author: LOTTINGER, Judge.

text:
    Louis P. SOUDELIER et al. v. Robert C. JOHNSON et al.
    No. 4414.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.

      A. Deutsche O’Neal, Houma, for appellants.
    Bienvenu & Culver, New Orleans, for ap-pellees.
   LOTTINGER, Judge.

This is a tort action arising out of an automobile collision which occurred on Christmas' morning of 1952 in the Parish of Lafourche.

The petition alleges that on the day aforementioned the plaintiff Louis P. Soudelier was driving his Ford automobile at about 8:30 A.M. at a speed of about 35 miles per hour on U. S. Highway No. 90 from Thibodaux, Louisiana, in the direction of New Orleans, Louisiana, when he was involved in a head-on collision with a Chevrolet 'automobile owned by one Charlie Walker ánd driven at the time by one Clafence Gaston who was proceeding from New Orleans, Louisiana, in the direction of Raceland, Louisiana and who, suddenly alid without warning, swerved from his lane óf travel directly into the path of Soüdelier’s vehicle. It is’ further alleged that a Buick automobile owned and driven by defendant Robert C. Johnson had been following the Soudelier vehicle and that it collided with the rear of same simultaneously with the head-on collision.

The plaintiffs are (1) Louis P. Soudelier, individually,, as head and master of the community existing between him and Mrs. Lucille Theriot Soudelier and for and on behalf of.and as natural tutor of the minors Corinne, Susan and Richard Soudelier, (2) Mrs. Lucille Theriot 'Soudelier and (3) Northern Assurance Company, Ltd., Soudelier’s accident insurer and subrogee. Joined as defendants were (1) Charlie Walker, (2) Clarence Gaston, (3) Robert C. Johnson and (.4) the latter’s liability insurer, Globe Indemnity Company of New York.

A companion suit was filed by Joseph A. Theriot, individually, and on behalf of his minor children Gail Theriot and Linda Theriot, who were passengers in the Sou-delier automobile, and both suits were consolidated for trial.

It appears that the defendant Charlie Walker was never served and that the defendant Clarence Gaston, though served, entered no defense to the action. An answer was filed by Johnson and his insurer who, while admitting that Soudelier just prior to the accident was proceeding in his lane of travel at a speed not in excess of 35 miles per hour, denied any negligence whatsoever on the part of Johnson.

A preliminary default was entered against Gaston. Trial was then had on the merits and the case is now before us on an appeal taken by the plaintiffs from a judgment confirming the default against Gaston, but dismissing the suit insofar as Johnson and the Globe Indemnity Company are concerned.

• Clarence Gaston has made no appearance in this Court and, of course, the judgment appealed from cannot be amended in his fávor. We might point out, however, that the record affirmatively shows that he was drunk, left his lane of travel running directly into Soudelier’s car substantially as alleged and was, therefore, properly cast in damages by the Court below. The question presented by the appeal, therefore, concerns the negligence, if any, of the defendant Johnson.

Called on cross-examination by counsel for plaintiffs Johnson testified that on the morning of the accident he was driving his 1952 model Buick Roadmaster automobile in the direction of New Orleans. This gentleman stated that he was very familiar with the road, which appears at the site of the accident to have been some two miles east of Raceland on U. S. Highway No. 90 and that he had been driving it for years, ever since he had been a child, and that, although at the time of the trial he was a resident of South Carolina, he was actually a native of Morgan City in the Parish of St. Mary. He described the site of the accident as being on a straight stretch of róad, a “good piece down” from that spot where the pavement ends and the blacktop begins. He estimated that from the standpoint of feet the site would have been 1,000 or 1,500 feet from the point where the pavement stopped and that he was driving at a moderate speed in the vicinity of 45 or 50 miles per hour. He stated “I know for sure I haven’t drove more than 45 or 50 miles an hour then because the weather was bad at that time.” Just before the accident he had passed another vehicle, that belonging to a Mr. Lococo who had been ahead of him. He stated that after passing this gentleman he reduced his speed and proceeded to follow the plaintiff, Mr. Soudelier, at a distance of 150 to 200 feet behind him. When asked if at that time he was catching up with Mr. Soudelier, the plaintiff stated that he was not, but had reduced his speed and was only following him. Further, he stated that there was oncoming traffic which he saw.

This witness gave the following version of the accident:

