author: SANDERS, C. J., and SUMMERS, J.,

text:
    STATE of Louisiana v. Edward L. THIBODAUX.
    No. 61143.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Edward Thibodaux, applying for supervisory writs and a stay order.

Writ granted. The trial court apparently took judicial notice of bail-factors set forth by La.C.Cr.P. Art. 317(2) and (3), without requiring evidence as to them. The bail-reduction hearing is to be re-opened for purposes of receiving evidence as to these factors, insofar as the state relies upon them in opposing reduction. Remanded for that purpose.

SANDERS, C. J., and SUMMERS, J.,

dissent and are of the opinion that there is no abuse of discretion on the part of the trial judge.


source: Caselaw Access Project

author: TATE, Jr., J.,

license: Public Domain

text:
    Joseph Marshall PRIER, Individually and as Administrator of the Estate of Van Prier v. HORACE MANN INSURANCE CO. and the Avoyelles Parish School Board.
    No. 61089.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Joseph Marshall Prier, individually and as administrator of the estate of Van Prier, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Avoyelles. 351 So.2d 265.

Writ denied.

TATE, Jr., J.,

would grant on issue of strict liability of school board, La.C.C. Art. 2317, for the trash pile that exploded and injured a bystander.


text:
    STATE of Louisiana v. Rodney PISANI.
    No. 61134.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Rodney Pisani applying for writs of certiorari, prohibition and mandamus. Parish of St. Mary.

Denied.


text:
    Luke L. BOYER and Malvin Boudreaux v. John O. ST. AMANT, Sheriff, Parish of St. Charles.
    No. 61128.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: John 0. St. Amant, Sheriff, applying for writs of certiorari or review. Parish of St. Charles.

Writ denied; the result is correct.


text:
    STATE of Louisiana ex rel. Ervin Joseph LOUIS v. Hon. Edward A. DELAHOUSSAYE, Judge, Sixteenth Judicial District Court.
    No. 61127.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Ervin Joseph Louis applying for writ of mandamus. St. Mary Parish.

Considering the response of the trial judge that he will rule immediately, the application is denied.


text:
    Dudley Patrick BEAVERS v. J. Al AMISS, Sheriff, East Baton Rouge Parish.
    No. 61126.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Dudley Patrick Beavers applying for writ of habeas corpus, certiorari, prohibition and mandamus. Parish of E. Baton Rouge.

Writ denied.


text:
    STATE of Louisiana ex rel. Michael MYERS v. CRIMINAL DISTRICT COURT, SECTION “H”, PARISH OF ORLEANS.
    No. 61103.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Michael Myers applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Eldridge E. PAYTON and Robert E. Husband.
    No. 61093.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Eldridge E. Payton and Robert E. Husband applying for bond reduction. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Salvadore OVELLA.
    No. 61027.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Salvadore Ovella applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson.

Denied.


text:
    STATE of Louisiana ex rel. Harold BETTS v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 60938.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Harold Betts applying for writ of mandamus. Parish of Orleans.

Denied. Moot.


text:
    STATE of Louisiana v. WRESTLE, INC. d/b/a Pelican News.
    No. 60907.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Wrestle, Inc. d/b/a Pelican News applying for remedial writs. Parish of Orleans.

Denied.


text:
    Patricia S. TURNER v. DEPARTMENT OF PUBLIC SAFETY, State of Louisiana.
    No. 61085.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Department of Public Safety applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit (Parish of Caddo).

Denied.

SANDERS, C. J. would order remand.


text:
    STATE of Louisiana v. James N. ORR.
    No. 61138.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: James N. Orr applying for writ of mandamus and remedial writs (Parish of Rapides).

Writ granted. Evidentiary hearing ordered on whether right of appeal was intelligently waived.

SANDERS, C. J., and SUMMERS, J., are of the opinion the writ should be denied.


author: SUMMERS and TATE, JJ.,

text:
    Ronald CARTER et ux. v. R. L. SALTER et al.
    No. 61086.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Ronald Carter and Frances Carter applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Sabine. 351 So.2d 312.

Writ denied.

SUMMERS and TATE, JJ.,

would grant for limited purpose of considering the father’s claim for survival benefits and wrongful death benefits.


text:
    Joseph Marshall PRIER, Individually and as Administrator of the Estate of Van Prier v. HORACE MANN INSURANCE COMPANY and the Avoyelles Parish School Board.
    No. 61154.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Horace Mann Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Avoyelles. 351 So.2d 265.

Writ denied.


text:
    Charlie SHAVERS and Darlene Shavers v. Succession of Thomas D. SHAVERS.
    No. 61124.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Charlie Shavers and Darlene Shavers for or writ of review, to the Court of Appeal, Third Circuit, Parish of Catahoula.

Denied.


text:
    Cleo B. MILLER v. Carl YOUNG and Aetna Casualty and Surety Company.
    No. 61122.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Cleo B. Miller applying for certio-rari, or writ or review, to the Court of Appeal, Second Circuit, Parish of Bossier. 350 So .2d 976.

Denied.


text:
    Myra F. WOODARD v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA.
    No. 61090.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Myra F. Woodard applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Red River. 350 So.2d 948.

Writ refused.


text:
    Myra F. WOODARD v. The PRUDENTIAL INSURANCE COMPANY OF AMERICA.
    No. 61132.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: The Prudential Insurance Co. of America applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Red River. 350 So.2d 948.

Writ refused.


text:
    Elbert GOWERS v. E. D. GOUR et al.
    No. 61096.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: E. D. Gour et al applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bienville. 350 So.2d 935.

Denied.


text:
    Debra Nealy COILE v. James Gary COILE.
    No. 61123.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: James Gary Coile applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Webster. 350 So.2d 934.

Writ denied.


text:
    Matthew J. WILLIS v. STAUFFER CHEMICAL COMPANY et al.
    No. 61088.
    Supreme Court of Louisiana.
    Dec. 14, 1977.
   In re: Stauffer Chemical Co. and Travelers Insurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Allen. 349 So.2d 1390.

Denied.


author: ROGERS, Judge. PER CURIAM.

text:
    John WALLACE, Plaintiff-Appellee, v. PAN AMERICAN FIRE AND CASUALTY COMPANY et al., Defendants-Appellants.
    No. 5961.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Rehearing Denied Dec. 14, 1977.
    Writ Refused Jan. 30, 1978.

      Bolen, Halcomb, Bolton & Erwin by Frank R. Bolton, Jr., Alexandria, for defendants-appellants, H. L. Hunt and Fidelity and Cas. Co. of New York.
    Stafford, Randow, O’Neal, & Smith by Grove Stafford, Jr., Alexandria, for defendants-appellants, Wanda Petroleum Co. and Ins. Co. of North America.
    Roy B. Tuck, Jr., Leesville, for plaintiff-appellee, H. F. McMullen.
    Jackson & Smith by S. Chris Smith, III, Leesville, for plaintiff-appellee, John Wallace.
    Gold, Hall, Hammill & Little by John F. Simon, Alexandria, for defendants-appel-lees, Vernon Parish School Bd. and Traders & Gen. Ins. Co.
    Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for defendants-appellees, Jesse Scoggins, d/b/a Star Butane Gas and Pan American Fire & Cas. Co.
    Cabra, Leach & Tilley by William E. Til-ley, Leesville, for defendant-appellee, Hardy Hicks.
    Plauche, Smith, Hebert & Nieset by A. Lane Plauche, Lake Charles, for Pan American Fire as Workmen’s Compensation Insurer of Shawson Gas & Motor Co., Inc.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

The above numbered and entitled matter was consolidated for trial in the district court with McMullen v. Pan American Fire & Casualty Co. et al., 352 So.2d 1058 (La. App. 3rd Cir. 1977) our docket no. 5962. The cases remain consolidated on appeal and we decide both of these cases today. The facts and law are common in both cases, however, a description of injuries sustained by H. F. McMullen and our conclusions in regard to the quantum of damages awarded to McMullen are set forth in a separate opinion handed down this date.

Both plaintiffs, John Wallace and H. F. McMullen received severe injuries in an explosion that took place at the Evans High School in Vernon Parish, on October 23, 1970. John Wallace was awarded general and special damages totaling $166,215.55 and H. F. McMullen was awarded damages in the sum of $140,993.76. As a result of a restricted release granted by both plaintiffs to one held to be a joint tortfeasor, i. e., Jesse Scoggins d/b/a Star Butane Gas Co., the award to each plaintiff was reduced by Vith or to the total sum of $124,661.66 to John Wallace and $105,745.32 to H. F. McMullen.

