author: HEARD, Judge.

text:
    Matthew J. WILLIS, Plaintiff-Appellee, v. STAUFFER CHEMICAL CO. et al., Defendants-Appellants.
    No. 6002.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied as to Stauffer Aug. 1, 1977.
    Rehearing Granted as to Aetna Sept. 23, 1977.
    See 349 So.2d 1390.

      Woodley, Fenet & Ranier by Drew A. Ranier, Lake Charles, for defendants-appellants.
    Stafford, Randow, O’Neal & Smith by Grove Stafford, Jr., Alexandria, for third party defendant-appellee.
    Gold, Hall, Hammill & Little by John F. Simon, Alexandria, for plaintiff-intervenor-appellee.
    Gravel, Roy & Burnes by Chris J. Roy, Alexandria, for plaintiff-appellee.
    Before HOOD, FORET and HEARD, JJ.
   HEARD, Judge.

Plaintiff, Matthew J. Willis, sued defendant, Stauffer Chemical Company and its insurer, Travelers Insurance Company, in order to recover damages for burns sustained when he was sprayed by sulfuric acid. By amended petition, he joined Aetna Casualty and Surety Company and Insurance Company of. North America, insurers of executive officers and executive employees, as parties-defendant. Stauffer Chemical Company and its insurer, Travelers Insurance Company, denied any negligence and in the alternative, plead contributory negligence on the part of the plaintiff. Defendants, Stauffer Chemical Company and Travelers Insurance Company, also filed a third party demand against Aetna Casualty and Surety Company and Insurance Company of North America, insurers of the executive officers of Cal-Kraft Paper Company, and the executive employees of the company. Aetna Casualty and Surety Company, workmen’s compensation insurer, for Cal-Kraft Paper Company, intervened to collect workmen’s compensation benefits paid to plaintiff. After trial on the merits a jury found that Stauffer’s negligence was the sole cause of the accident and awarded plaintiff one hundred sixty-six thousand and no/100 ($166,000.00) dollars. Stauffer and Travelers Insurance Company appealed and The Aetna Casualty and Surety Company, as intervenor, answered the appeal.

Plaintiff was employed as a millwright by Cal-Kraft Paper Company. One of the duties of Cal-Kraft millwrights was the unloading of railroad tank cars containing sulfuric acid. Cal-Kraft did not have a training program for millwrights that included instruction in the proper method of unloading sulfuric acid. The millwrights learned how to unload the acid on the job from more experienced workers.

On September 13, 1972, a railroad tank ear of acid arrived at Cal-Kraft from the Stauffer Chemical Plant in Baton Rouge. Plaintiff was on duty and proceeded to unload the car. He climbed to the top of the car and proceeded to remove the cap to the deep line or discharge opening of the car. As he did so, pressure caused the cap to blow off and sulfuric acid was sprayed onto the plaintiff. The cap struck the plaintiff, knocked him off the railroad car, and acid continued to flow out of the car and to fall on the plaintiff. A co-worker helped plaintiff to the caustic room, where a shower was located, so that the acid could be rinsed off the plaintiff; however, the shower was not working, and a hose had to be used to rinse the acid off. Plaintiff was taken to St. Francis Cabrini Hospital in Alexandria where he was treated for acid burns.

Plaintiff remained in the hospital nine weeks and underwent two operations. He received acid burns over more than thirty percent of his body, and suffered loss of eighty percent vision in his right eye.

Appellant contends that: (1) The jury erred in finding it guilty of negligence which caused the accident; (2) the jury erred in finding that the plaintiff was free from contributory negligence; (3) the jury erred in finding that the plaintiffs supervisors were free from negligence; (4) the judge erred in refusing to permit an expert witness to express an opinion as to the cause of the accident; and, (5) the jury erred in awarding excessive damages.

The first three of appellant’s contentions are based on the premise that the jury erred in evaluating the testimony given at trial. The Louisiana Supreme Court has 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 reasons 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 to only a cold record) but also upon the proper allocation of trial and appellate functions between the respective courts.” Canter v. Koehring, 283 So.2d 716 (La. 1973).

This court must therefore decide whether the jury in this case had a reasonable basis for the decision.

Appellant contends that the jury erred in finding that its negligence was the proximate cause of plaintiff’s injuries. Appellant states that the railroad tank car was not overfilled, and that it would have made no difference if it was. The evidence on the issue, most of which is given by Stauf-fer employees, is conflicting. The Bill of Lading (Ex. P-21) states that the car contained 9,779 gallons of acid. The Stauffer loading report indicates that only 9,745 gallons were contained in the car. Bruce Lusk, Assistant Production Superintendent at Stauffer’s Baton Rouge Plant, stated that the regulations of the Department of Transportation require that the car be loaded so that none or almost none of the acid is in the dome of the car. The reason for this is to prevent pressure from building and causing the acid to spray out of the car. However, Lusk also stated that even had the car been completely filled, there would have been no hazard had plaintiff properly unloaded the car. Lusk also stated that the acid was shipped at a higher temperature than the company would have liked. Defendant’s expert witness, Ernest Ludwig, stated that the higher temperature would be a factor in causing pressure to build within the tank car.

There was testimony given by the head loader at appellant’s Baton Rouge plant, Sidney Neterville, that the car was not overloaded according to the loading sheet, but he also stated that there was acid in the dome space, and that he had not measured the number of gallons he had placed in the car.

Ernest Ludwig, defendant’s expert witness, testified that the proper method of unloading the tank car filled with acid is to first vent the car, then open the deep line. He also stated on cross examination that the presence of a foreign substance in the tank car could have caused the acid to spew out as it did. Ludwig also stated that the temperature of the acid when it was loaded (110 degrees) could have contributed to an abnormal pressure build-up, resulting in the accident.

It would seem, from the testimony of these witnesses, that the jury could reasonably conclude that Stauffer’s negligence was the cause of the accident.

Appellant contends that the jury erred in finding that the plaintiff was free from contributory negligence. Contributory negligence is conduct by the plaintiff which involves unreasonable likelihood of harm to self. Helminger v. Cook Paint and Varnish Company, 230 So.2d 623 (La.App. 3rd Cir. 1970). In essence, did plaintiff have full knowledge of the danger in which he was placed and were his actions that of a reasonable man under the circumstances to secure his own safety. Pfister v. Phoenix of Hartford Insurance Company, 290 So.2d 362 (La.App. 4th Cir. 1974).

It was found that plaintiff was not wearing a safety mask or a slicker at the time of the accident. It was also shown that he did not vent the car before opening the deep line, which is the proper method of unloading. However, plaintiff had received only on-the-job training, and he was never told that he should wear certain clothing when unloading acid. Further, he testified that he had unloaded other cars in the same manner and had never had an accident. Under these circumstances, the jury had a basis for finding that his actions were those of a reasonable man under the circumstances.

The criteria to be used in determining whether or not an officer of a corporation is liable to an employee was set out by the Supreme Court in Canter v. Koehring, supra. The court must determine whether:

“1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.”
“2. This duty is delegated by the principal or employer to the defendant.”
“3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.”
“4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.”

Appellant contends that the plaintiff’s supervisors were negligent in two ways: (1) By not providing adequate instructions in how to handle sulfuric acid, and (2) by not insisting that plaintiff wear protective clothing when unloading acid, and in having a defective shower in the caustic room.

Charles C. Morrow, Cal-Kraft Safety Director, testified that the handling of sulfuric acid had never been dealt with at a safety meeting. He also testified that there had been a problem with the shower in the caustic room prior to the accident, and that he did not know its condition at the time of the accident.

Jack Singletary, plaintiff’s tour foreman, testified that he knew of no instructions being issued as to the correct method of unloading tank cars. David Johnson, Jr., Papermill Superintendent, stated that Cal-Kraft had never trained people to unload tank cars.

While the above testimony may prove general negligence on the part of Cal-Kraft, there is no proof that any of the supervisors named in the suit owed or breached a personal obligation to the plaintiff. Since proof of this nature is required by Canter before an officer may be held liable to an employee, the jury did not commit manifest error in refusing to hold them liable.

Appellant contends that the trial court erred in failing to allow its expert witness, Ludwig, to give his opinion as to the cause of the accident. As Ludwig later testified as to what, in his opinion, caused the acid to spew out of the car, it would seem he did testify as to what caused the accident.

Appellant contends that the awarding of $166,000.00 to plaintiff is an excessive award. Plaintiff received first, second and third degree burns over thirty-three percent of his body. He lost eighty percent of the sight of one eye. He also was hospitalized for nine weeks and underwent two operations. The burns destroyed his sweat glands, and he is no longer able to work in heat. Plaintiff was 53 years old at the time of the accident and was earning $3.59 per hour. In view of the injuries and the fact that plaintiff was unable to return to work, we feel that the judgment should be allowed to stand.

Intervenor-appellee Aetna Casualty and Surety Company requests that this court modify the judgment of the trial court to specify precisely what intervenor is entitled to by preference from the judgment awarded plaintiff. All parties stipulated that Aetna would be entitled to preferential payment of the compensation it had paid to or for plaintiff as weekly workmen’s compensation benefits and medical expenses. Intervenor now asks that this court spell out its preference to include all of the workmen’s compensation benefits and medical expenses paid after the stipulation, plus seven percent per annum interest on all benefits paid after that date, from the date each additional payment was made, until paid. In Hall v. Hartford Accident & Indemnity Co., 278 So.2d 795 (La. App. 4th Cir. 1973), the court allowed credit for all workmen’s compensation benefits paid, however, no interest was allowed.

