earnings for his life expectancy of 26.84 years, discounted at 3)4% (calculated as the earning power of money in 1954), produced a net loss of his earnings to his widow and children of the $87,500 awarded. It was specifically noted that the decedent therein was not a man of high earning power. See also New York, N. H. & H. R. Co. v. Zermani, 1 Cir., 200 F.2d 240, where an award to the widow and children of a 39-year old man whose life expectancy was 30.10 years and whose annual earnings for the year prior to the accident were $5,406.-56, was affirmed at $116,500.

We do not mean to suggest that there is any formula that must of necessity be adopted in calculating the estimated future earnings of a deceased wage earner. There are so many imponderables involved, including the ages of the decedent and his spouse. The decedent’s potential earning capacity irrespective of his present (if not purely speculative); the possibilities that despite his life expectancy his full span might not have been allotted to him or that his present capacity might not have been sustained; the possibility that Life, the Great Healer, might mitigate the loss by the young widow of his help and companionship and his earning capacity; the impact of the federal income tax both upon the net “take-home” pay upon which the loss is measured, and upon the income from the sum awarded which (with amounts drawn from the decreasing balance) is supposed to approximate the loss of the decedent’s earnings to the beneficiaries resulting from the decedent’s death; the variable discount rates possible; the variable percentages to be deducted from future earnings by reason of the decedent’s estimated future personal expenses — all these and many more to be imagined, while too speculative to justify specifically defeating or reducing or increasing the award for each such item, are factors which the court with discretion to award damages may properly take into account.

So, in the present case, the function of this appellate court is not to set out a rigid formula into which, like “Univac”, can be fed all the infinitely variable and immeasurable factors affecting the award of the damages to the decedent’s wife and infant daughter through loss of his earnings, to arrive at the precise and immutable answer as to the present worth thereof. It is rather, against the contentions of the State that the award was excessive and of the appellee that it was inadequate, to ascertain whether, under the pleadings and facts of this particular case, the District Court abused its discretion by its award.

The evidence undoubtedly reflects that during the last year of his life decedent’s net earnings were slightly over $900 per month. Because plaintiff had alleged that the decedent’s earnings were “more than $650.00 per month” (Article 2 of petition) and prayed for an award of $234,000 for “Loss of future income from her husband’s earnings, calculated on an earning span of 30 years $650.00 per month” (Article 27), the State urges that calculation of the ap-pellee’s loss should be restricted to the monthly rate of $650, from which it is suggested that there should be deducted, for example, the possibilities of future reduction thereof, the decedent’s personal expenses, his prospective income tax liability, etc.

Contrariwise, appellee suggests that the figure of $900 should be used since, nevertheless, the figure arrived at would be within the gross amount of loss of earnings for which recovery was demanded, and since this result is permitted under the liberal rule of pleadings, the allegation being that decedent’s earnings were “more than- $650.00 per month”. Further, appellee points out that the evidence indicates that the decedent’s earnings of $900 per month reflected a career of continually increasing earnings, and that thus the widow lost not only his income at the time of death but the prospects of a continuing rise in income. Ap-pellee also points to the continuing decline of the value of the dollar over the course of history.

We do not pretend that the impressive contentions of the opposing parties can be equated or weighed with any degree of exactitude. We can simply point out that, even accepting net earnings of $900 per month to the decedent, at the time of his death, his “take home” pay after deduction of federal income tax would be $760 per month, and that perhaps balancing this highest year of decedent’s earnings in a time of record prosperity with the possibilities of gain or loss in the rate thereof, it would not have been an abuse of discretion on the part of the trial court to calculate the loss of decedent’s future earnings or “take home pay” to his beneficiaries at the net rate of $650 per month throughout his life expectancy.

If this were done, the decedent’s minimum loss of estimated future earnings is $280,000, that is, at $7,800 per year, during his future life expectancy of 36 years. Using Lake’s Monthly Installment and Interest Tables (5th Ed.; 1950), p. 230, Part V “Present Value of $1 due 1 to 50 years: Compound Discount Table”, and discounting same at five per cent as was done in the Marler case, we arrive at a present value of this estimated future income as of $129,065.50. If as in the Marler case we assign decedent’s personal expenses to his own half of these earnings, the present value of the widow’s community half of these estimated future earnings is slightly more that $64,500. The District Court awarded her $60,000 for this item.

Likewise, if for instance one-third of the total value of these future earning's ($129,065.50), or $43,021.84, is deducted from his half of the community earnings as his estimated future expenses, the net balance is still slightly more than $20,000 loss of future earnings for his minor and only child. The District Court awarded $15,000 for the use and benefit of the minor for the loss of support by and of the future wages of her father, the full amount demanded by the petition for this item.

Taking into account all the variables involved, and upon the basis of the present record and of the jurisprudence, we are unable to say that the District Court erred in these awards.

Counsel for plaintiff-appellee correctly urges that amounts received by her from life insurance and social security benefits are not available to the tortfeasor as credits against this award. At 16 Am. Jur. 151, it is stated that “it is well settled that the amount of recovery for death by wrongful act is not diminished by the receipt of any of the beneficiaries of the action of money paid by an insurance company on a life or casualty insurance policy”, Section 223, nor is such award “diminished by the receipt of a pension by any of the beneficiaries of the action,” Section 222. See also deRoode v. Jahncke Service, Inc., La.App. Orleans, 52 So.2d 736 (syllabus 5), 25 C.J.S. Damages § 99, p. 647, Section 99, 15 Am.Jur. 617, “Insurance” Section 201.

Finally, the State urges that the District Court erred in awarding legal interest from date of judicial demand upon the amounts awarded, arguing that LSA-R.S. 13 :4203 providing for such interest on judgments in damage suits does not apply where the State is defendant. This contention of the State was specifically overruled in Reeves v. State, 232 La. 116, 94 So.2d 1. See also Tucker v. State, La.App. 1 Cir., 91 So.2d 56.

For the above and foregoing reasons, the judgment of the District Court herein is affirmed in all respects.

Affirmed.

      . Decedent’s employer’s compensation insurer intervened upon its subrogation claim for workmen’s compensation paid decedent’s widow; however, since after trial this claim was paid in full (apparently from the proceeds paid by the State’s liability insurer), likewise this intervening insurer is not a party to this appeal.