By petition and several supplemental petitions the following parties were originally made defendants:

(1) Traders and General Ins. Co. (Traders), as the insurer of the Vernon Parish School Board;

(2) Hardy O. Hicks (Hicks), a co-employee of plaintiffs, all of whom were employed by Shawson Gas & Motor Co., Inc. (Shaw-son Gas);

(3) W. V. McRae, president and Ralph D. McRae, vice-president both of whom were joined as executive officers of Shawson Gas and their insurer, Pan American Fire & Casualty Co. (Pan American);

(4) Jesse Scoggins doing business as Star Butane Gas Co., and his insurer, Pan American;

(5) Wanda Petroleum, Inc. (Wanda) and its insurer the Insurance Company of North America (ICNA);

(6) Hunt Oil Co.;

(7) Hunt Petroleum Co.;

(8) H. L. Hunt (Hunt) and his insurer, Continental Insurance Co. By stipulation all parties recognized, acknowledged and agreed that The Fidelity and Casualty Company of New York (Fidelity) was the correct insurer of Hunt.

Pan American intervened in both proceedings as the workmen’s compensation insurer of Shawson Gas seeking reimbursement out of the proceeds of any judgment rendered in favor of plaintiffs and against defendants for workmen’s compensation and medical expenses which were paid prior to the date of the filing of the petition of intervention or which might be paid by intervenor in the future, said petition of intervention being filed pursuant to the provisions of LSA-R.S. 23:1101-1103.

There were several third party demands filed seeking indemnity and/or contribution, these being as follows: (a) Jesse Scog-gins d/b/a Star Butane and its insurer, Pan American filed a third party demand against Wanda and Hunt and their insurers seeking-indemnity; (b) Wanda and its insurer, ICNA filed a third party demand seeking indemnity and/or contribution from Hunt and his insurer, Fidelity; (c) Hunt, Hunt Oil Co., Hunt Petroleum Co. and Fidelity filed a third party demand against Jesse Scoggins, d/b/a Star Butane and Pan American seeking indemnity and/or contribution. We observe at this point that neither the trial court’s written reasons for judgment nor the final judgment rendered and signed in these consolidated matters disposes of any of these third party demands.

Prior to trial plaintiffs entered into a compromise arrangement with Jesse Scog-gins d/b/a Star Butane and its insurer, Pan American, William V. and Ralph D. McRae, executive officers of Shawson Gas and their insurer, Pan American, as a result of which plaintiffs granted to said parties a restricted release specifically reserving all of their rights against the remaining defendants. In the compromise arrangement, Pan American, as the workmen’s compensation insurer of Shawson- Gas, relinquished its right to reimbursement for compensation and medical expenses previously paid and to be paid in the future and agreed to dismiss its intervention with prejudice. Following the consummation of this compromise arrangement, an order was granted in each case dismissing these actions with prejudice against Jesse Scoggins, d/b/a Star Butane and its insurer Pan American and William V. and Ralph D. McRae as executive officers of Shawson Gas, together with their insurer Pan American. Additionally, an order was rendered dismissing the intervention of Pan American as the workmen’s compensation insurer of Shawson Gas.

Following trial, the trial court, for written reasons assigned, rendered judgment in favor of plaintiffs and against Hunt and his insurer, Fidelity; Wanda, and its insurer, ICNA; and, Hardy 0. Hicks. The trial court’s written reasons for judgment also found Jesse Scoggins d/b/a Star Butane tortiously liable in solido with the above named defendants however, considering the restricted release previously granted by plaintiffs and recognizing the remaining defendants’ rights to contribution reduced the quantum of the judgment by Vith.

Hunt and his insurer, Fidelity, and Wanda and its insurer, ICNA appeal. Hardy O. Hicks did not appeal. Plaintiffs answered the appeals and ask an increase in quantum.

FACTS

The facts of the case are rather involved, and the issues are numerous. The trial judge has summarized the facts well and concisely and we adopt most of the factual background that he presented in his Reasons for Judgment as follows:

“In April or May of 1970, Mr. Jackson, an employee of Star Butane, suspected that the gas tank at the Evans School might have a leak as the tank seemed to be using more gas than he thought it should. This fact was called to the attention of the school’s principal who requested that the system remain operational until the end of the school term.
In June or July of 1970 Star sent some employees to the Evans School to check the system for any leaks and to then do any necessary repairs. The valve at the tank was found to be open and gas occupied the lines from the tank to the appliances within the school. Bubbles were observed rising in water on the ground directly above the underground line. No smell of gas was detectable from the bubbles but the gaseous substance did burn when a lighted match was thrown into the water. A portion of this line was then dug up and found to be rusted, full of holes and leaking. This portion of old pipe was replaced with 40 foot of new pipe but the system would not hold sufficient air pressure. Mr. Dowden, one of the employees then reported to the janitor and Steve Deason that the system needed changing and not to connect the tank. Mr. Dowden testified that he did not smell gas, either inside or outside of the building, although he did not check the tank to see if the gas was odorized. The Vernon Parish School Board was notified and they then awarded a contract to Shawson Gas to replace the outside lines. By October 23, Shawson Gas, without removing the old outside lines, had constructed and pressure tested a new outside line running from the one-thousand (1000) gallon butane storage tank south of the school to the swing joint where the gas lines entered the building. Mr. McMullen and Mr. Wallace had the job of opening and closing the ditches in which the new lines were placed. Mr. Vernon McRae, the president and general manager of Shawson Gas, was responsible for supervising the laying of these lines through his capacity as executive officer. Mr. Hardy Hicks who held an all phase card of competency from the Louisiana Liquified Petroleum Gas Commission, made all the connections in the line and did the work of connecting the new outside line to the existing gas lines and appliances within the building. Tom Russel was Mr. Hicks’ helper in connection with these activities. When this work was completed, Mr. Hicks turned on the gas at the tank and began opening the stop valves just outside the building on each lead-in one at a time so that the testing and lighting of the pilot lights in the appliances could be accomplished. Then the testing and lighting began in the elementary or north wing of the building. By the time Mr. Hicks reached the east side of the high school side of the building, it was raining extremely hard and to keep from having to make intermittent trips back out into the rain, Mr. Hicks proceeded along the east side of the high school wing and opened all five of the outside stop valves serving this wing. This permitted gas to flow into the inside lines which served the home economics room, the girl’s restroom, the sick room, the boy’s restroom and the science room. There were five service lines with one line going into each room although there were two sources of gas going into the Home Economics room. One of these sources ran from the main to a heater on the wall. The other ran from the main, went into the girl’s restroom and then teed into the wall, and ran into the Home Economics room to two Tappan gas ranges.
After turning on these outside valves, Mr. Hicks proceeded to the home economics room at the northeast corner of the wing and tested and lighted the heater and Tappan ranges. This proves that the line coming into the girl’s room was open and that it had gas in it. Remembering that there were some gas jets in the science room located at the southeast corner of the wing and not being able to recall whether or not these jets were closed, he proceeded to the science room and lit the pilot on the suspended heater. No tests has as yet been made of the connections or appliances since the outside stop valves had been opened. Mr. Hicks then worked in a northerly direction along the east side of the wing and tested and lighted the pilot in the boy’s restroom and then proceeded into the sick room which was adjacent to the girl’s restroom. There a leak was found in the union which was repaired before the unit was tested and lighted. Mr. Hicks and Mr. Russell were at this point at the time of the explosion.
In the meantime, Mr. McMullen and Mr. Wallace had come into the building to escape the heavy rain and asked Mr. Hicks how many of the appliances still were unlighted. When they received no answer they proceeded to discover this by making their own inspection. They entered the girl’s restroom from the hallway and approximately 30 seconds later the explosion occurred which caused their injuries.”

In his written reasons for judgment the trial judge concluded from the voluminous evidence presented that the defendant, Hardy 0. Hicks was negligent in that he made all the connections in the lines and did the work of connecting the new outside lines to the existing gas lines and appliances within the building and in doing so failed to properly connect or tighten the union back of the suspended heater in the girls’ restroom which permitted an unrestricted flow of highly flammable Liquified Petroleum Gas (LPG) into that room. The court also found that Mr. Hicks’ actions in opening all five of the outside stop valves along the east side of the high school wing of the Evans Building which permitted gas to flow into the pipe leading into the heater in the girls’ restroom for approximately 45 minutes to one hour before the explosion on October 23, 1970 constituted negligence. The trial judge concluded that these acts of Hardy 0. Hicks were a concurring proximate cause of the explosion. Hardy O. Hicks has not appealed and the judgment against him is now final.

The trial judge next determined that the LPG supplied to the Evans School was either unodorized or under-odorized determining that under the Louisiana LPG Commission regulations, a duty is imposed upon all manufacturers and distributors of LPG to use proper means to insure that a malo-dorant is applied to all gas that is destined for public consumption. He further concluded that Hunt, the manufacturer, was negligent in failing to properly odorize the gas sufficient to act as a warning agent; that Wanda, the wholesaler, was negligent in its failure to take appropriate steps to insure that malodorant was added to the gas which it owned and sold to Star Butane; and, that Star Butane, the retail distributor, was negligent in its failure to take affirmative steps to see that malodorant was being added to the gas purchased by it from Wanda at the Clear Creek Plant. The court next found that the failure to add malodorant or a sufficient amount thereof to the gas delivered to the Evans school constituted a cause in fact of plaintiffs’ injuries. Accordingly, these three defendants were found solidarily liable with Hicks for the injuries sustained by both plaintiffs.