We accordingly amend the judgment to grant intervenor insurer reimbursement for all amounts paid as workmen’s compensation benefits, including those paid subsequent to the date of the judgment of the trial court. As amended, judgment is affirmed. The costs of the appeal are assessed to defendants-appellants.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: CULPEPPER, Judge.

license: Public Domain

text:
    Melvin NIETTE et al., Plaintiffs and Appellants, v. NATCHITOCHES PARISH POLICE JURY et al., Defendants and Appellees.
    No. 6009.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 13, 1977.

      Watson, Murchison, Crews & Arthur, William P. Crews, Jr., Natchitoches, for plaintiff-appellant.
    Ronald C. Martin, Dist. Atty., and John S. Stephens, Asst. Dist. Atty., Natchitoches, for defendant-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   CULPEPPER, Judge.

This is a suit to enjoin the Sheriff, District Attorney and Police Jury of Natchi-toches Parish from enforcing a Parish Ordinance prohibiting the sale of alcoholic beverages in the unincorporated areas of Ward 3 of the Parish. The ordinance was adopted to effectuate the results of a local option election held in Ward 3 on January 15,1977.

The four plaintiffs, three of whom are qualified electors of Ward 3, were engaged in the sale of alcoholic beverages from business establishments located in the unincorporated areas of Ward 3 when the ordinance was adopted. They allege, among other things, that the election was not called and conducted in substantial compliance with the Local Option Statute.

The trial court rejected plaintiffs’ demand for injunctive relief. Plaintiffs appealed.

The essential issues on appeal are: (1) Was the election called and conducted in substantial compliance with the Local Option Statute? (2) Is the parish ordinance adopted to effectuate the election results valid and enforceable?

GENERAL FACTS

The general facts are undisputed. Ward 3 of Natchitoches Parish encompasses a total of three incorporated municipalities. They are Robeline, Powhatan and Provencal.

A verified petition containing the signatures of more than 25% of the qualified electors of Ward 3 of Natchitoches Parish was presented to the Natchitoches Parish Police Jury. The petition requested that a local option election be called in Ward 3, “including the municipalities of Powhatan, Provencal and Robeline”. The petition asked that the four propositions listed below be submitted to the qualified electors of Ward 3:

(1) Shall the sale of beverages of low alcoholic content containing more than three and two-tenths percent alcohol by weight and not more than six percent alcohol by volume be permitted?
(2) Shall the sale of beverages containing more than one-half of one percent alcohol by volume but not more than three and two-tenths percent alcohol by weight be permitted?
(3) Shall the sale of beverages of high alcoholic content containing more than six percent alcohol by volume for consumption on the premises be permitted?
(4) Shall the sale of beverages of high alcoholic content containing more than six percent alcohol by volume be permitted by package only and not for consumption on the premises?

The petition is in the form prescribed by LSA-R.S. 26:583.

At its regular meeting on February 17, 1976, the Natchitoches Parish Police Jury considered the petition and adopted a resolution calling a local option election. The caption of the election call follows:

“A resolution Ordering and Calling Local Option Elections to be held in Ward 3 of the Parish of Natchitoches, State of Louisiana, excluding the Incorporated village of Provencal” (Emphasis added)

In the following quotation from the body of the resolution calling the election, the Policy Jury again states that Provencal is excluded from the local option election in Ward 3:

“. . . BE IT RESOLVED . . . Section 1. That ... a local option election is hereby ordered to be held in Ward 3 of the Parish of Natchitoches, Louisiana, excluding the incorporated municipality of Provencal, Louisiana.” (Emphasis added)

The election was held on January 15, 1977. However, instead of one single election for the entire ward being held there were actually three separate sub-elections.

In one sub-election, all of the qualified electors of Ward 3, including those residing in the three incorporated municipalities, voted on the four propositions as to the unincorporated areas of the ward. In this sub-election, each of the four propositions was submitted in the following form: “Shall the sale of (alcoholic) beverages be permitted ... in the unincorporated areas of Ward 3 . . . ”. The returns of this election showed that all four propositions were rejected. Thus, the unincorporated areas of the ward were purportedly voted “dry”.

In the second sub-election, each of the four propositions was submitted to the qualified electors residing in Robeline. The four propositions were submitted in the following form: “Shall the sale of (alcoholic) beverages ... be permitted in the incorporated municipality of Robeline, Louisiana”. In this election, Robeline voted dry.

In the third sub-election, each of the four propositions was submitted to the qualified electors of Powhatan. The four propositions were submitted in the following form: “Shall the sale of (alcoholic) beverages . be permitted in the incorporated municipality of Powhatan, Louisiana.” In this election, Powhatan voted “wet”. The electors of Powhatan and Robeline voted twice in the January 15 local option election. They voted once to determine whether the unincorporated areas of the ward would be wet or dry. They voted a second time to determine whether their respective municipalities would be wet or dry.

The electors of the incorporated municipality of Provencal, on the other hand, voted only once. They voted only in the election held to determine whether the unincorporated areas of the parish would be wet or dry. The reason the electors of Provencal were not allowed to vote on the question of whether their municipality would be wet or dry is stated in the election call resolution. There, it is stated that a local option election was held in Provencal on August 14, 1976, and according to LSA-R.S. 26:582 no such election can be held by the same subdivision more often than once in every two years.

At its regular meeting on January 19, 1977, the Police Jury promulgated the results of the election and adopted an ordinance prohibiting the sale of each of the four classes of alcoholic beverages in only the unincorporated areas of Ward 3. The ordinance makes no mention of the municipalities of Robeline, Powhatan or Provencal.

This suit for injunctive relief was filed on January 20,1977. On January 25,1977, the sheriff of Natchitoches Parish advised all business establishments in the unincorporated areas of Ward 3 to stop selling alcoholic beverages.

Having stated the pertinent general facts, we move now to a determination of the legal issues presented.

AUTHORITY OF POLICE JURY TO CALL WARD-WIDE ELECTION

Parishes and municipal corporations are creatures of the State and are vested only with such powers as are delegated to them by the Constitution or legislature of Louisiana. The power to prohibit the sale of alcoholic beverages is a police power delegated to municipalities and parishes by the legislature. It may be exercised only after a majority of the qualified electors of the particular governmental subdivision have voted against the sale of alcoholic beverages in an election called and conducted according to law. The power to prohibit the sale of alcoholic beverages is properly exercised only if the Police Jury acts pursuant to the authority conferred by the Local Option Statutes, LSA-R.S. 26:581, et seq. McGee v. Police Jury of Caddo Parish, 225 La. 471, 73 So.2d 424 (1954).

The procedure for conducting ward-wide local option elections in wards which encompass both unincorporated areas and incorporated municipalities is stated in LSA-R.S. 26:582, 586.1 and 587. In pertinent part, R.S. 26:582 provides:

“In the case of such an election held on other than a parishwide basis the election shall be separately called and held, and the result separately binding for each incorporated municipality, and for the unincorporated balance of the ward. .
“No such election shall be held for the same subdivision oftener than once in every two years.”

The relevant portions of R.S. 26:587 and 586.1 contain substantially identical provisions.

In McGee v. Police Jury of Caddo Parish, supra, our Supreme Court construed the above quoted statutes in a factual context analagous to the present case. In McGee, the Police Jury of Caddo Parish called a ward-wide local option election excluding the incorporated municipality of Shreveport. The precise question was whether the Police Jury of Caddo Parish had authority under the local option statute to call the election for the unincorporated portions of the ward only. The court held the Police Jury had no authority to call such an election, and declared the election null and void. See also Hollan v. Police Jury of Webster Parish, 134 So.2d 132 (La.App.2d Cir. 1961); Stewart v. Livingston Parish Police Jury, 340 So.2d 1045 (La.App.1st Cir. 1976).

In McGee, the court provides the following explanation of R.S. 26:582 and 587:

“When these two provisions are considered together, they clearly indicate that the statute contemplates that, when an election is called on a ward-wide basis and the ward contains an incorporated municipality, the issue presented shall be separately determined by the electorate for the municipality and for the unincorporated balance of the ward. It certainly does not contemplate that two elections shall be held, one for the unincorporated portion of the ward and one for the municipality or incorporated portion of the ward, because this section plainly provides that the issue in a ward-wide election shall separately be determined for the municipality and for the unincorporated balance of the ward. In such a ward-wide election called by the police jury the sale of intoxicating beverages could be prohibited in the municipality if the majority of the voters so voted, and the unincorporated portion of the ward could by a majority vote permit such sale, or ‘vote wet’, or vice versa. The purpose of this provision relied upon by relators was simply to enable the issue in a ward-wide election to be separately determined for the incorporated and unincorporated portions of such ward.