      . By Act 207 of 1956, LSA-R.S. 40:2001 et seq., the East Louisiana State Hospital ■ — an employee of which institution (then under the jurisdiction of the Board or Department of Institutions) was the tortfeasor in the present suit — was transferred from Institutions to the State Department of Hospitals. The State urge» that the legislative authorization was only as to suit against the State through the Department of Institutions, and not against the State Department of Hospitals. If so, the alternative designation in the citation may be regarded as sur- - plusage.
      We do not find persuasive the State’s further argument arising from this circumstance that since the East Louisiana State Hospital was subsequent to the accident transferred from Institutions to Hospitals, legislative authorization should have been obtained to sue the State through the latter instead of the former; not only because we are cited to no constitutional or legal authority for this ñot-necessarily sequent proposition, but also but because we think the plain legislative intention of the act was to authorize suit arising out of the accident in question, and that the legislative authorization in this respect complied with the constitutional requirement that it should “provide the method for citing the State therein”, Art. 3, Sec. 35, La.Constitution.

      . See also Milovich v. City of Los Angeles, 42 Cal.App.2d 364, 108 P.2d 960, where it was stated that for purposes of filing a claim against the city, the terms “board” and “department” were synonymous as applied to the “department” of water and power and the “board” of water commissioners of the city.

      . The federal income tax rates shown at 26 U.S.C.A. §§ 1, 2 as applicable to the earnings of a married couple with one child, earning $10,800 per year ($800 per month), less exemption of $1,800 for dependents and $1,000 for personal deductions, leaving net taxable income of $8,000; is 20% on the first $4,000 and 22% on the balance, or an annual tax liability of $1,680 — i. e., of $140 per month.


source: Caselaw Access Project

author: ELLIS, Judge.

license: Public Domain

text:
    Melvin John GUILLORY, Individually, et al., v. ALLSTATE INSURANCE COMPANY et al.
    No. 4463.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Rehearing Denied Sept. 23, 1957.
    Writ of Certiorari Granted as to Costs Nov. 12, 1957.

      Seale, Kelton & Hayes and Donald V. Organ, Baton Rouge, for appellant.
    Durrett Hardin & Hunter, Baton Rouge, for appellees.
   ELLIS, Judge.

Plaintiff as father of his minor child, John Melvin Guillory, Jr., brings this suit both individually and for the use and benefit of his son, for damages caused and personal injuries sustained by plaintiff’s son in an automobile-bicycle collision.

The material allegations of plaintiff’s petition allege that John Melvin Guillory, Jr., an unemancipated minor, was riding his bicycle in the City of Baton Rouge in an easterly direction on Winthrop Avenue and after crossing the intersection of Donmoor he turned south on Donmoor proceeding in a southerly direction, and upon traveling approximately 25 feet along the edge of the road, he collided with an automobile operated by Mrs. Rita B. Bretz, wife of defendant Richard Bretz, and the accident and resulting injuries to plaintiff’s minor son and damages to plaintiff were due to Mrs. Bretz’ negligence. Plaintiff pleaded alternatively that if the minor son was guilty of contributory negligence that defendant had the last clear chance to avoid the accident and failed to do so.

Defendants answered admitting plaintiff’s procedural capacity and that the accident occurred, that plaintiff’s son was riding his bicycle in an easterly direction on Winthrop and had turned to proceed in a southerly direction on Donmoor. They admitted the accident occurred 25' south of the south parallel line of Winthrop and one foot west of the East parallel line of Donmoor, specifically denying the particular acts of negligence listed in plaintiff’s petition. The defendants also plead contributory negligence.

The District Court, finding that law and evidence being in plaintiff’s favor, rendered judgment for plaintiff in the amount of $2,383.35 against Allstate Insurance Co., and Richard H. Bretz, in solido. Judgment was also rendered in favor of plaintiff for the use and benefit of his minor son in the principal sum of $4,000 with legal interest and costs, including expert witness fees to be taxed against the defendants in solido.

From this judgment defendants have appealed and plaintiff has answered asking for an increase or allowance of certain items.

The minor who was injured by the Bretz automobile did not testify on the trial. Thus, the only remaining eyewitness to the accident and its surrounding circumstances was Mrs. Rita Bretz. The Judge did not require the minor’s testimony and the defendant did not cross examine him when counsel for plaintiff tendered the minor, who was waiting in the hall outside the courtroom, the reasons being based upon one of the doctor’s testimony that serious mental trauma might occur upon refreshing the child’s memory on the circumstances surrounding the accident. Thus the plaintiff overcame the inference ordinarily attributed to the party failing to produce a material witness.

The facts immediately prior to the accident are derived solely from Mrs. Bretz’ testimony which was to the effect that she was driving on a community mission to deliver a wedding present to her maid, and was accompanied by her three children. After turning on Donmoor she proceeded to a point some half a block or less from the intersection of Winthrop. This was when she noticed the minor child of plaintiff pedaling a bicycle in an easterly direction along Winthrop. She had proceeded some 20 feet or so when she saw the child make a turn onto Donmoor. It was at this point that she slacked her speed and applied her brakes slightly. The child on the bicycle continued to make a wide arc in turning and was headed at an angle toward Mrs. Bretz’ automobile. Mrs. Bretz then realized that a collision was imminent and applied her brakes hard, steering to the right to avoid an accident. The automobile struck the front wheel of the bicycle at or near the front right fender. Mrs. Bretz stated she only noticed the child’s feet pedaling until the collision. The child landed on the hood of the automobile upon impact and lost a shoe, apparently from the impact.

After the collision people appeared from the residential area. Upon being cross-examined as to exact distances, Mrs. Bretz estimated that young Guillory was 30 feet from the intersection on Winthrop and that she was 100 feet from the intersection on Donmoor. She stated that he crossed the intersection and was making a right turn onto Donmoor when they collided. On direct examination she also stated the child apparently did not look where he was going.

Her testimony concerning the speed at which she was traveling at the moment of impact was that she thought she had come to a stop. It is obvious that this witness has underestimated the fact concerning the speed she was traveling at the impact. The mere fact that the bicycle wheel was damaged to the extent that it was and the fact that the child was thrown over the handlebars and onto the hood of defendant’s car indicated that that automobile was traveling at considerable speed at the moment of impact. This observation holds true even though the bicycle speed was not ascertained upon the evidence adduced in the trial court. It could hardly be said that young Guillory was moving at such a rate of speed to have thrown him on the hood of the automobile upon striking it, certainly not without some momemtum in the opposite direction by the automobile itself.

