text:
    Charles O. COOK, Sr., Plaintiff-Appellant, v. Claude A. DANCE et ux., Defendants-Appellees.
    No. 8688.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.

      Malcolm E. Lafargue, Shreveport, for appellant.
    Cook, Clark, Egan, Yancey & King, Shreveport, for appellee.
   AYRES, Judge.

In this action in tort, plaintiff seeks to recover of defendants damages for physical and mental pain and suffering, for permanent injuries, for medical expenses incurred and anticipated for future treatment, and for loss of wages, past and future, allegedly resulting from an automobile accident of February 12, 1955.

The accident occurred on U. S. Highway No. 70 about three miles southeast of Globe, Arizona. Plaintiff and defendants are residents of Caddo Parish, Louisiana. Exceptions of no cause and of no right of action were filed and urged on behalf of both defendants. The exceptions were overruled as to the defendant, Claude A. Dance, but sustained as to the co-defendant, Mrs. Maude W. Dance, his wife, and, as to her, plaintiff’s suit was accordingly dismissed. She is not now before this court as no appeal was taken from the judgment on the exception in her favor. Defendant also filed and urged a plea of vagueness, in which the issues raised were disposed of by the filing of a supplemental petition.

Plaintiff, as a guest in Dance’s automobile, charged that the accident in which he was allegedly injured, was caused by Dance’s negligence in driving at an excessive rate of speed, in not maintaining a proper lookout, in not applying his brakes, and in failing to exercise proper precaution in meeting and passing another motor vehicle by suddenly swerving his car to the right instead of doing so gradually, and in failing to exercise reasonable care and prudence in driving an automobile equipped with power brakes. Alternatively, plaintiff urged the applicability of the doctrine of last clear chance or of discovered peril.

Defendant denies he was negligent in any respect and alleges that the accident was caused by the fault and negligence of the driver of a pick-up truck which they were meeting, in suddenly swerving to its left side of the road and into the lane and path of defendant’s car and in failing to keep a proper lookout or to keep his truck under control, and by forcing defendant, at least partially, off of the highway. In the alternative, plaintiff is charged with independent and contributory negligence in failing to keep a proper lookout, or to warn defendant of the approach of the oncoming truck on the wrong side of the highway. These issues thus presented were tried before a jury and predicated upon its verdict, a judgment was rendered and signed, rejecting plaintiff’s demands, from which he has appealed.

No serious contention as to the material facts is presented. Plaintiff was defendant’s guest on a trip from Shreveport, Louisiana, to California, where defendant was going for the purpose of purchasing redwood lumber for use on his farm or ranch. The accident occurred in the late afternoon of February 12, 1955, while Dance was traveling westerly on U. S. Highway No. 70. The highway was paved with asphalt twenty-two feet in width, with three foot shoulders. The evidence is undisputed that while proceeding at a speed of fifty miles per hour plaintiff and defendant saw a gray pick-up truck approaching, straddling the center line of the highway at a speed estimated from fifty to sixty miles per hour. Defendant was forced off the highway surface to the shoulder by the oncoming truck, which however, passed without incident to it and did not stop.

There were only two eyewitnesses to the accident, plaintiff, Cook, and defendant, Dance. Their versions of the accident are remarkably similar. However, during the accident plaintiff -changed positions in the car from the front to the rear seat. Dance says when the oncoming truck started over toward him, he remembers seeing plaintiff put one foot on the front seat and get over in the bade. Both saw the fast moving truck as it approached from around a curve, a distance variously estimated at from l^th to 14-th of a mile away, first on its side of the road and then angling into their lane of traffic, to as much as two or three feet across the center line, whereupon defendant turned to the right and onto the shoulder of the highway. Cook estimated the speed of each of the vehicles at between fifty and sixty miles per hour. Dance estimated his own speed at fifty miles per hour when he first saw the truck approaching at a very fast and rapid rate of speed, but says that prior to the accident he had reduced his speed considerably.

Cook testified tire last time he saw the oncoming truck was when Dance jerked the Oldsmobile which he was driving to the right when the vehicles were about fifty yards apart. At that moment he says Dance yelled something like: “He is going to hit us”, and then suddenly jerked the car to the right and in doing so, missed the truck, after which the Oldsmobile went into a broadside skid, the car spinning half around and continued skidding until it hit a concrete culvert and turned over a number of times, coming to rest in an upside down position, facing the culvert, which they had just struck.

Dance testified that on first seeing the truck around the curve, he steered his car to the extreme right of his lane of traffic, and, on observing it angling into his lane, he further steered his car to the shoulder of the road, which constituted a reverse slope with an uneven surface of crushed stone; that as the truck continued and proceeded directly toward him, he gave out some exclamation indicating the urgency of the situation then confronting him and the possibility of the truck striking his automobile. In his successful attempt, therefore, to prevent the truck striking him, he swerved his car to the right and then back to the left in order to straighten out on the the highway after meeting and passing the truck. The car began to skid and the right rear wheel struck a hole in the surface of the road shoulder immediately above the culvert, causing the car to overturn.

This was the first time defendant had traveled this road, and, of course, he had no knowledge of the defect existing therein, which he says he did not see. From the photographs offered in evidence, taken from the position in which defendant was approaching the culvert, neither the culvert on his side of the highway, nor the depression above was readily observable, due to the surrounding terrain and vegetation.

The charges of negligence directed to defendant of excessive speed, failure to maintain a proper lookout, or to apply his brakes, and to exercise reasonable care in operating an automobile equipped with power brakes, have not been established by the evidence in the record. No serious contention is urged to the contrary.

The remaining question for consideration is whether or not defendant exercised due and reasonable care and caution in meeting and passing an oncoming truck. From testimony of both plaintiff and defendant no conclusion could be reached other than that in meeting the truck defendant was suddenly confronted with an emergency attributable only to the fault of the truck driver. Plaintiff says he never saw the truck after it got within fifty yards of defendant’s car. His failure in that respect perhaps is due to his springing over the back of the front seat to the rear of the car at a critical moment preceding the impending accident. But he did hear defendant’s exclamatory remark, indicating that the truck had suddenly headed toward the car.

Defendant, on observing the truck approaching for some distance, partially straddling the center line of the highway, drove to the shoulder of the road. He did not anticipate that the truck would go farther and suddenly change its course and head directly toward him, but that the situation was unanticipated and was wholly unexpected. It does not appear that it would have been reasonable for a reasonably prudent and careful operator to have foreseen and suspected such maneuver on the part of the truck driver. In fact, as has been stated: “The reasonable and natural thing for him to do, and what the law and the rules of the road contemplate, is that he should keep to his right path in the road and rely on the assumption which he has a right to make that the other driver will get back to his side of the road before running into him. Kennedy v. Opdenweyer [1929], 11 La.App. 532, 121 So. 636; Travis v. Lavigne [1935], La.App., 161 So. 912.” Aguillard v. State, La.App. 1942, 7 So.2d 645, 648, 649.

When a driver of a motor vehicle is confronted with a sudden emergency not of his own making and to which he did not contribute, he cannot be held responsible or liable for errors of judgment committed by him in the emergency where he is compelled to act instantly in an effort to avoid an impending accident. In such circumstances he may not be said to be guilty of negligence if he makes such a choice as a person of ordinary prudence would have made even though it appear later that he did not make the wisest choice. He is not held to the same coolness, accuracy of judgment or degree of care that is required of him under ordinary circumstances and is not liable for injuries caused by his vehicle if an accident occurs under the stress of such emergency, provided he was exercising ordinary, prudent and reasonable care to avoid the accident. Snodgrass v. Centanni, 1956, 229 La. 915, 87 So.2d 127; Commercial Standard Insurance Company v. Johnson, 1955, 228 La. 273, 82 So.2d 8; Troy v. Landos, La.App. 1955, 85 So.2d 70; 65 C.J.S. Negligence § 123, p. 733; 38 Am Juris, p. 873, “Negligence”, Section 193.

Therefore, it is immaterial in such a situation that defendant, as contended by plaintiff, could have stopped or driven completely off the highway and thereby have avoided the accident. Such maneuver, even when subsequently reviewed, would not have brought assurance that the truck would not have continued its course and run into the car. Where it appears perfectly clear defendant was confronted with a sudden emergency without fault on his part, negligence cannot be attached to any possible error of judgment attending his reaction to the circumstances. Crawford v. Zurich General Accident & Liability Insurance Company, Ltd., La.App.1949, 42 So.2d 553.