“Q. What oncoming traffic did you see at the time after you passed Mr. Lococo’s car before the accident happened? A. I passed Mr. Lococo and the road was pretty clear.- I saw Mr. Soudelier for quite a piece. There was traffic, coming. I was in the line of traffic. All of a sudden these two colored fellows from New Orleans driving a Chevrolet, they pulled out and hit Mr. Soudelier. A head-on collision and turned on the side of a ditch.
“Q. How far were you back of the Soudelier car at the time the collision took place? A. About 150 feet, sir.
“Q. Were you going 45 miles an hour at that time? A. Yes, sir, the same speed as Mr. Soudelier. I was following Mr. Soudelier.
“Q. You were not driving faster than Mr. Soudelier? A. No, sir. I wasn’t in no rush. I had plenty of time to get to work. I had to be at work the next morning,
“Q. Would you mind describing as well as you can recall just exactly what this automobile did that Mr. Soudelier had this accident with? A. Yes, sir. I can describe that. These two colored fellows — I was following Mr. Soude-lier at a distance — they come out of their lane and hit Mr. Soudelier’s car head-on. It stopped both cars dead, practically, and the colored fellows rolled over in the ditch. The Soude-lier car stopped facing them crossways the highway. I applied my brakes right away and the car started sliding. It slid until I hit Mr. Soudelier. I seen Mrs. Soudelier go through the air. I saw where she layed on her back in the opposite lane of traffic. I rode my brakes until I hit. My car hit the Soudelier car’s right rear wheel. I layed him along side the colored fellow’s car. I landed opposite of Mrs. Soudelier and the wreck, the two front wheels on the soft shoulder of the road in the opposite lane.
“Q. As I understand, you have described this section of the road as rather straight, is that right? A. Yes, sir.
“Q. And you can see a long way down the highway? A. Pretty far. Yes, sir.
“Q. Would you mind estimating the distance between the Soudelier automobile and this colored man at the time when the colored man first indicated that he was going to do some wrong driving? A. The colored fellow was right up of Mr. Soudelier at the time when he pulled out of hi-s lane. It was a head-on collision. He lost control of the car and hit Mr. Soudelier head-on, stopping Mr. Soudelier to a dead stop. It looked like both cars stopped dead.
“Q. Did you see any signs along that highway warning traffic to go slow, if raining, slippery road? A. I can’t say that I have. I am cautious when it rains especially on blacktop. I don’t like a black top' road. It’s the first collision I have ever had.
“Q. Are you saying that at the time realizing a black top road is dangerous when sprinkling and raining? Was it sprinkling or raining at that time? A. It was drizzling rain.
“Q. And you were well acquainted with this area? A. Yes, sir.”

Testifying on direct examination in his own behalf, Johnson stated that “he remembered passing the Lococo automobile a good piece before the collision,” which he described as being a half mile or better. He stated that after accelerating to possibly 55 or 60 in order to pass this vehicle, he reduced his speed and fell back in the lane of traffic staying ahead of him at a speed of from 40 to 45 miles per hour. He stated that he saw the Lococo vehicle then in his rear view mirror at which time it was about 150 to 200 feet behind him and at the same time the Soudelier car was approximately the same distance ahead of him. He stated that he was not overtaking the Soudelier car. He stated that the vehicles remained in these respective positions for a distance of approximately 1,500 feet and that they proceeded in that manner onto the blacktop until all vehicles were on the blacktop portion. When Gaston pulled out he stated he was 150 to 200 feet from the Soudelier car at which time it looked to him as though Gaston pulled out from behind a car. He stated that when the collision occurred, he applied his brakes immediately and that he did not think that Soudelier had had a chance to apply his brakes before the accident had occurred. After applying his brakes, he stated that he skidded directly ahead until he hit the right rear wheel of the Soudelier automobile. At that time Soudelier’s car was faced to the right as one looked towards the direction of New Orleans. He stated that he applied his brakes and that he slid all the way until he hit the Soudelier vehicle. His speed at the time of the impact he estimated at being not more than 5 or 10 miles an hour. This witness stated that he was alone in his vehicle at the time of the accident.

Mr. William Lococo, who was called on behalf of the defendant, testified that on the morning of the accident he was en route to New Orleans and witnessed the occurrence of the collision. He identified a 4 page statement which he had given shortly after the accident. He stated that he had been driving in the direction of New Orleans at a speed of from 40 to 50 miles per hour, but that upon leaving the concrete portion of the roadway and entering the blacktopped portion, he decreased his speed to about 40 miles per hour. Before he hit the blacktop, he stated that he was passed by a Buick automobile driven by Mr. Johnson and that after this vehicle passed him he remained about 75 to 100 feet behind it. He placed the point of collision at from 300 to 400 feet from where the blacktop commenced. He stated that he saw the Chevrolet driven by Gaston come across the road and collide with Soudelier’s automobile. He stated that he put on his brakes, and when he noticed the figure of a woman lying in the road, he applied them hard enough to spin around with the result that he wound up facing the direction from which he had come. When aslced if there was a car proceeding ahead of the Chevrolet automobile, the witness stated that he could not testify definitely whether there was or was not such a vehicle. He stated that when he saw the collision he only saw the plaintiff’s vehicle and the Chevrolet collide and never did see the Buick collide with either the Ford or the Chevrolet. He stated that his car travelled a pretty good distance before coming to a stop and that actually he was afraid that he might run into the cars ahead.

The accident was investigated by Trooper H. J. Danos. Although he testified with respect to the positions of the vehicles after the accident and the distance the Soudelier car moved after being hit by the Johnson car, we do not find his testimony to be very helpful for, admittedly, his memory was very hazy on the subject and his entire testimony was based on his report which was, in turn, based on information given him by others.