Turning briefly to the questions of distance, it once again appears from the facts that Mrs. Bretz underestimated the distance she was from the intersection when she first saw the child or conversely she overestimated the distance the child was from the intersection. Had she been only 100 feet from the intersection when she first saw the child, the child being 30' feet from the intersection, then the child would have traveled almost 70 feet to the point of impact. The automobile would have traveled approximately 75 feet, it being stipulated that the collision occurred 25' south of Winthrop.

This court was favored with photographs made from various angles at the scene of the accident, as well as a plat of that portion immediately surrounding Donmoor and Winthrop. There is one photograph, especially, which shows whether the vision of an automobile driver is obstructed by the plant growth in the yard to the west of Donmoor. This photograph marked “Doyle 6” indicates that, despite some sizeable oaks growing in the yard, a person approaching Donmoor from the west on Winthrop could be seen from a distance of over 250 feet from the intersection of Donmoor and Winthrop.

There were several other witnesses introduced by plaintiff and defendant on the question of liability, however, their testimony did not inform this court as to any pertinent facts surrounding the accident, save that of the police officer Connolly. His testimony concerned the investigation of the accident. It revealed that Mrs. Bretz had applied her brakes at a total of 52 feet before stopping the automobile, 27 of these feet being light skid marks. Officer Connolly testified on direct examination for defendant and stated that Mrs. Bretz’ speed was sought to be ascertained by a fellow police officer and himself by running her automobile to a speed of around 20 miles per hour and upon heavy application of the brakes the officer “laid down” 25 feet of heavy skid marks.

There was a skillful attempt on the part of defense counsel to show that the road conditions during the police investigations were better than those actually prevailing during the accident, and thusly Mrs. Bretz was going less than 20 miles per hour when she applied her brakes. A reference to the photographs marked “Doyle 2” will reveal that the rear wheels of the Bretz automobile never left the pavement and that it could be reasonably assumed that at the time Mrs. Bretz applied her brakes heavily she was traveling at least 20 miles per hour. The condition of the brakes on the Bretz Buick was not determined but had they been ideal the actual stopping distance at a speed of 20 miles per hour is 18 feet. See Blashfield’s Cyclopedia of Automobile Law and Practice, § 6237, Pg. 415. The inescapable conclusion derived from the above assumption is that she had lightly applied her brakes prior to this and therefore was exceeding a speed of 20 miles per hour when she lightly applied her brakes for some 27 feet and suddenly applied her brakes heavily, thus causing skid marks of 25 feet.

The remaining fact that has a bearing on the question of liability was brought out on cross examination by Mrs. Bretz. She stated that she could not recall whether or not she blew her horn. After reviewing carefully the surrounding circumstances it is the considered opinion of this court that Mrs. Bretz did not in fact sound her horn. She admitted that the child apparently did not see her and actually did not recall whether she did blow the horn. We feel that had she blown the horn she not only would have remembered doing so, but would have recalled the effect upon the child. It was revealed during the trial that the child never varied his course but made a constant turn into the path of the Bretz automobile.

We hereby summarize the salient facts for emphasis. First, the defendant’s wife, Mrs. Bretz could have and should have observed the child from a position of over 2S0 feet from the intersection of Winthrop and Donmoor; secondly, even though she did observe the child 100 feet distant and thought the situation might be perilous to the child it was not until she was 52 feet away that she only lightly applied her brakes, without giving the unsuspecting child a warning of the approaching danger. Thirdly, she failed to apply her brakes with force enough to stop the automobile until it was impossible to avert a collision with the bicycle rider, also she failed to blow her horn at this point, seeing that the child was unconscious of his immediate danger.

Counsel for defendant has urged that the lower court was in error in finding defendants were answerable in damages to plaintiff and his son. In support of this position they cite several cases, none of which are applicable on the question of fact. It is important to realize that many cases quoting rules of law concerning negligence or contributory negligence, apparently in keeping with the facts applied to a particular situation. An appellate court in applying such rules must weigh, carefully, all the evidence adduced and reach their conclusions of fact only after due deliberation. Once the facts are determined it is a matter of due course in applying the applicable rules of law. This court, having decided that the doctrine of last clear chance applies to these facts adopts a portion of Judge Odom’s opinion cited in Rottman v. Beverly, 183 La. 947, 165 So. 153, at page 156 which sets forth the duty incumbent on Mrs. Bretz in this case, to-wit:

“Where the danger is brought about by plaintiff’s own negligence, but is not discovered by defendant, because of a failure to exercise due care, the parties are on equal footing. Their faults are mutual, their negligence is concurrent. It arises from the same cause, viz., failure to observe. The negligence of each party is a contributing cause of the accident. In such case it cannot be determined whether the negligence of the plaintiff or that of the defendant was the proximate and immediate cause of the injury, and neither party can recover.
“But if a plaintiff negligently puts himself in a place of danger and his negligence and danger are actually discovered by the defendant, then there devolves upon the defendant a duty which intervenes or arises subsequent to the negligent acts of the plaintiff, and that duty is to save the plaintiff from the consequences of his negligent acts if he can. The first duty of those who operate engines or motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger. If they perform that duty and discover that some one is in danger, then a second duty arises, and that is to use every possible available means to avert injury. * * * ”

The rule as stated in the Rottman case could be easily applied to the facts in this case. The Guillory child never was aware of his peril but the driver of the Bretz automobile, although realizing the child’s peril, failed to blow her horn or to forcefully apply her brakes — two readily available means of avoiding injury to plaintiff’s son.