The case of Finance Security Corporation v. Alford, La.App.1953, 63 So.2d 872, 875, presents a factual situation very analogous to the facts of the instant case. There, the Court of Appeal for the First Circuit stated:

“The facts show that, upon seeing the truck proceeding towards him in its left lane, Birkmier turned onto his right shoulder in an attempt to avoid being struck by the truck. He proceeded some distance on the shoulder, during which time the truck passed him. The evidence shows that the shoulder in the vicinity of the accident is uneven. At some spots it is three or four feet wide, and in some other spots it is somewhat narrower. Mrs. Crockett testified that the shoulder is three to four feet wide, but that where the car went into the ditch there is only a narrow strip between the ditch and the pavement. This ditch is a deep one and was covered with weeds. We conclude, therefore, that Birkmier was safe in running onto the shoulder until he met the ditch, which was hidden. It was this ditch which caused Birkmier to turn over.
“It is our opinion that Birkmier, upon entering the curve in the highway, was faced with the sudden emergency of seeing an approaching truck being driven in its improper, or left, lane of traffic. Confronted with this emergency, Birkmier took one of the alternatives open to him and took his right shoulder to avoid being hit by the truck. While on the shoulder, Birkmier’s car ran into a ditch, which was hidden by-weeds, causing his car to turn over and causing the damages complained of. We are unable to conclude that Birk-mier was proceeding at an excessive rate of speed, as he apparently had complete control over his vehicle until he ran into the ditch. We therefore hold that the accident, and the resulting damages, were due solely to the negligence of the defendant, Wilkes, in rounding the curve in his left, or improper, lane.”

Our examination and comparison of the evidence demonstrates that a preponderance of the evidence frees defendant of the charges of negligence made against him. We find no manifest error justifying a reversal of the findings of fact of the trial court.

Plaintiff, however, most earnestly insists that the witness, Ernest R. Johnson, a state trooper of Globe, Arizona, who investigated the accident, has been so thoroughly discredited by his own contradictory statements as to establish his unworthiness of belief. We find it unnecessary to enter into a discussion of this contention because there were only two eyewitnesses to the accident, both of whom have testified in the case and from plaintiff’s own testimony it could only be concluded that defendant was confronted with a sudden emergency created by the driver of the approaching pickup truck. In viewing the situation from plaintiff’s point of view, as he saw it, it has not been established that defendant failed to exercise reasonable care and caution as would have ordinarily been exercised by a reasonably prudent person under the same or similar circumstances.

Plaintiff complains, too, of defendant’s testimony as well as that of Johnson, as to the existence or non-existence of the concrete abutment at the north end of the highway culvert near which the accident occurred, and which defendant is alleged to have struck with his car. Whether the defect in the shoulder of the highway consisted of a depression as contended by defendant, or an abutment to the culvert, as claimed by plaintiff, is a matter of no material importance or consequence. Whether one or the other, it was hardly discernible by one approaching in a car.

Plaintiff neither in oral argument nor in brief, discussed the doctrine of the last clear chance or that of discovered peril, nor has he pointed out wherein the doctrine would find application here. Therefore, this issue may be considered as having been abandoned. We may state, however, from our own review we are of the opinion it is inapplicable to the facts established as existing here.

Plaintiff also complains that the district court erred in twelve specific instances in failing and refusing to charge the jury with as many requested charges and in giving certain other charges. We have examined the general charge, also the special charges that were given, as well as those refused by the trial court. We find no substantial error justifying a reversal or that plaintiff has been prejudiced. Moreover, it is observed no complaint was made that by any erroneous ruling plaintiff was deprived of the benefits of the introduction of any testimony offered. The record is full and complete as to the manner of the occurrence of the accident. We have diligently reviewed this evidence without regard to or without having been influenced by the findings of the jury. From our independent consideration and appreciation of the evidence, we are unable to conclude that plaintiff has established his case by that degree of preponderance of evidence as required by law. .

Plaintiff further complains that the trial court failed to give consideration to certain authorities cited in support of his position. Consideration of these authorities is again urged in this court. The principal cases cited were: Ramsey v. McDaniel, La.App. 1955, 84 So.2d 276; Aguillard v. State, La. App.1942, 7 So.2d 645 and Whipple v. Lirette, 1929, 11 La.App. 485, 124 So. 160. These cases are clearly distinguishable from the instant case and are inapposite from a fáctual standpoint. For instance, in the Ramsey case both drivers were negligent, one by driving on the wrong side of the road and the other by speeding. As stated herein, it has not been shown or established that defendant, Dance, was guilty of speeding or of any of the other acts of negligence charged to him. In the Aguil-lard case a penitentiary truck was being driven too far to the left side of the road while ascending a hill. This case in reality supports defendant’s position as has been pointed out hereinabove. In the Whipple case a car was parked after dark on the wrong side of the road near plaintiff’s residence. Leading from the residence to the road was a bridge across a roadside ditch. Plaintiff was standing on the bridge when struck by defendant’s car. The attempt of the driver in turning farther to his right to miss the car when the road was open to his left, constituted actionable negligence. He should have kept in the road. He was clearly not maintaining a proper lookout.

Plaintiff has filed a motion praying that this cause be remanded for the purpose of affording him an opportunity to offer in evidence additional photographs of the culvert across the highway near the scene of the accident, to be offered together with an affidavit of the photographer. This would be cumulative evidence and the expressed object is to further discredit the testimony of the state trooper and to contradict the testimony of the defendant as to the existence of an abutment to the culvert on the north or right-hand side of the road. As pointed out heretofore, whether the defect was an abutment to the culvert or a depression in the shoulder is a matter of no material importance. Therefore, we deem the motion to remand to be without merit.

We, therefore, conclude that the judgment appealed is correct and that it should be and it is hereby affirmed at appellant’s cost.

Affirmed.


source: Caselaw Access Project

author: TATE, Judge.

license: Public Domain

text:
    Matter of the Succession of George WHITE. Arthur WHITE, Administrator, Plaintiff in Rule-Appellant, v. Lillian Celestine WHITE, Defendant in Rule-Appellee.
    No. 4481.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.

      Horace R. Alexius, Jr., Covington, for appellant.
    No attorney for appellee.
   TATE, Judge.

In a previous appearance before this court, 94 So.2d 68, we rejected the attempt of the Administrator of the Succession of George White to rule the National Railroad Retirement Board into court to deposit for administration by the succession the $1,000 allegedly due the beneficiaries of the decedent under the federal Railroad Retirement Act, 45 U.S.C.A. 228a et seq.

Subsequent to those proceedings the Railroad Retirement Act paid the $1,000 benefits to Lillian Celestine White as, according to its determination, the legal widow of decedent. The present appeal results from the succession administrator’s subsequent attempt to rule her into court to turn over the $1,000 so received by her to decedent’s succession as the decedent’s separate property, the administrator also alleging that the defendant is not the legal widow of decedent.

We think the District Court correctly dismissed the present rule by the administrator of the decedent’s estate.

As stated in our previous opinion, the federal statute creating the benefits claimed by appellant herein provides that the right to such benefits shall be determined primarily by the National Railroad Retirement Board and further vests exclusive jurisdiction for judicial review of final determinations by said Board, after exhaustion of all administrative remedies, with the United States Court of Appeals for the circuit in which the claimant or other party contesting the order resides. 45 U.S.C.A. 355(f, g).

The appellant is relegated to his statutory remedy to secure the statutory right he seeks to assert herein. This Court is without jurisdiction to entertain this collateral attack upon the adjudication made by the Railroad Retirement Board.

Perhaps the basic error upon which able counsel for appellant proceeds is the assumption that the federally created railroad retirement benefits which the succession administrator seeks to recover herein are necessarily an asset of decedent’s estate and, as such, to be administered under State community property and inheritance law.

While the retirement or survivors’ benefits, once vested by the occurrence of the statutory conditions, become a property right which may be asserted in the courts (at least, in the forums designated by statute), Dismuke v. U. S., 297 U.S. 167, 56 S.Ct. 400, 80 L.Ed. 561; Ewing v. Gardner, 6 Cir., 185 F.2d 781; until so vested, “any claim of the beneficiary is a mere expectancy created by the law,” Freeman v. Railroad Retirement Board, 5 Cir., 192 F.2d 51, 52, certiorari denied 343 U.S. 909, 72 S.Ct. 640, 96 L.Ed. 1326. “The right to benefits under railroad retirement statutes, and the eligibility of particular individuals for such benefits, are to be determined in accordance with the statutory provisions.” 81 C.J.S. Social Security and Public Welfare § 50, p. 92.

Under 45 U.S.C.A. § 228e(f) (2), the right or eligibility of decedent’s estate to obtain the lump-sum payment under the act arises only in the absence of surviving widow, child, parent, or beneficiary specially-designated by the decedent. The national Railroad Retirement Board’s determination that the appellant, as representative of the estate of decedent, does not possess the statutory right or eligibility to receive the statutory benefits is subject to review in the manner and within the time limit provided by the statute creating the alleged right or eligibility, 45 U.S.C.A. §§ 228k, 355(f);' and not by this court.

For the above and foregoing reasons, the judgment of the District Court herein dismissing plaintiff’s rule is affirmed.

