author: CHIASSON, Judge.

text:
    Henry LONDON, Jr. v. Orrell H. RYAN, Jr., et al.
    No. 11457.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Nov. 4, 1977.

      William W. Miles, Christopher E. Lawler, New Orleans, for plaintiff-appellant Henry London, Jr.
    Ben W. Lightfoot, Baton Rouge, for defendant-appellant Weaver.
    Joseph F. Keogh, Baton Rouge, for defendant-appellant City of Baton Rouge.
    Leon Gary, Jr., Baton Rouge, for interve-nor-appellant Candace B. London.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Henry London, Jr., plaintiff-appellant, brought this action against Orrell H. Ryan, Jr., Frederick Gernant, William L. Weaver, the City of Baton Rouge, W. W. Dumas, Mayor of the City of Baton Rouge, and Rudolph F. Radcliffe, Chief of Police of the City of Baton Rouge, defendants, to recover damages for injuries sustained as a result of being struck in the back by a bullet on December 8, 1972, at approximately 8:00 P.M., in the Rendezvous Lounge. Originally joined as defendants by the plaintiff, but voluntarily dismissed by him, were Dianne Nobles, Joe Louis Williams, and the Rendezvous Lounge.

Candace B. London, intervenor-appellant, the plaintiff’s ex-wife, intervened in the suit seeking to recover one-half of any award received by the plaintiff which would accrue to the community of acquets and gains formerly existing between them.

Following a trial on the merits the District Court rendered judgment in favor of the plaintiff and against William L. Weaver and the City of Baton Rouge, appellants, in the amount of $387,650.31 plus interest and costs; in favor of the intervenor and against William L. Weaver and the City of Baton Rouge in the amount of $37,349.69; and in favor of Orrell H. Ryan, Jr., Frederick Gernant, W. W. Dumas, Mayor of the City of Baton Rouge, and Rudolph F. Radcliffe, Chief of Police of the City of Baton Rouge, appellees, and against the plaintiff and the intervenor dismissing their demands.

The plaintiff has appealed this decision contending that:

“1. The decision of the Trial Court, dismissing the plaintiffs claim against Frederick Gernant, Orrell H. Ryan, Jr., the Mayor of East Baton Rouge, and Chief of Police, Baton Rouge, Louisiana, was erroneous and contrary to the evidence presented during the trial of this matter and against the laws of the State of Louisiana.
“2. The damages awarded were so minimal as to represent an abuse of discretion on the part of the Trial Court, and should be amended so as to award Henry London all damages to which he is entitled.”

The intervenor has appealed contending that:

“1. The decision of the Trial Court, dismissing the plaintiff’s claim against Frederick Gernant, Orrell H. Ryan, Jr., the Mayor of East Baton Rouge and the Chief of Police, Baton Rouge, Louisiana, was erroneous and contrary to the evidence presented during the trial of this matter and against the laws of the State of Louisiana.
“2. The damages awarded herein were so minimal as to represent an abuse of discretion on the part of the Trial Judge and should be amended so as to award to Henry London and to Candace London all of the damages to which they are entitled. The allocation of the award between Henry London and Candace London should be corrected to conform to the proof at trial under the guidelines set forth by the Louisiana Supreme Court in West v. Ortego, 325 So.2d 242 (1975).”

William L. Weaver and the City of Baton Rouge have appealed contending that:

“1. The Trial Court erred in holding that William L. Weaver was guilty of negligence.
“2. The Trial Court erred in holding that Henry London, Jr. had assumed no risk and was free from contributory negligence.
“3. The Trial Court erred in failing to take into consideration the defendants ability to respond in damages when fixing the award.”

The District Court in reaching its decision made the following findings of fact:

“(1) Williams was anxious for the police to arrive as he had requested the barmaids and later plaintiff to call the law.
“(2) Gernant and Ryan’s unit arrived almost simultaneously with Weaver’s unit and both were parked on the south side of Dayton Street about forty feet apart.
“(3) In addition to the Dayton Street door, the Rendezvous Lounge had a door which faced Scenic Highway and another door at the rear of the building.
“(4) A car was parked next to the Rendezvous and several more were within its general vicinity.
“(5) Weaver issued no instructions and gave no orders but had ample opportunity to do so had he so desired, as he was no farther than sixty feet from the south door to the Rendezvous.
“(6) Gernant was a relatively new officer with experience primarily in traffic investigation and Ryan was new and had just completed his police academy training, and the experience possessed by these officers was well known to Weaver, their supervisor.
“(7) Gernant and Ryan made no investigation as to what was transpiring inside the bar prior to converging upon the Dayton Street entrance and there was no way for those inside the bar to know of their arrival at that time.
“(8) As Gernant opened the door, he uttered words to the effect, ‘Police — come on out,’ but this warning was not heard inside the bar and there was no response from inside the Rendezvous at that time. “(9) Joe Louis Williams, upon seeing the door open and not knowing it was the police, fired the first shot.
“(10) Gernant returned the fire with his shotgun.
“(11) Ryan then emptied his service revolver into the semi-darkness, and struck plaintiff in the back.”
(Written Reasons for Judgment, pgs. 7-8).

The above findings of fact were based on testimony and evidence adduced at the trial on the merits. The Trial Judge summarized this testimony and evidence as follows:

“Some of the important facts are not disputed: Earlier in the evening of December 8,. Joe Louis Williams, manager of the Rendezvous Lounge, was in an apartment behind the lounge with a girlfriend when someone whom Williams believed to be Alfred Hayes, a/k/a ‘Walkie-Talkie,’ fired several gunshots into his apartment. A running gun battle ensued and Williams left the apartment and went inside the lounge, where more shots were apparently exchanged between the two. Williams instructed Joyce Richardson and Viola Davis, barmaids, to leave the lounge and call the police. At about the same time, plaintiff was on his way to the hospital to visit his aunt, with his cousin Mario London, and had decided to stop for a beer en route. Mario was driving and pulled up to the Rendezvous Lounge and parked near the Dayton Street entrance and waited in his car. Plaintiff went inside to get a beer to go and Williams asked him to call the police, which he did from a pay telephone near the bar. When plaintiff did not come out, Mario went in and was told what happened. In the meantime, Joyce Richardson and Viola Davis had hurried down to the Red Top Bar, which is located at Powhattan and Weller, several blocks to the south of the Rendezvous and had called the police. Officers Gernant and Ryan were patrolling in their police unit and received a dispatch to investigate a signal 45 (shooting) at the Rendezvous. When the call was received, they were near Delmont Village about ten or twelve blocks northeast of the Rendezvous on the Plank Road. The dispatch was received at approximately 7:45 p. m. Ger-nant was driving the unit and proceeded west to Scenic Highway and then came south on Scenic Highway. He was not familiar with the Rendezvous, passed it, and was waved down by Joyce Richardson and •Viola Davis who were walking back towards the Rendezvous. He made a U-turn, went north on Scenic, and made a right turn onto Dayton Street and parked across the street from the Dayton Street entrance to the Rendezvous. At the same time, Lieutenant William Weaver, Supervisor of the Winbourne station, was also on patrol and responded to the same signal 45 and proceeded to the Rendezvous as a back-up. He parked his unit directly across Dayton Street, in a vacant service station lot near Gernant’s unit. The facts which occurred after the police arrived at the Rendezvous are hotly contested.