The jurisprudence relied upon by defendant is headed by the case of Jenkins v. Firemen’s Insurance Co. of Newark, N. J., La.App., 83 So.2d 494, 499, in which the court did not allow plaintiff’s claim for injuries to his daughter. The facts in the Jenkins case revealed a straight paved road two miles south of the west gate of Barksdale field. The controlling fact was the minor running into the path of defendant’s automobile just as a truck passed the automobile. Other facts that prompted the courts to render judgment in favor of the defendant was that the child had been near the highway where she was ■observed by the driver of defendant’s automobile, then she went to the house out of the driver’s view. When the child returned to the highway she was obstructed from the driver’s view by oncoming traffic. The court felt that the doctrine of last clear chance did not apply since defendant was never aware of the peril in which the child had placed herself until it was too late to prevent the accident. An additional fact in defendant’s favor was that no houses or stores were on the side of the road where the plaintiff’s daughter was running, while there were several on the side from which she ran. The court did state, however, in general terms the duties incumbent upon a motorist upon observing a child, viz.:

“It is obvious from a reading of any substantial part of the jurisprudence of our state dealing with motor vehicle accidents involving children that an important consideration directly bears upon the duty of a motorist to observe any circumstances which would indicate an extraordinary hazard arising from the presence of a child near the street or highway. The danger and the need for unusual care and precaution increases- in proportion to the number of children congregated at or near a given point; the occurrence of an incident which might prove attractive; the existence of an apparent crossing, or locality used for traversing a highway; the presence on or near the opposite roadside of anything calculated to attract children; the use of wheeled instruments by children, such as bicycles, wagons, scooters, etc. We reiterate the observation that none of these, nor any other similar factors were susceptible of observation in the instant case.”

Defendant urges that Mrs. Bretz had no “duty” to stop her automobile upon seeing the child on his bicycle and cites as authority Guillory v. United Gas Public Service Co., La.App., 148 So. 274. However, in that case the child that was struck by an automobile was standing on or near a corner and apparently waiting for traffic to pass. As defendant’s auto drove by eyewitnesses established that she stepped into the rear door and fender of the automobile, thus the cited case is clearly inapplicable to the case at bar.

In Fuller v. Buckner, La.App., 38 So.2d 422, a motor bike being driven at night ran into an oncoming automobile. While the court decided that both parties were negligent, they denied any claims of plaintiff since his negligence contributed to the accident and found that there was no evidence in the record to show that the motor bike had been in defendant’s lane of traffic long enough for defendant to see him.

Defendant has urged on appeal that a sudden emergency was created by the acts of Guillory’s son in this case. There was no evidence shown creating a sudden emergency.

As stated previously the trial judge awarded plaintiff a judgment individually in the amount of $2,383.35, plaintiff praying for an amount of $2,582.77. This calculation excludes the items plaintiff sued on of $110 of estimated future medical expenses; $20 for future X-rays and $90, cost of enrolling child in summer camp. The plaintiff did not sufficiently prove these items, hence they are disallowed.

After a careful study of the medical testimony, this court is satisfied that the award was in proper proportion to the injuries suffered by young Guillory as well as his difficulty in becoming rehabilitated. Although the recovery to the child’s leg, after the leg was set, was normal and, as stated by the physician, “very satisfactory,” nevertheless the entire episode of the boy’s hospitalization and post-hospitalization period is one of severe physical pain giving way to a mental disturbance. The first ten days the child was in .the hospital he was in excessive pain and required constant attention with heavy doses of sedatives to keep him restful and quiet. Even after he began to feel less pain, which appeared to be the tenth day after his entering the hospital the child seemed to undergo a serious mental trauma. This is best illustrated by the physicians statement along this line, a portion of which we quote:

“Q. Now in one of your reports — • you didn’t read all of them, of course— A. No, sir.
“Q. The one of June 25, 1956, you made some mention, I believe of some apprehensiveness on his part. Will you explain what you meant in that report when you spoke of that? A. Well, this boy’s main problem in spite of his fracture was not as much the broken bone as the mental trauma that this child sustained in association with Ihis accident, hospitalization and treatment, he seemed to have no confidence in himself, and he was extremely frightened and upset, and without real physical justification for it, and the mental trauma, to me, was the thing that was the greatest episode that was harmful to the child. He was very frightened, and as I believe I mentioned on the 11th of January, 1956, I saw this boy in the hospital and it was more just for reassurance, and we took some other X-rays and were .able to show this child that his bone was good and solid, and even that had to be followed up and he had to be ■encouraged and shown — he had to show “himself really that he was alright and that he could go ahead and make a ■normal recovery. I believe that even during the summer of 1956 that a greater part of that restoration of his confidence came about in association with the camp that the little fellow was at and when he was actually convinced himself he could participate with other little boys of his own age in similar activities.”

The court feels that the combination of the excruciating pain which the child underwent for at least ten days coupled with the mental trauma which was evidence to his physician until the summer of 1956, nearly nine months after the accident, justify in this case, an award of $4,000 for the use and benefit of Melvin John Guillory, Jr.

The plaintiff has urged in his answer to this appeal that the bill of the hospital for photostatic copies of their records, and the other photographers bills, amounting to $107.95 be taxed as costs. We believe that counsel’s position is well taken and it is hereby ordered that the judgment be amended so as to include the sum of $107.95, as well as $50 to Dr. McMains and $50 to Dr. Tyler as expert witnesses. The costs of this appeal and in the lower court are to be paid by defendants.

For the reasons thus assigned the judgment of the district court is affirmed as amended.


text:
    William P. COX, Plaintiff-Appellee, v. Dr. Paul CASHIO, Defendant-Appellant.
    No. 4477.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Rehearing Denied Sept. 23, 1957.

      Philip E. Pfeffer, Covington, for appellant.
    Sidney W. Provensal, Slidell, for appel-lee.
   TATE, Judge.

The appeal herein to the Supreme Court was by that tribunal transferred to us. 231 La. 407, 91 So.2d 583.

Plaintiff filed suit seeking damages for .an alleged false arrest and malicious prosecution; defendant reconvened. Defendant .appeals from the District Court’s refusal to award him damages upon his reconventional demand due to his alleged failure to prove same with legal certainty; plaintiff-appellee answered the appeal praying that the District Court’s dismissal of his original demand be reversed and for judgment in his favor.

On December 1, 1953, the appellant (defendant and also the plaintiff in recon-vention) swore out an affidavit before the local Justice of the Peace in Lacombe that Cox, the plaintiff-appellee, was “making false statements tending to derogate from honor and character of the undersigned; causing false rumors to be spread: asks that Cox be placed under peace bond.” The appellant is a physician who had just constructed a 19-bed hospital and just moved to Lacombe to conduct his medical practice.