The trial court found that although the manufacturer, wholesaler and distributor of LPG gas are not insurers against damage or injury, they are charged with a duty of exercising a high degree of care. The trial judge concluded that defendants did not under the circumstances of this case exercise the degree of care required. All State Insurance Co. v. Town of Ville Platte, 269 So.2d 298 (La.App. 3rd Cir. 1972).

We discern no manifest error in the trial court’s determination that the LPG supplied to the Evans school was unodorized or, in any event, under-odorized. Although the evidence in this regard is in conflict, we find a reasonable factual basis in the record to support the trial judge’s conclusion. This being so the trial court’s finding should not be disturbed. In Canter v. Koehring Company, 283 So.2d 716 (La.1973), the Supreme Court stated:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Having determined that the LPG was unodorized or in any event, under-odor-ized to the end that its escape could not be detected, we conclude that the trial court properly found all three defendants, Hunt, Wanda, and Star Butane, guilty of negligence which proximately contributed to plaintiffs’ injuries.

In Home Gas & Fuel Co. v. Mississippi Tank Co., 246 La. 625, 166 So.2d 252, 255 (La.1964), a case concerning LPG, the Louisiana Supreme Court said:

“Moreover, the jurisprudence of this State has recognized the greater and higher than ordinary degree of care demanded of those involved in the manufacture, preparation and distribution of propane-butane gas and similar products. Naquin v. Marquette Casualty Co., 244 La. 569, 153 So.2d 395 (1963); Harris Drilling Co. v. Delafield, 222 La. 416, 62 So.2d 627 (1953); Hake v. Air Reduction Sales Co., 210 La. 810, 28 So.2d 441 (1946); Jones v. Blossman, 209 La. 530, 25 So.2d 85 (1946).”

Professor Wex S. Malone, writing in 7 Louisiana Law Review 250 (1947) made the following observation:

“Persons who deal in gas, electricity and other highly dangerous substances must exercise care commensurate with the unusual peril that is involved. In such cases the liability imposed is virtually absolute, although the situation may be discussed by the court in terms of negligence. The decisions contain frequent references to the ‘highest degree of care’, and res ipsa loquitur is readily available to supply proof of the defendant’s shortcomings.”

The above rule was reiterated in Gregory v. Guarisco, 320 So.2d 354, 356 (La.App. 2nd Cir. 1975), where the court said:

“It is a well-recognized rule of law followed in this state that those who use or handle dangerous agencies, substances or instrumentalities such as explosives, electricity, firearms, combustibles and fireworks, which might endanger persons or property, are held to a high degree or extraordinary degree of care.”

The 4th Circuit Court of Appeals, in Reggio, et al. v. Louisiana Gas Service Company, 333 So.2d 395, 402 (1976), which involved an explosion of natural gas, stated:

“Well established in our jurisprudence is the rule that the degree of care owed others increases in relation to the increase in inherent danger. Culpepper v. Leonard Truck Lines, 208 La. 1084, 24 So.2d 148 (1945); Pagitt Well Service, Inc. v. Sam Broussard, Inc., 293 So.2d 631 (La.App. 3rd Cir. 1974), writs refused, 295 So.2d 817 (La.1974). Clear from the record and undisputed is the fact that the explosion and fire were caused from an accumulation of natural gas in the Reg-gio residence. Natural gas, because of its highly inflammable and explosive character, is recognized in our jurisprudence as an inherently dangerous instrumentality and those who handle and distribute it are charged with the duty to exercise that degree of care commensurate with its dangerous character for the protection of the public from any foreseeable injury.” (citations omitted).

Attorneys for H. L. Hunt, in their appellate brief, urge that the trial court erred in casting H. L. Hunt in judgment, claiming that he died during the proceedings and that his legal representative was not substituted as a party defendant, and therefore any judgment against a deceased party is an absolute nullity, citing Whitehall Oil Company v. Boagni, 217 So.2d 716 (La.App. 3rd Cir. 1969), writ granted 253 La. 731, 219 So.2d 512, 255 La. 67, 229 So.2d 702 (La. 1969); Carroll v. Zurich Insurance Company, 200 So.2d 765 (La.App. 3rd Cir. 1967).

H. L. Hunt may have died prior to rendition of judgment, however, we find no evidence of this fact in the record. This being considered we cannot conclude that the judgment against Hunt is invalid.

In Rayborn v. Smiley, 324 So.2d 514 (La. App. 1st Cir. 1975), we observe the following pertinent language:

“The defendants also state in brief that the defendant Smiley is dead and argue that any judgment against him would be an absolute nullity, citing Gulfco Finance of Livingston, Inc. v. Lee, 224 So.2d 524 (La.App. 1st Cir. 1969), and appeal after remand, 241 So.2d 301 (La.App. 1st Cir. 1970). We find no evidence of this fact in the record. If, through proper pleadings, the defendants had placed such evidence in the record, the plaintiffs would be given an opportunity to amend their petition so as to include the defendant Smiley’s legal representatives.”

We next consider the third party demands made by the various parties. Neither the written reasons for judgment of the trial court nor the formal judgment considers or disposes of any of the third party demands made by the parties defendant against each other. Insofar as these third party demands are concerned, although the parties refer to these demands and brief their contentions in connection therewith, this court cannot consider same as they are not before the appellate court, there being no disposition of such demands by the trial court and the formal judgment not making any reference thereto.

In Collins v. Slocum, 304 So.2d 675 (La. App. 3rd Cir. 1974) we stated:

“In order to render a judgment which is just, legal, and proper, all matters presented in the pleadings should be tried and decided. As permitted by LSA-C. C.P. art. 2164, we find it appropriate to remand this case so that all issues may be presented at one time. Specifically, we note the pending claim against McSween & McSween and the absence of a judgment deciding the claim against Louis J. Daigre Associates. If the judgment in the consolidated suit is not final and should an appeal be taken in that suit, we note the absence of a judgment deciding the third party claims.
The case is remanded to enable the court to try the remaining issue or issues and to decide all claims presented by the pleadings.”

We also note the case of Leleux v. Lumbermen’s Mutual Ins. Co., 318 So.2d 15 (La. 1975). In the Leleux case there was a third party demand filed by the defendants which was not considered because the trial court determined that the plaintiff should be denied the relief which she sought. The Supreme Court reversed the trial court finding liability on the part of the defendant. This finding of liability on the part of the defendants made viable the third party claim previously filed by the defendant against a third party. The Supreme Court in such instance determined that the matter should be remanded to the district court for the purpose of proceeding with the third party demand. In that case the court stated:

“In the present case, the third party demand was not passed upon in the trial court. The plaintiff alone appealed. The partnership defendants did not answer the appeal. Hence, the third party demand against the insurance agent was not before the Court of Appeal. Nor is it before this Court. LSA-C.C.P. Article 2133; McCoy v. Pacific Coast Fire Insurance Co., 248 La. 389, 178 So.2d 761 (1965). It is proper, therefore, to remand the case to the district court for the purpose of proceeding with the third party demand. LSA-C.C.P. Article 2164; McCoy v. Pacific Coast Fire Insurance Company, supra.”

Article 2083 of the La.Code of Civil Procedure provides that an appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default and from an interlocutory judgment which may cause irreparable injury. It is well settled that no appeal lies from a judgment before it is signed. Miami Truck & Motor Leasing Co. v. Dairyman, Inc., 263 So.2d 110; Rourke v. Coursey, 334 So.2d 480 (La.App.1976); Disalvo v. Picard, 303 So.2d 900 (La.App.1974); McElwee v. McElwee, 244 So.2d 35 (La.App.1971).

For the above reasons we will remand the consolidated cases to the trial court for consideration of the various third party demands.

Hunt next contends that the trial court erred in failing to find liability on the part of the Vernon Parish School Board. The trial court, in relieving Traders, insurer of the Vernon Parish School Board, of any liability stated as follows:

“The school board did not make any negligent act or omission which contributed to the accident. They awarded the contract to replace the lines at the Evans School to qualified and certified people of which the school board had no knowledge that they would act improperly. Furthermore, the crevis (sic) theory which was raised and which brought the school board into this case was found to be invalid. There was no evidence which showed that the school board had let gas seep under the school building which could subject them to liability.”

We find no manifest error in this holding and affirm.

Hunt next contends that the trial court erred in its failure to find liability on the part of the McRaes as executive officers of Shawson Gas and their insurer, Pan American.

This contention is without merit. The trial court’s determination in regard to the McRaes and their insurer, was superfluous in that prior to trial plaintiffs’ suits as against the executive officers of Shawson Gas were dismissed with prejudice and none of the defendants filed third party demands seeking contribution and/or indemnity from these executive officers. The issue as to the liability of the McRaes was not before the trial court and is not before us on this appeal.