The plaintiff Soudelier stated that he did not even know Johnson was involved in the accident until he was told about it later. The most that this witness could testify to with respect to Johnson’s negligence was that “It was just one impact and that was all.” In this connection the Lower Court made the following comment with reference to plaintiff Soudelier’s testimony.

“Mr. Soudelier tried to give the impression that the head-on collision and the collision with the Johnson car were simultaneous. It is apparent, however, that Mr. Soudelier was momentarily ‘knocked out’ because the first thing he remembers was finding the child, Gail Theriot, out of the car helping him to remove the other children from the car. (Tr. p. 55.) He was in a daze and did not appear to know what had happened. (Tr. p. 89.) He did not even know that his wife had been thrown out of the car and did not know where she was. (Tr. p. 55.)”

Gail Theriot, a passenger in the vehicle, stated also that there was but one impact. Mrs. Soudelier was knocked unconscious and knew nothing about the Johnson car being involved until after the accident had occurred and she had been removed to a hospital.

The trial judge was of the opinion that the accident occurred in the manner related by the defendant Johnson. There is nothing in the record to indicate any manifest error in his so finding and this brings the case under our holding in the case of Rhea v. Daigle, 72 So.2d 643, 651, as held by the trial judge. In the Rhea case we thoroughly discussed the law and the jurisprudence relative to a situation of this kind and we quote same as follows:

“The record clearly shows that the Rhea and Daigle automobiles came to a complete and sudden stop upon their collision. Under these circumstances, we think the ruling of the trial judge places upon Hebert a degree of care which is more strict than that required by our law and jurisprudence. Indeed, in the case of McDaniel v. Capitol Transport Co., La.App., 35 So.2d 38, relied on by the trial judge, which cited Hill v. Knight, La.App., 163 So. 727 quoted from Blashfield’s Cyclopedia of Automobile Law as follows :
“ ‘The only rule that can govern the interval to be maintained is that of reasonable care under the circumstances. The mere fact that a vehicle is moving in close proximity to a moving vehicle ahead and keeping up with it does not of itself constitute negligence. In determining whether or not a driver w;as negligent, in not maintaining a proper distance between, his automobile and the one preceding him, the speed at which he was traveling, the condition of the road, the amount of traffic, the condition of his brakes, and his ability, acting with ordinary care, to stop his car if required to do so by a .situation not produced by another's negligence should be considered.’ (Emphasis supplied.)
“The facts in the McDaniel case show that the following vehicle was travelling fifty feet behind the lead, car at a speed of thirty to thirty-five miles •per hour; that it was raining and the pavement was slippery; that the lead car had reduced its speed to approximately five miles an hour in order to bring it to a stop in view of the fact that the- driver of the lead car had noticed some cattle crossing the highway. Certainly the facts of that case are different from the facts in the instant case.
“The other case of Lynch v. Fisher, La.App., 34 So.2d 513, which the lower court relied upon is not apposite to the facts in the instant case. That was a case where a motorist ran into a parked truck on the highway at night and certainly the general rule requiring the driver of an automobile to have his vehicle under such control as to be able to bring it to a complete stop within range of his vision or the penetration o'f his light's when confronted by an obstruction or danger, was applicable.
“Also controlling here is the case of Reeves v. Caillouet, La.App., 46 So.2d 373, wherein the court quoted with approval from Adams v. Morgan, La.App., 173 So. 540, which laid down the following rule:
“ ‘The best and safest rule which, it seems possible for the governing authorities and the courts to have for.mulated is the one which requires the driver of the car following another to maintain such speed and such distance from the lead car as to be able to meet the usual and ordinary movements of a car using the highway. Such in effect is the provision in our State Highway Regulatory Act, Rule 8(a) Section 3, Act No. 21 of 1932. Whilst he is expected to be prudent in following another, the driver of the car in the rear can anticipate a reasonable observance of the rules of the road and of driving, by the driver of the car ahead of him. The rule is thus tersely and appropriately stated in the recent publication, American Jurisprudence, Vol. 5, p. 656, § 280:
“ ‘ “The general rule that drivers of automobiles on public highways or the streets of municipalities must exercise reasonable care in the operation of their vehicles, that is, such care as a person of ordinary prudence would exercise under the same or similar circumstances, governs the reciprocal rights and duties of the drivers of cars proceeding in the same direction. The driver must keep a safe distance behind a vehicle ahead and must have his machine well in hand to avoid injury to the car ahead so long as the car ahead is being driven in accordance with the law of the road.”
‘Blashfield, in his Cyclopedia of Automobile Law and Practice (Permanent Ed.) Vol. 2 p. 107, 931, lays down a rule much to same effect. According to the statement therein made, it is the duty of the driver in the rear to have his car under such control as. not to interfere with the free use of the road "in any lawful manned’ by the driver'of the car ahead.’
“In the case of Stevenson v. Campbell, 17 La.App. 142, 134 So. 718, we find where the -Second Circuit Court of Appeal of this .State, held that no driver is required to be on guard for unusual situations that might suddenly and unexpectedly arise. This case is likewise reported in 104 A.L.R. p. 488. That case involved a three car accident wherein the following vehicle was- absolved of negligence, due to the sudden and unexpected occurrence.