Both the Justice and the appellant testified that the latter did not desire the arrest of appellee, but just to have him cease making certain false and derogatory statements concerning the appellant and his family and his medical ability. ' Although the justice of the peace intended to require Cox to post a peace bond under LSA-R.S. 15 :27, he did not have Cox brought before him before requiring same, In re Bordelon, 210 La. 1080, 29 So.2d 162. Instead, he issued a warrant against plaintiff Cox on a charge of his “making false statements tending to derogate from honor and character of” the appellant physician, i.e., for the crime of defamation, LSA-R.S. 14:47.

The ward constable informed Cox he would have to make a bond of $250, went with him to a friend, who signed said bond with the ward constable.

In an action to recover damages for malicious prosecution of a criminal or civil proceeding, the plaintiff must prove : (1) termination of the proceeding in favor of the plaintiff; and (2) lack of probable cause, and (3) malice on the part of the defendant. Scott v. Citizens’ Hardware & Furniture Co., 180 La. 473, 156 So. 469; Graham v. Interstate Electric Co., 170 La. 392, 127 So. 879; Kenner v. Milner, La. App. 1 Cir., 187 So. 309, rehearing denied 189 So. 460; 54 C.J.S. Malicious Prosecution § 1, p. 951.

We think the District Court correctly held that plaintiff failed to prove all three of these essential elements of this cause of action. It is sufficient to state that the record supports the trial court’s finding that on several occasions the plaintiff publicly in crude language made the false statement or inference that the defendant-appellant was of Negro extraction, and that the said plaintiff-appellee slandered said physician by stating that he would not have the latter treat his dog. Defendant-appellant clearly had good cause to swear out his affidavit before the justice of the peace.

By supplemental brief, the plaintiff-appellee urges that the present should be regarded as an action for “false arrest” rather than “malicious prosecution”. There is a marked distinction between the two causes of action — in false imprisonment, the detention is “without color of legal authority”, whereas in malicious prosecution, any detention “is malicious but under the due forms of law”, De Bouchel v. Koss Const. Co., 177 La. 841, 149 So. 496, at page 497; lack of probable cause not being an essential element of the false arrest action. See also 35 C.J.S. False Imprisonment § 4, Malicious Prosecution, p. 503. Whether the warrant under which plaintiff made bond of $250.00 be regarded as based upon the criminal charge of defamation, LSA-R.S. 14:47; or whether it be regarded as an irregular attempt under LSA-R.S. 15:27 to require a peace bond of Cox; nevertheless, plaintiff’s detention was under color of legal authority. The action for false arrest also falls.

Defendant-appellant reconvened for the alleged damages caused him by (1) plaintiff’s malicious and false statements upon which his request for a peace bond was based; and (2) the institution of the present suit by plaintiff. When the plaintiff and the defendant reside in the same parish, it is required that the reconventional demand “though different from the main action, be, nevertheless, necessarily connected with and incidental to the same * * * ”, Article 375, Code of Practice.

The District Court correctly sustained plaintiff’s objection to the reconven-tional demand insofar as based upon damages allegedly arising from the wrongful institution by plaintiff of the present suit. Such damages have been held not to be the proper subject of a reconventional demand, either because (such damages essentially being based upon the alleged malicious prosecution of the civil suit) unsuccessful termination cannot of course be proven until after final judgment in the suit, W. B. Thompson & Co. v. Gosserand, 128 La. 1029, 55 So. 663; Muldrow v. Jones, La.App. Orleans, 85 So.2d 711; Wilson Sporting Goods Co. v. Alwes, La.App. 1 Cir., 21 So.2d 102, certiorari denied; or else upon the perhaps logically questionable grounds that such damages are not sufficiently connected with the main cause sued upon, Keene v. Relf, 11 La. 304; contra: Muldrow v. Jones, supra cit.

The trial court, also correctly in our opinion, overruled the defendant’s objection to the reconventional demand for damages for the defamatory and false remarks which prompted the defendant’s affidavit before the Justice of the Peace. The affidavit was the basis of plaintiff’s suit for the allegedly malicious prosecution. Such a reconventional demand is, in our opinion, “necessarily connected with and incidental to” the main demand. Article 375, C.P.; Meyer v. Hackler, 219 La. 750, 54 So.2d 7; Muldrow v. Jones, La.App. Orleans, 85 So.2d 711; Dixie Machine, etc., Works v. Boulet Transp. Co., La.App. Orleans, 38 So.2d 546.

“Where the facts set up by defendant constitute a defense to plaintiff’s claim, they are connected with the subject of the action,” 80 C.J.S. Set-Off and Counterclaim § 40, p. 57. “The object of the articles of the Code of Practice authorizing- demands in reconvention is to enable the parties litigant, at the election of the defendant, to adjust their conflicting claims in one action, thereby avoiding a multiplicity of suits,” McMillan v. Lorimer, 160 La. 400, at page 406, 107 So. 239, at page 241.

The case of Muldrow v. Jones, 85 So.2d 711, decided by our brothers of the Orleans Court of Appeal, is particularly interesting with regard to the questions raised by the reconventional demand herein. There, exactly the reverse of the present situation, the plaintiff filed suit for slander; the defendant reconvened for damages resulting from malicious prosecution both of the civil suit in which the reconventional demand was filed and also of a criminal prosecution for public defamation under LSA-R.S. 14:47. Since the latter prosecution had terminated in favor of the defendant (the plaintiff in reconvention), he was permitted to assert said damages by re-conventional demand in the civil suit; since the civil prosecution had not yet terminated at the time of the trial of the reconventional demand, and in fact was the subject of the opinion of the court of appeal, the court held that such part of the action by way of reconventional demand was not well founded, being premature in the absence of a termination of the civil prosecution in plaintiff’s favor.

The Court’s opinion therein did indicate that for purposes of allowing a recon-ventional demand there was sufficient connexity to satisfy the requirements of Article 375, C.P., between the action for slander and the action for malicious prosecution based upon institution of the legal actions against the alleged slanderer.

We believe, however, that the learned District Court fell into error in disallowing the defendant any damages upon his recon-ventional demand on the ground that same were not established with legal certainty.