Affirmed.


author: GLADNEY, Judge.

text:
    Mrs. Tennie Fason BROWN, Plaintiff-Appellee, v. AETNA CASUALTY & SURETY COMPANY, Defendant-Appellant.
    No. 8666.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    Rehearing Denied July 25, 1957.
    Writ of Certiorari Denied Oct. 8, 1957.
    Lunn, Irion, Switzer, Trichel & Johnson, Shreveport, for appellant.
    Booth, Lockard, Jack & Pleasant, Shreveport, for appellee.
   GLADNEY, Judge.

This action was brought by Mrs. Tennie Fason Brown against the insurer of Dixie Fertilizer Company to recover workmen’s compensation for the death of her husband, Griffin Barksdale Brown, who died of a coronary thrombosis on November 25, 1955. Payment of the claim was refused and the suit defended on the ground that the illness and death were unrelated to decedent’s employment. After trial on the merits, judgment was rendered, awarding to plaintiff the statutory benefits as claimed, hence this appeal.

The facts material to a resolution of the issues which arise in this case are readily established and leave no serious basis for dispute. Griffin Barksdale Brown at the time of his death was sixty-six years of age and had worked many years for the Dixie Fertilizer Company, and its predecessor. For several years prior to his death Brown suffered from a degenerative heart condition, apparently first noticed in January of 1952 by Dr. W. F. Drummond, who made a diagnosis of arteriosclerosis (thickening or hardening of the arteries) attended by claudication-tightened muscles. He was advised by his personal physician to obtain as much rest as possible, and was given a prescription to control his slightly elevated blood pressure, and to ease the pain experienced in his legs. Examinations were again made by the same doctor during 1953 and on the first of August, 1955. As a result of the examinations and clinical findings of Dr. Drummond, it was disclosed: the blood pressure of Brown was 130/95; later on in 1952, it was 130/95; again in 1952 it was 150/95; in 1953 it was 150/90; and in the first part of August, 1955, it was 170/100. On the last mentioned date it was determined by electrocardiogram the heart was not normal and was somewhat enlarged. The employee continued to work under circumstances which avoided unusual stress and strain.

On October 3, 1955, plaintiff was engaged in performing duties within the scope of his employment, when in cutting a pipe connected to a tank car recently emptied of a nitrogen solution, some chemical and gas spewed into his face, mouth, nasal pharynx and larynx, thereby causing acid burns for which he was hospitalized. Brown remained in the hospital until the 12th of October, during which time he was examined by Dr. Drummond and particularly as to the condition of his heart and lungs. He was permitted to return to his work on October 13, 1955. Dr. Drummond testified the chemical burns left no residual effect itpon Brown’s heart and lungs.

The employee, who was engaged in the capacity of general mechanic and millwright, charged with the maintenance and repair of the machinery at the plant, was assigned light duties after the discovery of his heart condition. He was assigned two helpers, John Haygood and Cook Jones who relieved Brown of any work entailing unusual lifting or strain. The evidence clearly indicates the employee did not thereafter engage in any activity during the course of his employment which required any heavy lifting or heavy work of a strenuous nature.

On the morning of October 13, 1955, Brown reported to work at the customary time and during that entire morning performed no work noticeably requiring unusual effort. After finishing his lunch shortly after 1:00 o’clock P.M. he attempted to fix a set of weighing scales which were out of order. These scales were attached to the fertilizer bag filling machine and served to measure the amount of fertilizer automatically fed into each bag. The indicating face of the scale where the moving needle registers was about chest high. The machine was not indicating the correct weight. In order to get into the face of the scales to make repairs it was necessary to remove the indicating face or plate, all of which was metal, and held in place by metal screws measuring approximately 14 inch to % inch across the head and from two inches to three inches long. Only two screws held the plate in place.

From the time Brown reached the scales he was alone until Cook Jones arrived in response to Brown’s message that he come and assist him in removing the screws. As to what occurred thereafter until Brown complained of a heart attack several minutes later, is established solely by the testimony of Jones. The decedent never aft-erwards made any statements which found a way into the record. Jones testified that when he arrived Brown was standing directly in front of the scales with a screwdriver and two. small wrenches in his hand and his appearance exhibited nothing unusual or extraordinary. There was no noticeable appearance of undue strain, frustration, temper, or pain. He gave an impression of his usual normal condition. One screw had been removed from the scales before Jones arrived and but one other screw remained for removal. Jones related the slot in the head of the screw had been “burred”, was rusted over, but was not freshly “burred”. He was unable to get the screwdriver to hold in the slot and the screw was removed by chiseling the head off. While Jones was so engaged, Brown walked over and stood in the door of the room and after so standing for several minutes he placed his hands upon his chest, informing Jones of hurting in the chest. Brown then left the room to go to the garage where he sat down for awhile and soon suffered a vomiting spell and was promptly taken to the hospital where he was attended by Dr. Drummond. His illness was diagnosed as a coronary occlusion. The employee’s condition failed to improve and he died on November 25, 1955. An autopsy was performed which established beyond doubt his death was due to coronary thrombosis. We understand this to be the same as coronary occlusion.

Plaintiff’s cause of action is set forth in the petition which avers decedent’s death was caused by two accidents on October 3rd and 13th of 1955, which we shall refer to hereafter as the first and second episodes. Further, it is asserted the decedent had suffered from a pre-existing but non-work disabling condition of the heart, blood vessels and circulatory system, and that the condition was aggravated and worsened by his employment experiences on October 3rd and 13th, thereby causing death. Counsel for appellant argues that the decedent suffered no accident resulting in his death; that if there was an accident there was no causal relationship between it and his death; and finally, that plaintiff has failed to establish her case by a preponderance of the evidence and with legal certainty.

We are forced to conclude the accident of October 3rd has no causal relationship to the subsequent illness and death of the employee. We must necessarily rely upon the only medical evidence available consisting of the testimony of Dr. Drummond, the attending physician, and the hospital records produced at the trial. The doctor’s testimony establishes without contradiction plaintiff’s heart and circulatory system were undisturbed by the chemical burns.

The heart attack of October 13th occurred while plaintiff was engaged in the performance of duties arising out of his employment. This fact is not questioned, but a fatal weakness in plaintiff’s case arises from a failure to produce evidence of probative value indicating stress or strain experienced by the employee in the performance of his work. The evidence so adduced impels us to hold plaintiff did not exhibit any objective signs of frustration, temper, excitement or undue stress and strain which could reasonably be inferred as aggravating a pre-existing heart condition. There is no evidence to the contrary in the testimony of Cook Jones. During the entire morning and the lunch hour of October 13th, Brown displayed no indication of tension or exertion. He was calm and normal in appearance and proceeded after his lunch hour to attempt the job of fixing the scales. When Jones arrived at the scales he found Brown with the same demeanor and appearance. Nor is there evidence from which it could be inferred the employee had made any effort requiring exertion. These are controlling facts disclosing beyond reasonable doubt that neither the removal of one screw just prior to his heart attack, nor the performance of any other duties on the morning of his attendance at work, had any causal relation to the heart attack and subsequent death of the decedent.

The record is replete with expert medical testimony given by six doctors, five of whom testified solely in response to hypothetical questions directed at establishing causal connection between the performance of the duties of Brown’s employment and his last illness. When propounded hypothetical questions embracing the true and real facts, the medical experts with unanimity denied any causal relationship between the employment of the deceased and the heart attack. A fundamental principle of the law of evidence is that expert testimony given in response to hypothetical questions predicated on a statement of unproven facts, has no probative value and should not affect the outcome of a case. The great preponderance of the medical testimony tendered is impressively unfavorable to the cause of plaintiff. In view of our resolution of the facts, we deem it unnecessary to further discuss at length the medical testimony, much of which was theoretical and irrelevant to the factual issues herein presented.

Counsel for appellee has invited our consideration of Sharp v. Esso Standard Oil Company, La.App.1954, 72 So.2d 601; Kraemer v. Jahncke Services, Inc., La.App.1956, 83 So.2d 916; Clifton v. Arnold, La.App.1956, 87 So.2d 386; and Roberson v. Michigan Mutual Liability Company, La.App.1956, 90 So.2d 465. Again we repeat, the determination of pertinent facts in the instant case negatives the existence of any strain from work or temperament having even the remotest connection with Brown’s heart attack. Therefore, we find the foregoing authorities in-apposite. These citations adhere to a general principle which has been formulated by our jurisprudence to the effect that in workmen’s compensation cases where it is proven the work of the employee entails regularly heavy physical effort, it is not necessary in order for claimant to prevail that the injury from which disability follows be the result of unusual physical effort if a diseased organ gives way while the laborer is performing his usual and customary heavy duties and disability results.

By way of summary, it is our finding that the evidence in this case conclusively shows that Griffin Barksdale Brown died on November 25, 1955, as a result of a heart attack suffered on October 13, 1955, at a time when he was engaged in the performance of duties arising out of his employment; that the heart attack was not caused by frustration, excitement, stress or strain related in any way to the work he was performing, and that, therefore, the employee did not sustain an accident within the purview of the Workmen’s Compensation Act, LSA-R.S. 23:1021 et seq. so as to entitle his widow to the benefits of the statute.