“We likewise find in 104 A.L.R. at page 500, the following:

“ ‘However, it has also been held that the driver of a trailing car is not required to adhere to the rule that he must be able to stop it within his clear range of vision, in instances where hazards arise that could not have been anticipated. Rankin v. Nash-Texas Co., Tex.Civ.App.1934, 73 S.W.2d 680. In this case, although the court stated: “In trailing other automobiles, a motorist must govern his speed or keep back a reasonably safe distance so as to provide for the contingency of the automobile in front suddenly stopping or decreasing its speed, so that he can stop or decrease his speed to avoid a collision, or can turn out safely to pass the vehicle in front. One cannot run down a vehicle proceeding in the same direction without having been guilty of some negligence in the operation of his own, unless it appears that the collision was due to the contributory negligence of the driver of the other vehicle. The collision, under ordinary circumstances, furnishes some evidence of negligent acts of omissions on the part of the driver of the trailing vehicle which ordinarily calls upon the driver of the rear vehicle to explain, and usually presents a question of fact for the determination of the jury,” it held that where a motorist ran into the rear of another car when it was suddenly stopped because of the sudden and abrupt appearance of another automobile backing into its path, such a situation did not “present an ordinary circumstance of the front car stopping as to raise a presumptive issue of negligence of the operator of the rear vehicle.” It was further held that the doctrine of res ipsa- loquitor had no application where the record was silent as to any specific acts of negligence on the part of the rear motorist.
“ ‘Similarly, in Cook Paint & Varnish Co. v. Hickling, 8 Cir., 1935, 76 F.2d 718, where defendant’s truck came to an abrupt stop because of a mechanical breakdown, without any warning to the driver of the vehicle in the rear, it was held that the overtaking motorist, who was injured when his car collided with the truck ahead, could not be required to exercise the care of an ordinarily prudent person when confronted with an emergency, nor expected to adopt the wisest choice in his endeavor to avoid colliding with the vehicle ahead and therefore could not be held guilty of contributory negligence in failing to stop within “the assured clear distance ahead.” ’ * * *
“We believe under the above quoted expressions that while the driver of the following vehicle is charged with driving so as to have his car under control to avoid foreseeable dangers and emergencies he is not to be charged with anticipating an emergency such as presented itself here.”

Finding no manifest error in the judgment appealed from the same is affirmed.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph A. THERIOT v. Robert C. JOHNSON et al.
    No. 4415.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.
    A. Deutsche O’Neal, Houma, for appellant.
    Bienvenu & Culver, New Orleans, for appellees.
   LOTTINGER, Judge.

For the reasons assigned in the case of Soudelier v. Johnson, La.App., 95 So.2d 39, the judgment appealed from is affirmed.

Judgment affirmed.


text:
    C. R. HELMS v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN.
    No. 4411.
    Court of Appeal of Louisiana. First Circuit.
    May 2, 1957.

      James C. Murphy Jr., New Orleans, for appellant.
    Dugas, Bean, Bertrand & Smith, Lafayette, for appellee.
   LOTTINGER, Judge.

This is a suit in workmen’s compensation wherein petitioner, C. R. Helms, seeks to recover for permanent and total disability. The suit is against the Insurer, Employers Mutual Liability Insurance Company of Wisconsin. The employer, Teche Construction Company, Inc. is not joined as a defendant. The Lower Court rendered judgment in favor of petitioner and against the defendant for the sum of $30 per week for the duration of disability, not to exceed four hundred (400) weeks. The defendant has taken an appeal.

The only question raised on this appeal is that to the extent of disability of petitioner. There is no question but that he •did sustain an injury for which recovery is allowed under the Louisiana Workmen’s •Compensation Act, LSA-R.S. 23:1021 et •seq.

The record shows that two medical experts testified as to the extent of the injuries received by the petitioner. Dr. Jack Wickstrom, an orthopedic surgeon of New Orleans, Louisiana testified that he made an examination of the petitioner on March 16, 1955. This examination was some thirteen (13) months after the accident which occurred on Febuary 25, 1954. Dr. Wickstrom testified that in his opinion the petitioner could probably return to his occupation as a rig builder, but qualified his opinion with the statement that: “I am certain he would experience pain in his knee if he engaged in persistent climbing of ladders and walking on uneven ground and so on and so forth. I am firmly convinced that it would not be the way I would manage a case of this sort. If I had the choice, I would rather not have a patient of mine climbing ladders.” Dr. Wickstrom estimated the disability of the petitioner, as a result of the accident, as follows: Disability of the knee — 45%; disability of the body as a whole — 11.3%; and disability of the leg — 28.3%.

Dr. Muhleman, an orthopedic surgeon of Lafayette, Louisiana cared for the petitioner during the course of hospitalization prior to the time that he was discharged from medical care. Dr. Muhleman, who testified on the behalf of the defendant, estimated the disability of petitioner at thirty (30%) per cent, which he testified covered a pre-existing condition, as well as an aggravation thereto by virtue of the accident.