In Kennedy v. Item Co., 213 La. 347, 34 So.2d 886, at page 895, our Supreme Court indicated the difficulty of proving pecuniary damages as the result of a malicious or false statement concerning the character or professional ability of a person subjected to such statement, and held that such assessment of damages is left largely to the discretion of the courts, taking into consideration the severity of the charges, the motives of the defamer, as well as the “position of influence” enjoyed by the defamer and the consequent extent and weight of the circulation of the defamation, 34 So.2d 895. See also: Article 1934, C.C.: Gladney v. De Bretton, 218 La. 296, 49 So.2d 18; Edwards v. Derrick, 193 La. 331, 190 So. 571; Searcy v. Interurban Transp. Co., 189 La. 183, 179 So. 75; Jozsa v. Moroney, 125 La. 813, 51 So. 908, 27 L.R.A.,N.S., 1041, and many cases cited therein.

The District Court noted that “the plaintiff is a retired Mississippi River pilot of advanced years, and in giving his testimony impressed me as a man who is somewhat eccentric and rather eager to give his opinion on most any conceivable subject.” Tr-29.

Taking into consideration the financial status and the “position of influence” of plaintiff, and in view of the awards made in the last cited cases, we think ■ the interests of justice would be served by an award of $500 in favor of plaintiff upon his reconventional demand for damages resulting from the slanderous remarks made by plaintiff Cox. See also: Modisette & Adams v. Lorenze, 163 La. 505, 112 So. 397; Cavalier v. Original Club Forest, La.App. Orleans, 59 So.2d 489; Sanders v. W. T. Grant Co., La.App. 1 Cir., 55 So.2d 89.

For the above and foregoing reasons, the judgment of the District Court is affirmed insofar as it dismissed the main demand in the suit below at plaintiff-appel-lee’s cost and insofar as it allowed defendant-appellant’s reconventional demand; it is amended, however, to award judgment in favor of appellant plaintiff in reconvention, Dr. Paul Cashio, and against appellee defendant in reconvention, William P. Cox, in the full sum of $500 plus legal interest thereupon from legal demand until paid, the latter party being further assessed with all the costs of the proceedings below and of the appeal to this court.

Amended and as amended, affirmed.

      . Cf. 35 C.J.S. False Imprisonment § 4, pp. 504-505: “If the imprisonment is under legal authority it may be [a] malicious [prosecution] but it cannot be [a] false [arrest]. This is time where legal authority is shown by valid process, even if irregular or voidable.”


text:
    Jewel Joseph LANGLOIS v. The CONTINENTAL INSURANCE CO. et al.
    No. 4455.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Rehearing Denied Sept. 23, 1957.
    Writ of Certiorari Granted Nov. 12, 1957.
    Joseph A. Gladney, Baton Rouge, for appellant.
    Breazeale, Sachse & Wilson, Baton Rouge, for appellees.
   ELLIS, Judge.

Plaintiff was a passenger in the car of Alton J. Myers on the 23rd day of June, 1955 at about 11:30 P.M. when it was involved in an intersectional collision with a car owned and being operated by the defendant, Trudeau J. Hogue, and as a result thereof plaintiff has filed this suit in which he is claiming damages for injuries allegedly suffered as a result of the collision to his back. Plaintiff requested and obtained a trial by jury which resulted in a judgment dismissing his suit and it is from this judgment that he has perfected his present appeal, to this court.

Defendant in his argument and in his brief did not and does not contend that the plaintiff was guilty as a passenger of any contributory negligence nor that the defendant Hogue was not guilty of any negligence. Defendant contends only that the verdict of the jury is correct and that the refusal of the trial judge to grant a new trial was also correct for the reason that the plaintiff failed to prove that he -had suffered any damages as a result of the accident. On the other hand it is plaintiff’s contention that as a result of the collision he has proven that he suffered an injury and that as a result of such injury suffered a great deal of pain over a long period of time and that although he attempted to work he' could not do so continuously due to extreme pain in his back brought about by his efforts to work, and, therefore, on numerous occasions he had to discontinue his work. As in practically all cases of this nature the court is again faced with a question of fact, and a discussion of the evidence revealed by the record is pertinent and necessary.

The record reveals that the defendant Hogue was traveling north on Pembroke Avenue which is a gravelled street in the city of Baton Rouge, just prior to the collision, and that Alton J. Myers was traveling east on 70th Avenue, which was a blacktopped street. The Hogue car had been traveling 20 or 25 miles per hour but had slowed down to approximately eighteen, while the Myers car was traveling 20 to 25 miles per hour at the time he applied his brakes some 10 to 15 feet from the point of impact. The left front part of the Hogue automobile struck the right front fender and side of the Myers automobile and after the impact the Hogue automobile spun around and was turned around at about a 180-degree angle and had traveled no further north than the point of impact, while the Myers car continued 15 or 20 feet across to the north side of 70th Avenue and stopped in the ditch.

Immediately after the Myers car came to a stop Myers testified on direct examination that plaintiff, before either got out of the car, asked him if he was hurt and he told him he was just shook up a little bit, whereupon Myers asked the plaintiff if he was hurt and he said: “I don’t know if I am hurt or not. I don’t believe I am. * * * I had a wreck before this and it might have hurt my back some more. My back was hurt in a wreck that I had before.” On cross-examination Myers added to this direct testimony the fact that the plaintiff asked him if he had insurance and he told him that he did not have any. He also testified when asked if the plaintiff had not unequivocally told him that he was not hurt that: “I don’t know. Seemed like he did tell me, ‘No, I am not hurt. I don’t believe I am hurt.’ Seemed like he did say that.” Pie also stated under cross-examination that plaintiff stated “I hope that other man’s got insurance,” and at the same time plaintiff told him that he had had a previous wreck in a car and the record shows that in this wreck he fractured a vertebra. However, the medical testimony is positive that if there was any injury as a result of the accident in the case at bar it had no connection with the prior injury and wreck. It is also shown that in April, 1956 Myers gave a statement to Mr. L. H. Strickland to the effect that he knew plaintiff did not get hurt in his wreck.

The accident was investigated that night by two police officers. One of them, De-ville, talked to plaintiff at the scene and the latter made no complaint of any kind whatsoever nor did he tell the police officer that he was a passenger riding in the Myers car at the time of the collision. The report of the investigation did not list plaintiff as a passenger or as a witness nor that he had suffered any injury whatsoever.