From our findings as summarized above, it follows that the judgment from which appealed must be reversed and set aside, and it is now ordered that there be judgment rejecting the demands of plaintiff at her cost.


author: LOTTINGER, Judge.

text:
    Leon A. NOLAND v. LIBERTY MUTUAL INSURANCE COMPANY et al.
    No. 4454.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.

      Durrett, Hardin & Hunter, Baton Rouge, Richard Kilbourne, Clinton, for appellant.
    Taylor, Porter, Brooks, Fuller & Phillips, Robert Vandaworker, Baton Rouge, for ap-pellee.
   LOTTINGER, Judge.

This is a suit for damages sustained by the plaintiff as the result of a collision between the car he was driving and a bakery truck driven by defendant Jack B. Goudeau, and owned by defendant Wm. Wolf Bakery, Inc. which was insured by defendant Liberty Mutual Insurance Company. When the matter was before us originally we denied recovery being of the opinion that the truck driver was free fronr negligence. The Supreme Court, however,, granted writs in the matter, concluded that the truck driver was negligent and that the plaintiff was free from contributory negligence and hence entitled to recover. See, La.App., 89 So.2d 428 and 232 La. 569, 94 So.2d 671. Thus, the sole question before us now is that of quantum.

The plaintiff in his petition itemizes his damages as follows:

“Reasonable sound value of bis Ford automobile, which was so badly damaged as to be of no use whatever after the accident $ 895.00

Paid for wrecker service 15.30

Bill for Clinton Infirmary, Inc. for medical care and hospitalization 114.02

Bill of Dr. Charles McVea for examination 15.00

Bill of Drs. Robert and Geheber for X-rays 17.50

For loss of income and earnings due to accident 500.00

For physical pain and suffering and mental anguish 3,500.00

For permanent injuries 3,500.00 $8,656.82'*

We will consider the various items in the order set out above.

With respect to the automobile the record contains the testimony of two witnesses. One was Julian Kent, who had sold the car to the plaintiff for $895 on March 30, 1954. He estimated the value of the car as of the date of the accident (August 7, 1954) at the sum of $750. This witness at one time had offered the sum of $150 for the car for salvage. Counsel for plaintiff suggests in his brief that a fair award would be this witness’ estimate less his salvage offer, or the sum of $600. Counsel for defendant, on the other hand, point to the testimony of George D. Wilson, an expert automobile damage appraiser, who valued the car at $695 and suggests that the award should be that amount less the salvage value or the sum of $545. There is not a great deal of difference between the two estimates and considering that Kent was the more familiar with the vehicle we are of the opinion that substantial justice will be served by an award of $600 for the automobile.

The next item is the bill for wrecker service in the amount of $15.30. The record contains the uncontroverted testimony of the plaintiff that that was the amount of his bill and the item should, therefore, be allowed.

The bill of Clinton Infirmary, Inc. in the amount of $114.02 is not contested by defendants and should, therefore, be allowed.

The next items are the bills of Drs. McVea and Gehebee in the amount of $30 and $17.50 respectively. Counsel for defendants, while not citing any authorities in support thereof, advances the argument that as these items of expense were not incurred for treatment, but rather in the preparation of the case for trial, they should not be allowed. We think counsel’s position to be correct. The expense was clearly incurred as an incident of trial and to our way of thinking, is no more an allowable item of damage than would be attorney fees. This item will, therefore, be disallowed.

We come now to the claim of $500 for loss of income and earnings. The record discloses that at the time of the accident the plaintiff was a cattleman, farmer and operator of a butcher shop. He owned some 2,000 acres of land, about 40 acres of which were in cultivation. His cattle herd numbered approximately 200 head. He was hospitalized until August 10th and, according to his testimony, was completely disabled for about 15 days and partially disabled thereafter. While so incapacitated he claims to have suffered the loss of $500 as the result of the following:

(1) Approximately 3,000 bales of hay rotted in the field because he could not get it in
(2) Cattle got through the fence into his corn crop and consumed about 100 barrels of corn.
(3) Bugs ate up one-half acre of a fall tomato crop.

We are not disposed to allow this claim or any part of it. It is too well settled to require citation that one is obligated to minimize his damages. The record is completely barren of any evidence which would show why plaintiff did not employ someone to assist him in his farming and ranching activities while he was unable to conduct same and contains only the uncorroborated testimony of the plaintiff himself that the above enumerated things happened and that they cost him $500. Under the circumstances we feel that it would be putting a premium on negligence to allow the plaintiff anything at all for this alleged loss when he was apparently content to take no steps whatever to protect his holdings.'

The last items are those concerned with physical pain, mental anguish and permanent injuries. It was agreed that the written report of Dr. Paul Jackson of Clinton, Louisiana be introduced in lieu of his oral testimony. The report (P4) reads as follows:

“Paul Jackson, M.D.
“Rs. Phone 139
“Clinton Infirmary, Inc.
“Telephone 33
“Clinton, Louisiana
“October 25, 1955
“Medical report on Mr. Leon. Noland of Jackson, Louisiana:
“Mr. Noland came into my office in the Clinton Infirmary at Clinton, Louisiana, about 7 or 7:30 A.M. August 7, 1954. He gave a history of having been in an automobile or truck accident that morning. He was able to walk into the office and was entirely conscious and well oriented. He showed evidence of contusions and abrasion of the head, face, chest and left leg. He was hospitalized for further study and observation. The things that he complained of mainly were the abrasions of the forehead, right ear, left side of the chest anteriorly, and left leg near the knee. X-rays were taken that day of his skull, chest and left knee, hut no evidence of bony injury was found.
“Mr. Noland was kept in bed that day and his general condition was satisfactory. The next day, August 8th, he was allowed to sit up some and was able to walk to the bath room and sit in the lobby. He had some generalized pain and soreness, but his general condition was good. On August 9th, he complained of some pain in his left chest anteriorly, but this was relieved with a mild sedative. On August 10th, his general condition was good and he felt better. Another X-ray of his chest was taken but no evidence of injury was found. He was discharged from the hospital on August 10th, to return to the office for further treatment and observation.
“He returned to the office on August 17th, 20, 25 and September 1, 8, 13 and 22nd. He made satisfactory improvement, but continued to have some • pain in his left chest anteriorly. On September 8th, he stated that he felt much better except for ulcer on left leg just below the knee which hadn’t quite healed. On September 13th, he complained of pain, soreness and tenderness of the left chest. He was seen again September 22nd, at which time he still had slight soreness and pain in the left chest anteriorly. It was felt that this would gradually disappear and I discharged him on or about September 25th.
“I wrote to the Insurance Company about Sept. 14th at which time I stated' it was my opinion that he would make a full and complete recovery in the next 3 or 4 weeks with no permanent disability.
“On May 13th 1955, I treated Mr. Noland for an abscess of the right lumbodorsal region, but in my opinion this had no connection with the injuries sustained in the wreck.
“On October 14, 1955, Mr. Noland returned to my office complaining of pain and soreness in the left chest. This pain is not constant but is worse when doing heavy work.
“It is my opinion that he had a rather severe bruise in the region of the junction of the 2nd and 3rd ribs and their cartilage with the breast bone. This has been quite painful and has interfered with his work, but I do not believe that it will cause permanent disability.
“Summary: Truck wreck on August 7, 1954 with general contusions and abrasions of head, face, chest wall and left leg. Most serious injury was the contusions of the chest wall in the region of the C costo sternal junction of the 2nd and 3rd ribs on the left. Recovery had been rather slow, but is believed to be complete at the present time.
“Paul Jackson
“Paul Jackson, M.D.”