The facts show that the petitioner was a pusher in a rig building crew of an oil field construction company prior to the accident. As such, he was the foreman of a crew of six (6) men, whose job was to construct drilling rigs. During the course of his job it was necessary for him to climb derricks, work on scaffolds and on derricks, and do hard manual labor while in various bending positions. He was also required to lift equipment of great weight and to work in swamps and marshes.

On February 25, 1954, petitioner sustained a severe injury to his left knee, requiring an operation, as well as hospitalization for a period of some twelve (12) days. On August 4, 1954, Dr. Muhleman discharged the petitioner and advised him that he could return to work. The petitioner returned to work on August 10, 1954 and worked for a period of thirty-three (33) days. Because of extreme pain and suffering, and his inability to safely perform his work, petitioner was forced to terminate his employment.

The question presented is whether, in 'the light of the above-mentioned medical testimony, together with the lay testimony, the petitioner is permanently and totally disabled under the provisions of the ■ Workmen’s Compensation Law. There are •many cases to the effect that a claimant is considered disabled if he can only perform the duties of the employment in which he was engaged at the time of the accident with pain and suffering. Certainly the Compensation Law would not require an injured employee to continue in his work when same can only be performed with pain and suffering. Furthermore, the Act would not require an injured employee to perform work under such conditions as might render it hazardous for his own safety as weM as that of his fellow employees. In Brannon v. Zurich General Accident and Liability Insurance Company, 224 La. 161, 69 So.2d 1, the Court said as follows :

“In the light of the facts in the instant case, the plaintiff is, in our opinion, permanently and totally disabled within the meaning and contemplation of this law. The law does not expect, and it does not contemplate that a worker, in order to make a living, must work in pain, or that he do so when it will materially increase not only the hazards of his own health and safety, but also to those of his fellow employees. This is the settled jurisprudence of all of the appellate courts of this state * * 224 La. 161, 69 So.2d 1, 3.

In addition to the medical testimony which we have set forth above, Paul Foreman, a co-worker with the petitioner, testified that he performed work with petitioner after the petitioner had returned to work following the accident. He testified that petitioner’s job required heavy lifting of materials, considerable bending, and considerable climbing. Fie further testified •that, following the accident, the petitioner did not himself perform all the duties of a pusher, and that of those duties that he did perform, they wer.e done under pain. He stated that petitioner would “catch his •leg” often as well as complaining about his leg bothering him.

The defendant complains of the testimony of two co-employees of the petitioner who were called by petitioner for cross-examination under the Act. The defendant timely objected to said cross-examination because .the employer was not a party to the suit, and complained that, as the suit was a direct one against the insurance company, these witnesses, who were employees of the employer, could not be called under cross-examination under the provisions of LSA-R.S. 13:3663. The Lower Court held in favor of petitioner, and based its decision on the medical testimony, together with the testimony of petitioner and that of Paul Foreman. The Lower Court gave no weight whatsoever to the witnesses called for cross-examination under the Act. We feel, as did the Lower Court, that the medical testimony, together with that of petitioner and of witness Foreman, is sufficient to show the requisite disability, without considering the testimony of the witnesses called under the Act.

One of the doctors estimated the disability to petitioner’s knee at thirty (30%) per cent, and the other doctor at forty-five (45%) per cent. Considering the type of employment of petitioner, especially the fact that he was required to lift heavy equipment, to do substantial climbing on derricks, together with other duties which must necessarily be performed by a tool pusher, we feel that the petitioner has shown such disability as would bring him within the provisions of the Workmen’s Compensation Act. Even though he could physically perform eacli and every task required, the Act does not call upon him to do such work, when he can only do so under great pain, or with great hazard to his own safety and that of others.

The petitioner asked for penalty and attorney fees below. The Lower Court did not grant them because they did not find that the defendant acted capriciously or arbitrarily in refusing to pay compensation to petitioner after August 12, 1954. We find no error in the holding of the Lower Court.

For the reasons hereinabove assigned, the judgment of the Lower Court will be affirmed, all cost of this appeal to be paid by the defendant.

Judgment affirmed.


author: LOUIS H. YARRUT, Judge ad hoc.

text:
    Freeman PATTERSON, Plaintiff-Appellee, v. CARGO SERVICES, Inc. and the American Mutual Liability Insurance Co., Defendants-Appellants.
    No. 20950.
    Court of Appeal of Louisiana. Orleans.
    May 13, 1957.
    Arnold C. Jacobs, New Orleans, for plaintiff-appellee.
    Alfred C. Kammer, New Orleans, Chaffe, McCall, Phillips, Burke & Hopkins, New Orleans, of counsel, for defendants-appellants.
   LOUIS H. YARRUT, Judge ad hoc.

From a judgment allowing an injured employee full compensation for total and permanent disability, and not compelling such employee to undergo surgery, both defendants have appealed. Because plaintiff’sprayer for statutory penalties and attorney’s fees was disallowed, plaintiff has answered the appeal for an amendment allowing these items.