Cartwright v. Police Jury of Bossier Parish, 106 So.2d 842 (La.App.2d Cir. 1958) provides this further explanation of the purpose of R.S. 26:582 and 587:

“The statutory provision requiring a separate determination of the vote separately binding upon the incorporated and the unincorporated portions of the ward respectively was clearly designed to protect and insure the right of the citizen of a municipality to preserve and enforce the will of the majority as to the separate determination and effect of such proposals within and with reference to the municipality itself.

Clearly, the present ward-wide election was not called or conducted in substantial compliance with R.S. 26:582 and 26:587 as construed by the McGee case. First, there were three separate elections rather than one election with a separate determination of the issue for the incorporated municipalities and the unincorporated bal- ■ anee of the ward. Second, the election call expressly excluded the incorporated municipality of Provencal. Third, under no circumstances should the electors of the incorporated municipalities have voted on the question of whether the unincorporated areas of the ward would be wet or dry.

Under the rationale of the McGee case, a police jury has no authority to call a local option election for less than an entire ward. Clearly, the Natchitoches Parish Police Jury exceeded its authority in calling a ward-wide election specifically excluding Provencal. Therefore, the local option election held on January 15, 1977 was ultra vires and is a nullity. Consequently, the parish ordinance adopted to effectuate the results of the election is without legal efficacy and is unenforceable.

EFFECT OF PRIOR LOCAL OPTION ELECTION IN PROVENCAL

Although it is not essential to our decision, counsel have discussed in their briefs the issue of the effect of the prior election in Provencal. On August 14, 1976, the electors of Provencal voted “dry” in a local option election called by the governing authority of Provencal. The McGee case holds that even if the municipality holds its own local option election at approximately the same time as the election in the remainder of the ward, and even though identical issues are submitted in each election, the ward-wide election is nevertheless invalid. Therefore, the results of the local option election held in Provencal in August of 1976 have no bearing on the present case.

The Police Jury excluded Provencal from the election on the grounds that R.S. 26:582 prevents the same subdivision from holding an election more often than once in every two years. A reading of the McGee case indicates the Police Jury misinterpreted the statute. In McGee, the court explained that the holding of two elections within two years would not violate the terms of R.S. 26:582 if one of the elections was called by the governing authority of the municipality and the other by the governing authority of the ward. The reason that two such elections would not violate the statute is that the municipality and the ward are not the “same subdivision” within the meaning of the statute.

Having concluded the Police Jury exceeded its authority in calling the election, we need not address the issues raised by alleged irregularities in the subsequent voting and conduct of the election.

VALIDITY OP PROHIBITION ORDINANCE

Where a local option election is declared null and void, as in the present case, the parish ordinance enacted to effectuate the results of the election is without legal efficacy. White v. Morehouse Parish Police Jury, 95 So.2d 356 (La.App.2d Cir. 1957) and cases cited therein.

DECREE

For the reasons assigned, the judgment appealed is reversed and set aside. Judgment is rendered herein in favor of plaintiffs declaring the local option election held in Ward 3 of Natchitoches Parish, Louisiana on January 15,1977 to be null and void. In addition, judgment is rendered herein declaring null and void the ordinance adopted by the Natchitoches Parish Police Jury on January 19,1977 to effectuate the results of the local option election. The costs in this Court and the trial court are assessed against the Natchitoches Parish Police Jury insofar as such costs may be taxed against a subdivision of the State of Louisiana.

REVERSED AND RENDERED.


author: WATSON, Judge.

text:
    Frank A. DODGE v. Jules PIERRE et al.
    No. 6019.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 13, 1977.

      Pugh, Boudreaux & Gachassin, by Nic-holls Pugh, Jr., Lafayette, for plaintiff-appellant.
    Davidson, Meaux, Sonnier & Roy, by L. Lane Roy, Lafayette, McBride & Brewster, by Robert McBride, Lafayette, for defendant-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   WATSON, Judge.

In the late afternoon of April 6, 1973, Larry Miller and his fiancée were driving east on Highway 98, the Cankton-Carencro Highway, enroute to the movies, when their 1969 Chevrolet ran out of gas. The car belonged to Larry’s father. Larry coasted past a driveway and started to turn in but changed his mind. He allowed his vehicle to roll to a stop on the westbound side of the road (the “wrong” side) with the wheels partly on the shoulder and partly on the asphalt surface of the highway. Since it was still daylight, Larry and his fiancée walked to the home of Alfred Comeaux, approximately half a mile away. Mr. Co-meaux had some gasoline and he and Larry walked back to the Chevrolet, leaving Larry’s fiancée at the Comeaux residence. While the pair were in the process of trying to start the car, Frank Dodge, plaintiff, came upon the scene in his 1966 Dodge automobile. The time was about 8:30 p. m. Dodge was headed east, but he pulled onto the westbound side of the road and parked immediately behind the Miller vehicle, leaving his lights on. Dodge took a railroad fusee from his vehicle and placed it a short distance in front of the Miller car near the center of the highway. Dodge then undertook to hold his flashlight so Comeaux could see to pour gasoline in the carburetor of the Chevrolet. Meanwhile, Miller had gotten into the driver’s seat to attempt to start the engine. Comeaux was standing on the ditch side of the Chevrolet and Dodge on the other side; the hood was up. Dodge was thus standing in the travelled portion of the westbound lane of the highway.

At this juncture, Jules Pierre, driving an older model Cadillac, drove upon the scene, headed west. He ran into the front of the Miller Chevrolet and struck Dodge, severely injuring him. Dodge was unconscious or irrational for about three weeks and remained in the hospital for forty days, being treated for two broken legs, one of which was badly crushed, and other injuries.

Dodge sued Jules Pierre, who was uninsured; Larry Miller and his liability insurer, Allstate Insurance Company; and State Farm Mutual Automobile Insurance Company, which had uninsured motorist coverage on vehicles owned by plaintiff.

Plaintiff asserted negligence on the part of Jules Pierre and Larry Miller and claimed benefits under his own uninsured motorist coverage because of Pierre being uninsured. Defendants answered, denying liability and pleading contributory negligence of Frank Dodge as a bar to his recovery.

The case was tried to a jury which found Jules Pierre, Larry Miller and Frank Dodge all negligent and found Dodge’s negligence to be a “proximate cause” of the accident. No recovery was allowed to plaintiff Dodge. (TR. 336)

From the adverse judgment, Frank Dodge has appealed, contending that he was not contributorily negligent and should not be barred from recovery. The issue to be resolved on appeal is whether there was manifest error in the jury’s conclusion that Dodge was negligent and is barred from recovery.

The facts are undisputed. The parties differ about what conclusions should be drawn from the fact that Dodge was standing on the travelled portion of the highway holding a flashlight when the Pierre car struck the Miller vehicle. The driver of the oncoming vehicle should have seen the fusee in the road, but, if Dodge had been standing on the ditch side of the Chevrolet or if he had observed the approach of the Pierre Cadillac and moved to a position of safety, his injuries would not have occurred.

The jury heard the witnesses and found Dodge negligent. The initial task of weighing the evidence belongs to the triers of fact, here the jury, and their conclusions are not to be disturbed unless manifestly erroneous. Wiley v. Travelers Insurance Company, 300 So.2d 555 (La.App. 3 Cir. 1974) writ refused 303 So.2d 187 (La.). The test is whether there is a reasonable eviden-tiary basis for the jury’s finding of negligence or in the present case, contributory negligence. Reed v. Henry, 343 So.2d 457 (La.App. 3 Cir. 1977). On review, we find no manifest error.

Counsel for plaintiff contends that Dodge was acting as a Good Samaritan and is entitled to the special consideration given by the law to those who undertake rescue activities. The doctrine that a rescuer occupies a special status in the law is well recognized in Louisiana. Gambino v. Lubel, 190 So.2d 152 (La.App. 4 Cir. 1966). However, it is not every person who is involved in a situation at the scene of an accident who enjoys rescuer status. In a scholarly review of cases involving the Good Samaritan doctrine, Judge Blanche of the First Circuit notes that these cases involve such elements as an unconscious victim, rescue of a person from an obvious peril, an element of danger or emergency such as a fellow worker exposed to an unknown noxious gas, or a rush to the hospital. See Stevenson v. Delahaye, 310 So.2d 651 at 653-654 (La. App. 1 Cir. 1975).

In the present case, it is questionable whether Dodge occupied a special status as a rescuer because he does not seem to fall into any of the categories noted above. Nor does his situation involve him with elements of emergency, immediacy, or danger akin to an urgent rescue. He was simply standing by the side of a stalled car holding a flashlight and could have very easily observed traffic approaching from either direction.

Counsel for plaintiff does not make any complaint concerning the failure to give special charges to the jury concerning the rescue doctrine. It does not appeal that such charges were requested, although it would have been proper for plaintiff to have requested and the trial court to have charged the jury concerning the law of rescue or that pertaining to a Good Samaritan. The jury could have been instructed that plaintiff might qualify as a rescuer and the legal results of such a status.

It is now too late to urge some special doctrine of law not requested or submitted to the jury and ask that the jury’s conclusions be held manifestly erroneous as a result of that special doctrine.

For the above reasons, the judgment of the trial court is affirmed and costs are taxed to appellant.