Dr. Charles McVea, of Baton Rouge, Louisiana, examined plaintiff in February and October, 1955. The pertinent part of his testimony is as follows:

“Q. Now Doctor, without going into all the details in your reports tell us just what abnormal findings, if any, there were when you examined this man on February 24, 1955? A. Mr. Noland complained that he had been involved in a car wreck in August of 1954 and suffered a contusion of his head, chest and his left leg for which he was hospitalized three days. Examination showed that he complained of soreness of the left side of the chest at the site of the junction of the left second rib and the breast bone, and he told me that the pain was not constant, but that occasionally he' had sharp pain in this area and that this pain had occurred from time to time since the time of the accident. My examination did not show any evidence of injury to his head or to the leg at the time of the examination on February 21, 1955. X-ray examination showed a minimal offset deformity of the tip of the left second rib near the breast bone. Physical examination showed a prominence of the junction of the left second rib with the cartilage joining the rib to the breast bone on the left side. It was not tender, but was quite evident. It was my opinion that Mr. Noland had suffered an injury to the chest resulting in minimal deformity of the junction of the left second rib with the cartilage in the sternum and that this was what was causing him his discomfort. (Tr. pages 18 and 19.)
* * * * * *
“Q. Did you or not reach an opinion as to whether or not he really did have pain from time to time because of that injury? A. I thought then and think now that it was possible he would have pain from time to time because of this injury. (Tr. page 20)
% ^ * ❖
“Q. Now, to come back to the complaint that he suffered with discomfort in his chest when he went about his work, did you believe there was a medical basis to support that complaint when you saw him October 17, 1955, or not? A. Yes, I think that his complaint of pain in the chest at times, would be compatible with the use of his arms in vigorous exercise such as he pointed out to me that he sometimes pulled himself up on his horse using his left arm and using his left arm in riding and going about his duties that he might occasionally have pain in his chest and arm.
“Q. Would you attribute that to the condition which you believe was caused by the trauma that he told you about? A. I think it was caused by it.” (Tr. page 21.)
Dr. McVea further stated under cross-examination that the plaintiff had completely recovered from the effects of the accident when he examined him on October 20, 1955. Dr. McVea further stated that on his two examinations the plaintiff did not complain to him of having severe pain but only complained of occasional pain.
The plaintiff (50 years of age at the time of trial on October 28, 1955) testified that he still had trouble with his left arm and chest, particularly in mounting a horse (which he had occasion to ride practically every day). He further stated that he had a scar on his leg left by a wound which had punched a hole in same.

From the above and foregoing we are of the opinion that the plaintiff did not suffer an extremely painful or disabling injury and think that he will be amply compensated therefor by an award of $1,-500. We do not think the pain and suffering in the instant case was near as much as that proven in the case of Jackson v. Firemen’s Insurance Co., La.App., 86 So. 2d 220 wherein we approved an award of $2,500 for personal injuries. See also White v. Travelers Ins. Co., La.App., 94 So.2d 564.

It was stipulated that the Court could fix expert witness fees for Drs. McVea and Gehebee without the necessity of testimony, and we herewith fix said fees at $50 each to be taxed as costs of court.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that there be judgment herein in favor of the plaintiff, Leon A. Noland, and against the defendants, Jack B. Goudeau, Wm. Wolf Bakery, Inc. and Liberty Mutual Insurance Company in solido, in the sum of $2,229.32 plus interest at the rate of 5% per annum from date of judicial demand until paid and for all costs.

Judgment reversed.


author: HARDY, Judge.

text:
    Elnorah WINN, Plaintiff-Appellee, v. YELLOW CAB COMPANY OF SHREVEPORT, Inc., Defendant-Appellant.
    No. 8693.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    Rehearing Denied July 25, 1957.
    Writ of Certiorari Denied Oct. 8, 1957.
    Love & Rigby, Shreveport, for appellant.
    Sylvian W. Gamm, Irving M. Greenberg, Shreveport, for appellee.
   HARDY, Judge.

This is a suit for damages in the nature of personal injuries sustained by plaintiff, a pedestrian, who was struck by a cab belonging to defendant and operated by one of its employees. A petition of intervention was filed by Confederate Memorial Medical Center claiming the sum of $219.48 for hospital services rendered to plaintiff. After trial before a jury there was judgment in favor of plaintiff in the principal sum of $6,-000, and there was further judgment in favor of intervenor, Confederate Memorial Medical Center, in the sum of $219.48. From this judgment defendant has appealed. Plaintiff has answered the appeal praying that the amount of the judgment be increased to $67,000.

The accident which gave rise to this suit occurred about 7:35 A.M. on November 4, 19S4, at the intersection of Christian and Travis Streets in the City of Shreveport. The streets in the downtown section of Shreveport are not oriented with the points of the compass but, in this opinion, it will be considered that Travis Street, which is 36 feet in width, runs east and west, and Christian Street, which is 24 feet in width, runs north and south. Neither of these streets occupies the status of a right-of-way thoroughfare.

At the time of the accident the weather was cloudy and the pavement was damp. Plaintiff, who had been walking south on the sidewalk along the west side of Christian Street, was engaged in crossing the intersection of Travis Street with the intention of boarding a trolley bus of the Highland route headed east on Travis Street, which was parked at the regular bus stop on the south curb of Travis Street at the southwest corner of the intersection, for the purpose of receiving and discharging passengers. At the same time a trolley bus of the Linwood Avenue line, approximately 39 feet in length and 8 feet in width, had come to a stop at the north curb of Travis Street at the northeast corner of the intersection, also for the purpose of receiving and discharging passengers.

Defendant’s cab, operate.d by its employee, Levi A. Stewart, and transporting a passenger by the name of Archie Laird, was proceeding west on Travis Street at a speed variously estimated to be from 25 to 35 miles per hour. The cab had been following behind the Linwood Avenue trolley in the extreme north lane of Travis Street and when the trolley came to a stop at the intersection with Christian Street the cab driver pulled his vehicle to the left, for the purpose of passing the trolley, and struck the plaintiff at a point in Travis Street at or slightly beyond the west line of the intersection of Christian Street some 13 feet south of the north curb line of Travis Street. The point of impact with the cab was the right front headlight and fender, the force of the collision breaking the light and denting the fender. Plaintiff was carried by the cab for a distance of some 20 feet before she fell off of the fender onto the pavement to the right of the vehicle. The testimony shows that the brakes of the cab were applied, and measured marks indicate that the tires skidded for approximately 11 feet before the impact. The cab was brought to a stop some 29 feet beyond the point of the collision.

The record contains the testimony of four eyewitnesses to the actual occurrence of the accident' — Elnorah Winn, the plaintiff ; Levi Stewart, the driver of the cab; Archie Laird, the passenger in the cab, and Freddie Elmore, a colored man who was preparing to board the- Highland trolley at the southwest corner of the street intersection. Other testimony bearing upon the occurrence of the accident was supplied by the driver of the Linwood trolley, who observed nothing until he glanced toward the actual scene of the collision just as the impact occurred, and by two police officers who appeared at the scene shortly after the occurrence of the accident.

The testimony of the witnesses, as is to be expected in cases of this nature, is sharply conflicting, and with reference to some questions of fact is entirely undependable. We find little of value in the testimony of the driver of the Linwood trolley, whose observation was limited to the time of and immediately following the impact, and the testimony of the police officers", which appears to be based almost exclusively upon hearsay and assumption. The testimony of plaintiff, Laird and Elmore is most favorable to plaintiff’s contention and is contradicted only by the testimony of the driver of the defendant’s cab.

The issues of negligence on the part of defendant’s driver, contributory negligence on the part of plaintiff, and the applicability of the doctrine of last clear chance are dependent exclusively upon the resolution of questions of fact. Careful consideration of the transcript of almost 400 pages of testimony has served to convince us that the verdict of the jury is amply supported by the preponderance of such testimony. We do not find it necessary to give detailed consideration to an analysis of the testimony of each of the witnesses. It will suffice to say that we were impressed with the validity and the effect of the testimony of the witness, Laird, a disabled Korean war veteran, who was a passenger in the cab, seated on the right-hand side of the front seat of the vehicle, and who had no relationship with nor interest in any of the parties involved; It is quite clear to us that defendant’s driver had been following behind the Lin-* wood trolley bus, which effectively obscured his view of the intersection of Travis and Christian Streets, which he was approach'-ing; that as the trolley slowed and came to a stop at the northeast corner of the intersection defendant’s driver pulled out toward the center of Travis Street and began his passing operation without taking necessary precautions with reference to observation for either vehicular or pedestrian traffic entering Travis Street from the north and without maintaining proper control of his vehicle. The fact that the operation in which defendant’s driver was engaged at the time, considering all the circumstances, was highly dangerous and called for the exercise of extreme care and caution, is so obvious that it scarcely calls for comment. Yet the driver of the cab did not slacken his speed nor did he make any particular effort in the nature of careful observation. Even if we accept the story of the driver himself that he observed plaintiff in the act of crossing the street at a time when his cab was removed by the width of the Christian Street intersection and more than half the length of the parked Linwood trolley, we would be at a loss to explain why the driver ran down the plaintiff. We think it is clear that the situation called for the exercise of a high degree of care and the failure of defendant’s driver to observe and react to such an obvious need constituted a rather gross degree of negligence which was the sole and proximate cause of the accident.

We find nothing in the record which would give substantial support to the charge of contributory negligence. The plaintiff, before stepping from the curb into the Travis Street crossing, made observation in both directions. It must be borne in mind that the parked Linwood trolley effectively obscured the approach of defendant’s cab from plaintiff’s view, and it was only after she had preempted the intersection and proceeded an appreciable distance into Travis Street that it would have been possible for her to observe the approach of the cab, even if its speed at the time was not more than 25 miles per hour. We find no element of negligence in plaintiff’s action.

The above findings, which are predicated entirely upon our evaluation of the established facts in the instant case, obviate the necessity of a consideration of the applicability of the doctrine of last clear chance.