Hunt next contends that the trial court erred in its admission of improper rebuttal testimony. We find no merit in this contention. LSA-C.C.P. Articles 1631 and 1632; Bradford v. Brewton Butane Company, Inc., 319 So.2d 892 (La.App. 3rd Cir. 1975).

Finally, Hunt argues that the trial judge erred in casting Hunt in judgment for plaintiffs’ medical expenses which were paid by the compensation insurer, Pan American. Hunt contends that the payment of plaintiffs’ medical expenses by the compensation insurer was not through any fund, insurance, or benefit that the plaintiff contributed to and should not be subject to the so-called “collateral source rule”.

In Hall v. State Department of Highways, 213 So.2d 169, 175 (La.App. 3rd Cir. 1968), we held as follows:

“While a tortfeasor is entitled to credit for payments made through insurance procured by the tortfeasor himself, Gunter v. Lord, 242 La. 943, 140 So.2d 11 (1962), the plaintiff’s tort recovery is not diminished because of payments made through insurance of (sic) other collateral sources independent of the wrongdoer’s procuration or contribution, Gunter v. Lord at 140 So.2d 16; American Indemnity Co. v. New York Fire & Marine Underwriters Inc., 196 So.2d 592 (La.App. 1 Cir. 1967); Roux v. Brickett, 149 So.2d 456 (La.App. 3d Cir. 1963).”

In Richoux v. Grain Dealers Mutual Insurance Company, 175 So.2d 883 (La.App. 3rd Cir. 1965), we stated in a factually similar case:

“Prior to the trial of the case, Gallagher (one of the plaintiffs) received from the compensation insurer of his employer the aggregate sum of $2,404.34 as compensation benefits and medical expenses because of the alleged injury, which amount includes a sum of money which was paid by the insurer as a settlement of his claim for additional compensation benefits. The compensation insurer intervened in this suit, demanding that it be reimbursed the amounts paid by it out of the sum which may be recovered from the defendant herein, but that intervention was subsequently dismissed and no such claim is now before us. Defendant contends that it nevertheless is entitled to credit for the compensation benefits which were paid, even though no claim for reimbursement is being made by the compensation insurer.
The applicable rule of law is that in an action in tort by an injured employee against a third party tort feasor, where the liability of the tort feasor is established and the employer does not intervene for reimbursement of compensation benefits paid, the plaintiff is entitled to recover the full amount of the damages sustained by him, without deduction of the amounts which he has received from his employer as compensation benefits. . In view of the above cited provision of the Revised Statutes and the established jurisprudence of this state, we conclude that defendant is not entitled to credit for the amounts which Gallagher previously had received as compensation benefits.”

Under these authorities, we believe that Hunt is not entitled to credit for medical expenses or workmen’s compensation payments previously paid to plaintiffs by Pan American.

QUANTUM

Hunt contends that the quantum award to the plaintiff, John Wallace, was clearly excessive and should be reduced. Plaintiff contends that the award should be increased.

The trial court, in its reasons for judgment, gave the following description of plaintiffs injuries:

“The injuries suffered by Mr. Wallace were substantially similar in all respects to those suffered by Mr. McMullen. After the accident of October 23, 1970, Mr. Wallace was also examined by Dr. Hearn and found to be in acute pain and neuro-genic shock. He was suffering from first, second and third degree burns over a large portion of his body. Twice a week for months he was forced to undergo a surgical procedure to debride (sic) necrosis tissue. At the time of the trial of this case, Mr. Wallace was still under the treatment of Dr. Hearn. After the accident, he remained in the hospital for over three months. During this time he could not feed himself, attend to his bodily functions or recognize people by the sense of sight. His head was swollen out of proportion, the flesh on his face and hands were badly burned and his eyelids and part of his ears were burnt off. His hands were so badly burned that he is now totally disabled to perform the types of work that he is suited tí). His eyes are also in such condition that they will always need treatment. The description by Mr. McMullen that Wallace changed colors from black to white was reflected by the pictures introduced in these proceedings. The fact that Mr. Wallace asked Tom Russell to grease him with motor oil to relieve the pain (which Mr. Russell actually did), indicates what the situation must have actually been like.
At the time of his trial, Mr. Wallace had incurred medical expenses totaling $6,215.55. It was also the opinion that he would continue to incur medical expenses of approximately $60.00 a month for an indeterminable period of time.
At the time of his injuries, Mr. Wallace was 40 years old. The life expectancy of a 40 year old black male, was approximately 27.4 years. He had been mostly a helper in construction related work. He seemed to work regularly and had nothing physically wrong with him. As a result of this accident, Mr. Wallace is now permanently disabled from doing work of the same or similar kind for which he is fitted.
Based on the type of work that Mr. Wallace performed, it would be difficult indeed to say how long he could have continued to do this type of work. It is also uncertain as to how many more years Mr. Wallace would incur medical expenses as a result of these injuries. Even though losses of future earnings and future medical expenses cannot in this instance be proven with mathematical certainty, it appears with reasonable certainty that such losses will occur. Based on remaining 25 years work life to the age of 65, along with a 40 hour work week and $2.00 an hour pay scale, the loss of earnings would amount to $104,000.00. If the medical expenses of $60.00 a month would last the remainder of his life expectancy, this would total almost $20,-000.00. Therefore, taking into consideration the present value of the dollar along with inflation and other factors, this Court feels that a present value award of $60,000.00 for loss of wages and future medical expenses will be sufficient.
As in the McMullen case, this Court feels that $100,000.00 in general damages will be fair and adequate award for pain and suffering.
Judgment is rendered therefore in favor of John Wallace in the sum of $166,-215.55 and against all defendants cast herein in solido. The expert witness fees of Dr. J. E. Hearn, Dr. Lewell C. Butler, Dr. S. R. Lewis and Dr. Donald E. Texada are set at $140.00 each and the fee of Mr. Edmund Thomas is set at $200.00 and are hereby taxed as costs of these proceedings.
Since one of the negligent parties has been released under a restrictive release, the judgment must be reduced accordingly. It is our law that when an injured party compromises his claim with one joint-tortfeasor and reserves his rights against all other tortfeasors, the injured party has thereby deprived the remaining parties of their right to enforce contribution from the tortfeasor released. Accordingly, the demand against the remaining tortfeasors is reduced by the virile portion of the released party.
Therefore the judgments in favor of both McMullen and Wallace must be reduced by Vi. Accordingly, the judgment in favor of H. F. McMullen is reduced to $105,745.32 and the judgment in favor of John Wallace is reduced to $124,661.66. Defendants east in solido herein in both cases are H. L. Hunt and his insurer, New York Fidelity (sic) and Casualty Company; Wanda Petroleum Company and its (sic) insurer, Insurance Company of North America; and Hardy O. Hicks.”

We believe the amount of damages awarded plaintiff by the trial court was somewhat low, however, we find this award to be within the range of the trial court’s discretion. We will not disturb this award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

For the reasons assigned, we affirm the judgment in favor of plaintiff and against H. L. Hunt, The Fidelity and Casualty Company of New York, Wanda Petroleum, Inc., Insurance Company of North America, and Hardy 0. Hicks. We remand all third party demands for disposition by the trial court. Costs to be borne equally by all defendants cast in judgment.

AFFIRMED IN PART AND REMANDED.

ON APPLICATION FOR REHEARING

PER CURIAM.

In their applications for rehearings in the captioned matters H. L. Hunt, Fidelity and Casualty Company of New York, Wanda Petroleum, Inc., and Insurance Company of North America, point out that we erred in our determination that the issue as to the liability of the McRaes, as executive officers of Shawson Gas, was not before the trial court and was not before us on appeal. (See page 1055 of the original opinion rendered in our docket number 5961). We acknowledge that this was error in that the McRaes, as executive officers, were originally joined as defendants and were dismissed from these proceedings as the result of a restrictive release granted by plaintiffs to, among others, the McRaes. Although dismissed from these proceedings as the result of a restrictive release the remaining defendants had the right to have the liability of the McRaes determined on appeal, for if the McRaes were found to be at fault and liable unto plaintiffs, then in that event the judgment in favor of plaintiffs against the remaining defendants would be proportionately reduced. R.C.C. Article 2203. Accordingly, after receipt of the applications for rehearing we re-examined the records in the captioned matters with regard to this issue.

The trial court determined that the McRaes were not liable as executive officers of Shawson Gas, in that they had delegated their responsibilities with due care to a qualified and responsible subordinate, i. e., Hardy O. Hicks. Our re-examination of the records in these cases discloses no manifest error in this conclusion of the trial court. Canter v. Koehring Company, 283 So.2d 716 (La.1973). Accordingly, the trial court’s conclusion in this regard is affirmed. Thus having disposed of this issue which we erroneously failed to consider on original hearing and finding no merit in the other grounds urged by applicants the applications for rehearing are denied, as is more fully shown by a notation to this effect on each application for rehearing.