AFFIRMED.


author: GUIDRY, Judge.

text:
    WEST CALCASIEU PORT, HARBOR AND TERMINAL DISTRICT, Plaintiff-Appellee, v. CAJUN MARINE SERVICES, INC., and Alfred A. Devall, d/b/a Cal Cam Fleeting Service, Defendants-Appellants.
    No. 6027.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 26, 1977.

      Scofield, Bergstedt & Gerard, John B. Scofield, Lake Charles, for defendants-appellants.
    Planchard, Thompson & James by Glen A. James, Sulphur, for plaintiff-appellee.
    Stockwell, Sievert, Viccellio, Clements & Shaddock by Charles D. Viccellio, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

Plaintiff, West Calcasieu Port, Harbor Terminal District (hereinafter referred to as the “Port”) instituted this action for a declaratory judgment seeking to determine whether or not it had a valid contract of lease with the defendant Cajun Marine Services, Inc. (hereinafter referred to as “Cajun Marine”). The lease in question, which the Port had advertised for and accepted bids on, was to cover barge storage or fleeting facilities owned by the plaintiff. Also named as defendants were Alfred A. Devall d/b/a Cal Cam Fleeting Service (hereinafter referred to as “Devall”) and Devall’s Towing and Boat Services, Inc. (hereinafter referred to as “Devall Towing”). Cajun Marine answered generally denying the allegations of plaintiff’s petition and also filed a petition for a writ of mandamus to compel the Port to comply with the terms of the lease contract which allegedly existed between it and the Port. Devall and Devall Towing, as well as the Port filed various exceptions to the petition for a writ of mandamus and at a hearing on June 16, 1976 the petition for mandamus was dismissed as of non-suit. Cajun Marine has not appealed from the latter judgment. Devall and Devall Towing answered the principal suit alleging that the acceptance by the Port of the Cajun Marine bid was illegal and invalid, and that the action of the Port in later rescinding its acceptance of the Cajun Marine bid was proper. On November 18, 1976, after a trial on the merits, the district court rendered judgment declaring that there existed a valid and binding lease between the Port and Cajun Marine. Devall and Devall Towing filed a motion for a new trial. The motion for a new trial was heard on December 16, 1976 and was denied. Devall and Devall Towing have appealed. Neither the Port or Cajun Marine have appealed or answered the Devall appeals.

A review of the facts, the most part of which are undisputed, show that during 1970 the Port purchased property adjacent to the Intracoastal Canal south of Sulphur, Louisiana. Thereafter the Port dredged an inlet along the bank of the canal, the length of which was approximately 1000 feet with an inland width of approximately 300 feet. The dredged area or slip was intended for fleeting, i. e., temporarily parking barges which served the various industries in the Calcasieu area. After completing the dredging operation the Port entered into an agreement with Alfred A. Devall, d/b/a Cal Cam Fleeting Service, for the lease of the slip as a fleeting facility. This agreement, which simply provided for the lease of the slip, granted to the lessee the right of ingress and egress over the Port’s adjacent property. It further provided that the lessee had the right to make improvements at the slip and to maintain a movable office structure and watchman’s tower. In regards to the improvements the evidence reveals that Devall did some road work in the area as well as having installed “dead man” posts around the slip. A “dead man” is two partially buried creosote piling in-, twined with a cable, and is used to secure the docked barges. Devall also supplied trailers for use as offices and a watch tower. As per the agreement Devall could remove these movable structures at the termination of the lease.

The lease between Devall and the Port, which had a stated term of five (5) years, was entered into on May 18, 1971. The consideration to be paid by the lessee was a sum of money equal to forty percent (40%) of the gross revenues derived from all charges for the storage of barges or other vessels docked at the slip.

Prior to the expiration of the lease with Devall, Olaf Jacobsen, the Port Director, testified that he discussed with Devall the fact that the fleeting facility would be put up for bids when his lease expired on May 18, 1976. Devall at this time agreed to assist Jacobsen in preparing the bid instructions and specifications. Both Jacobsen and Devall indicated that they thought the bidding was a mere formality and that Devall would continue leasing the facility. Jacob-sen admitted telling Devall that he should bid just as he had done before, i. e., 40% of gross revenue. Bid instructions were prepared setting forth the minimum requirements as to the term, rental and other conditions of the lease.

On January 7, 1976 the board commissioners of the Port met in a regular meeting. The commissioners present were George A. Tuttle, G. E. Frenzel, W. L. Henning, and John A. Castillow. Also present at this meeting were Olaf Jacobsen and Glenn James, the Port attorney. At this time the board requested that Glenn James advertise the barge storage facilities for bid. On January 28th, February 4th, and February 11, 1976 a request for bids appeared in the Southwest Builder, a newspaper published weekly in Sulphur, Louisiana. Although the evidence is not clear it also seems that the advertisement appeared in the Lake Charles American Press on January 24th, 31st, and February 7, 1976. The advertisement, which related to the request for bids for proposals to lease the barge storage facility directed that the bids would be received at 1521 Cypress Street, Sulphur, Louisiana, at 2:00 p. m. on April 6, 1976. It further provided that bid instructions and specifications listing the minimum requirements for the bids could be obtained from the Port Director, Olaf Jacobsen. We here note that the bid instructions provided that the bids were to be received by April 16, 1976.

The evidence shows that Devall Towing prepared a bid which was thereafter picked up by Olaf Jacobsen some three or four weeks prior to April 6,1976. Olaf Jacobsen admitted that he knew the contents of the Devall Towing bid. Cajun Marine presented its bid at the meeting on April 6, 1976.

At 2:00 p. m. on April 6, 1976 the Port’s board members met in regular session. Commissioners present at the meeting included George Tuttle, John A. Castillow, Tony Palermo and Gordon E. Frenzel. Absent was commissioner William L. Henning. Also present were Olaf Jacobsen, Glenn James, and C. J. Fontenot of Cajun Marine. Alfred A. Devall was not present at the meeting. After discussing other matters it was moved that bids on the fleeting facility be opened. Two bids had been received, one by Cajun Marine and the other by Devall Towing. The two sealed bids were open and read aloud to the board members. The first bid opened was from Devall Towing who bid 40% of the gross revenues as a rental for the facility. The second bid was from Cajun Marine, who bid 56% of the gross revenue as a rental for the facility. Attached to the Cajun Marine bid was some 14 letters of reference from various financial institutions, as well as from companies in the oil and gas and transportation business.

We here note that the obvious difference in the two bids is the percentage of gross revenues to be paid as a rental. The bid instructions had designated that the minimum rental would be 40% of the gross revenues derived from charges for the storage of barges. The bid instructions also set forth several other requirements to be met by all bidders. To summarize the other requirements included: (1) A minimum 5 year term; (2) Minimum storage charge per day for barges; (3) Medium size drag line to be kept on premises; (4) Availability of a tow boat; (5) Employment of at least three shore men; (6) 35 H.P. tractor to be kept on premises; (7) Maintain an office on the premises; (8) Execute a hold harmless agreement in favor of lessor; (9) Carry indemnity insurance of not less than $100,-000.00/$300,000.00 for personal and property damage; (10) Complete and true records of all gross revenues, and permission to allow lessor’s representative to examine records; and (11) Preparation of a monthly statement of gross revenues on the 10th of each month, at which time lessee shall pay to lessor the percentage rental for the preceding month.

The bid of Devall Towing and Cajun Marine both guaranteed compliance with the above requirements.

After the bids were open and read Tony Palermo moved that the board accept the Cajun Marine bid of 56%. The motion was seconded by George Tuttle and after a majority vote it passed. The commissioners next met on April 13, 1976 for a regular scheduled meeting. The minutes of that meeting reflect that the Port Director, Olaf Jacobsen, reminded the commissioners that he had previously advised that the bids for the fleeting facility should have been taken under advisement. The board took no action in this regard. The commissioners again met on May 4, 1976 at which time W. L. Henning moved that the board rescind the motion passed at the April 6,1976 meeting which accepted the bid of Cajun Marine for lease of the fleeting facility. A discussion by the board members indicated that some members felt that they acted hastily in accepting Cajun Marine’s bid and that the matter should have been taken under advisement. Henning’s motion to rescind the acceptance was seconded by G. E. Fren-zel and after further discussion the Board President, John Castillow voted to break the tie in favor of Henning’s motion. The board then unanimously passed a resolution that its attorney, Glenn James, seek a court opinion as to the validity of its action in rescinding its acceptance of the Cajun Marine bid.

At the trial level and on this appeal, appellants contend that the action of the Port in accepting the bid of Cajun Marine was illegal, null and void because the applicable statutory requirements for the leasing of facilities owned by the Port were not complied with.

There are two public lease laws in Chapter 10 of LSA-R.S. Title 41. Part I, LSA-R.S. 41:1211-1221, is entitled “LEASES FOR GENERAL PURPOSES”. Part II, LSA-R.S. 41:1261-1269, is entitled “LEASES WITH RIGHT TO ERECT STORAGE AND TRANSPORTATION FACILITIES”.