In our opinion, the most serious question which is presented in the instant case concerns the quantum of damages. Plaintiff is a colored woman, five feet six inches in height, weighing 180 pounds, who was 52 years of age at the time of the accident, and regularly employed as a maid at the P. & S. Hotel at a salary of $20 per week. As established by the testimony, plaintiff had an excellent work record up to the time of the accident. The trial of this case began on February 4, 1957, exactly twenty-seven months after the accident, and it is plaintiff’s contention that at the time of trial she was still totally and, as she believed, permanently disabled by reason of pain and discomfort directly resulting from the injuries sustained.

There can be no question as to the serious nature of plaintiff’s injuries which consisted of compound fracture of the tibia and fibula of the left leg; a severe laceration of the back of the left hand which severed the extensor tendons of the third and fourth fingers; a fracture of the fifth metacarpal of the left hand; multiple fractures of the left pelvis involving the sym-phis pubis, the left pubic and ischial rami; cerebral concussion; a ruptured blood vessel in the right eye, and multiple bruises, lacerations and abrasions of the body, particularly on the left side.

Following the accident plaintiff was removed to the Confederate Memorial Medical Center where her injuries were attended. An open reduction of the fractures of the left leg was undertaken; a hole was reamed to provide entry into the tibial shaft and a Lottes’ nail, which appears to be a metal rod soma twelve and one-half inches long and approximating the diameter of a pencil, was driven through the medul-lary canal of the tibia. The medical testimony establishes the fact that the upper end of this intermedullary rod extends some-seven-eighths to one and one-fourth inches above the bone into the soft tissue of the leg.

Plaintiff was unconscious for a period of some eight hours, more or less, following the accident; was confined to the hospital for 23 days before being removed to her home, where she was forced to remain almost immobile for a period of some five weeks; was unable to leave her bed without assistance for a period of approximately five months; walked with the aid of two crutches for a period of about one year, and with one crutch for an additional period of some months; and at the time of trial walked with the aid of a cane. According to plaintiff’s testimony, she suffered severe and unremitting pain day and night for a period of approximately fifteen weeks, and continued to suffer considerable, though intermittent, pain as of the time of trial.

As is to be expected, the medical testimony and the evaluation of the duration, extent and effect of plaintiff’s injuries is conflicting and provides no satisfactory basis for any nature of accurate determination. We have no doubt as to the fact that plaintiff suffered a long period of total and permanent disability, which we are convinced endured, at the time of trial twenty-seven months following the accident, and, in our opinion, would continue to exist for a substantial period thereafter. However, we do not believe that plaintiff suffered a total permanent disability. The medical testimony indicates that the pain which plaintiff suffers by reason of the projection of the intermedullary rod into the soft tissues could be relieved by the removal of the rod. As to the lasting effects of her injuries, we think it is entirely reasonable to conclude that plaintiff will suffer some degree of discomfort, pain and inconvenience for the remainder of her life, and that she will be unable to perform all the duties of her accustomed employment as a cleaning maid with the ease which marked her work prior to the accident. This indicates the continuance of some nature and degree of partial disability which cannot be accurately estimated by medical or lay opinion. However, as we have above indicated, we do not feel that plaintiff will suffer such serious future disability as will prevent her from obtaining and holding employment in the performance of the services of a house maid or cleaning maid. After serious consideration of all the factors involved, we have concluded that the award of damages which was made by the jury was inconsistent with the serious nature and effects of the injuries sustained by plaintiff and that it should be substantially increased.

For the reasons assigned the judgment appealed from is amended by increasing the amount of damages awarded in favor of plaintiff to the principal sum of $10,000, and, as amended, the judgment appealed from is affirmed at appellant’s cost.


author: AYRES, Judge.

text:
    Virgil DAVIS, Plaintiff-Appellant, v. W. E. REYNOLDS, d/b/a Reynolds Lumber Company, Defendant-Appellee.
    No. 8689.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    Rehearing Denied July 25, 1957.
    Writ of Certiorari Denied Oct. 8, 1957.

      Wood & Jackson, Leesville, for appellant.
    Gordon B. Golsan, Jr., Mansfield, for appellee.
   AYRES, Judge.

By this action plaintiff seeks to recover of his employer compensation as for total and permanent disability allegedly due on account of accidental injuries sustained on August 9, 1954, while performing services for the defendant in connection with his employment at defendant’s sawmill located at Pleasant Hill, Sabine Parish, Louisiana. From a judgment of February 21, 1957 awarding plaintiff compensation at the rate of $23.40 per week for a period of twenty-six weeks, less compensation previously paid in the sum of $150, he has appealed. Defendant neither perfected an appeal nor answered plaintiff’s appeal.

We are favored by a written opinion of the trial court, the material portion of which we quote as follows :

“Defendant denies that plaintiff received an accidental injury and, if so, that he had been fully paid all compensation due. In the alternative defendant alleges that plaintiff in no event is entitled to recover more than Nineteen and 50/100 ($19.50) Dollars per week.
“In this case we are of the opinion that although plaintiff must have received a slight injury in some way while on the job August 9th, 1952, we ■do not believe it happened as plaintiff would have the Court believe. We were not impressed with the testimony ■of plaintiff and do not believe any such ■occurrence as he described took place. Were it not for the testimony of Mr. Elliott D. Cooper and Preston Johnson that plaintiff made complaint, during a ■stoppage period in the afternoon, we would reject his claim altogether.
“As to the extent and duration of the injury we are of the opinion that plaintiff had entirely and fully recovered at the time of trial. We observed that plaintiff had the appearance of being unusually agile and spry for a man of his age, and especially so if his vocation had been one of hard manual labor.
“Of the three medical experts who testified for defendant, Dr. Murdock (a doctor of plaintiff’s choice) could find nothing wrong with him; Dr. Prothro, as a precautionary measure, referred plaintiff to Dr. Overdyke, an orthopedist, who after three examinations pronounced plaintiff recovered as of August 31st, 1954.
“As to the medical experts for plaintiff: It is our opinion that Drs. Briel, Stephens and Reid, basing their testimony on subjective symptoms, were prone to delve too deep into the realm of speculation to give their testimony much weight. Dr. John Rozier, witness for plaintiff, seemed to be the most practical of the four expert witnesses for plaintiff. His testimony was that an injury of which plaintiff complained usually lasted only about six months.
“Giving the plaintiff the benefit of every doubt as to his receiving an injury in the course and scope of his employment and, if injured, as to its duration, we are of the opinion that a judgment for compensation at the rate of pay alleged in his petition for a period of six months will fully compensate plaintiff.”

Primarily for consideration on this appeal are the questions whether plaintiff sustained accidental injuries in the course and scope of his employment and, if so, the extent and duration of such disability. Secondarily, for consideration are the rate of compensation and the fixing of the attorney’s fees. These matters will be considered in the order indicated.

As to the occurrence of the accident, the proof appears highly unsatisfactory. Plaintiff claims that while he was loading logs off a skidway onto a dolly car he was injured by a log striking his left hip, the severity of which was insufficient to produce any objective signs or symptoms of an accidental injury such as cuts, bruises or abrasions. No one witnessed the accident, although a number of fellow employees were in close proximity and were in position to have observed an accident should one have occurred. Nevertheless, the trial court very reluctantly concluded that plaintiff did, in some manner, sustain an accidental injury, which conclusion was based on plaintiff’s complaints to two fellow employees during a cessation of operations during the afternoon of the alleged accident.

From a consideration of the record as a whole, we are not prepared to conclude there was manifest error in his Plonor’s finding of fact, and, even should we have reached a contrary conclusion, we would be unauthorized to alter the judgment in defendant’s favor under his plea in brief and oral argument for a reversal of the judgment, inasmuch as he neither appealed nor answered plaintiff’s appeal. Under such circumstances we are precluded from modifying the judgment in appellee’s favor. Code of Practice Article 592. Ober v. Williams, 213 La. 568, 35 So.2d 219; Day v. Roberts, La.App., 55 So.2d 316. We, therefore, accept as an established fact that plaintiff did sustain an accident in some manner.

A detailed discussion of the medical evidence appears unnecessary. A brief ré-sumé will suffice. It may be appropriate to say at the outset that the medical testimony is most conflicting’ as between the doctors testifying for defendant and those for the plaintiff. Furthermore, there is conflict between plaintiff’s medical witnesses as to plaintiff’s condition and the cause thereof. The diagnoses vary from bursitis to an injury to the sciatic nerve and a possible herniated intervertebral disc. It will be noted from the opinion of the trial judge that he refused to accept the evaluation of total disability as claimed by plaintiff and accepted the view of the experts whose testimony limited plaintiff’s recovery to a period of time not exceeding six months.

The first medical attention given plaintiff was by Dr. H. M. Prothro, a surgeon and general practitioner of Pleasant Hill, Louisiana, on the day following the date of the alleged accident. According to his examination and observation there were no cuts, bruises or abrasions or other evidence of trauma; no complaints were noted except a suggestion of pain or tenderness on pressure to the crest of the ilium of the left side. There were no objective signs or symptoms of an injury. X-rays were negative. The doctor could find no cause for pain or, in fact, anything wrong with plaintiff except an indication of bursitis or rheumatism.