      . Neither the trial court’s written reasons for judgment nor the final judgment rendered and signed in the consolidated matters disposes of plaintiff’s claims as against Hunt Oil Co. and Hunt Petroleum Co. There being no disposition of those demands by the trial court this court cannot consider same. On remand those claims should be disposed of by the trial court.


author: ROGERS, Judge.

text:
    H. F. McMULLEN, Plaintiff-Appellee, v. PAN AMERICAN FIRE AND CASUALTY COMPANY, et al., Defendants-Appellants.
    No. 5962.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Rehearing Denied Dec. 14, 1977.
    Writ Refused Jan. 30, 1978.
    Bolen, Halcomb, Bolton & Erwin by Frank R. Bolton, Jr., Alexandria, for defendants-appellants, H. L. Hunt and Fidelity and Cas. Co. of New York.
    Stafford, Randow, O’Neal & Smith by Grove Stafford, Jr., Alexandria, for defendants-appellants, Wanda Petroleum Co. and Ins. Co. of North America.

      Roy B. Tuck, Jr., Leesville, for plaintiff-appellee, H. F. McMullen.
    Jackson & Smith by S. Chris Smith, III, Leesville, for plaintiff-appellee, John Wallace.
    Gold, Hall, Hammill & Little by John F. Simon, Alexandria, for defendants-appel-lees, Vernon Parish School Bd., and Traders Gen. Ins. Co.
    Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for defendants-appellees, Jesse Scoggins, d/b/a Star Butane Gas and Pan American Fire & Cas. Co.
    Cabra, Leach & Tilley by William E. Til-ley, Leesville, for defendant-appellee, Hardy Hicks.
    Plauche, Smith, Hebert & Nieset by A. Lane Plauche, Lake Charles, for Pan American Fire as Workmen’s Compensation Insurer of Shawson Gas & Motor Co., Inc.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

In the companion case of Wallace v. Pan American Fire and Casualty Company et al., 352 So.2d 1048, our docket number 5961, rendered this day we disposed of all issues in this appeal excepting the issue of quantum.

In the instant case the trial court awarded plaintiff damages in the total amount of $140,993.76, which award was reduced by Vi th (to the net sum of $105,745.32) as a result of a restrictive release granted by plaintiff to one held to be a joint tortfeasor, i. e., Jesse Scoggins d/b/a Star Butane Gas Company. Defendants have appealed and contend that the award is excessive. Plaintiff has answered the appeal and contends that the award should be increased.

The trial court in written reasons described plaintiff’s injuries as follows:

“After the accident, McMullen was first seen by Dr. John Hearn at Byrd Memorial Hospital at approximately 7:30 P.M. on October 23, 1970. At this time Mr. McMullen was in acute pain and neu-rogenic shock. First, second and third degree burns covered most of his body with the hands, forearms and face the most severely burned areas. Dr. Hearn testified that Mr. McMullen’s hands were ‘Utterly (sic) cooked’.
The next day Mr. McMullen was examined by Dr. E. H. Byrd. Dr. Byrd testified that McMullen was still in severe pain and because of his terrific bums, ‘he looked like a mummy who had just arrived in town’. Dr. Byrd found first, second and third degree burns over 65-70% of the body. McMullen was also suffering from a toxic reaction to the burns that affected his kidney functions. Later, McMullen would develop an anemia problem. Because of loss of fluids from the body, pressure bandages with antiseptic medicine on gauze was applied. A secondary infection on the forearms, hands, and to a less extent on the face, also developed. As a direct result of these injuries, he was hospitalized around three months. He could not later make a fist because of the webbing to his hands. This was caused by contracture of the scar tissue and is nature’s way of healing. These injuries were both permanent and disabling.
After his discharge from Byrd Memorial Hospital, he was hospitalized five times at Physicians and Surgeons Hospital in Shreveport, Louisiana for periods of about six days on each occasion for plastic surgery to release contractures and graft new skin removed from donor areas around the thighs, buttocks and the groin.
His hands are of very little use to him today. He can not voluntarily flex his hands or fully extend his fingers. And as the photographs graphically show, his disfigurement is obvious.
Prior to this accident Mr. McMullen’s general health was good with no disfigurement. At the time of this accident, McMullen was a 63 year old white male who had a life expectancy of about 14 years. Taking into consideration his age, he probably would not have been able to work more than another two or three years. For the three years immediately preceding the accident Mr. McMullen made an average yearly sum of about $9,185.62. During the three years subsequent to the accident he made an average of $736.73 sub-contracting some air-conditioning work. Therefore his average decrease in salary amounted to $8,448.89 and a total of $25,346.67 for the three year period.
At the time of this trial Mr. McMullen had incurred medical expenses of $15,-647.09.
In awarding general damages, this Court must somehow allocate a dollar amount on the unbearable pain which this man has gone through and will continue to experience the remainder of his some 14 years of life. The nature of the injuries and the severe disfigurement and total disability must also be considered, with the decreasing value of the dollar due to inflation and increases in the cost of living as well.
The pain and suffering, disfigurement and disability have been well proven in this case by both expert and lay witnesses. To listen to the testimony given by these witnesses in relation to the injuries suffered, as well as seeing this man in person at the trial and the picture taken after the accident, one must come to the conclusion that there is just no proper dollar amount which could possibly indemnify anyone for such injuries. However, this Court must nevertheless try.
While each case must be decided on it’s (sic) own facts, this Court felt it necessary to look to other decisions involving burns to determine the range of awards previously granted. In doing so, this Court found awards of $55,000.00 (Pellegrin v. J. Ray McDermott & Company, 504 F.2d 884), $65,000.00 (Benefield v. Milchem, 281 So.2d 771, La.App. 3rd Cir. 1973), $86,000.00 (West v. Continental Oil Company, 222 So.2d 104, La.App. 3rd Cir. 1969), and $175,000.00 (Barrois v. Service Drayage Co., 250 So.2d 135, La.App. 4th Cir. 1971).
Taking everything into consideration, this Court feels that $100,000.00 in general damages will be a fair award to Mr. McMullen for the injuries which he suffered as well as $25,346.67 for loss of earnings and $15,647.09 for medical expenses. Therefore, judgment is rendered herein in favor of H. F. McMullen in the sum of $140,993.76 against all defendants, in solido, cast herein. The expert witness fees of Dr. J. E. Hearn, Dr. E. H. Byrd, Dr. Simeon H. Wall and Dr. T. E. Banks are hereby set at $150.00 each and the fee of Mr. Edmund Thomas is set at $200.00 and are hereby taxed as costs of these proceedings.”

Although plaintiff believes the quantum to be inadequate and defendants believe the quantum is excessive, we will not disturb the award of the trial judge for the reasons given in the companion suit.

For the reasons assigned, we affirm the judgment in favor of plaintiff and against H. L. Hunt, The Fidelity and Casualty Company of New York, Wanda Petroleum Inc., Insurance Company of North America, and Hardy 0. Hicks. We remand all third party demands for disposition by the trial court. Costs to be borne equally by all defendants cast in judgment.

AFFIRMED IN PART AND REMANDED.

      . Neither the trial court’s written reasons for judgment nor the final judgment rendered and signed in the consolidated matters disposes of plaintiff’s claims as against Hunt Oil Co. and Hunt Petroleum Co. There being no disposition of those demands by the trial court this court cannot consider same. On remand those claims should be disposed of by the trial court.


author: GUIDRY, Judge.

text:
    Clarence Joseph VINCENT, Plaintiff-Appellee, v. RYDER ENTERPRISES, INC., et al., Defendants-Appellants.
    No. 6164.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Rehearings Denied Dec. 14, 1977.

      E. Gregory Voorhies, Jr., of Voorhies & Labbe, Lafayette, for defendant-appellant, Ryder Enterprises.
    Dubuisson, Brinkhaus & Dauzat, by James G. Dubuisson, Opelousas, for defendant-appellant, Getty Oil Co.
    Gary R. Steckler, Lafayette, for plaintiff-appellee.
    Allen, Gooch & Bourgeois, by Arthur I. Robison, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Plaintiff, Clarence Joseph Vincent, brings this action seeking recovery for personal injuries received in an explosion at an Alabama well site, while acting in the course and scope of his employment with Stooks-berry Tank Company, Inc. (hereafter referred to as Stooksberry). The following parties are made defendants:

(1) Getty Oil Company (hereafter referred to as Getty), the lessee of the well site where the explosion occurred. Plaintiff’s allegations of negligence on the part of Getty include failure to provide plaintiff with a safe place to work and failure to warn plaintiff of a dangerous condition existing in the vicinity in which he was standing.

(2) Ryder Enterprises, Inc. (hereafter referred to as Ryder), an oil field contractor that was providing men and equipment to the well site in accordance with a service contract then existing between Getty and Ryder. Plaintiff alleges that the same acts of negligence enumerated above were also committed by Ryder and additionally that a welder employed by Ryder was performing welding operations in the vicinity of an oil tank, and as a result of said activity, a spark ignited certain vapors subsequently causing the explosion which severely injured plaintiff.