The following day plaintiff called his present attorney who had represented him in the previous case and was told to have x-rays taken by Dr. Malen which he did. At the direction of plaintiff’s attorney the x-ray report was sent to Dr. Wm. IT. Moody, a general practitioner of Baton Rouge. This report showed no evidence of fracture or dislocation. In fact, the x-rays were negative for any objective findings.

On the 27th day of June, 1955 or approximately four days after the accident, plaintiff reported to Dr. Moody and told him of the accident and injury to his back and pain. On the first examination Dr. Moody testified that plaintiff “had a low tortion (torsion) type back injury with lumbo-sacro and sacroiliac strain. There was spasm of the muscle surrounding the back called the paravertebral muscles and he was having the pain over the sixth, seventh and eighth thoracic vertebra.” It was further the opinion of this doctor that plaintiff’s condition on June 27, 1955 “assuming his history is correct,” could well be attributed to the automobile accident. Dr. Moody did state that he believed the man’s history and thought that his pain and injury was a logical result. Dr. Moody again saw the plaintiff on July 5th and recommended a hard bed as his findings on this date were practically the same as on June 27th. He also instructed him to take a series of exercises “to relieve some of the spasm in his hack,” and also gave him a prescription for tablets to relax the muscles and which also contained a quarter of a grain of pheno-barhital. Plaintiff was again examined by this doctor on July 19th at which time he thought he had improved to the point that the doctor wanted him to start on light duty and see after two or three weeks of such duty whether he would not have improved so that he could go back to hard work. On this visit Dr. Moody stated there was a definite improvement “in the spasm and pain that the man was having.” Plaintiff visited Dr. Moody next on October 10, 1955 and told him that he was doing some work but that his back was still hurting him when he stood up or did any lifting. In addition the plaintiff had been complaining of headaches and on this occasion again so complained. The doctor recommended his continuing on a hard bed and taking exercise and the tablets and in addition recommended a lumbosacral support which plaintiff obtained. On November 2nd Dr. Moody again saw the plaintiff who still complained of his back paining him and that it had not improved on lifting or on any amount of twisting. Dr. Moody as a result of this visit and examination wrote a letter to plaintiff’s attorney in which he stated that “there was this small percentage of residual present * * * ”, and in his own mind he could not understand why plaintiff still complained and he therefore recommended that he be seen by an orthopedic surgeon. Dr. Moody did not see the plaintiff again until October 20, 1956 at which time he was still complaining of headaches and of his back. Plaintiff did tell him that he was all right unless in his work he did any lifting or twisting or bending. Dr. Moody’s final conclusion as shown by his testimony was that at the time of the trial he thought that it would take six months to a year for the plaintiff to become well from what he diagnosed as “chronic low back strain.”

Dr. Campanello, an orthopedic surgeon in the city of Baton Rouge, testified that he first saw and examined the plaintiff on November 11, 1955 and that his initial examination revealed some muscle spasm and tenderness on both sides of plaintiff’s back, particularly in the region of the lumbosacral area, that is, the lower part of the back. He also found some tenderness over the right side of his back and directly over the joint. He examined the x-rays which did not show any evidence of either bone or joint damage and were “essentially negative.” He recommended some type of support and told plaintiff that he would contact Dr. Moody. Dr. Campanello next saw plaintiff on the third of January at which time he felt that there had been a great deal of improvement and his findings were limited and he stated that plaintiff was able to go back to work. Plaintiff returned to Dr. Campanello on February 6 stating that he tried to1 work driving a gravel truck but that the jarring of the truck caused a pain in his back and that he eventually had to discontinue this type of work. Plaintiff’s only complaint on this visit was “a little low back pain and headaches early in the morning.” Dr. Campan-ello on the occasion of this visit still found a little spasm on the left side. His diagnosis was a chronic strain of the back muscles which he distinguished from a sprain. It is to be remembered that Dr. Moody diagnosed it as a sprain but testified that the two words were used interchangeably. On the 24th of February, 1956 plaintiff came back to Dr. Campanello with a stiffness of the neck and a description of a severe pain in the lower part of his back as a result of attempting to rake some leaves. Dr. Campanello testified that he felt that an active use of plaintiff’s back would more or less eliminate the spasm and eliminate his disability. He further stated that he estimated plaintiff’s disability at approximately five to ten per cent insofar as the use of his back as a whole was concerned and he felt that this was temporary in nature. This doctor again saw the plaintiff on April 16, 1956 and plaintiff’s complaints were approximately the same with very little positive findings by the doctor other than a stiffness of the back muscles. Again on the 25th of September, 1956 plaintiff visited the doctor with the same complaint of headaches and pain in the neck as well as back pain whenever he attempted to stoop. He examined him again on October 22, 1956 and stated the result was negative, and at this time plaintiff admitted that he was “feeling fine and that he had very little complaints other than the ones mentioned,” viz., pain in the back of the neck and pain in the left leg with a numb feeling.

Dr. Campanello was asked on direct examination whether with the type of findings that plaintiff had it would in any way interfere with his doing heavy manual labor, the type of work that would require lifting heavy objects and he said: “I don’t think so.” He also testified on direct examination that plaintiff should have continued to work in spite of his soreness and that at the time of the trial plaintiff was able to do regular work. On cross-examination he testified:

“Q. Dr. Campanello, the complaint of pain that Mr. Langlois repeatedly gave to you on the occasions that you have related here, will you state frankly if you found objective symptoms to support that complaint in each and every instance? A. Yes. The only objective findings that he had was the minimal, which is hard to detect, spasms and tightness of the muscles when we attempted to stretch those muscles. That has been the only finding in all my examinations and repeated examinations.
“Q. And that finding, in your opinion, was not then nor, in your opinion as I understand it now, sufficient to be a cause, a real cause for Mr. Langlois to be unable to do work such as that for which he is qualified? A. That’s right, sir.
"Q. And I assume, doctor, that you know that, according to my information, Mr. Langlois usually does the type of work that would be in the category of labor? A. That’s right.
“Q. I further understand that he has worked several stretches with tree surgeons, David Tree Experts, Bor-skey’s tree people, which requires climbing and handling himself in trees, and so forth? A. Yes, sir.
“Q. And it is still your opinion he could do that type of work? A. Yes, sir.”