At the trial of this matter Cajun Marine contended that the Public Leasing Law, Part I “Leases for General Purposes” and Part II, “Leases with the Right to Erect Storage and Transportation Facilities” were inapplicable. Alternatively, Cajun Marine contended, as well as Devall and Devall Towing, that Part I was inapplicable because of LSA-R.S. 41:1217(C) which provides:

“C. The provisions of this section shall not apply to port authorities of this state.” (Emphasis ours)

The trial court found it was clear from the use of the word “section”, rather than “part”, that the legislature intended only LSA-R.S. 41:1217 would not apply to port authorities, and that the remainder of Part I of Chapter 10 of Title 41 applied to leases granted by such bodies. The trial court in concluding that Part I of Chapter 10 of Title 41, rather than Part II of the same, was applicable to the instant matter stated thusly:

“At first blush it would seem that the leasing provisions of Part II of said Chapter 10 would be more applicable to the subject lease than Part I, because of the former’s reference to “storage and transportation facilities”. However, this court believes that Part I must be applied to all leases granted by the plaintiff, because of the conflict between LSA-R.S. 41:1266 and LSA-R.S. 34:2104 as to the maximum term of such leases. Also, it is difficult to see how the State Department of Wildlife and Fisheries can have any concern with the type of leases that may be granted by the plaintiff. This seems to be the case as to leases executed under Part II.
For these reasons, the court concludes that LSA-R.S. 41:1211 — 1221 is applicable to the lease involved in this suit.”

Although no issue is raised on appeal regarding the applicability of Part I, LSA-R.S. 41:1211-1221, we nevertheless, after reviewing the trial court holding, agree with its finding in this respect.

Devall and Devall Towing do not contest the applicability of Part I of the statute but contend that the trial court erred in finding that the requirements of the statute had been met by the Port. In particular they argue LSA-R.S. 41:1214 has not been complied with in that the lessor did not publish in the official journal of the Parish a description of the land to be leased; that the bid of Devall Towing was not completely secret; and, that the time in the published advertisement for receiving the bids was at variance with the bidding instructions. Secondly, Devall and Devall Towing contend that the trial court erred in finding an executory contract of lease between the Port and Cajun Marine; and, thirdly, the trial court erred in failing to recognize the legal right of the Port to reject the bid of Cajun Marine as provided in LSA-R.S. 41:1215.

In considering the defendant’s first contention we observe, as hereinabove mentioned, that the terms and conditions under which a public agency may lease property of the state is set forth in LSA-R.S. 41:1211 et seq.l LSA-R.S. 41:1211 defines as a “lessor” all departments or agencies of the state, or any other unit deriving its authority and powers from the state. LSA-R.S. 41:1212 permits the agency to lease the property over which it has title for “any legitimate purpose whatsoever . . . LSA-R.S. 41:1214, which grants the agency authority to initiate lease negotiations, provides:

“If the lessor determines that the lands in question may be leased, the lessor shall publish an advertisement in the official journal of the parish where the land is located setting forth a description of the land to be leased, the time when bids therefor will be received, and a short summary of the terms and conditions and purposes of the lease to be executed; provided that if the lands are situated in two or more parishes the advertisement shall appear in the official journals of all parishes in which the lands are located. The advertisement shall be published for a period not less than fifteen days and at least once a week during three consecutive weeks. The lessor may also send notices to those whom it may think would be interested in submitting bids for the leases.
The lessor may on its own initiative advertise for bids for any lease as provided herein, but without application therefor. The applications and bids provided for in this part shall be secret, sealed applications and bids and shall be forwarded through the United States mail to the lessor at its domiciled address.
The advertisements in accordance with this section shall constitute judicial advertisements and legal notices within the contemplation of Chapter 5 of Title 43 of the Louisiana Revised Statutes of 1950.”

As enunciated in Ellis v. Acadia Parish School Board, 211 La. 29, 29 So.2d 461 (La. 1947) the purpose of the Public Lease Law is namely:

“to give all persons a chance to bid on leases of the public lands, to prevent boards and other authorities from favoring one person over others, and to produce to the various agencies of the State named therein larger revenues by requiring competitive bidding for the leases. . ."

After reviewing the record in this matter we find the evidence reasonably supports the trial court’s finding that the Port substantially complied with all the requirements of LSA-R.S. 41:1214. Furthermore, we are of the opinion that to hold otherwise would be to completely thwart the purpose for which the Public Lease Law was enacted.

The trial judge in disposing of appellant’s first contention stated in his reasons for judgment as follows:

“Mr. Devall’s next complaint concerns the sufficiency of the description of the land to be leased in the advertisement, which is simply, “ , . . the barge storage facility on the property of the West Cal-casieu Port, Harbor & Terminal District on the Introacoastal (sic) Canal, Calcasieu Parish, La. . ”. Section 1214 requires the advertisement to set forth “ . . .a description of the land to be leased. . . . ”, but there is nothing therein to indicate the degree of certainty required. There is only one barge storage facility on the plaintiff’s property on the Intracoastal Canal in Calcasieu Parish, and it is obvious that all parties involved in this suit knew where it was located. We are not concerned here with a contest between third parties purchasing or leasing land on the faith of the public records, and no useful purpose would be served by requiring that degree of certainty in land descriptions necessary in such cases. The court concludes that under the circumstances presented the description in the plaintiff’s advertisement was sufficient. .
With regard to the statutory requirement of secrecy, that Mr. Devall’s bid was not entirely secret was due only to his willingness to let it be known. In this court’s opinion a bidder on a public lease or contract cannot proclaim what he is going to bid, place his bid in a sealed envelope to remain unopened until the prescribed time, and then complain that his bid is not secret. It certainly was secret insofar as Cajun Marine was concerned.
Mr. Devall also contends that the procedure followed by the district was defective, because of the conflict between the public advertisement and the written specifications as to the date for receipt of the bids. While this could have given rise to some confusion, it was not shown that Devall’s actions would have been any different whatever date the bids were opened. His bid was submitted voluntarily well in advance of either April 6 or April 16, 1976, and there is no proof in the record that he would have changed his bid had he known the bids were to be opened on April 6, rather than April 16. Since Cajun Marine’s bid was presented only a few minutes before the time advertised for the receipt thereof, it seems that it would have been difficult, if not impossible, for Mr. Devall to compute, re-write and submit another bid had he been present on April 6, 1976, after he learned that Cajun Marine was also a bidder.”

In addition to the above appellant raises for the first time on appeal the contention that the lessor, Port, failed to publish an advertisement in the official journal of the parish. We find no merit in this argument.

Defendants point to the affidavit of publication appearing in the record, Exhibit P-9, which indicates that advertisement was published in the Southwest Builder of Sulphur, rather than in the official journal of the Parish, the Lake Charles American Press. Admittedly Exhibit P-9 is the only affidavit of publication introduced into evidence however our review of the record, specifically the bid of Cajun Marine, indicates that the advertisement was also published in the Lake Charles American Press.

In summation, we find the evidence reasonably supports the trial court finding that the Port substantially complied with all the requirements of LSA-R.S. 41:1211-1214. Accordingly, the Port’s actions in this regard were not null and void for it is well settled that when such a statute is substantially complied with mere informalities and irregularities in the procedures employed by one attempting to comply with the statute do not necessarily render the whole proceeding null and void. Bell v. City of Shreveport, 234 La. 607, 100 So.2d 883 (La. 1958); Pleasant v. City of Shreveport, 179 So.2d 911 (La.App. 2nd Cir. 1965).

The two Devall defendants secondly contend that the trial court erred in finding an executory contract of lease between the Port and Cajun Marine. Basically the defendants take the position that there was no lease because all of the details and conditions thereof were not understood and agreed to by the parties; that these were to be negotiated subsequent to the bidding; and that these conditions would then be incorporated into a written lease which was subject to the approval of the board. We find no merit in defendant’s argument.

As set forth hereinabove, it is clear that the written bidding instructions, outlining the minimum requirements for the bids, contemplated all the necessary details and conditions intended by the Port. Furthermore, a comparison of the lease of May 18, 1971, Exhibit P-1, executed between Devall and the Port indicates that the bid instructions were taken almost verbatim from this lease. There is absolutely no evidence to show that the Port intended to add other terms and conditions to the proposed lease or that there was anything essential thereto which was left for the Port to negotiate. Additionally, the bid instructions did not provide that there would be no lease agreement until a written lease was signed by all parties. Based upon these facts the case of Parish of East Baton Rouge v. Industrial Enterprises, Inc., 340 So.2d 367 (La.App. 1st Cir. 1976), relied on by the defendants is clearly inapposite.

In Parish of East Baton Rouge v. Industrial Enterprises, supra, defendant’s bid was accepted by plaintiff on December 12,1973. The bid proposal specifically provided that a written contract was to be executed by the parties. After review of the defendant’s award by several governmental agencies, plaintiff mailed to defendant on September 26, 1974, a written contract for it to sign. At this time defendant informed plaintiff he would not sign the contract because as pursuant to the bid proposal, more than 180 days had elapsed without plaintiff’s acceptance and his offer was no longer viable. The court held that no contract existed between the plaintiff and defendant since the defendant’s offer was firm for 180 days and the acceptance by plaintiff with a written contract almost six months late was certainly not within a reasonable time. The inapplicability of this case to the instant matter is obvious.