There is no question of fact involved, — - only two issues of law:

(1) Whether plaintiff is under a duty to submit to surgery tendered by defendants at their cost, and whether his refusal to submit was arbitrary and unreasonable;

(2) Whether the action of defendants in summarily discontinuing compensation payments when plaintiff was admittedly unable to return to work, simply because he would not submit to surgery, was arbitrary and unreasonable and subjected them to the penalties provided by LSA-R.S. 22:658, as interpreted by Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695; Fruge v. Pacific Employers Insurance Company, 226 La. 530, 76 So.2d 719; Cummings v. Albert, La.App., 86 So.2d 727.

The District Judge, in allowing full compensation, gave the following written reasons:

“The testimony of the orthopedic surgeons, Drs. Battalora and Redler, was substantially to the effect that the surgery involved would take from 30 to 60 minutes and involved entering the knee joint;”

The operation “would necessarily be performed either under a spinal or general anesthesia;”

“There was some element of risk of life attached to the operation, and no physician could positively state that the operation would be successful.”

These are the undisputed facts: Plaintiff was injured on May 2, 1956, while working as a stevedore, which resulted in a rupture of the lateral medial meniscus, or semilunar cartilage of his left knee. He was treated by Dr. Joseph C. Menendez almost daily during the month of May; approximately every other day during the month of June; and with decreasing visits during July, August, September and October. Pie was paid compensation for a period of eighteen weeks, and also medical and hospital bills.

He was examined by Dr. Irving Redler, an orthopedic specialist, on June 22, 1956; and by Dr. George C. Battalora, an orthopedic specialist and plaintiff’s own doctor, on November 5, 1956, both recommending that an arthrotomy be performed. Defendants tendered plaintiff surgery, with the-admonition that, unless it was accepted within fifteen days, the weekly compensation payments would be suspended. This tender was refused and compensation payments were discontinued, resulting in the present suit.

Though plaintiff sued both American Mutual Liability Insurance Company and Cargo Services, Inc., no citation was ever issued or service ever made on Cargo Services, Inc., and answer to plaintiff’s petition was filed only on behalf of American Mutual Liability Insurance Company.

Dr. Menendez, general surgeon, and Dr. Battalora and Dr. Redler, orthopedic surgeons, were practically in complete agreement.

Dr. Battalora says that an operation, such as he recommended, would take, within approximate limits, about forty minutes; some surgeons use a spinal anesthesia, but he prefers general anesthesia; that the anesthesia would be administered by a specialist. Under cross-examination he said that some orthopedists use the spinal rather than the general anesthesia.

Dr. Redler states that such an operation varies; that he has taken as little as twelve minutes, and as much as an hour; and, on the average, about thirty minutes; it could be performed with spinal or local anesthesia.

Dr. Menendez uses what is called a sacral block, or a form of sacral anesthesia, low spinal.

With regard to the element of risk involved, Dr. Battalora testified there is always some danger incident to a surgical procedure although it is quite minimal; that he had performed several hundred similar operations and had never lost a patient; that he would not hesitate to perform the operation; that it was possible, but highly improbable, that plaintiff would get well without an operation.

Dr. Redler testified that he has performed over 300 such operations and would have no hesitancy in operating on plaintiff; and did not think he would be jeopardizing plaintiff’s life in any way; that the operation should relieve his pain, and it should relieve the locking of the knee, and should permit bending the knee.

Dr. Menendez also testified that he performed hundreds of such operations; that he had had excellent results from the operations and would expect to get good results if an operation were performed. He recommended surgery and would expect plaintiff to have complete recovery and return to his former occupation with no disability; that he would have no hesitancy in performing the operation, and the element of risk would be no more than one would expect when crossing the street.

The only theory upon which an injured employee is denied compensation, when he refuses to submit to a surgical operation, is that he unreasonably refuses proper medical treatment: Powers v. Allied Chemical & Dye Corporation, 46 So.2d 332. The compensation statute does not define what is meant by “proper medical treatment,” but our courts have uniformly refused to order an injured employee to submit to surgery when it involved opening the abdominal or chest cavities, the lumbar region or bone joint, and required general or spinal anesthesia: Bronson v. Harris Ice Cream Co., 150 La. 455, 90 So. 759; Crawford v. Tampa Inter-Ocean S.S. Co., Inc., La.App., 155 So. 409; O’Donnell v. Fortuna Oil Co., 2 La.App. 462; Johnson v. U. S. Fidelity & Guaranty Co., 58 So.2d 261; Williams v. Southern Advance Bag & Paper Co., Inc., La.App., 87 So.2d 165.

In reviewing the jurisprudence regarding compulsory surgical operations, we find the case of Moore v. List & Westherly Construction Co., La.App., 144 So. 147. It was held error for the trial court, in conjunction with an award for the loss of the use of a hand, caused by a cut in the palm which severed the tendon of the middle finger, to order further that, in the event the employer should offer an operation at its own expense and the employee should refuse, compensation should cease. The Court stated that the law did not require anyone to submit to a surgical operation and, even though it might be the opinion of all the doctors that the chances would be largely in favor of full recovery, there is always some risk in every operation, and it is within the discretion of the injured party whether or not he will submit thereto.