“Weaver testified that he had heard several gunshots as he passed the front of the Rendezvous Lounge along Scenic; that as he pulled into the parking lot Gernant and Ryan pulled up onto Dayton Street and went to the south door of the Rendezvous; that Ryan was carrying a .38 Special and Gernant had a shotgun; that neither his unit nor Gernant’s unit arrived with sirens on or bubble lights flashing; that he heard no gunshots after he parked his vehicle; that he heard Gernant say, ‘Police — open up;’ that he heard no response to Gernant’s command; that as Gernant opened the door a shot was fired from the inside of the building; that the officers returned fire; that he was standing by a fence in line with the south door about sixty feet from Ger-nant but never issued an order to either of them, notwithstanding the fact that Ger-nant looked back to him before he opened the door; that he saw the flash from the bullet which came from the bar and which then went through a window in the service station, triggering a burglar alarm; that when the shot came from the bar, he started toward the front door, which was on Scenic Highway and went through the outside door and into the vestibule which had swinging doors; that he was familiar with the layout of the Rendezvous because he had been there before; that he peered through the swinging doors, observed a black male at the end of the bar and ordered him out of the building and was told, Tm out of shells;’ that he found a .357 Magnum pistol under the bar; that he then heard someone say, ‘Somebody help me, I’m shot,’ and it was plaintiff lying on the floor with a chair on top of him.

“Frederick Gernant testified that he had been on the police force for two years; that was trained primarily in traffic investigation but after he had been assigned to the Winbourne substation, had handled both traffic and criminal matters; that it took him about three to five minutes to get to the scene after receiving the dispatch; that he heard shots coming from the vicinity of the bar as he was driving south on Scenic Highway; that he saw Weaver as he parked and knew he was there; that he saw no cars on Dayton Street or pedestrians when he stopped; that he got out on the driver’s side of his car; grabbed his hat and shotgun and approached the Rendezvous south door which was closed; that Ryan was coming from behind him; that he heard no more gunshots after he stopped his vehicle; that as he opened the door, he announced, ‘Police — come out with your hands up;’ that as he peered around into the doorway a shot rang out and he could see its flash; that he shot back with the shotgun.

“Orrell Ryan testified that he had been on the police force for seven or eight months and had just finished his course at the Baton Rouge Police Training Academy; that they proceeded in a southerly direction and passed Dayton Street but heard shots as they neared Gordon Street, a block south, and a black female stopped them by waving to tell them of the shooting; that Gernant made a U-turn, proceeded back to the north on Scenic and took a right on Dayton, parked on the south side of the street, almost directly across from the south door; that there were pedestrians in the vicinity but he did not remember if there were any other vehicles; that Gernant grabbed a shotgun and trotted for the door; that he got out, saw three pedestrians walking east on Dayton and told them to come over and asked them if they had heard any shooting and was told they had not; that by that time Gernant was at the door; that he hurried across the street to assist; that Gernant told him to get out of the doorway, which he did; that Gernant then reached across and pulled the door open while saying, ‘Police — come out with your hands up;’ that Gernant edged himself into the open space of the doorway and was fired upon; that Gernant fired his shotgun and the recoil knocked him off balance; that he looked in, saw a figure crouching at the northwest corner of the bar and stepped in the doorway and emptied his police revolver into the sémi-darkness; that he dropped back to reload, at which time a black male came out of the bar; that he went into the bar and found plaintiff lying on the floor, having been shot in the back. Both Ger-nant and Ryan testified that a voice from within the bar told them to, ‘Come on in, I’m out of shells,’ before any shots were fired.

“Joe Louis Williams testified that after plaintiff had called the law, Mario London walked in the Dayton Street entrance and that plaintiff and Mario each got a beer after he told them to get their own beer; that Roy Aron, a/k/a ‘Caboose,’ walked in with another person to see what the commotion had been about but then left by way of the rear door of the lounge; that shortly thereafter the Dayton Street door opened and he saw a shotgun barrel and a pistol, heard nothing — neither a voice nor a knock — whereupon he fired two or three shots because he thought Walkie Talkie had returned; that plaintiff was between him and the Dayton Street door, to his right, at the time the door opened; that he had been convicted or found guilty of many crimes, including drug charges and attempted murder; that he had bullets left when he was arrested; that he was not charged with any crime resulting from this incident and received his pistol back from the police after several days had expired.

“Mario London testified that plaintiff was his first cousin; that he had parked his vehicle on Dayton Street between the Dayton Street door and Scenic as plaintiff got out of the car to get the beer; that when plaintiff did not come out, he went in to see what was keeping him; that he looked in, saw no one, heard no music and told plaintiff, ‘Let’s go,’ but plaintiff responded that the police were coming and wanted to wait; that the Dayton Street door flew open; that he heard nothing, and then shooting started; that he ran out of the bar through the Scenic Highway door and headed in a northerly direction because he was being shot at; that he heard a pistol shot first and then the loud boom of n a shotgun.

“Roy Lee Aron , testified that he was at the Red Top Lounge at Weller and Powhattan two blocks away when two barmaids from the Rendezvous came in and told of a shooting and called the police; that he was curious so he left the Red Top and went down to the Rendezvous and saw plaintiff and Mario at the bar and Joe Louis behind the bar with a gun in his hand, that Alvin Albert and Charles Williams were with him but they did not stay long and left the back way, walking east on Dayton Street, when a policeman came up and told them to stop. “Plaintiff testified he had been in the Rendezvous on one past occasion; that he got out as Mario parked and entered through the Dayton Street door; that he saw no one at the bar and asked if anyone was there, whereupon Joe Louis appeared with a gun in his hand and told him he had been shot at and asked him to call the police; that he did so from the pay telephone which was nearby; that about that time Mario came in and he asked Mario to sit down; that Caboose and several others came in, talked for a few minutes and left by the rear door; that he and Mario sat down at the bar and were talking when the shooting started; that Joe Louis stayed behind the end of the bar and he was to Joe’s right; that he heard no sound from the outside and whoever opened the door did not identify himself; that Mario started running toward the Scenic Highway door; that he also started running and got about three or four steps before he fell; that he heard a lot of shooting but did not know who shot first.

“Joyce Richardson returned from the Red Top and was across the street from the Rendezvous by a police car which was parked on Dayton Street. She said she heard the police say words to the effect, ‘Throw your weapons out;’ that a policeman was pulling on the door; that when the door opened a shot was fired which hit the burglar alarm, then more shooting started.

“Viola Davis indicated that she was across the street by the tree when the police arrived; that one officer opened the Dayton Street door and then shots rang out.

“Additional testimony, which the court feels is also very significant, indicated that during the investigation made immediately after the shooting, Ryan indicated that he fired six shots at a fleeing subject. Sergeants A. Andrepont and R. Martin, detectives for the Baton Rouge Police Department, investigated the shooting but were not called by the defense as witnesses. They were listed as ‘may call’ defense witnesses on the pretrial order. Weaver indicated that while Gernant was in the act of opening the door he heard words like, ‘Police—come on out,’ and just as the door opened, the shot came out. Weaver indicated there was not enough time for him to give any instructions, but acknowledged that Gernant looked back to see where he was. Weaver also acknowledged that his purpose in going to the scene was to supervise but that he arrived too late. He further acknowledged that Ryan was new on the force and Gernant was a relatively new officer.”