Cajun Marine submitted its bid in response to and in conformity with the request for bids and bid instructions of the Port. The Port met at a regular scheduled meeting and at that time accepted by vote of its board the Cajun Marine bid. It is quite obvious that a valid contract of lease was formed. The requirements of LSA-R. C.C. Article 2670, i. e., the thing, price and consent were met.

We next consider Devall’s final contention that the Port had the legal right to reject the bid of Cajun Marine as provided in LSA-R.S. 41:1215. LSA-R.S. 41:1215 provides in pertinent part:

“At the date and hour mentioned in the advertisement for the consideration of bids, the bids shall be publicly opened by the lessor at its office. The lessor shall accept only the highest bid submitted to it by a person or persons who meet all of the conditions of this Part, except in the case where the lessor is a public benefit corporation as authorized and defined in Subsection B hereof. The lessor shall have the right to reject all bids. The lessor may execute any lease granted under such terms and conditions as it deems proper, or as otherwise provided in this Part. . . . ”

There can be no question but that LSA-R.S. 41:1215 does not grant unto the public body the right to reject a bid that has been formally accepted by it. The statute simply provides that the lessor shall accept the highest bid submitted, or reject all bids. To accept the argument advanced by defendants, that the lessor after accepting the highest bid could then reject the same, thereby voiding the confection of a binding lease, would lead to absurd results not intended by the statute. Gurtler, Hebert & Co. v. Orleans Parish School Bd., 251 So.2d 51 (La.App. 4th Cir. 1971); Disposal Systems Inc. v. Calcasieu Parish School Bd., 243 So.2d 915 (La.App. 3rd Cir. 1971).

For the above and foregoing reasons the judgment appealed from is affirmed. The costs of this appeal to be borne by Alfred A. Devall d/b/a Cal Cam Fleeting Service and Devall’s Towing and Boat Service, Inc.

AFFIRMED.

      . The West Calcasieu Port, Harbor and Terminal District is a public body which was created pursuant to LSA-R.S. 34:2101.

      . Alfred A. Devall is the President and majority stockholder of Devall Towing.


author: FORET, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. ALEXANDRIA VOLKSWAGEN, INC., Defendant-Appellee.
    No. 6030.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.

      D. Ross Banister, Chester E. Martin, Jesse S. Moore, Jr., Alva J. Jones, Johnie E. Branch, Jr., Bernard L. Malone, Jr., Baton Rouge, for plaintiff-appellant.
    Gold, Hall, Hammill & Little by Charles S. Weems, III, Alexandria, for defendant-appellee.
    Before HOOD, FORET and HEARD, JJ.
   FORET, Judge.

This appeal is limited to the single issue of the extent of severance damages resulting from an expropriation by plaintiff-appellant, State of Louisiana, through the Department of Highways, from defendant-ap-pellee, Alexandria Volkswagen, Inc. Pursuant to State Project No. 24-06-13, Federal Aid Project No. F-151(4), Fort Polk-Leesville Highway, on State Route La.-U.S. 171, on December 23, 1970, the Louisiana Highway Department expropriated a 0.143-acre tract in full ownership and a ten (10) by one hundred fourteen (114) foot right-of-way servitude along the front portion of the Alexandria Volkswagen, Inc. dealership, a 3.301-acre corner lot fronting La. Highway 71 (U.S. Highway 171) by 234.66 feet and adjacent to Louisiana Highway No. 1212 by 657.44 feet.

At trial, the parties hereto agreed as to the value of the land taken in full ownership and disputed as to the value of the servitude and the amount of severance damages. The trial court rendered judgment in favor of the defendant-landowner in the amount of $1,000.00 as the value of the servitude and $30,000.00 as the value of severance damages. (This severance damage award included $10,000.00 diminution in value of the subject tract and $20,000.00 as cost to cure the parking problem created by the taking.)

Normand Terry and Perry E. Futrell, expert appraisal witnesses testified on behalf of the expropriator Highway Department, and M. C. Bledston, III, manager of defendant dealership, two operators of other dealerships, and Hab Monsur, expert appraisal witness, testified on behalf of the landowner, Alexandria Volkswagen, Inc. All of the witnesses agreed that the subject property sustained severance damages as a result of the taking. All three appraisal witnesses opined that a reduction in parking area (four customer parking spaces and six spaces in the used car area) and congestion in the service lanes of the dealership were results of the taking. The witnesses for the defendant-landowner also listed the following as results of the taking: (1) loss of visual appeal and merchantability of the used car lot because its elevation would be some three feet above the highway; (2) congestion and traffic in service lanes as a result of customer parking between the used car lot and the showroom; (3) constant confusion for the public over the location of the customer parking area because it would be mixed in with both the used car and new car display area; (4) unmanageable visual obstruction of the used car area from the showroom; (5) increased and unacceptable distance of used car area from the showroom; (6) clogging of used car traffic lanes because of customers parking in access routes; (7) general loss of maneuverability and ease of access around the building.

However, the methods of determining the extent of severance damages differed as among the expert appraisers. While both Futrell and Terry'were of the opinion that the highest and best use of the subject tract remained a small car dealership, Monsur opined that it had changed to that of a retail establishment. Futrell and Terry proposed the construction of a parking area sixty-five feet in width and one hundred twenty feet in length on the property of defendant-appellee south of and adjacent to the subject tract. Monsur proposed the moving back of the dealership showroom.

Futrell employed a before and after appraisal technique. He determined that due to a loss in parking space and proximity of the showroom to the new right-of-way, the dealership had diminished in value by $10,-000, and “corroborated” that finding with a cost to cure analysis. His analysis included a cost to fill, a cost to pave, and the cost of, the adjacent area. (He estimated that $12,-173 was the cost of a new parking area.)

Terry used only a cost to cure approach in determining the amount of severance damages. His approach included only the cost to fill and the cost to pave, but did not include the value of, the adjacent acreage. He estimated that it would cost $9,400.00 to cure the loss of parking as a result of the taking.

Defendant-appellee’s witness Monsur employed two methods of appraisal in arriving at a figure of the extent of severance damages. In appraising the before-the-taking status of the subject tract, he used a market value approach, and in the after-the-taking status, an income approach. (Mon-sur arrived at a figure of $87,115.00 as severance damages.) Employing the cost to cure approach to appraise the parking proposal of plaintiff, Monsur calculated that $20,000.00 would be required to replace the parking spaces lost as a result of the expropriation.

A landowner whose property has been expropriated for public purpose is entitled to just and adequate compensation in an amount sufficient to place him in as good a position pecuniarily as he would have been had his property not been taken. Article 1, Section 4 La.Const. of 1974. This just and adequate compensation includes severance damages which are defined as:

“The difference between the market value of the remaining property immediately before and immediately after the taking.” State, Dept. of Highways v. Denham Springs Development Co., Inc. 307 So.2d 304, 307 (La.1975); State, Dept. of Highways v. Hoyt, 284 So.2d 763 (La. 1973); State v. Nisbet Properties, Inc., 309 So.2d 398 (La.App. 2 Cir. 1975); State, Dept. of Highways v. Wax, 295 So.2d 833 (La.App. 1 Cir. 1974), writ denied 299 So.2d 800, 802.

Severance damages are not presumed; they must be proved “with legal certainty by a preponderance of the evidence”. State, Department of Highways v. Denham Springs Development Co., Inc., supra, 307 So.2d at page 307, and cases cited therein. The most commonly accepted and used approach for determining the amount of severance damage is the before and after method of appraisal.

“However, under certain exceptional circumstances the ‘before and after test’ will not adequately compensate the owner for his damage and the courts will resort to the ‘cost to cure’ method of computation, not for the purpose of restoration, but to gauge the diminution in market value as would be reflected in a lower purchase price that a well-informed buyer would be willing to pay ”. State, Department of Highways v. Neyrey, 260 So.2d 739 (La.App. 4 Cir. 1972), 260 So.2d at pages 744 and 745. (Emphasis added.)

We are of the opinion that the award of $20,000 made by the trial court as “cost of curing” damages caused to the defendant-landowner by the taking is manifestly erroneous under the facts and the law.

The “cost to cure” method of determining severance damages is never used except as a method of decreasing the amount of severance damages which would be due under the before and after rule.

It is well settled that “cost to cure” is a proper measure of severance damages only when it does in fact place the landowner in as good a position as he enjoyed prior to the taking, and is less than the decrease in market value otherwise caused; or where the reduction in market value approach will not adequately compensate the landowner. State, through Department of Highways v. Neyrey, supra; State, Department of Highways v. Salassi, 244 So.2d 871 (La.App. 1 Cir. 1971); State, Dept, of Highways v. Wax, supra.

At trial of this case, it was stipulated between the parties that the value of the land taken was $3,150.00, and that the improvements, including parking spaces, on the land taken had a value of $5,300.00, for a total of $8,450.00. The trial court made an award in its judgment, in accordance with the said stipulation. We are of the opinion that if we should require the plaintiff to pay the defendant an additional sum for the cost of replacing the parking spaces taken, we would be requiring the plaintiff to pay defendant twice for the same taking. For these reasons, we are of the opinion that the trial court erred in the awarding of $20,000.00 for cost of cure, and hold that the defendant-landowner is not entitled to anything for cost of cure inasmuch as he has already been adequately compensated for the taking of improved parking spaces.