Dr. Prothro referred plaintiff to Dr. D. F. Overdyke, Jr., an orthopedist of Shreveport, Louisiana, who based his conclusions primarily on subjective complaints made by plaintiff and concluded that plaintiff was suffering with traumatic bursitis of the greater trochanter of the left femur. That the condition was of traumatic origin could not be established by any clinical findings. Dr. Overdyke examined plaintiff on three occasions during September, 1954, and on the last- occasion, September 30, 1954, tenderness over the affected area was not nearly so marked and had considerably subsided, and the doctor pronounced plaintiff able to return to his employment.

Plaintiff was next examined by Dr. Lloyd H. Murdock, a general practitioner of Zwolle, Louisiana, who examined plaintiff at his own request on September 7, 1954. Dr. Murdock diagnosed plaintiff’s condition as one of traumatic bursitis; that it was traumatic being based upon a history of the accident given to him by plaintiff. The doctor testified that the normal period or duration of recovery from a bursitis of the type of which he found plaintiff suffering was from three to five weeks from the date of the injury and that at the time of the trial plaintiff was fully recovered.

Plaintiff was examined, through the request of his attorneys, by Drs. George B. Briel, W. E. Reid and John Rozier, whose examinations were made several months after the alleged accident and just prior to-the trial in the lower court. Dr. Briel’s. diagnosis was primarily and basically muscular weakness due to injury to the sciatic nerve, which type of weakness he shows to be very similar to weakness in poliomyelitis. He found no 'bursitis, which he says could have fully disappeared on the date of his examination. His findings indicated that plaintiff sustained a strong crushing blow which would evidently cause contusions and bruises, although not necessarily abrasions. His conclusion was that, if his diagnosis was correct, the duration of plaintiff’s disability would be from six months to a year.

Dr. M. A. Stephens, a general practitioner residing in Hornbeck, Louisiana,, was of the opinion that plaintiff had ruptured an intervertebral disc which produced-, pressure on the nerve of the lumbosacral area, and particularly the sciatic nerve. This he attributed as the cause of plaintiff’s pain, tenderness and deadening of sensibility to the lower left extremity and also, the sluggishness of his muscles. The doctor’s examination was on April 4, 1955, and. at that time his opinion was that plaintiff was totally incapacitated from the performance of work of the kind and character usually performed by him. No other expert agreed with the doctor’s diagnosis.

Dr. W. E. Reid of DeRidder, Louisiana, who engages in the practice of surgery and general medicine, who examined plaintiff on several occasions beginning December 28, 1954 through January 20, 1955, found from x-ray examinations a large arthritic spur on the third lumbar vertebrae, left side, and bursitis of the left ilium, which, in his opinion, had existed over a long period of time, but which also, he says, could have been aggravated considerably by the accident. The doctor was of the opinion that plaintiff was disabled and that the period of disability was indefinite and would depend upon his response to adequate treatment.

Dr. John Rozier, a physician of DeRid-der, Louisiana, on examination, found plaintiff complaining of pain in his left hip. He found no evidence of muscular weakness but concluded that plaintiff had a bursitis of the hip, which he defined as an inflammatory or degenerative reaction in a structure known as a sac found around most joints protecting the moving parts of the bone from the adjacent ligaments, tendons and muscles and which, in his opinion, was either infectious or traumatic in origin. His diagnosis was generally predicated, as was that of several of the other experts, on subjective complaints made by plaintiff rather than upon any clinical findings of his examination. His opinion was that plaintiff was disabled and would be so for an indefinite period, but stated that with proper treatment recovery from bursitis would be complete within a period of six months after an injury.

Recapitulating the findings of these doctors we find their diagnoses as follows: Bursitis: Drs. Prothro, Overdyke, Murdock, Reid and Rozier. Intervertebral Disc: Dr. Stephens. Sciatic Nerve Injury: Dr. Briel. These diagnoses were practically all predicated upon subjective symptoms with little or no objective findings.

It is noted that there is some degree of unanimity of the findings of the doctors as to the effects of the aliments they diagnosed. Drs. Prothro, Overdyke and Mur-dock all diagnosed bursitis, treated for that ailment and indicated full recovery. To the contrary, those experts testifying on behalf of the plaintiff each found plaintiff suffering total disability but varied in their diagnoses of the causes for such disability. Dr. Stephens’ diagnosis was a disc injury with possibility of a nerve involvement. Drs. Reid and Rozier, bursitis with a likely possibility of a nerve involvement. Dr. Briel, a muscular impairment resulting from a possible injury to the sciatic nerve.

Applicable to the issues are the following well settled rules of Law:

1. The plaintiff in a workmen’s compensation case bears the burden of proof and is required to establish his or her claim to a legal certainty by a reasonable preponderance of the evidence; establishment of a claim to the extent only of possibility or probability is not sufficient.

2. Conjecture and probability may not serve as a basis for a judgment in workmen’s compensation cases.

The foregoing rules are so well established that citation of authorities seem unnecessary. However, some of the more recent cases enunciating these rules are: Green v. Heard Motor Co., Inc., 224 La. 1077, 1078, 71 So.2d 849; Hogan v. Stovall Drilling Co., La.App., 55 So.2d 284; Roberts v. M. S. Carroll Co., La.App., 68 So.2d 689; Driggers v. Coal Operators Cas. Co., La.App., 73 So.Zd 602; Smith v. International Paper Co., La.App., 73 So.2d 652; Robbins v. Chicago Mill & Lbr. Co., La. App., 76 So.2d 635; Henderson v. New Amsterdam Cas. Co., La.App., 80 So.2d 438; Kraemer v. Jahncke Services, Inc., La.App., 83 So.2d 916; Braziel v. Pope, La.App., 86 So.2d 717; Fourchea v. Ma-loney Tracking and Storage, Inc., La.App., 88 So.2d 82.

The plaintiff Has failed to establish his claim for compensation as for total and permanent disability or for a period of time exceeding six months allowed by the trial court, by a reasonable preponderance of evidence and to such a degree of legal certainty as would constitute the basis for further award in his favor. To the contrary, by a reasonable preponderance of the evidence, it is established that the duration of plaintiff’s disability did not extend beyond a period of six months.

The basis of plaintiff’s compensation is that of a six work day week. Such we feel is the now well established jurisprudence in this state. Jarrell v. Travelers Ins. Co., 218 La. 531, 50 So.2d 22; Carrington v. Consolidated Underwriters, 230 La. 939, 89 So.2d 399. Therefore, the rate is $23.40 per week as awarded by the trial court.

Plaintiff also urges that the expert witness fee of Dr. Briel as an orthopedic surgeon be increased from $35 to $50. LSA-R.S. 13:3666 provides that in fixing the compensation of expert witnesses the court shall take into consideration “the value of the time employed and the degree of learning or skill required.” A specialist ordinarily requires a greater degree of skill or learning as to his specialty than does a general practitioner. The fixing of expert witness fees is largely within the discretion of the trial court, under whose watchful eye the testimony is received. It is noted in this case that all the expert witnesses testified by deposition, other than Dr. Mur-dock, and that the fees of those testifying by deposition was fixed at $35 each while that of Dr. Murdock, who testified in open court, at $50. There also appeared as one of these experts Dr. D. F. Overdyke, Jr., another orthopedist, whose fee was fixed, as stated, at $35. Under the circumstances we do not feel that the trial court has abused its discretion in the fixing of these fees, particularly to such an extent that we could single out one specialist and increase his fee over that of another we deem to have been adequately fixed.

Plaintiff also complains that through clerical omission his attorney’s fee was inadvertently undetermined. Therefore, the judgment should be amended so as to fix such fee.

For the reasons assigned, it is therefore ordered, adjudged and decreed that the judgment appealed be amended by the fixing and allowance of plaintiff’s attorney fees in the sum of 20% of the amount which may be collected or recovered under said judgment, not, however, to exceed $1,000 and that as thus amended the judgment is affirmed, the appellant to pay the costs of the appeal and all other costs by the appel-lee.

Amended and affirmed.


text:
    Sam LEVY, Plaintiff-Appellee, v. ANDRESS-HANNA, Inc., et al., Defendant-Appellant.
    No. 8896.
    Court of Appeal of Louisiana. Second Circuit.
    June 28, 1957.
    Rehearing Denied July 25, 1957.

      Morgan, Baker & Slceels, Shreveport, for appellant.
    Wilson, Abramson & Maroun, Shreveport, for appellee.
   HARDY, Judge.