A considerable amount of conflicting testimony was given in this case. The Trial Judge in making his findings of fact considered this conflicting testimony, made reasonable evaluations as to the credibility of witnesses and drew reasonable inferences of fact. Because the evidence adduced furnishes a reasonable factual basis for the Trial Judge’s findings, this Court will not disturb those findings.

Based on his findings of fact the Trial Judge concluded that the negligence of William Weaver and Joe Louis Williams was the proximate cause of the plaintiff’s injuries.

Weaver, as the senior police officer present and the person in charge, was under a duty to properly and adequately supervise his subordinates, Orrell Ryan and Frederick Gernant, two relatively inexperienced officers. At the time of the shooting Weaver was a police lieutenant with twenty years of experience who knew that Gernant was a patrolman with two years experience, most of which was in the traffic division, and that Ryan was a patrolman with less than six months active duty. Weaver’s failure to provide proper supervision in a situation involving firearms created a grave risk of serious bodily injury to innocent parties at the scene. The Trial Judge found as a fact that, although Weaver had ample opportunity to issue instructions and provide supervision, he failed to do so. Weaver informed Gernant and Ryan by radio that he would provide their backup. He also arrived at the Rendezvous Lounge at the same time as Gernant and Ryan and was close enough to them to hear what was said by them. In addition, Weaver had a PA system on his patrol car over which he could have given orders. As the Trial Judge recognized, all Weaver had to do was cross the street and take command and the situation would have been avoided.

In failing to provide supervision Weaver breached a duty he owed the plaintiff and the other parties present. This breach of duty by Weaver allowed a situation to develop which resulted in the plaintiff being shot in the back by Weaver’s subordinate. Weaver’s failure to act was a legal cause of the plaintiff’s injury, and he is therefore, under Civil Code Article 2315, obliged to repair it.

The Trial Judge concluded that Ger-nant and Ryan were not at fault in the shooting because they were responding to an emergency situation which they did not create and could not control. The doctrine of sudden emergency holds that:

“One who suddenly finds himself in a position of imminent peril, without sufficient time to consider and weigh all the circumstances or best means that may be adopted to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.”
Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385, 389 (1972).

The Trial Judge erred in his application of this doctrine. In the present case the sudden emergency in which Gernant and Ryan found themselves was brought about by their own negligence. The police cars arrived at the scene with their sirens and bubble lights off. Gernant grabbed a shotgun, got out of the police car and headed straight for the Dayton Street entrance of the Rendezvous Lounge. Ryan got out of the police car, stopped a pedestrian but did not question him, and then followed Gernant to the door. Gernant and Ryan took positions to either side of the door. Gernant opened the door, which swung toward him, and yelled, “Police — come on out.” His shout was not heard inside the lounge. Gernant peered around the door with the shotgun in his hands. A shot was fired from inside the lounge and the police officers returned the fire, Gernant at a muzzle flash and Ryan at a fleeing figure. The plaintiff was struck in the back by a bullet from Ryan’s pistol.

The sudden emergency occurred when Joe Louis Williams, who feared the return of Walkie-Talkie fired a bullet through the open door. Joe Louis Williams fired because he saw the door swing silently open and a shotgun and pistol come in. If Joe Louis Williams had known it was the police he had summoned at the door, and not Walkie-Talkie, he would not have fired. Therefore, the sudden emergency was brought about by the actions of Gernant and Ryan.

Gernant and Ryan were under a duty to take proper precautions in approaching the scene of a reported shooting. Their failure to investigate the situation before proceeding to the door and their failure to adequately announce their presence breached this duty and created a grave risk of serious bodily injury to persons at the scene. Ger-nant and Ryan could have made their presence known by arriving with their siren on and bubble light flashing, by using the PA system on their car, or by making sure that they were heard when they yelled at the door. They could have investigated the situation by questioning the pedestrian they stopped or by using the Scenic Highway entrance, which entrance would have allowed them to see inside the lounge. Their failure to take any of the above steps was negligence and the legal cause of the sudden emergency and the injury to the plaintiff. Therefore, they are liable under Civil Code Article 2315.

The Trial Judge concluded that the Mayor and Chief of Police of the City of Baton Rouge were not liable because the plaintiff failed to prove negligence on their part. In general, public officers such as mayors and police chiefs are not liable under the doctrine of respondeat superior for the actions of their subordinates. Taylor v. City of Alexandria, La.App., 261 So.2d 92 (3rd Cir. 1972). The negligence alleged as a basis for personal liability on the part of Mayor Dumas and Chief Radcliffe was their failure to provide adequate training and instruction for officers Gernant and Ryan. Gernant’s and Ryan’s training consisted of classes at the police academy and on the job training under the supervision of a more experienced officer. As the Trial Judge concluded, there is nothing in the record to show that these officers were inadequately or improperly trained. Therefore, there is no liability on the part of the Mayor and the Police Chief.

The defendants argue that, even if their negligence was the cause of the plaintiff’s injury, the plaintiff, by staying in the Rendezvous Lounge, assumed the risk of being shot and cannot, therefore, recover for his injury.

In order to assume a risk one must knowingly and voluntarily encounter a risk which caused him harm. It is necessary that the party understand and appreciate the risk involved and accept the risk as well as the inherent possibility of danger because of the risk. Mclnnis v. Fireman’s Fund Insurance Company, La., 322 So.2d 155 (1975). There is nothing of record to indicate that the plaintiff was aware of, or appreciated the risk of being shot by the police. The plaintiff’s actions were those of a good citizen, he called the police to report a shooting and then waited for them to arrive. He did not, by calling the police, assume the risk of being shot by them.

The Trial Judge in discussing the amount awarded the plaintiff stated:

“As a result of this gunshot wound, plaintiff has been permanently rendered a paraplegic. He has sustained awesome and grievous injuries which are irreversible. He is completely paralyzed from the chest down. He will never walk again. He will continue to encounter urinary tract problems caused by infection resulting from an indwelling catheter, along with major skin complications and rashes resulting from wearing the appliance which collects his urine. He has a neuro-genic bladder. The catheter causes skin problems because the skin around it cannot breathe properly. Dr. William Wall, a urologist, was of the opinion that plaintiff must have constant medical supervision and control to monitor these infections which are directly associated with his paralysis and that he should have x-rays and kidney studies at least once a year and seen by a urologist twice a year. Dr. Wall also indicated that the infection had destroyed his left testicle which produces sperm and male hormones.
“Dr. L. P. Laville has treated plaintiff for the general breakdown of his skin since September 5, 1975. Plaintiff suffers from open skin ulcers. His paralysis aggravates these ulcers because he cannot feel them. Dr. Laville felt that plaintiff would need professional help to treat these skin problems for the rest of his life.
“Inasmuch as plaintiff has absolutely no control over his urinary and bowel functions, he must be turned'in bed at least once every night and his bed sheets are changed every night. This will continue for the rest of his life. He has lost all sexual functions.
“Dr. Robert H. Myer, a physician from the Texas Institute of Research and Rehabilitation who specializes in physical medicine and rehabilitation, has treated plaintiff for some time. Dr. Myer indicated plaintiff has the following side effects from his paraplegic condition: (1) urinary tract infections; (2) skin breakdown; (3) thrombophlebitis; (4) bowel infunction; (5) spinal cord phantom pain, which limits sitting time; (6) epidermini-tis; (7) some respiratory muscles paralyzed; and (8) loss of sexual function. Dr. Myer also indicated that plaintiff perspires profusely above the T-4 level because he cannot sweat below that level. He is on six different medications which he must take daily for the rest of his life. “Dr. Myer characterized plaintiff as very pleasant, cooperative and anxious for rehabilitation but every time they get ready to prepare him for vocational training and make significant progress along these lines, there is some medical setback which delays rehabilitation. Dr. Myer felt that plaintiff must make a minimum of one visit per year to the clinic for a week as an inpatient, which will cost about $1,000.00 a visit.
“Plaintiff’s past medical expenses have been frightening and total $33,025.10. Future medical expenses can very reasonably be estimated at $5,000.00 per year based upon prior experience. The court feels that an award of $150,000.00 for past and future medical expenses is reasonable.
“The plaintiff was gainfully employed by Crown-Zellerbach as a brake handler and had been employed as such since 1969. At the time of the accident, he was making $3.84 per hour. If he had been employed on the date of trial, his wage would have been $4.78 per hour.
“The testimony indicated that as of the date of the trial, plaintiff had past lost wages totaling $25,026.00. Ray Biscoglia, an actuary, felt that plaintiff had a working life expectancy of 33.2 years and felt that at an hourly rate of $4.78, the present value of future wages was $224,-960.00 after discount. The court is not bound by such computations but feels that plaintiff was a productive citizen with a good job prior to his disability and that an award of $125,000.00 for past and future wages will do substantial justice.
“Additionally, plaintiff is entitled to recover general damages for his pain and suffering, mental anguish, disability and all the other losses which he has sustained, which are incalculable. The court feels that $150,000.0,0 will do substantial justice for these injuries.”
(Written Reasons for Judgment, pgs. 11-13).

“Before a Court of Appeal can disturb an award made by a trial court the record must clearly reveal that the trier of fact abused its discretion in making its award.” Coco v. Winston Industries, Inc., La., 341 So.2d 332 (1976). The record contains evidence as to the plaintiff’s past medical expenses, expected future medical expenses and possible future medical expenses. There is also evidence as to the plaintiff’s past rate of pay and the present rate of pay for the job he held before his injury. The record details the plaintiff’s past, present and expected future mental and physical condition. The Trial Judge considered all of these factors and the testimony of an expert actuary in determining the amount of' the award granted plaintiff. As to quantum we find no abuse of discretion by the Trial Judge.

In discussing the award made to the in-tervenor the Trial Judge stated:

“Candace B. London, plaintiff’s former wife, has intervened herein, claiming a one-half interest to any damage award accruing to the community of acquets and gains formerly existing between them. At the time of this shooting, plaintiff was living separate and apart from his wife. On August 28, 1973, he filed suit against her for a divorce based on living separate and apart for more than two years. No adjudication of fault was made and on October 5,1973, a judgment of final divorce was awarded to plaintiff. Plaintiff’s loss of wages from the date of the accident until August 28, 1973, was determined to be $6,373.00. Special medical expenses accruing prior to the dissolution of the community on August 28, 1973, are itemized as follows:
(1) Our Lady of the Lake Hospital and physician serv- , ices rendered therein $ 1,750.00
(2) Texas Institute for Rehabilitation and Research 13,717.70
(3) Dr. Pelosof, Dr. Spira, Dr. Cardus, Dr. David, Dr. Guilfith, and Dr. Harrington 831.00
(4) Sitter in hospital 150.00
(5) Medical supplies and appliances, 1973 1,064.49
(6) Drugs, 1973 ($640.00 and $173.20) 813.20
$18.326.39
“No evidence was presented as to a community property settlement, satisfaction of this community indebtedness or the like. Without some showing that these medical expenses still exist as a claim against the community, the court feels intervenor is entitled to recover one-half of said medical damages. The court will entertain plaintiff’s motion to reconsider this award in the event that these expenses have not been previously satisfied out of community assets.
“Intervenor’s claim for one-half interest of any general damages which had accrued prior to the date of the dissolution is governed by the recent pronouncement in West v. Ortego, 325 So.2d 242, where the Supreme Court held:
‘. . . where a husband’s settlement monies, acquired after dissolution of the community, but based upon a pre-dissolution, accident-related cause of action, compensate for both pre-dis-solution and post-dissolution losses, that portion of the settlement which compensates for post-dissolution falls into the separate estate of the husband.’
“The court has awarded plaintiff the sum of- $150,000.00 in general damages. His claim from December 8, 1972, through August 28, 1973, would belong to the community which existed between him and the intervenor. The court feels that a substantial portion of the loss which plaintiff sustained accrued during this period of time and fixes one-third of the above award as the damages occurring during that period. Accordingly, interve-nor would be entitled to one-half of $50,-000.00
“Intervenor is entitled to judgment for $3,186.50, for $9,168.19, and for $25,-000.00, or a total of $37,349.69.”

The intervenor contends that the Trial Judge erred in apportioning the award for general damages. In making this apportionment it is clear that the Trial Court considered the evidence that a large portion of the loss sustained by the plaintiff occurred within the first few months following his injury. It is also apparent that the Trial Judge considered the fact that the plaintiff has many years of pain and inconvenience ahead of him. The Trial Judge has much discretion in assessing damages. We find no abuse of this discretion in the Trial Court’s apportionment of the award for general damages.

The defendants contend that the Trial Judge erred in failing to take into account their ability to pay. Considering that one of the solidary obligors in this case is the City of Baton Rouge, we cannot say that the Trial Judge failed to take into consideration the defendants’ ability to pay when he fixed the award. There is no evidence in the record which would indicate that the City of Baton Rouge is unable to meet the judgment rendered against it.

Defendants have argued forcefully and well that they should be exonerated. The decision has been a difficult one for the courts since we are cognizant of the problems and sympathetic toward the sometimes almost impossible situation police officers find themselves in. However, modern society cannot continue to exist without imposing standards on and requiring responsibility of its police officers. This decision is not to be interpreted as an unrestricted imposition of liability on all police officers under all circumstances. Instead it is a finding that the officers in this case did not measure up to the standards of care that society expects and has to expect from its officers in its difficult task of protecting the public under all circumstances. .

For the above reasons, the judgment appealed is reversed insofar as it dismisses the actions of the plaintiff and the intervenor against Orrell H. Ryan, Jr. and Frederick Gernant and affirmed as to all other matters. The judgment of the District Court is hereby amended to render judgment in favor of Henry London, Jr. and against William L. Weaver, Orrell H. Ryan, Jr., Frederick Gernant and the City of Baton Rouge, jointly, severally and in solido for the sum of $387,650.31, together with legal interest from date of judicial demand and for all costs of these proceedings; and to render judgment in favor of Candace B. London and against William L. Weaver, Orrell H. Ryan, Jr., Frederick Gernant and the City of Baton Rouge, jointly, severally and in solido for the sum of $37,349.69, together with legal interest from the date of judicial demand.