The trier of facts, the trial judge, accepted the figure of $10,000 as diminution in value as a result of the taking. As this ruling is substantially corroborated by the facts and expert testimony in this case, it shall be affirmed. State, Dept, of Highways v. Denham Springs Development Co., Inc., supra; Louisiana Power & Light Co. v. Churchill Farms, Inc., 292 So.2d 183 (La. 1974).

In accordance with the foregoing reasons, the judgment of the trial court is amended to reduce its award from $39,450.00 to $19,-450.00. In all other respects the judgment of the trial court is affirmed.

Costs of this appeal are to be borne by defendant-appellee, Alexandria Volkswagen, Inc.

AMENDED AND AFFIRMED.


author: DOMENGEAUX, Judge. GUIDRY, Judge,

text:
    Wilson SMITH, Plaintiff-Appellee, v. CAMERON CREWS, INC., and Insurance Company of North America, Defendants-Appellants.
    No. 6042.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Nov. 4, 1977.

      Thomas L. Bergstedt, Scofield, Bergstedt & Gerard, by Thomas L. Bergstedt, Lake Charles, for defendants-appellants.
    Jones, Jones & Alexander by J. B. Jones, Jr., Cameron, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Wilson Smith, brought this suit against his employer, Cameron Crews, Inc., Cameron Boat Rentals, Inc., Mobil Oil Corporation, and Insurance Company of North America (Cameron Crews’ insurer), under the Jones Act, 46 U.S.C.A. Sec. 688 and the general maritime law. During the course of the trial the suit was dismissed insofar as defendants Mobil Oil Corporation and Cameron Boat Rentals, Inc., were concerned. Additionally, plaintiff dismissed his maintenance and cure and unseaworthiness actions.

Plaintiff made the following allegations against defendants:

1. The failure to give plaintiff a pre-em-ployment physical as is the alleged custom of the industry;

2. The hiring of plaintiff without an operator’s license;

3. The violation of U. S. Coast Guard regulations; and

4. Failure to provide a physically competent crew.

The suit was tried before a jury, and it rendered a general verdict for the plaintiff and against defendants in the amount of $150,000.00 with interest. Defendants appealed. We affirm the judgment of the jury.

The plaintiff, Wilson Smith, was the captain of the motor vessel Miss Judy. He had worked aboard the Miss Judy for two years and four months without incident. While on the Miss Judy, plaintiff awoke the morning of February 28,1974, with symptoms of a light stroke. His shipmate, McKinley Sa-voie, discovered that Smith was ill and called for a helicopter to take him back to shore. Mr. Smith suffered permanent brain damage and especially his speech was severely impaired.

The M/V Miss Judy is a steel, diesel powered, offshore crew boat, built in 1963, having a registered length of 61.1 feet. The boat was owned by Cameron Boat Rentals, Inc., and was manned by a sister Louisiana corporation, Cameron Crew Boats, Inc. Mobil Oil Corporation had chartered the boat to service Mobil’s stationary platforms located in the Gulf of Mexico offshore of Cameron Parish, Louisiana. The vessel’s intended purpose was to carry water, heavy cargo, and passengers from dock site to the platform. At the time of plaintiff’s injury the vessel was being used to transport a Cameron Construction Company crew of six men, plus Mobil’s pumpers in the vicinity of its offshore platforms. The vessel was also required to stand by at sea, laying off a platform that was used as sleeping and working quarters for Mobil employees or subcontractors.

The vessel possessed a required Certificate of Inspection issued by the U. S. Coast Guard on June 23, 1972, effective through June 23, 1975. This Certificate of Inspection required a crew of two ocean operators and two deckhands. A manning exception provided that when operating not more than twelve hours in any twenty-four hour period the vessel might be operated with only one ocean operator and one deckhand.

Captain Smith did not have an ocean operator’s license. In order to get an ocean operator’s license, one must pass a written test and a physical test. Captain Smith’s duties were 7 days on and 7 days off.

During the approximately two and one-half years of plaintiff’s employment with Cameron Crews, Inc., he was examined and treated for various problems on at least three occasions by Dr. Cecil Clark, Public Health Service physician in Cameron. Pri- or to his employment in August of 1967, Doctor Clark was called to the Smith home to attend the plaintiff. Doctor Clark referred Wilson Smith to Dr. George Anderson, a cardiologist from Lake Charles, who hospitalized him for a few days and sent him back to Doctor Clark with a recommendation that plaintiff stop using tobacco, alcohol, and coffee. Mr. Smith’s condition was diagnosed at that time as an irregular beating of the heart.

Doctor Clark continued to treat Wilson Smith for this condition through the end of 1967 and through February of 1968. In February of 1970, Smith was hospitalized for pneumonia.

Doctor Clark was a certified Public Health Service physician, and Smith obtained treatment by signing his own master’s certificate of service as master of the motor vessel Emily. Doctor Clark at all times knew Smith was working in the Gulf of Mexico.

Smith was hired by Cameron Crews, Inc. in September of 1971. He worked for a few months as deckhand and subsequently was made alternate captain of the motor vessel Miss Judy. Smith’s stroke occurred on the morning of February 28,1974. Doctor Clark diagnosed Mr. Smith’s condition as a cerebral vascular accident as opposed to a “full blown stroke”. His diagnosis was subsequently confirmed by Doctor Foster, a neurosurgeon from Lake Charles. Doctor Foster testified that plaintiff had arteriosclerosis, and that many things contribute to arteriosclerosis, which is one cause of stroke. Doctor Clark testified that he would have failed plaintiff on a physical exam in 1971 because of plaintiff’s high blood pressure. That was the same year that plaintiff was employed by Cameron Crews. Doctor Clark testified, as did Doctor Foster, that many things contribute to stroke or hear attack. He said that the stress of the job in the Gulf of Mexico was one contributing factor among many, including family history and diet. Plaintiffs cardiac problem first appeared in 1967 and he took medication off and on for the following years.

It is proper to point out at the outset of our discussion that the scope of our review in Jones Act cases is the same as that accorded the Federal Appellate Courts. See Trahan v. Gulf Crews, Inc., 260 La. 29, 255 So.2d 63 (1971). This court stated in Hocut v. Insurance Company of North America, 254 So.2d 108 (La.App. 3rd Cir. 1971) that:

“In Trahan v. Gulf Crews, Inc. supra, we quoted from Rogers v. Missouri Pacific Railway Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, thusly:
‘It is no answer to say the jury’s verdict involved speculation or conjecture * * * Only where there is a complete absence of probative facts to support the conclusion reached does a reversible error appear * * * the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.’ (Emphasis added) Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916.
The scope of our review of this case, then, is severely limited by federal law and we shall confine ourselves within those limits in examining the jury’s verdict.”

We deem it also advisable to point out language from a recent U. S. Court of Appeal, Fifth Circuit, decision, Landry v. Two R. Drilling Co., 511 F.2d 138 (1975).

“The second point requires only a brief answer as well. The burden on the plaintiff to prove proximate cause in actions based on the Jones Act and general maritime law is very light. Indeed, the most noted commentators in the field have called it ‘featherweight.’ Gilmore & Black, Admiralty (1957), § 6-36, p. 311. The jury in such cases is entitled to make ‘permissible inferences from unexplained events,’ Johnson v. United States, 333 U.S. 46, 49, 68 S.Ct. 391, 92 L.Ed. 468 (1948), whether the case is brought under the Jones Act, id., or under general maritime law, Alaska Steamship Co., Inc. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 per curiam (1954). The Supreme Court has repeatedly said that it is not the function of the court in Jones Act and analogous cases to ‘search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that proof gives equal support to inconsistent and uncertain inferences.’ Tennant v. Peoria & P.U.R. Co., 321 U.S. 29, 35, 69 S.Ct. 409, 412, 88 L.Ed. 520 (1944); Schulz v. Penn. R. Co., 350 U.S. 523, 526 n. 8, 76 S.Ct. 608, 100 L.Ed. 668 (1956).”

Plaintiff alleges that there exists a custom of providing employees with pre-em-ployment physicals before allowing them to work in the Gulf of Mexico. We find no evidentiary basis for this custom.

Plaintiff also argues that the violation of Coast Guard regulations is negligence per se. We agree. See Keman v. American Dredging Company, 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382. In Kernan, the Coast Guard regulation required that a lamp be carried not less than eight feet from the water. The rule was to prevent collisions. The lantern in question was carried only three feet above the water and eventually ignited gasoline on the river, resulting in the burning and subsequent death of the seamen aboard the tug. The fire was held to be caused by a violation of a Coast Guard regulation rule which had nothing to do with fire prevention. The recovery was allowed because the violation played a part, no matter how small, in bringing about the seamen’s death.