Plaintiff instituted this suit for damages resulting from the alleged illegal repossession of an automobile by the defendants, Andress-Hanna, Inc., plaintiff’s vendor, and Universal C. I. T. Credit Corporation, the holder and owner, in due course, of plaintiff’s note for the credit portion of the purchase price of the automobile. After trial there was judgment in favor of plaintiff against Universal C. I. T. Credit Corporation in the principal sum of $1,400, and there was further judgment dismissing plaintiff's suit as against the defendant, Andress-Hanna, Inc. From this judgment defendant, Universal C. I. T. Credit Corporation, appealed to the Honorable th,e Supreme Court of the State of Louisiana. Plaintiff answered the appeal, praying an increase in the judgment to the sum of $16,-801.37, as originally prayed. The Supreme Court ordered the appeal transferred to this court, Levy v. Andress-Hanna, Inc., 232 La. 562, 94 So.2d 668.

There being no appeal from the judgment dismissing plaintiff’s demands as against Andress-Hanna, Inc., the issue on this appeal is now limited to the rights of plaintiff, Levy, against the defendant, Universal C. I. T. Credit Corporation.

On or about November 2, 1953, plaintiff purchased a 1953 model Mercury Coupe from Andress-Hanna, Inc. for the sum of $4,105.89, against which amount plaintiff was allowed a credit of $881.49, representing the trade-in allowance on his 1947 For-dor Ford Sedan, and a further credit of $150 paid in cash. The balance of the purchase price, which included interest, costs of financing and insurance, was represented by plaintiff’s note in favor of Universal C. I. T. Credit Corporation in the full sum of $3,-074.40, payable in monthly installments' of $102.48, due on the 15th day of each month. Plaintiff made six monthly payments but, at the time of the incident hereinafter related, he was in arrears in his payments, having defaulted on the payment due June 15, 1954, and if defendant’s version of the occurrence is correct, being further in default with reference to the payment due July 15, 1954.

Almost every incident of fact relevant to a consideration of the case before us is hopelessly disputed. Plaintiff alleged and testified that at about 8:30 P. M. on July 14, 1954, three “very large and husky men”, representatives of the defendant, Universal C. I. T. Credit Corporation, called at his apartment, No. 215 in the Town House Apartment Building in the City of Shreveport, and made demand upon him that he either pay the past due installment, or installments, upon his automobile note or surrender possession thereof. Plaintiff further contends that the demeanor and action of defendant’s representatives, consisting of “physical force, violence and '.(threat of bodily injury and harm to your petitioner”, caused him to be placed in fear of his personal safety, further resulted in public embarrassment, humiliation and loss ■of wages, for which he claims to have been damaged in the sum above set forth. Plaintiff’s testimony, corroborated by that of his brother, Walter Levy, was that, after the three representatives of defendant appeared at his apartment door and made their demand, he requested them to await Rim in the lobby of the apartment building; that he thereupon repaired to Apartment No. 304, located on the third floor of the same building, occupied by his mother and .father, at which time his brother, Walter, who also lives in the Town House in Apartment No. 307, was visiting their parents; that he and his brother, Walter, then proceeded to the lobby of the Town House, ■where they met the three representatives of defendant corporation, Hileman, Phillips •and Stafford, where an argument ensued; ■that because of the presence of other ■people in the lobby plaintiff and his brother suggested that they move out to the sidewalk in front of the building to continue the discussion; that on the sidewalk the argument became more heated and again plaintiff and his brother suggested that they move to their business address on Marshall Street, where they were associated with their father in the operation of the Green-Back Trading Stamp Company; that the argument was continued at the latter location, and, after considerable heated discussion, plaintiff, under compulsion, surrendered his key to the automobile which was removed by defendant’s representatives to the Hodges Automobile Storage establishment, from which it was taken the next day to the lot of Andress-Hanna, Inc.; that before the car was moved plaintiff and his brother, assisted by Hileman and Phillips, removed personal and business possessions from the automobile; that some twelve days following the occurrence the automobile was sold by Andress-Hanna, Inc.

Almost every one of the above narrated facts is seriously contradicted by the testimony of the three named representatives of defendant. Fortunately for the determination of the issues presented, we do not think that the disputed questions of fact are controlling as to the conclusion. It is not particularly material whether there was one payment in default, as contended by plaintiff, or two, as contended by the agents of defendant; whether the incident in question occurred on July 14th, the day before the July installment was due, as contended by plaintiff, or on July 16th, the day after the installment was due, as contended by representatives of defendant. Nor do we think it is important whether all three of defendant’s representatives called at plaintiff’s apartment, as plaintiff testified, or whether only two of them took this action, as testified by defendant’s representatives.

Despite the above and other disagreements and controversies between the respective witnesses for plaintiff and defendant we think the record serves to preponderantly establish the facts essential to a determination of plaintiff’s rights. It was conclusively established that the incident took place at night; that the demand was made at plaintiff’s residence; that a heated discussion ensued between plaintiff and his brother on one hand and the three representatives of defendant on the other, which discussions were accompanied by intemperate conduct and language; that while only one of the representatives of defendant had been charged with the responsibility of servicing plaintiff’s account, the actions were undertaken in concert between the three employees of defendant, one of whom was six feet five inches in height and weighed 250 pounds, another approximately six feet one inch in height, weighing about 220 pounds, and the third five feet eight inches in height and weighing 150 pounds. The testimony in the record further establishes the fact that defendant’s representatives demanded either the money or the automobile and that the only alternative which they suggested was in the nature of a threat that, if they did not procure either the money or possession of the car, it would be necessary to take action for the seizure of the automobile through the sheriff’s office, which action would be accompanied by newspaper publicity, the clear implication being that this would adversely affect plaintiff’s business relations and general public standing.

We are constrained, under the established facts, to hold that the actions of defendant’s representatives were ill-advised, intemperate and illegal. The fact that plaintiff’s account had been thoroughly unsatisfactory, that fit had caused an excessive amount of inconvenience by reason of his repeated delays in meeting the monthly installment payments on his note, cannot be considered, in any sense, as justification for the established illegal and unwarranted procedure of defendant’s agents, in accordance with their instructions, in repossessing the automobile involved without resort to judicial process and without the voluntary consent of plaintiff. On the latter point we are firm in the belief that nothing in plaintiff’s actions, even accepting in full credence the testimony of defendant’s representatives on this point, could reasonably be construed as a voluntary surrender of possession. It must, in all reason, be considered that the actions of defendant’s employees in descending, in force, upon plaintiff’s place of residence at night, and after ordinary business hours, constituted circumstances which were calculated to instill at least a minimum of fear in plaintiff’s mind. Indeed, the circumstances were such that they might very well have constituted a basis for an award of substantial damages, by reason of humiliation and embarrassment, and they fail to justify such an award only because we do not regard the proof adduced on behalf of plaintiff as being sufficient in this respect.

The facts in the instant case are amazingly analogous to those which we have only recently considered in the case of Price v. General Motors Acceptance Corporation, 95 So.2d 834, to which we refer in support of our conclusions in the instant case on both the facts and the law. We reiterate the observation which we made in the Price case to the effect that repossession activities, without resort to legal process and without voluntary acquiescence on the part of the debtor, are giving rise to a constantly increasing number of actions for damages on the part of the injured debtor. It follows that creditors should enjoin upon their representatives the necessity for a greater regard for the rights of a delinquent debtor and should insist upon a meticulous regard for the provisions of law which are violated by intemperate, ill-considered and unwise zeal for collection of delinquent accounts.

It may be urged that there is one obvious difference in the factual circumstances between the Price case, cited supra, and the instant matter in that the defendant in the Price case, disposed of plaintiff’s automobile the day following its illegal repossession, whereas in the instant case plaintiff’s automobile was not resold until after the lapse of a period of twelve days following its illegal repossession. To our minds, this is a distinction without a difference since the period of time is not the controlling element, but, rather, plaintiff’s rights must be based upon the phrase which we have above used, “illegal repossession”.

One other factual circumstance which was established on the trial of this case was that defendant removed the repossessed vehicle from a storage garage to the premises of the Andress-Hanna Company on the day following the repossession and that the car remained on such premises until it was disposed of by Andress-Hanna through resale. It was further shown that Andress-Hanna represented the car as having been judicially repossessed. The fact that the defendant, now before the court on this appeal, did not call upon Andress-Hanna, Inc. as endorser for payment of the note until twelve days, more or less, after repossession, has no significance nor material bearing upon the issue as to the manner or nature whereby the repossession was effected.

We are in full accord with the finding of the district court that the repossession was wrongfully and illegally effected without the voluntary consent of plaintiff, and it follows that plaintiff is entitled to damages. By stipulation of counsel it was agreed that the value of plaintiff’s interest in the repossessed vehicle, in the event of an award in his favor, should be fixed at $1,250. Additionally, the district judge allowed the sum of $150 in the nature of damages for humiliation and embarrassment. It is a close question as to whether this allowance should be substantially increased, but we think plaintiff’s proof on this point leaves much to be desired in the way of certainty and we therefore concluded that the evidence is insufficient to justify an increase in the amount awarded.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.