(3) Hartford Accident and Indemnity Company (hereafter referred to as Hartford), the liability insurer of Ryder.

Defendants, Ryder and Hartford, filed answer generally denying plaintiff’s allegations. Additionally, Ryder and Hartford seek to escape liability to plaintiff by claiming that the welder who allegedly caused the accident was a borrowed employee and was working in the course and scope of his employment for Getty and/or Stooksberry.

Getty, in its answers, denies liability and alleges that plaintiff was guilty of contributory negligence. While maintaining that it is not liable to plaintiff, Getty contends in an amended answer that if liability is found to exist, then in accordance with the provisions of LSA-R.S. 23:1061, Getty is the “statutory employer” of plaintiff and thus plaintiff’s remedy against Getty is limited by our Workmen’s Compensation Law.

Getty also filed a third party demand against Ryder and Hartford seeking indemnity or contribution. Ryder and Hartford answered the demand denying liability to either plaintiff or Getty.

Liberty Mutual Insurance Company (hereafter referred to as Liberty), the workmen’s compensation insurer of Stooksberry, intervened in the suit seeking recovery of certain amounts paid to plaintiff as workmen’s compensation benefits.

The following stipulations were agreed to by the parties at the time of trial:

(1) At the time of the alleged accident, Liberty was the workmen’s compensation insurer of Stooksberry, plaintiff’s employer, and that as a result of the injuries to plaintiff during the course and scope of his employment, Liberty has paid certain benefits to plaintiff totalling $9,712.30.

(2) Liberty is entitled to be reimbursed for the above amounts out of any damage award that plaintiff might receive and Liberty is entitled to a credit for any future amounts owed by Liberty to plaintiff in accordance with the provisions of LSA-R.S. 23:1103.

(3) A judgment against Ryder is a judgment against Hartford up to the limits of the policy.

(4) The question of indemnity as«between Ryder and Getty was to be decided by the trial judge.

Plaintiff requested that the case be tried before a jury. After trial on the merits, the jury found in favor of plaintiff and against both defendants, in solido, fixing the amount of plaintiff’s damages at $45,-000.00. Judgment was entered in favor of Liberty in the amount of $9,712.30 against plaintiff and both defendants and ordered that said sum be paid in preference out of the amount awarded to plaintiff. Credit was allowed Liberty for any future amounts owed insofar as the award to plaintiff exceeds the amount awarded to Liberty, in accordance with LSA-R.S. 23:1103. The third party demand filed by Getty against Ryder was dismissed with prejudice at Getty’s cost.

Both defendants filed timely motions for a new trial. Although all of the motions were refused, the trial court was of the opinion that the jury verdict against Getty was in error and that Getty’s defense under R.S. 23:1061 should have been sustained. However, the trial court felt that it would be more expeditious to refuse both motions for new trial and to urge this Court to correct the error on appeal.

Defendants Ryder and Getty have appealed, seeking reversal of the judgment holding them to be liable to plaintiff and in the alternative to have the amount of the judgment reduced as being excessive.

The issues presented are: (1) Was the welder employed by Ryder a “borrowed employee” of Getty and/or Stooksberry? (2) Is Getty entitled to limit its liability as the “statutory employer” of plaintiff under LSA-R.S. 23:1061? (3) Was the amount awarded by the jury excessive?

The facts giving rise to this litigation are not seriously disputed and may be summarized as follows:

Getty is engaged in the business of exploring for and producing oil and gas products and is the lessee of a well site in Alabama known as the Peter Klein location. As Getty does not have the equipment necessary to conduct its operations, it contracts the work out to various service companies. At the time of plaintiff’s injury, both Ryder and Stooksberry were under contract to provide certain services to assist Getty in its operations at the Peter Klein location. Ryder is a service company, engaged in the business of furnishing men and materials to perform various construction work for other companies. Stooksberry is a well testing company which provides certain evaluation services which are conducted at the well site.

Plaintiff was employed by Stooksberry as a truck driver. He was dispatched by his employer to the Peter Klein location to deliver certain well testing equipment. At the time of plaintiff’s injury, Ryder was furnishing equipment and a roustabout crew to the Peter Klein location in accordance with a service contract between Ryder and Getty. One of the Ryder employees present at the location was a welder, M. E. Blackard.

Plaintiff arrived at the Peter Klein location on February 21, 1975 and proceeded to unload his equipment. His truck was positioned about twenty feet away from two oil storage tanks. After the unloading had been completed, plaintiff remained in the immediate area and decided to check his lights for the return trip home. It was at this time that plaintiff was injured by explosions which occurred in two oil tanks that were adjacent to his truck.

Although the exact cause of the explosion was never precisely ascertained, the record supports a finding that it was caused when gas vapors escaping from one of the oil tanks came into contact with sparks created by nearby welding operations which were being conducted by one of the Ryder employees.

LIABILITY OF RYDER

On the day of the explosion, several Ryder employees were working at the Peter Klein location. Plaintiff alleges that the explosion was caused by the negligence of a welder employed by Ryder, M. E. Blackard. The two tanks in question each had a capacity of 500 barrels, with one of the tanks containing about 300 barrels of calcium chloride water. In order to permit the safe removal of poisonous gas vapors from the tanks, a four inch ventilation pipe running from the top of the tanks out to a flare pit was installed. A pilot light located at the flare pit permitted the vapors to be safely burned.

Mr. Blackard testified that he had been welding or burning on the four inch vent pipe two or three hours prior to the explosion. It later became necessary to shorten the vent pipe, so Blackard was summoned, by a member of the Ryder crew, from another location to cut about a foot off of the end of the pipe. Apparently, the pipe was not hooked up to the tanks earlier that day, but had been subsequently connected prior to Blackard’s return to the area. In order to prevent an explosion from happening when welding or cutting around a vent pipe such as this, a device known as a “flame arrester” is placed in the pipe between the tank and the open end of the pipe. This device allows the gas vapors to escape from the tank out to the flare pit, but prevents flashback from backing up into the tanks. The flame arrester was part of Stooksber-ry’s equipment. No flame arresters had been installed at the time of the explosion.

Ryder admits that the most logical explanation for the explosion is that a spark or flame created by Blackard’s actions in cutting the vent pipe apparently ignited gas vapors which had accumulated in the vent pipe and tank. Ryder does not seriously argue against the jury’s apparent finding of negligence on the part of Blackard but contends that it is not responsible for Black-ard’s actions at that time because he was the borrowed employee of either Getty or Stooksberry. Ryder asserts that Blackard was performing work in the interest of Getty and that the right of control over his actions rested in Getty. Ryder argues that the right of control is the key element in determining whether or not an individual is a borrowed employee of another, citing Pagitt Well Service, Inc. v. Sam Broussard, Inc., 293 So.2d 631 (La.App. 3rd Cir. 1974, writ refused).

In seeking to establish Getty’s right to control the members of the Ryder crew, especially Blackard, able counsel for Ryder places much emphasis on the fact that Leroy Ardoin, the Ryder gang pusher, had left the location on the day prior to the explosion. Bill Watson was the Getty sector foreman in charge of the operations being conducted at the well site. In a conversation between Ardoin and Watson concerning Ardoin’s impending absence, Watson allegedly told Ardoin, “Don’t worry, I’ll take care of the men. I used to push a crew myself. Don’t worry, I know what to do.” Ardoin testified that he had left no one in charge from the Ryder crew and that it was his understanding that Watson would be in charge of the crew in his absence.

Ryder contends that it was at this point that Ryder relinquished control and Getty assumed control of the crew. Ryder maintains that Blackard was performing the work of Getty and that the right of control over the Ryder crew had been assumed by Getty. Ryder points to the testimony of Watson that if he had become dissatisfied with the work of a welder, he could have removed him from the location as demonstrating the degree of control that Getty exercised over the Ryder crew.

Ryder also contends that Blackard was a borrowed employee of Stooksberry, pointing to the testimony of Watson that an employee of Stooksberry was going to supervise the Ryder crew in connecting the vent pipe to the tanks and had authority to direct and control the operations of those Ryder laborers that were at the location.

Plaintiff-appellee, on the other hand, argues that other elements in addition to the right to control must be considered in making a determination as to whether or not Blackard was a borrowed employee. Plaintiff points out that Ryder was doing its own work and furnishing its own crew and equipment. Able counsel for plaintiff also asserts that the manner in which the work was to be performed was governed by Ryder and points out that Ryder paid Blaek-ard’s salary and furnished the welding equipment that was being used by him. Plaintiff argues that Ryder has failed to meet the burden imposed by our jurisprudence to the effect that the general employer must establish by a preponderance of the evidence the termination of his right to control and the assumption of that right by the borrowing employer, citing Universal Engineers & Builders, Inc. v. Lafayette Steel Erector Corporation, 235 So.2d 612 (La.App. 3rd Cir. 1970). Finally, plaintiff points to certain provisions in the contract then in effect between Ryder and Getty which read in pertinent part as follows:

“(3) Contractor agrees to perform the work specified herein with due diligence according to Contractor’s own method, Contractor being accountable to Getty Oil only for the completed job. All persons furnished by Contractor in the performance hereunder shall be considered servants or agents of Contractor and not of Getty Oil, and Contractor shall be responsible as the employer of such persons under any applicable workmen’s compensation, old age benefits, or unemployment insurance statutes and will fully comply with the employer’s obligation under any such statutes.” (emphasis added)

As foresaid, the jury found judgment against Ryder, thus apparently rejecting its “borrowed employee” defense.