The Coast Guard regulations in question here are as "follows:

“§ 390a. Inspection — Frequency and requirements
(a) The Secretary shall, at least once every three years, cause to be inspected each passenger-carrying vessel, and shall satisfy himself that every such vessel (1) is of a structure suitable for the service in which it is to be employed; (2) is equipped with the proper appliances for lifesaving and fire protection in accordance with applicable laws, or rules and regulations prescribed by him; (3) has suitable accommodations for passengers and the crew; and (4) is in a condition to warrant the belief that it may be used, operated, and navigated with safety to life in the proposed service and that all applicable requirements of marine safety statutes and regulations thereunder are faithfully complied with.
§ 390b. Rules and regulations
In order to secure effective provision against hazard to life created by passenger-carrying vessels and to carry out in the most effective manner the provisions of sections 390-390g, 404, and 526f of this title, the Secretary shall prescribe such rules and regulations as may be necessary with respect to design, construction, alteration, or repair of such vessels, including the superstructures, hulls, accommodations for passengers and crew, fittings, equipment, appliances, propulsive machinery, auxiliary machinery, and boilers; with respect to all materials used in construction, alteration, or repair of such vessels including the fire prevention and fire retardant characteristics of such materials; with respect to equipment and appliances for lifesaving and fire protection; with respect to the operation of such vessels, including the waters in which they may be navigated and the number of passengers which they may carry; with respect to the requirements of the manning of such vessels and the duties and qualifications of the operators and crews thereof; and with respect to the inspection of any or all the foregoing. May 10, 1956, c. 258, § 3, 70 Stat. 152.
§ 390c. Certificate of inspection — Issuance prerequisite to operation; exception
(a) No passenger-carrying vessel shall be operated or navigated until a certificate of inspection in such form as may be prescribed by the regulations promulgated by the Secretary under the authority of sections 390-390g, 404, and 526f of this title, has been issued to the vessel indicating that the vessel is in compliance with the provisions of said sections, and the rules and regulations established hereunder; except that when a foreign passenger-carrying vessel belongs to a nation which is signatory to the International Convention for Safety of Life at Sea, a valid safety certificate issued to the vessel pursuant to the Convention may be accepted in lieu of the required certificate of inspection.
Compliance
(b) Any passenger-carrying vessel to which a valid certificate of inspection has been issued pursuant to this section shall during the tenure of the certificate be in full compliance with the terms of the certificate.
Surrender; withdrawal for noncompliance
(c) A certificate of inspection issued pursuant to this section may at any time be voluntarily surrendered and shall be withdrawn and suspended or revoked for noncompliance with any applicable requirements of sections 390-390g, 404, and 526f of this title or regulations thereunder. May 10, 1956, c. 258, § 4, 70 Stat. 153.”

As stated before, the Miss Judy was required under the Certificate of Inspection to be operated by licensed operators. This was a duty owed by the employer under the above Regulations; that is, to be in full compliance with the Certificate. A licensed operator must take a physical exam in order to be qualified to receive his license. Wilson Smith was not such a licensed operator. This is a clear violation of the Coast Guard regulation herein, and this violation is negligence per se.

As aforementioned, the Certificate of Inspection required aboard the vessel at all times not one, but two Ocean Operators and two deckhands, except when operating not more than twelve hours in any twenty-four period. This vessel never operated with more than two crew members. Evidence in the record indicates that at times additional crew members were needed. We find this to be an additional violation of regulations and therefore negligence on defendants’ part.

However, more is required to hold defendants liable in this case. It must be shown that the negligence, which has been proved, actually caused or contributed to the injury which plaintiff sustained. We find that this negligence was indeed a contributing factor to plaintiff’s stroke. Doctor Clark testified as follows:

“Q. ... In your opinion, did that duty that he had out at sea play any part in bringing about his cardiovascular accident on February 28th, 1974?
A. Well, I said that I wouldn’t pass him in the physical in ’71 because of his blood pressure, nor actually because the heart problem before he had the tachycardia as a captain on the vessel. The blood pressure you have being elevated, being on the water, and the marine thing is very stressful type condition over a period of time. There’s many factors that contribute to any type of stroke or heart attack, and several factors, stress is one of them, obesity, hypertension, cholesterol . we know that they’re going to be doing the type work, you know, that they're under a constant stress, and that is why I examine for so many companies ... he, due to the stress and his physical condition and the work load involved, he should not have been in the Gulf.
Q. You think this is a contributing factor so far as—
A. Yes. Everything I’ve mentioned is a contributing factor.
Q. Was this duty in the Gulf a contributing factor?
A. Yes, the stress of it, plus the others.”

It is obvious that Doctor Clark believed the stress and strain of plaintiff’s job contributed to his disease. There is also testimony by other sea captains that work in the Gulf of Mexico was exceedingly stressful at times; that high seas were often encountered as were rough winds; and that the strain of being on call often twenty-four hours a day was very stressful. We find that this and other evidence was a sufficient basis upon which the jury could make its finding.

QUANTUM

Mr. Smith married his wife in 1952. On the date of his injury he was 58 years old. They have eight children, five of which are living at home. The youngest child is 7 years of age. Mr. Smith’s earnings for the year 1972 was $10,464.80. In the following years he maintained this approximate earning level. His life expectancy was sixteen years from the date of the accident. The jury awarded $150,000.00 to Mr. Smith for pain, suffering, loss of wages, permanent disability, and medical expenses, both past, present, and future. As aforesaid, plaintiff’s stroke caused permanent brain damage and his ability to speak is severely impaired. He is unquestionably totally and permanently disabled. We find no error in this award.

In these Jones Act cases contributory negligence is applied to mitigate damages. See the Jones Act, 46 U.S.C.A. § 688. It can be argued that plaintiff’s failure to disclose his illness to his employer amounted to contributory negligence. See Mroz v. Dravo Corporation, 429 F.2d 1156 (3 Cir. 1970). The jury was instructed as to contributory negligence, and could have found that plaintiff was in good faith in not making this disclosure. Alternatively, the jury might well have taken into consideration plaintiff’s failure to disclose when deciding quantum.

For the above and foregoing reasons the jury award is affirmed, costs to be assessed against defendants-appellants.

AFFIRMED.

GUIDRY, J., dissents and assigns written reasons.

GUIDRY, Judge,

dissenting.

The majority finds that defendant violated two Coast Guard regulations the substance of which are fully set forth in the majority opinion. I agree that the record affords a reasonable factual basis for such conclusion. However, defendant’s failure to comply with these regulations, although negligence per se, cannot be considered a causative factor of plaintiff’s injury unless the record establishes that job-related stress caused or contributed to plaintiff’s injury. The majority finds a sufficient basis in the record for the jury’s finding of connexity. I respectfully disagree.

I am unable to find in the record any evidence which would support the conclusion that, in terms of reasonable medical probability, plaintiff’s light stroke was caused by job-related stress. The record reflects that several years prior to plaintiff’s cerebral vascular accident he suffered a heart attack. For sometime prior thereto and continuously thereafter plaintiff suffered from hypertension. During the 2V2 year period of plaintiff’s employment with defendant he was treated for his hypertension and other various problems by his physician, Dr. Cecil Clark. Each time, during this period, that Dr. Clark had occasion to treat plaintiff he released him to return to sea duty and never once advised plaintiff, as his patient, that the ordinary and usual stress of sea duty might cause him to suffer a stroke. It is true that the medical experts who testified admitted that unusual stress can contribute along with many other facts, i. e., obesity, hypertension, cholesterol, etc., to a heart attack or stroke, however, none of the medical experts testified that job-related stress was a cause of plaintiff’s cerebral vascular accident. Further, I am unable to find in the record any evidence that plaintiff was subjected to any particular job-related physical or mental stress. Although there was but one Ocean Operator aboard the Miss Judy, in violation of Coast Guard regulations, there is no evidence that this fact caused any stress or strain on plaintiff. For the most part the Miss Judy, although out in the Gulf of Mexico for several days at a time, never worked more than twelve hours at a time and usually less. During the remainder of the 24 hour period she was tied up to a platform standing by, during which period the crew had no duties. Plaintiff’s cerebral vascular accident occurred sometime during the night of August 27, 1974 while he was asleep. He and others only became aware of his condition after he awoke on the following morning. Clearly he was not under any stress or strain at the time of accident.

In summation, my review of the record, in light of the limited review allowed appellate courts in such cases (See Trahan v. Gulf Crews, Inc., 260 La. 29, 255 So.2d 63 (1971); Hocut v. Insurance Company of North America, 254 So.2d 108 (La.App. 3rd Cir. 1971)), fails to disclose to me any evidence which would support the conclusion that any negligent act or acts of defendant caused or contributed even slightly to plaintiff’s injury. For these reasons I respectfully dissent.

      . In addition to the matters discussed in the body of this opinion, defendants cite the refusal of the judge to submit the case to the jury on special interrogatories as error. However, defendants admit and we agree that there is no legal requirement in either federal or state courts to give special interrogatories to the jury. Therefore this assignment of error is without merit.
      Defendants cite as error the following jury charge:
      “It is not a valid defense to a suit like this one to contend that the injured seaman assumed the risk of his employment if the injury resulted in whole or in part from negligence of the employer, its agents, employees or servants.”
      They argue that assumption of risk was not pleaded or argued and that this charge would only confuse the jury. However, in DeLima v. Trinidad Corp., 302 F.2d 585 (2nd Cir. 1962), the court held that where assumption of risk is not pleaded as a defense and is not at issue, the court should honor the plaintiffs request to charge that the assumption of risk doctrine is not applicable to plaintiff.