In Yarbrough v. Great American Indemnity Co., La.App., 159 So. 438, 441, the refusal of a laborer, 52 years of age, who had sustained an injury to the upper part of femur of the left leg, extending to the left hip joint, to submit to an operation to remove a bony spur that had formed around the fractured bone and muscles, was held not to be unreasonable, since it would have been necessary to lay the flesh open with attending pain and discomfort for about two days, and about six weeks required for recovery, and another six weeks to regain the function of the leg. The Court there expressed the opinion that, “from the viewpoint of a seasoned surgeon such an operation is not considered serious, but to the lay mind a different opinion is obvious”. The court adopted the viewpoint that, under the jurisprudence, it would not order an operation.

In O’Donnell v. Fortuna Oil Co., supra, the Court said:

“True, the surgeon’s knife might easily relieve the patient of his burden, but who has the right to say to him that he must undergo an operation fraught, as operations always are, with more or less danger?”

The general rule, as set forth in 73 A.L. R. 1307, is that where the operation is of a major character and attended with serious risk to life or limb, an injured employee’s refusal to submit thereto is not unreasonable, and compensation should not be denied on that account; citing Dollar v. Southern States Co., Inc., 18 La.App. 178, 135 So. 758; Benoit v. American Mutual Liability Ins. Co., La.App., 162 So. 603. See 105 A.L.R. 1470.

The cases which came closest to requiring the employee to submit to surgery were with reference to injuries to the extremities, knees, fingers, shoulders but, with rare exception, some reason was found not to require surgery.

The case of Fredieu v. Mansfield Hardwood Lumber Co., La.App., 53 So.2d 170, 173, is very similar to the case at bar. In that case, plaintiffs right knee joint was injured, and the injuries were considered to be totally disabling in character. Plaintiff refused defendant’s offer of an operation. In deciding for defendant, the Court said:

“We are convinced that plaintiff’s ability to resume work can and will be restored from operations by a competent surgeon, and that such an operation will be attended by a minimum if any, danger of ill effects. He owes it to himself, at least, to submit to such an operation rather than go through life, possibly a cripple.
“We are cognizant of the fact that courts are reluctant to require injured litigants to submit to surgical operations as a condition precedent to payment of workmen’s compensation, and we agree with this attitude. See: Yarbrough v. Great American Indemnity Company, La.App., 159 So. 438; Bronson v. Harris Ice Cream Co., 150 La. 455, 90 So. 759; Simmons v. Blair, 194 La. 672, 194 So. 585, 586.
“However, we can conceive of cases, such as the one before us, where the surgical operation is so relatively simple and the advantages to be procured thereby are so nearly certain, that the complainant should be required to undergo such.. If the operation does not bring about the hoped-for results, very little, if any harm will have been done.”

Another case involving a knee injury is French v. Employers Mutual Liability Ins. Co. of Wisconsin, La.App., 70 So.2d 179, 189. The medical testimony was that the medial semilunar cartilage had been torn. After again referring to and analyzing quite a number of preceding cases, the Court said:

“We are convinced from all of the testimony in the case that plaintiff’s condition can be corrected, if not completely cured, by a relatively simple operation; that such an operation is in no sense dangerous to life, or attended by unusual risk, and is reasonably sure of success, and that plaintiff is under a duty to submit to such operation, without cost to him, and by an expert of his choice, in order to correct and relieve his existing disability and in order to restore himself to a state of usefulness to himself, his family, and society.”

A writ of certiorari to the Supreme Court was granted. However, on joint motion the writs were vacated and the record returned to the Lower Court in November of 1954, evidently for a compromise settlement.

In Simmons v. Blair, 194 La. 672, 194 So. 585, our Supreme Court held that the refusal to accept surgery of the knee in a case similar to the instant case was not unreasonable, as the injury to plaintiff’s right knee consisted of a fractured internal semi-lunar cartilage which protruded to the medial side of the knee joint, causing a tumor mass or growth at that point; and that the medical testimony, whether the operation was simple or unattended by appreciable risk or pain, was conflicting.

In Watson v. T. Smith and Son, Inc., La.App., 88 So.2d 69, 72, this Court stated that, in order to determine whether plaintiff should be required to submit to an operation, “all of the surrounding conditions and circumstances must be inquired into” since “each case * * * must be decided on its own peculiar set of facts,” and held that it was not unreasonable for the plaintiff to refuse to undergo an operation for the removal of a ganglion, a growth on the wrist, because the ganglion was apt to recur.

In Ashworth v. Calcasieu Paper Co., La.App., 85 So.2d 681, plaintiff sustained a knee injury similar to the one here. The defense was that he should submit to an operation to correct the medial meniscus condition. The Court held that, since plaintiff also had a hernia which was disabling, it would be inappropriate for the Court to issue any dicta concerning whether plaintiff should be required to submit to an operation.