Whether a person is a “borrowed servant” is an issue of fact. LeBlanc v. Roy Young, Inc., 308 So.2d 443 (La.App. 3rd Cir. 1975); Nichols Construction Corporation v. Spell, 315 So.2d 801 (La.App. 1st Cir. 1975).

Various criteria have been employed by courts in determining whether or not an individual is a borrowed employee. Although no single test has emerged victorious over others, the “right to control” test appears to have been given a great deal of weight. Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137 (La.1951); McCutchen v. Fruge, 132 So.2d 917 (La.App. 3rd Cir. 1961); Pagitt Well Service, Inc. v. Sam Broussard, Inc., supra; Berry Brothers General Contractors, Inc. v. Air Marine, Inc., 328 So.2d 771 (La.App. 1st Cir. 1976); Highlands Insurance Co. v. L. J. Denny and Son, 328 So.2d 779 (La.App. 3rd Cir. 1976, writ refused); Dupre v. Sterling Plate Glass & Paint Company, Inc., 344 So.2d 1060 (La. App. 1st Cir. 1977).

In the recent Dupre case, supra, our brethren of the First Circuit stated:

“The most widely accepted test cited for establishing an employer-employee relationship involves the right of control. Benoit v. Hunt Tool Company, supra; Ruiz v. Shell Oil Company, 413 P.2d 310 (5th Cir. 1969) (action arising under the Longshoremen and Harbor Workers Compensation Act). The right of control has been described to include the following factors: the right to select and discharge the employee, the right to supervise and direct his work, and the method by which it is done, and the manner in which the employee is paid, (citations omitted)
Implicit in the right to control is the necessity that the lending employer relinquish its control over its employee to the borrowing employer and that he is performing work for the borrowing employer’s business. Benoit v. Hunt Tool Company, supra; Berry Brothers General Contractors, Inc. v. Air Marine, Inc., supra. Additionally, the concept of the ‘borrowed employee’ doctrine, by its terms, connotes an agreement of some type between the lender and the borrower, that the lender relinquished such control of the employee to the borrower. Ruiz v. Shell Oil Company, supra; Malone, § 57, pp. 61-66, pocket part, § 57, pp. 14-21.”

In the leading case of Benoit v. Hunt Tool Co., supra, our Supreme Court was faced with a factual situation that was almost identical to the instant case. In that case, plaintiffs were injured by an exploding fuel tank. The explosion was caused by welding operations which were being conducted by a welder employed by defendant, Hunt Tool Company. Defendant sought to escape liability by claiming that the welder was a borrowed servant of plaintiff’s employer, Morris & Meredith, Inc.

After an exhaustive review of the applicable jurisprudence, the Court rejected defendant’s contention that the welder was a borrowed employee, noting that Hunt Tool Company paid the welder’s salary, furnished his materials and welding equipment and had the right to discharge him for any cause. The court further noted that although the welders that were furnished by Hunt Tool Company were informed as to what welding they were to do by Morris & Meredith, the method of accomplishment of such work was entirely up to the welders themselves.

We are of the opinion that the jury’s finding of fact that Blackard was not the borrowed employee of Getty or Stooksber-ry, but remained the employee of Ryder is amply supported by the record.

It is not disputed that Blackard was employed by Ryder. Getty was charged on an hourly basis for Blackard’s welding services. These hours were tabulated by means of daily work tickets which were signed by a Getty foreman. Getty was billed for services performed by Ryder personnel on the basis of these tickets. We note that this arrangement is similar to the billing system that was used in the Benoit case, supra. The tools and equipment used by Blackard were owned and furnished by Ryder. In his deposition, Blackard testified that he considered a man in the Ryder crew to have been left “kind of halfway in charge” during Ardoin’s absence. This was corroborated by the deposition of Mr. James Lamar Calcóte, another Getty production foreman which was introduced at trial. Calcóte testified that when the gang pusher was not present, there was usually a “leadman” in the gang to whom he would issue instructions.

Regarding the degree of control exercised by Getty over the method of Blackard’s work, we note that although Getty personnel would tell Blackard what to weld, they wouldn’t tell him how to ,.weld. Calcóte testified that all they (Getty personnel) do is supervise the work in an advisory capacity. Although it appears that a Getty foreman could remove a welder from the job site if he didn’t like his work, he couldn’t fire him from Ryder Construction Company.

We are of the opinion that the conversation between Ardoin and Watson concerning who would take care of the crew, in Ardoin’s absence did not have the effect of making the welder the borrowed employee of Getty. In this regard, we note that the explicit provisions of the contract then in effect between Ryder and Getty specifically provide that the workmen furnished by Ryder are to be considered the servants of Ryder and not of Getty. See Dugas v. Pelican Construction Co., Inc., 481 F.2d 773, certiorari denied, Union Oil Co. of Cal. v. Dugas, 414 U.S. 1093, 94 S.Ct. 724, 38 L.Ed.2d 550.

In Universal Engineers & Builders, Inc. v. Lafayette Steel Erector Corporation, supra, this state stated:

“. . . there is a presumption that the general employer retains control of and remains liable for the negligent acts of his employee. If the general employer seeks to avoid liability on the ground that his employee is the ‘borrowed servant’ of another, then the burden of proof rests upon the general employer to show that the relationship of master and servant which previously existed between the general employer and employee has been suspended, that a new such relationship has been created between the borrowing employer and that employee, and that such new relationship was in existence at the time the accident occurred.”

Ryder has not successfully carried its burden of proof as set forth above. Prom our careful reading of the record, we conclude that Blackard was under the control Ryder and was performing the work of Ryder at the time of plaintiff’s injury. Thus, we find that the jury was correct in its finding of liability on the part of Ryder.

LIABILITY OF GETTY

Three days prior to trial, with leave of the trial court, Getty filed an amended and supplemental answer to plaintiff’s petition. While maintaining that it is not liable to plaintiff, the answer states that in the event that liability is found, plaintiff’s remedy against Getty is limited to his rights and remedies in workmen’s compensation, as Getty is the “statutory employer” of plaintiff under LSA-R.S. 23:1061. In the alternative, the answer alleges that Getty, Ryder and Stooksberry were all independent contractors in relationship to each other and as a result, Getty is not responsible for the negligence of Ryder or Stooksberry or any of their officers, agents or employees.

Able counsel for plaintiff, in his brief before this court, complains that neither he nor counsel for Liberty (the intervenor) was served with a copy of this amended answer and had no knowledge that it had been signed by the trial court prior to the commencement of the trial. In this latter regard, we note that counsel for plaintiff did not move for a continuance and made no objection to the amended answer until the close of trial after the case had been submitted to the jury. LSA-C.C.P. Article 1151 clearly allows the filing of an amended answer at any time with leave of the trial court. LSA-C.C.P. Article 1154 provides that when issues not raised by the pleadings-are tried without objection by the parties, the pleadings shall be deemed amended to encompass such issues.

If counsel for plaintiff felt prejudiced by the late filing of the amended answer, he could have sought a continuance and/or objected to the introduction of the evidence at the time it was offered. He did not do so, and his objection at the close of trial comes too late. The defense raised by Getty’s amended answer was properly before the trial court.

In seeking to limit its liability to plaintiff, Getty relies on the provisions of LSA-R.S. 23:1061 which provides in pertinent part as follows:

“Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been Hable to pay if the employee had been immediately employed by him. . . . ”

In his written reasons for judgment denying Getty’s motion for a new trial the trial judge made the following statements:

“On the Section 6 defense, the Court felt to the contrary. The Court felt the decision on this question is patently and clearly in error and that Getty should have Judgment. .
The Court heard oral argument on all of the above, and has concluded that it is more expeditious to refuse both Motions for New Trial, and urge the Appellate Court to adopt this Court’s Reasons upon appeal.
Accordingly, the Court urges the Appellate Court to sustain the Section 6 defense as being the considered Judgment of this Court.”

Able counsel for plaintiff contends that Stooksberry was not engaged in any work activity that is a part of the trade, business, or occupation of Getty. Succinctly put, he advances the argument that since Getty is not in the business of testing wells, then well testing is not a part of Getty’s trade, business, or occupation.