AFFIRMED IN PART, REVERSED IN PART, AMENDED, AND RENDERED.


source: Caselaw Access Project

license: Public Domain

text:
    Rita Kahoe, wife of/and Arthur KAHOE, Individually and on behalf of his minor daughter, Angela Kahoe v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Gregory L. Watkins, and H. Lioneal Watkins.
    No. 11460.
    Court of Appeal of Louisiana, First Circuit.
    July 11, 1977.
    Rehearing Denied Aug. 24, 1977.
    Writ Refused Oct. 26, 1977.

      J. Michael Cumberland, John G. Discon, New Orleans, for plaintiffs, appellants.
    Iddo Pittman, Jr., Hammond, for defendants, appellees.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in favor of Rita and Arthur Kahoe, plaintiffs-appellants, and against Gregory Watkins, Lioneal Watkins and State Farm Mutual Automobile Insurance Company, defendants-appellees, awarding the appellants $6,015.35, plus interest from date of judicial demand for damages sustained as the result of an automobile accident.

At approximately 12:30 A.M., May 4, 1974, a truck driven by Gregory Watkins collided with a car driven by Rita Kahoe. The accident occurred when Gregory Watkins attempted to pass Rita Kahoe on Louisiana Highway 437, a two lane road. As Gregory Watkins was passing Rita Kahoe, an unidentified automobile pulled out of a lounge parking lot and into the lane occupied by Gregory Watkins. This automobile forced Gregory Watkins back into the right lane of travel where his truck struck the rear end of the automobile driven by Rita Kahoe.

In holding Gregory Watkins liable for the accident the District Court in its oral reasons said in part:

“. . . Young Mr. Watkins, Gregory, I think picked an awfully bad place to pass that car, as he was approaching a lounge on a Saturday night or a Friday night or whatever it was, but at any rate, at night, a place that was lighted enough that he could see what he was approaching. He was familiar with it. He knew what was there. No one has testified that there were any yellow lines on the highway indicating a no passing zone, but I know whether there is a yellow line or not, it is not a good place to pass an automobile as you approach the entrance to any business, particularly of this nature because of the coming in and out of the parking area. He picked a rather unsafe place in which to attempt to go around Mrs. Kahoe’s car. I think there was a so-called phantom automobile. An unknown person drove out of the bar parking lot onto the highway and turned in the direction of the two on-coming automobiles. It turned in the lane that young Gregory Watkins was entering or had already entered with the intention of passing Mrs. Kahoe. And seeing that car coming on into that lane, the only prudent thing for him to do was to reduce his speed immediately and make an attempt to get back into the right lane of travel. I don’t know of any reason why Mrs. Kahoe might have had to stop her car or to suddenly and greatly reduce it’s speed. If she touched her brakes, caused the stop lights to come on, it would have been the act of a prudent driver bringing her car under control and driving cautiously in approaching a place where there was an automobile coming into the highway. The jurisprudence of our State is very clear. The attorneys are quite familiar with this. The burden of exculpation is very heavy on the trailing driver to exculpate himself from the presumption of negligence when he rear ends another automobile. This looks to me like a rear end collision. The picture of the Kahoe automobile filed in evidence, from that picture, it appears that that automobile was struck almost dead center. I think it was a rear end collision. I think it was caused from the failure of Gregory Watkins to have his car under proper control under the circumstances. I do not fault him for negligence or driving recklessly or in any manner in which maybe all of us will drive sometimes. But under the circumstances, the burden was on him in passing to have passed that car at a place and in a manner that was safe to do so. The passing automobile is under a heavy burden, and the trailing automobile is under a heavy burden of exculpation of presumption of evidence. He was passing a car or he was the trailing car, and in any event, he had a pretty heavy burden of care and caution to see that no accident resulted. I find that he has failed to carry the burden of proof of which the law imposes, our jurisprudential law, from statutory provisions.” (Emphasis added).

Civil Code Article 2315 provides in part:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

For a person to be held liable under the provisions of this article he must be at fault. Fault is a broad concept embracing all conduct falling below a proper standard. C.C. Art. 2316. Welland v. King, La., 281 So.2d 688 (1973). In the present case the Trial Judge erred in holding Gregory Watkins liable without finding him at fault.

The conduct of the appellant upon which the Trial Judge predicated liability was Gregory Watkins’ attempt to pass Mrs. Kahoe near the private entrance of a business. In determining whether this constituted fault it is necessary to establish the standard of care to which Gregory Watkins must be held. While criminal statutes are not, by themselves, definitive of civil liability, they do provide guidelines which a court may use in establishing the proper standard of care for determining civil liability. Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821, page 829 (1970).

R.S. 32:75 provides:

“No vehicle shall be driven to the left side of the center of the highway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the right-hand side of the roadway before coming within one hundred feet of any vehicle approaching from the opposite direction.”

R.S. 32:76(A) provides:

“A. No vehicle shall at any time be driven to the left side of the highway under the following conditions:
(1) when approaching the crest of a grade or upon a curve in the highway, where the driver’s view is obstructed within such distance as to create a hazard in the event another vehicle might approach from the opposite direction;
(2) when approaching within one hundred feet of or traversing any intersection or railroad grade crossing;
(3) when the view is obstructed upon approaching within one hundred feet of any bridge, viaduct, or tunnel.”

When Gregory Watkins began to pass Rita Kahoe, the left side was visible and free on oncoming traffic. There is no evidence in the record of any legal impediment to prohibit the attempted passing of a vehicle at that point. Passing a vehicle near a private drive, be it business or residential, is not, in most instances, conduct falling below a proper standard. In this case the passing motorist was in the left lane before the unknown vehicle entered the highway. Therefore, Gregory Watkins’ attempt to pass Rita Kahoe near the lounge entrance was not fault.

In addition, as was recognized by the Trial Judge, Gregory Watkins’ action in returning to the right lane of travel when faced with the sudden appearance of the unknown automobile in his lane was not fault. The Trial Judge found this action not only reasonable but also the most prudent choice available.

Even if his action was not prudent, Gregory Watkins would not be liable because one who suddenly finds himself in a position of imminent danger, without sufficient time to weigh and consider all the circumstances or means of avoiding the danger, is not guilty of negligence if he fails to choose what subsequently appears to be a better method, unless he created the emergency through his own negligence. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385, page 389 (1972).

The sudden emergency in this case was created by the driver of the unknown car and not by the negligence of Gregory Watkins. The facts and the applicable law in the present case are very similar to those presented in Hickman, supra.

Because we do not find the defendants liable, it is unnecessary for us to consider the questions raised as to the quantum of the Trial Judge’s award.

For the above reasons, the judgment of the District Court is reversed and judgment rendered dismissing plaintiffs’ suit. Costs to be paid by plaintiffs.

REVERSED AND RENDERED.


author: BOUTALL, Judge. SAMUEL, Judge,

text:
    Cecile Marion Ferdinand, w/o Joseph HALL v. Joseph HALL.
    No. 8303.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 1977.
    J. Stuart Douglass, New Orleans, for Cecile Marion Ferdinand Hall, plaintiff-appellant.
    Wilson M. Montero, Jr., New Orleans, for Joseph Hall, defendant-appellant.
    Before SAMUEL, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

In a divorce suit, Cecile Marion Ferdinand Hall asked for a declaratory judgment to determine whether the proceeds of a judgment in a damage suit, in favor of her husband, Joseph Hall, is part of the community of acquets and gains. The trial court declared only a portion of the judgment to be community, holding that portion attributable to post-dissolution earnings and damages to be the husband’s separate property. Mrs. Hall appeals.