Benefield v. Zach Brooks Drilling Co., La.App., 59 So.2d 710, involved a serious injury to the muscles, ligaments and tendons of plaintiff’s right arm in the area of the shoulder. The testimony of the medical experts was conclusive that the injury was permanently and totally disabling, and the only hope for any real relief was an operation. The Court held that, while the evidence in the record justified the conclusion that such an operation was relatively simple was not attended with any extensive pain or suffering, and there was a minimum danger of fatal results, there was left one important consideration, namely, whether an operation would be reasonably certain to restore the full use and function of the arm, and that, under the facts adduced, they were constrained to find that this point had not been affirmatively established, and decided against defendant.

In the early case of Leday v. Lake Charles Pipe & Supply Co., La.App., 185 So. 655, 657, the Court, on rehearing, said:

“The most serious question presented is whether or not plaintiff should be required to submit to the amputation of his right index finger, and thus relieve the disability and minimize the damage. Our jurisprudence is well settled that an employee cannot be required to submit to an operation to relieve a disability where the medical testimony shows that the operation will be accompanied by great pain and may seriously endanger life, or where there is doubt as to the removal of the disability by the operation. In such a case the employee is not required to endanger his life or gamble with his chance of recovery by submitting to a dangerous and uncertain operation. But where the medical testimony shows, as it does in this case, that the operation is a minor one, unattended by danger of any serious consequences, with little pain and suffering, and with almost a certainty of success and relief from the disability, it would be unfair and inequitable for plaintiff to continue to draw full compensation when he has it within his power to minimize the damage by submitting to a minor and relatively simple operation. See Crawford v. Tampa Inter-Ocean S.S. Company, Inc., La.App., 155 So. 409, and cases there cited; also Murphy v. [B] Mutti, Inc., La.App., 166 So. 493.”

In the very recent case of Borders v. Lumbermens Mutual Casualty Co., La.App., 90 So.2d 409, 411, plaintiff was injured in an accident which resulted in a crushing of the index finger of his right hand. The sole question involved was whether plaintiff’s refusal to submit to a tendered operation was reasonable. The Court summarized the criteria to determine whether an injured employee’s refusal to submit to operative procedure is reasonable or not, as follows:

“1. Can it be reasonably assumed that the operation will relieve the situation and permit the claimant to resume the type of work he was performing at the time of the accident?
“2. Will the operation submit the claimant to a minimum of danger and be in no sense dangerous to his life or be attended by no unusual risks and is it attended with but slight pain?
“3. Is there no serious disagreement among the surgeons as to the necessity for the operation or the type of operation to be performed, and the probability that the disability will be cured without recurrence?”

The Court found the preponderance of the evidence indicated that, even after the recommended operation amputating his index finger, plaintiff would continue to be totally disabled from performing the duties of an iron worker; and felt that it was not unreasonable for him to refuse to submit to an operation.

With reference to the unknown and hidden dangers of the operation tendered plaintiff, Dr. Battalora, under cross-examination, stated that arthritis was the “bugbear” in such operations because, unless it was in an advanced stage, it could only be discovered during the operation, leaving nothing to be done except remove the torn cartilage. When asked what recovery would be effected, he said the recovery prognosis would be doubtful because it would be hard to tell just how much aggravation the operative procedure had induced the arthritic process. Briefly, Dr. Battalora made it clear that he would not operate if arthritis were present, and he could not be sure until he got into the knee joint, when it would be too late to turn back.

From our jurisprudence it seems clear that an employee has seldom been compelled to undergo medical treatment necessitating surgery in a cavity of the body or bone joint regardless of what varying reasons may have been given. Any change in the statute to make it mandatory for an employee to submit to corrective surgery as a condition precedent to receiving compensation is a function of the legislature, not the courts.

With reference to statutory penalties and attorney’s fees, from the holdings in Wright v. National Surety Corp., Fruge v. Pacific Employers Ins. Co., and Cummings v. Albert, supra, it seems clear that, where the insurer suspends the payment of compensation, notwithstanding that the employee is admittedly totally or partially disabled, it must be cast for costs and attorney’s fees, should the employee ultimately be held entitled to compensation. It is the calculated risk that the insurer takes..

Since, as we have already stated, Cargo-Services, Inc., was neither cited nor made an appearance, the suit against it should be dismissed.

Accordingly, the judgment appealed from-in respect to the defendant, Cargo Services,, Inc., is reversed and the plaintiff’s suit as-to that defendant is dismissed. The judgment is amended so as to hold the defendant, American Mutual Liability Insurance Company liable for a penalty of 12% on all weekly compensation payments-which are now due, with a like penalty on-all such payments which might become 60’ days overdue in the future, together with an attorney's fee payable to plaintiff in the-sum of $500. In all other respects the judgment appealed from is affirmed; all' costs to be paid by defendant, American-Mutual Liability Insurance Company.

Reversed in part; amended and affirmed in part.

JANVIER, J., absent, takes no part.