We find no merit in this contention. In Foster v. Western Electric Company, Inc., 258 So.2d 153 (La.App. 2nd Cir. 1972) the court stated:

“A contractor’s activity has been held to be part of the principal’s trade, business, or occupation where the activity is a ‘normal and integral’ part of the principal’s business, (citations omitted)
In Arnold v. Shell Oil Company (5th Cir. 1969), 419 F.2d 43, 50, the court, after a detailed discussion of the Louisiana cases, stated, ‘the test seems ... (to be) whether the employer would have to hire some workers of its own to perform the activity if it were not performed by the independent contractor; in other words, whether the activity was essential to the employer’s business.’ The term ‘essential’ was also mentioned in Stansbury and Meche, supra.” (emphasis in original)

It cannot be realistically contended that Stooksberry was not engaged in the trade, business or occupation of Getty at the time of plaintiff’s injury. It is undisputed that Getty was engaged in the business of exploring for and producing oil and gas products. Stooksberry is engaged in the business of testing wells. Uncontradicted evidence adduced at trial is to the effect that well testing is a necessary and integral part of Getty’s business. It is also uncontested that plaintiff was acting in the course and scope of his employment at the time of his injury.

Under Louisiana jurisprudence, for a principal to be a statutory employer of a subcontractor’s employees, the latter’s employees must be engaged in an activity which is essential to the principal’s business. Liles v. Riblet Products of Louisiana, Inc., D.C.1973, 363 F.Supp. 358, affirmed 5 Cir., 509 F.2d 804, rehearing denied 5 Cir., 514 F.2d 721. Our research has disclosed the case of Jones v. Louisiana Oil Refining Corporation, 1925, 3 La.App. 85, holding that an employee of one engaged to haul material for an oil company is doing work connected with and part of the business of producing oil. In the instant case, plaintiff was engaged in hauling well testing equipment to Getty’s well site. This activity is essential to the business of exploring for and producing oil and gas products.

There are four essential elements which must be present in order for R.S. 23:1061 to be applicable:

(1) The relationship of principal-contractor (as distinguished from another type of relationship, i. e., vendor-vendee) must exist.

(2) There must be a contract between the principal and contractor for the execution by the contractor of the whole or any part of the work being undertaken by the principal.

(3) The “work” which is the subject of the contract must be part of the principal’s trade, business or occupation.

(4) The injured employee must be engaged in the execution of the “work” as described above.

LSA-R.S. 23:1061; Broussard v. Heebe’s Bakery, Inc., 263 La. 561, 268 So.2d 656 (1972); Liles v. Riblet Products of Louisiana, Inc., supra.

All of the required elements are present in the instant case. The record establishes a principal-contractor relationship and reflects the existence of a contract between Getty and Stooksberry whereby Stooksberry would engage in the activity of well testing. Well testing is an essential and integral part of Getty’s business, and thus is a part of Getty’s trade, business, or occupation. Plaintiff was employed in the execution of work that is essential to Getty’s business. It is necessary to bring certain well testing devices to the drill site. Plaintiff was engaged in the transportation of such devices at the time of his injury. We conclude that the transportation of well testing equipment to the well site is a part of Getty’s trade, business, or occupation.

Able counsel for Liberty, in his brief before this court, refers us to the recent case of Cain v. Witco Chemical Corporation, 341 So.2d 1220 (La.App. 1st Cir. 1977, writs refused La., 343 So.2d 1078, 1079, no error of law). In that case, a truck driver waiting to unload his cargo of acid at defendant’s place of business was severely injured when a pipe that was being used in unloading acid from another truck suddenly burst. Defendant sought to limit plaintiff to a remedy in workmen’s compensation, contending that the work of plaintiff was part of the trade, business or occupation of defendant. The court rejected this argument, stating:

“The record clearly establishes that the hauling of acid was a function which Witco required for the successful operation of its business but was also one which they did not desire to become involved in.”

This decision by our esteemed brethren of the First Circuit appears to conflict with the plain terms of LSA-R.S. 23:1061 and the jurisprudence interpreting same and for that reason we decline to follow same. Particularly, we find ourselves in disagreement with the above quoted language which appears to hold that the applicability of LSA-R.S. 23:1061 can be defeated simply by showing that the principal employer did not wish to become involved in a certain activity although that activity may be an integral part of the principal’s trade, business or occupation. Although we observe that writs were denied in Cain, supra, we do not feel compelled to follow such decision. Our Supreme Court has held many times that their refusal to grant writs, although persuasive, does not establish a legal precedent since the Supreme Court is not bound by its refusal of writs, to adopt law expressed in appellate court opinions. Garlington v. Kingsley, 289 So.2d 88 (La.1973); Colonial Pipeline Company v. Agerton, 289 So.2d 93 (La.1974).

We agree with the conclusion of the trial judge that the jury verdict holding Getty liable to plaintiff in tort is manifestly erroneous and that Getty’s “statutory employer” defense should be sustained.

Able counsel for plaintiff-appellee argues that a statutory employer should not be granted tort immunity, relying on Justice Tate’s concurring opinion in Broussard v. Heebe’s Bakery, Inc., supra. In that case, R.S. 23:1061 was found to be inapplicable because of the absence of a principal-contractor relationship. Even conceding, arguendo, that the Court’s decision in Broussard, supra, that R.S. 23:1061 grants tort immunity to the principal was dictum, we find that the rule expressed in the majority opinion reflects clearly established law. Benoit v. Hunt Tool Co., supra; Wofford v. Dow, 335 So.2d 536 (La.App. 1st Cir. 1976); Pullig v. Shreveport Packing Company, Inc. of Kansas, et al, 342 So.2d 1217 (La.App. 2nd Cir. 1977); Alexander v. State Through Dept. of Highways, 347 So.2d 1249 (La.App. 1st Cir. 1977); Jones v. Francis Romero, Inc., 345 So.2d 1286 (La.App. 3rd Cir. 1977) and cases cited therein.

QUANTUM

Both Ryder and Getty contend that the award of $45,000.00 to plaintiff is grossly excessive, and urge this court to reduce plaintiff’s award to $25,000.00. This issue is moot as it regards the liability of Getty in light of our holding that Getty’s liability to plaintiff is limited to workmen’s compensation. However, this issue is still properly before this court insofar as it affects the liability of Ryder.

Plaintiff suffered painful second degree burns on his face, hands and legs. These burned areas comprised a total of 16.5 percent of his body. His injuries caused plaintiff a great deal of humiliation and mental anguish. He would not allow members of his family to visit him in the hospital until ten days after the accident.

At trial, plaintiff exhibited his hands to the jury and described the extent of his pain and suffering. He described the course of treatment that he received while in the hospital, which included daily whirlpool baths and changes of his bandages. Dead flesh was cut from his hands with scissors. Every morning, his face was shaved with a special blade to prevent infection and the flesh would come off with the blade. He was unable to use his hands to feed himself and required assistance when he went to the bathroom. Photographs taken of plaintiff when he was in the hospital were shown to the jury.

After approximately two and a half weeks, plaintiff was discharged from the hospital. When he returned home, his wife continued to provide the same care for him as he was receiving in the hospital. The pain in his hands required him to sleep with both of his hands on pillows.

Plaintiff received treatment at the Louisiana Rehabilitation Center in Lafayette, Louisiana, for a period of approximately ten months. Plaintiff’s hands were very sensitive to the sun, which necessitated his wearing special gloves whenever he went into the sunlight. He was also required to wear a special glove when visiting friends, to prevent infection. Plaintiff testified that he was unable to go to ball games with his children, because this involved exposure to the sun.

Skin grafts, performed prior to trial by a plastic surgeon, had not corrected the condition of his hands. Plaintiff’s hands have discolored areas on them because of the burns. The cost of future cosmetic surgery to correct this condition is approximately $4,000.00. In any event, plaintiff’s hands will never look the way they did before the accident.

At trial, plaintiff testified that he still has pain in his hands. He can’t put any pressure on his hands or hold anything steady. He testified that the pain in his hands bothers him whenever he drives his truck.

In addition to his burn injuries, plaintiff also suffered damage to his ears in the explosion. He has suffered a high frequency hearing loss in both ears, and constantly hears a noise in his ears.

Plaintiff also testified that he received injuries to his teeth and gums when he clenched his jaw in pain. He also complains of injuries to his leg and elbow as a result of being struck by pieces of metal in the explosion.

In considering the issue of quantum before us we must bear in mind the case of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) wherein our Supreme Court stated:

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award, (citations omitted)
Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.” (citations omitted)

Considering the evidence in the record as to the extent of plaintiff’s injuries, we con-elude that the trier of fact did not abuse its “much discretion” in granting plaintiff an award of $45,000.00.

For the above and foregoing reasons the judgment of the trial court, insofar as it decrees Getty’s liability in tort to plaintiff, is reversed and set aside and it is now ordered that plaintiff’s suit against Getty Oil Company is ordered dismissed with prejudice. In all other respects the judgment appealed from is affirmed. Ryder and Hartford are cast for all costs at the trial level and on appeal.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.