The facts are uncontested. Mrs. Hall and her husband were married on July 23, 1962. On July 20, 1971 Joseph Hall met with a casualty resulting in serious personal injuries. On March 14, 1974 a judgment was rendered by the United States District Court, Eastern District of Louisiana in Civil Action # 71-3175 in favor of Joseph Hall in the full sum of $436,215.25. The case was appealed and subsequently affirmed. The settlement checks were issued on February 10, 1976 and the petition for divorce was filed by Mrs. Hall on February 20, 1976. The judgment was based upon a tort claim and awarded specific amounts for past and future medical expenses and loss of wages as well as an award for general damages.

Mrs. Hall contends that, even though some of the funds were to compensate her husband for future loss of wages, medical expenses and pain and suffering, the entire sum is community property, because the settlement money was all received prior to the date her divorce suit was filed and accordingly, prior to the dissolution of the community, relying on Civil Code Articles 2334 and 2402.

The trial judge relied on the case of West v. Ortego, 325 So.2d 242 (La.1976) in making his determination as to the nature of the funds being either separate or community property. The trial judge determined that after applying the principles enunciated in West v. Ortego, supra, the proceeds should be treated as follows:

“(a) The amount awarded for loss of wages prior to the date of the judgment, less the proportionate share thereof for attorney’s fees and costs incurred in said action, is declared to be community property. The net amount thereof is $9586.32.
“(b) The amount awarded for loss of future wages which would have been earned after the date of the judgment, less the proportionate share thereof for attorney’s fees and costs, is $75,538.29. The community was in existence 23 months after the date of said judgment, and the total work-life expectancy upon which this part of the award was made was 187.2 months. The community’s share of this item of damages is 23/187.2, or $9280.96.
The balance of this item is the separate property of Mr. Hall, the sum of $66,-257.33.
“(c) The amount awarded for past and future pain and suffering, mental anguish, permanent disability, and loss of life expectancy (the judgment did not distinguish between past and future as to these elements of damage), less the proportionate share thereof for attorney’s fees and costs, is $118,000.00. The time which elapsed between the date of the accident and the date of dissolution of the community was about 4/2 years; Mr. Hall’s life expectancy after the date of dissolution is 14V2 years. (The life expectancy at the time of the judgment was 19 years.) On a purely mathematical basis, 4.5/19 of this item would belong to the community, an 14.5/19 would be separate property. However, as to each of the elements which comprise this award, the first few years after the accident undoubtedly are the worst. The following allocation is considered by the Court to be equitable under the circumstances:
(1) To the Community $50,000.00
(2) To the separate estate $68,000.00
“The net amount in escrow is less than the total herein allocated, even considering the amounts withdrawn earlier by stipulation, because the claim of the United States Government for reimbursement for medical and compensation is greater than the amount of the award for past and future medical. Should the parties be unable to settle the Government’s claim for an amount sufficient to make up the total allocated in the foregoing reasons, any deficiency should be charged to the $118,000.00 item, the deficiency to be borne proportionately by the parties.
“In accordance with the stipulation between the parties, any amounts remaining after settlement of the Government’s reimbursement claim in addition to the amount required to make up the $118,-000.00 item, will be distributed in the proportion of 50/118 to the community and 68/118 to the separate estate.”-

We set out the Reasons for Judgment above in great detail, because we believe it to be a fair and equitable distribution of the funds in controversy. On the basis of the rationale announced in the decision of West v. Ortego, supra, we would reach the same result and affirm the judgment appealed. As we see it, the issue before us is plainly whether we should apply the West v. Orte-go solution to this case, or whether we should declare the judgment to be community property under the provisions of Articles 2334 and 2402 of the Louisiana Civil Code.

The Supreme Court in West v. Ortego tried to set a guideline for dealing with similar issues. The facts in that case are that the husband’s cause of action arose during the existence of the community, but the money was not received until after the dissolution of the community. Fairly similar issues had been touched upon in the cases of Talley v. Employers Mutual Liability Insurance Company, 181 So.2d 784 (La. App. 4th Cir. 1965); Alfred v. Alfred, 237 So.2d 94 (La.App. 1st Cir. 1970), and Chambers v. Chambers, 259 La. 246, 249 So.2d 896 (La.1971). After reviewing those cases the court in West examined the community property system itself and made the following statements:

“Once the community is terminated, certain property which had been community ceases to be so. Fruits or profits from the separate property of the husband, or from the separate property of the wife formerly administered by the husband, become once again the separate property of the owner thereof. Earnings by either party likewise become his (or her) separate property following separation, divorce, or death of the spouse. The community ceases to exist as a legal entity, and future income or other enrich-ments belong alone to the party receiving it. The reason for this is that there is no longer the reciprocal industry, effort, and support which justifies and is the basis for the equitable fifty-fifty system” (La., 325 So.2d 242 at page 245)
* * * * * *
“Absent a clear, unequivocal, statutory dictate to the contrary, and assuming that logic, good sense and commendable social policy, as well as the principles underlying the community property system, are to prevail, post-dissolution compensation falls into the injured husband’s separate estate rather than into the extinct marital community.” (La., 325 So.2d at 247)

The court then went on to hold:

“Applying the foregoing principles, we conclude that where a husband’s settlement monies, acquired after dissolution of the community, but based upon a pre-dissolution, accident-related cause of action, compensate for both pre-dissolution and post-dissolution losses, that portion of the settlement which compensates for post-dissolution losses falls into the separate estate of the husband.” (La., 235 So.2d at page 248)

We are in agreement with the principles announced in that ease, under the factual situation where there is a post-dissolution recovery. We conclude, however, that we cannot apply those principles in this case, where both the cause of action and the recovery occurred during the existence of the community. The following statement occurring in the fifth paragraph of Article 2334 we believe is controlling:

“Common property is that which is acquired by the husband and wife during marriage, in any manner different from that above declared.”

The West court found that there was no specific, positive statement of statutory law which' covered the situation when property was acquired after dissolution, but we submit that the property here is acquired “during marriage” and unless it falls within one of the exceptions pointed out in the Codal articles, we must hold it to be community. We see no reason to discuss at length the equity behind the situation, or the underlying reasons for the existence of the rule. The court in West has examined those issues.

Accordingly, we hold that where the action for the husband’s damages and the recovery of those damages occur during the existence of the marriage, the money recovered is community property under Article 2334, unless it comes within the stated exceptions. The facts of this case do not show the existence of any of the exceptions, and we are of the opinion that the trial judge erred in making the division of the property as set out above.

The judgment of the trial court is reversed, and there is now judgment in favor of Cecile Marion Ferdinand Hall and against Joseph Hall decreeing that the proceeds of the judgment recovered in Civil Action # 71-3175, U.S.District Court for the Eastern District of Louisiana is declared to belong to the community formerly existing between Joseph Hall and Cecile Hall to be equally divided subject to the agreements previously made and settlements of existing claims against the judgment.

Costs of these proceedings are assessed against Joseph Hall.

REVERSED.

SAMUEL, J., concurs.

SAMUEL, Judge,

concurring.

I fully agree with the majority opinion and decree which, in my view, are mandated by Civil Code Articles 2334 and 2402. I concur only for the purpose of emphasizing what all three members of the panel feel, i. e., the result we reach is totally unfair and unjust and, as the matter is one which addresses itself to the legislature, that body should make appropriate corrections in the two Civil Code Articles.