If we only had the medical testimony there is no doubt but that the verdict of the jury and judgment would be manifestly erroneous, but in addition we have testimony that the plaintiff, who had been working at the Cal-Metal Pipe Company, at the time of his injury, did not return to work there after the injury. He did undergo a physical examination when he went to work for the Cal-Metal company and nothing was found wrong with him at that time. After the accident and in the latter half of July, 1955 he went to work for a Mr. J. C. Borskey, helping in the drilling of water wells. Plaintiff stated that he worked two or three weeks. There is no record of the exact time. He then went to work on August 8, 1955 for Bor-skey who was engaged in tree surgery, which is a most strenuous occupation as it consists of sawing trees, limbs, climbing trees, sitting in a rope swing and working in trees, trimming trees and painting the spots or places after trimming. In doing this it entails stooping, bending, twisting, climbing, pulling, and lifting. Plaintiff followed this tree surgery work until the 30th of September. He returned to work on the 6th day of October for one day. The record of his work with Borskey in 1955 through the 6th of October was irregular and amounted to eight weeks at five days a week and one four-day week. It is plaintiffs contention that the irregularity was due to pain. Borskey testified that plaintiff returned to work one day on Feb. 2, 1956 and then March 1, 2, and 3, 1956. He next worked for Borskey in July, 1956, one week of five days. At the end of his work in July, 1956 he told Borskey that his back was hurting him and he could not climb the trees any more and as Borskey had no other work for him to do he laid him off. Borskey testified that he complained more to the foreman of his back than he did to him.

On cross-examination Borskey testified that plaintiff had worked for him in January, 1955 from the third to seventh; tenth to fourteenth, fifteenth to twenty-first; twenty-fourth to twenty-eighth and the thirty-first. He also worked in February, 1955 from the first to fourth, seventh to eleventh; fourteenth to eighteenth, twenty-first to twenty-fifth, and the twenty-eighth; March first to fourth, seventh, eleventh; fourteenth to eighteenth; twenty-third to twenty-fifth; twenty-ninth and thirtieth. In April, 1955 he worked from the fourth to eighth. Borskey testified that his work continued twelve months out of the year and that he kept a full force working all the time. A comparison with his work record with Borskey prior to his injury and subsequent thereto does not show much difference, in fact, he had more five-day weeks subsequent to the accident than he had prior thereto.

The work with Borskey was not all that the plaintiff did subsequent to the accident. After discontinuing his work with Borskey plaintiff states that he laid off “less than a month” and went back to driving a gravel truck for possibly a week or two but that the “bouncing and rolling” of the truck hurt his back. At this time he was working for John Goff. Plaintiff then testified that he laid off about three weeks and went back to work for Dempsey Young driving a truck hauling gravel and sand for two weeks. He did not quit this job but for some reason Young discontinued it and he thereafter “rested up” for approximately a few more weeks. Plaintiff stated after being questioned by his counsel that the work on the Young truck caused him pain, but the next job he got was driving a truck hauling dirt, for a Charles R. Wilson which he says that he did for “approximately two weeks or maybe two weeks and a few days.” After working for Mr. Wilson he “rested up a few more weeks and I went back to work for Mr. Borskey”. Plaintiff was in error in this and counsel reminded him that after he left Mr. Wilson he had gone to work for his brother and a Mr. Walker “topping, doing tree surgeons and taking trees up by the stumps.” He did testify that Walker and his brother did most of the heavy work.

After quitting the tree work with Bor-skey plaintiff obtained a job at a Billups service station and worked until about two or three weeks prior to the date of trial which was October 23 and 24, 1956. He stated that he stopped this work because he had no means of transportation and had been transferred too far from his home to walk. Plaintiff next testified that after discontinuing his work with Billups he “rested up a few days” and took a job with his brother and George Ruals “painting the sides of a house, the trim work like the windows and puttying windows.” The testimony also shows that the plaintiff’s memory is most faulty and he had to be constantly reminded by questions from his counsel. Plis wife testified that she had had to rub his back at night on some occasions but her testimony is not impressive as to any great pain or suffering on the part of the plaintiff.

The record fails to definitely show that the doctors knew that plaintiff was doing or had done the work outlined during the time of their examinations of plaintiff which probably would have changed their opinion of plaintiff’s complaints. Thus, we have a case in which the jury and trial judge properly reasoned that the two cars collided at a most moderate rate of speed and that immediately thereafter plaintiff either said he didn’t think he was hurt or positively stated that he was not hurt but asked the driver, Myers, if he had any insurance and when told that Myers did not, stated that he hoped the other driver had insurance for he had injured his back previously in another automobile wreck and possibly it might be hurt in this one, or words to that effect. He failed to tell the investigating officers that he was a passenger in the car or that he was a witness or that he was injured in any manner, and the next day went to see the attorney who had represented him in his previous automobile accident, which, if he was really injured, would not be amiss but was rather inconsistent with his actions at and immediately after the collision, and it is strange that he did not go to see a doctor rather than his attorney if he were suffering as much pain as he stated on the trial. He did not see a doctor until the 27th of June, 19SS, or approximately four days after the accident. It is true that Dr. Moody found definite objective symptoms and was of the opinion that plaintiff’s complaints were well founded, while on the other hand, Dr. Campanello, while he found some objective symptoms, did not believe that the plaintiff’s injuries were disabling. The latter doctor’s diagnosis probably appeared correct to the jury and judge in that plaintiff several weeks after the accident went to work doing hard physical labor and continued doing so consistent with his work record prior to the collision and alleged injury until practically the date of the trial, and further, although the plaintiff testified that he had to quit these various jobs because of pain and suffering the record shows that he went right back to the same kind of work or harder work and that while he referred to the periods between his work as “resting up”, the fact that his work record subsequent to the injury compares favorably to his work record prior to the alleged injury would not render manifestly erroneous a finding that he did not suffer such pain as to disable him.

Thus, on the facts in the case we do not find any manifest error in the verdict of the jury or judgment of the lower court in holding that the plaintiff did not suffer any disabling injury so as to entitle him to damages therefor as a result of the collision.

The suit having been filed in forma pauperis the defendant is not liable for costs and the judgment of the district court is hereby amended in this respect. Hicks v. Royal Indemnity Co., 229 La. 536, 86 So.2d 183 and cases cited therein.

It is therefore ordered that the judgment of the District Court as amended be affirmed.