Accordingly, I respectfully concur.


author: HALL, Judge.

text:
    Glen E. MILLER, Plaintiff-Appellee, v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN, Ace Lee Honley, Ivan Debban and General Insurance Company of America, Defendants-Appellants.
    No. 13302.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    En Banc. Rehearing Denied Sept. 26, 1977.

      Boudreaux & Clement by Larry P. Bou-dreaux, Thibodaux, and Lunn, Irion, Switz-er, Johnson & Salley by Charles W. Salley, Shreveport, for defendants-appellants, Ace Lee Honley, Ivan Debban and General Ins. Co. of America.
    Pugh & Nelson by Sydney B. Nelson, Shreveport, and C. Sherburne Sentell, Jr., Minden, for plaintiff-appellee, Glen E. Miller.
    Mayer, Smith & Roberts by Alex F. Smith, Jr., Shreveport, for intervenor-ap-pellee, Employers Mut. Liability Ins. Co. of Wisconsin.
    Before BOLIN, PRICE and HALL, JJ.

       MARVIN, J., took no part in decision.

   HALL, Judge.

This is an “executive officer” or “co-employee” negligence action arising out of events that occurred prior to the enactment of Act 147 of 1976, amending LSA-R.S. 23:1032, which now precludes such actions. Plaintiff, a millwright employed by Woodard-Walker-Willamette, Inc., a plywood manufacturer, sustained serious and disabling injuries to his back in two separate on-the-job incidents in February and September, 1974. Alleging the accidents and resulting injuries were caused by the negligence of his foreman and the plant manager, plaintiff sued those persons and the company’s liability insurer, whose policy provided coverage for damages caused by the negligence of not only executive officers but also other supervisory personnel including foremen. The employer’s workmen’s compensation insurer intervened seeking recovery of compensation benefits paid and to be paid to the plaintiff. The defendants denied negligence and alternatively pled plaintiff’s independent and contributory negligence in bar of recovery. After trial before a jury, a general verdict was returned in favor of plaintiff and against defendants in the amount of $190,-000, of which $11,310.09 was due the inter-venors. From a judgment rendered accordingly, defendants appealed.

Giving weight to the jury verdict (in spite of serious error in the admission of improper evidence prejudicial to the defendants) and viewing the facts in a light most favorable to the plaintiff, this court nevertheless concludes the established facts do not, as a matter of law, give rise to liability on the part of defendants. As to the first accident, the facts do not establish negligence on the part of the defendants, and as to the second accident, the facts establish plaintiff’s contributory negligence, barring recovery. We, therefore, reverse the judgment of the district court and render judgment in favor of defendants rejecting plaintiff’s demands for damages.

I.

Plaintiff, Glen E. Miller, was a thirty-one-year-old millwright who had been working at the plant for approximately four years at the time of the first incident in February, 1974. He had a tenth-grade education, several years experience in the Navy as a boiler man, and additional experience in construction and maintenance before going to work for the plywood plant.

The primary duties of a millwright are the repair and maintenance of the plant and all its machinery. Each millwright is issued a set of comealongs to assist in the performance of his varied tasks. In addition, each millwright has available to him the use of a forklift, a boom, blocks and chocks, other equipment, and can call on the assistance of other millwrights and laborers. In performing their duties, the millwrights, whose pay scale is higher than common laborers, are to a significant extent expected to exercise their own judgment as to the method and manner of accomplishing a particular task.

In 1972, plaintiff had back surgery involving the removal of two herniated discs at the L-4 and L-5 levels. He recovered satisfactorily and in 1974 was performing without restriction or limitation a millwright’s regular duties, which involved a combination of light, moderate and heavy manual labor.

On February 25,1974, Miller and another millwright, Lonnie Chandler, were assigned by Ace Lee Honley, the millwright foreman, to perform a routine maintenance check on the dryers. In the course of their work on the dryers, they discovered that one of the dryer doors was warped. They reported the condition of the door to Honley and his supervisor, Earl Wilson, and were instructed to change out the warped door with another dryer door. No specific instructions on the manner of changing the doors were given.

The dryer doors measure approximately six feet by five feet, weigh approximately 300 pounds and are located several inches above the cement floor. Miller and Chandler decided to change the doors manually, without the use of a forklift or other mechanical equipment which was available. They placed two by fours and four by fours under the door so that when the pins were knocked out of the hinges the door would not fall to the floor. When the warped door was removed, the men found the door heavier than anticipated.

After discovering that the doors were heavier than expected, Miller and Chandler went to the foreman and requested more help. Two more men were sent to help complete the task. The four men manually moved the new door into place. During this stage of the operation, Miller stumbled over a narrow concrete ledge. It was not until later in the day, however, when working underneath a deck of tubes in the dryer and twisting to push a piece of metal into place, that Miller noticed a sharp pain in his hip, similar to the pain he had experienced in connection with his previous back injury. The pain persisted and after several days Miller went to Dr. W. W. Fox, an orthopedic specialist who had done the previous back surgery. Dr. Fox diagnosed Miller’s problem as a reinjury or continuation of his previous disc condition, and attributed the onset of pain to the heavy work involving the dryer door, which was the only accident Miller mentioned to the doctor. Although the evidence is not entirely clear, we accept as a fact that Miller sustained his back injury at some point while changing out the doors.

After this injury, Miller underwent conservative treatment followed in March by back surgery which consisted of cleaning out scar tissue in the disc spaces at the L — 4 and L-5 levels and a fusion of the vertebrae in that area.

On June 17, the doctor released plaintiff to return to light duty work with no lifting, although plaintiff was still experiencing considerable pain and disability. The treating physician’s report was sent to the Rus-ten office of the company and to the company’s workmen’s compensation insurer. The report stated Miller was released to return to light duty work with no lifting at all. On his return to work, plaintiff discussed his condition with Ivan Debban, the plant manager, and was told that the foreman would be informed that he was on light duty and was not to be assigned any lifting. Initially, plaintiff’s duties consisted of sweeping, cleaning the shop, and straightening blueprints and records. Later, he was assigned to assist the parts man in going to get parts from various locations.

During the time he was on light duty, Miller continued to experience pain and tenderness in his back. The pains were described as sharp sometimes, burning at other times. He continued to see his physician at regular intervals for follow-up observation.

The second incident occurred on September 30, 1974, while Miller was still on light duty assignment. Miller was instructed by Honley to change the grid in the coupling on the glue mixer machine, a task which did not require any lifting. Miller determined that the coupling was torn up and needed changing and so informed Honley. At this point there is a contradiction in the testimony as to exactly what directions Honley gave Miller. Honley’s version is that he told Miller to get A. C. Sandifer, a millwright-electrician, to unhook the motor and take it down. Miller’s version is that Hon-ley told him to get Sandifer to unhook the wires from the motor and did not say anything about Sandifer’s taking the motor down. We accept Miller’s version that Honley either did not direct that Sandifer take the motor down or at least did not make his instructions clear. Miller got San-difer, who unhooked the wires from the motor and walked away. Miller, aware that he was not supposed to do any lifting, nevertheless proceeded to manually remove the motor weighing 60 to 70 pounds. There was mechanical equipment available to assist in the moving of the motor and there were alternative methods of removing the motor which did not involve manual lifting.

While waiting on a part, Miller took a break and ran into Debban, the plant manager. When asked how he was doing, Miller told Debban that his back was hurting, and when Debban asked him if had been doing any lifting Miller replied yes and that Ace had been working on the glue mixer machine. Miller testified that Debban then turned and walked away toward his office without further comment or instruction. Debban testified that he told Miller not to do anything that would hurt his back and that he would talk to the foreman. Again, we accept Miller’s version of the conversation.

Miller returned to the glue mixer machine, completed the repair of the coupling, and then manually lifted the motor back into position. He experienced no particular incident of pain at that time, but that night and the next day his back pain increased and he went back to Dr. Fox. Since that time, until the trial in November, 1976, plaintiff has not returned to his employment with the plywood manufacturer nor has he been able to obtain any other employment. The doctor described the lifting plaintiff did in connection with the glue mixer machine as being the final blow leading to his complete disability and failure to recover from the back surgery. Dr. Fox was of the opinion that plaintiff was totally and permanently disabled from performing the regular duties of a millwright and from performing any work that would involve lifting, bending, prolonged standing or sitting. The doctor was of the opinion that plaintiff could be retrained for light duty work. Plaintiff has not undertaken any training for other work, and as explained by him, has changed roles with his wife who now works while plaintiff does the household chores. Plaintiff testified that he hunts extensively during deer season, killing several bucks the previous season, and fishes two or three times a week when the fish are biting.

II.

At this point, it is appropriate to discuss the weight being given to the jury verdict by this court, in view of what we find to be error on the part of the trial court in allowing evidence of the occurrence of other back injuries at the plant.

Over the strenuous objection of counsel for defendants, plaintiff’s counsel was allowed to cross-examine Debban, the plant manager, concerning his knowledge of numerous other back injuries listed on records of the company. For example, counsel would ask Debban if he knew about a particular back injury to a particular employee on a particular date. The purpose of the line of questioning was stated to be to establish a lack of proper safety procedures in dealing with back injury problems at the plant. ‘

Such evidence was patently inadmissible, having no relevancy to the issues involved in this case. There was no evidence to establish how, when or where the other back injuries occurred or that they were in any way related to the incidents involved in this case arising out of work on the dryer doors and the glue mixer machine. Evidence of prior injuries may under limited circumstances be admissible to show notice of an existing particular hazardous condition, where the prior injuries are closely related in circumstance to the injury or hazard at issue. In the case before this court, the evidence of prior injuries was totally irrelevant. The admission of the evidence could have had a serious prejudicial effect on the jury, suggesting (but certainly not proving) generally unsafe conditions at the plant and a callous disregard by management. It was not shown that the other injuries arose from accidents in any manner similar to those involved in this case, nor that the number of back injuries was unusual at a plant of this size and nature.

The error in admitting the evidence was of such a serious prejudicial nature that it would justify this court in giving little or no weight to the jury’s verdict. See Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). Even though prejudicial evidence was improperly admitted, the duty of the appellate court is not to remand but is to review the facts and render judgment on the merits. La.Const., art. V, § 5; Gonzales v. Xerox Corporation, supra.

Although this court, under the circumstances, is not required to give the usual weight to the jury verdict, we have, in fact, given substantial weight to the jury’s findings for the plaintiff in this case. It seems probable that the jury basically believed plaintiff’s version where there was a conflict between plaintiff’s testimony and that of the individual defendants. This leads us to accept the plaintiff’s version in our findings of fact as set forth above.

III.

In Canter v. Koehring Company, 283 So.2d 716 (La.1973), the Louisiana Supreme Court set forth criteria for imposing individual liability upon an officer, agent or employee of an employer to a third person, including a co-employee, damaged by reason of the individual’s breach of an employment-imposed duty:

“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.”

The Canter v. Koehring Company opinion also makes it clear that whether there is actionable negligence is to be determined under general tort principles:

“The failure to act as required by the employment duty may deprive the third person of a protection owed him by the principal or employer, and such risk of harm because of the breach may have been reasonably foreseeable. Thus, the breach of the duty imposed by the employment or agency relationship may, under general tort principles, be actionable negligence because of the creation or maintenance thereby of an undue risk of harm to others.”

Applicable general tort principles, developed within the scope of the fault concept established by LSA-C.C. Art. 2315, include the following (summarized in Smolinski v. Taulli, 276 So.2d 286 (La.1973)):

(1) Actionable negligence results from the creation or maintenance of an unreasonable risk of harm to others.

(2) While statutory violations are not in and of themselves definitive of civil liability, they may be guidelines for the court in determining standards of negligence by which civil liability is determined.

(3) Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection. The standard of conduct to which the plaintiff must conform for his own protection is that of a reasonable man under like circumstances. The party relying on contributory negligence has the burden of proving it.

(4)Failure to take every precaution against every foreseeable risk or to use extraordinary skill, caution and foresight does not constitute negligence or contributory negligence.

A statutory guideline in determining the duty owed by an employer to an employee is found in LSA-R.S. 23:13 which provides:

“Every employer shall furnish employment which shall be reasonably safe for the employees therein. They shall furnish and use safety devices and safeguards, shall adopt and use methods and processes reasonably adequate to render such employment and the place of employment safe in accordance with the accepted and approved practice in such or similar industry or places of employment considering the normal hazard of such employment, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees. Nothing in this Section shall apply to employment in private domestic service or to agricultural field occupations.”

IV.

In order to establish actionable negligence on the part of Honley or Debban, it was necessary for plaintiff to establish a duty owed to him by the employer, delegation of that duty to Debban or Honley in such a manner as to create a duty owed by Honley or Debban personally to plaintiff, a personal breach of that duty by Debban or Honley, and that the breach of the duty caused plaintiff’s injury.

As provided in LSA-R.S. 23:13, the employer owed plaintiff a duty to make his employment reasonably safe and to use safety devices, safeguards, methods and processes reasonably adequate to render the employment and place of employment safe in accordance with accepted and approved practice in the same or similar industries, considering the normal hazard of such employment. Overall responsibility for safety at the plant was delegated by the employer to the plant manager, Debban. The foreman, Honley, had employment-imposed delegated responsibility for the safety of employees under his supervision in connection with day-to-day work assignments.

Plaintiff charges Debban with negligence in failing to provide an adequate safety program, including training and meetings, and in failing to provide adequate tools and equipment to the employees in carrying out their work assignments. As to the safety program and training, there is no evidence supporting a cause-in-fact relationship between the lack of a well-organized safety program and the two incidents which resulted in injury to the plaintiff. The tasks assigned to plaintiff which gave rise to his injuries were relatively simple and well within his training, experience and capability. There is nothing in the evidence to indicate that a more sophisticated safety program at the plant would have prevented the incidents giving rise to this lawsuit. As to the alleged failure to provide adequate tools and equipment, the evidence is to the contrary. The testimony shows that the millwrights were provided with tools and equipment including mechanical equipment to assist in lifting and moving heavy objects. There is no basis for finding actionable negligence on the part of Debban in connection with the overall safety or equipment at the plant.

Turning to the first incident involving the dryer doors, the evidence shows that Debban had no personal knowledge of the work assignment, the conditions plaintiff was working under or the manner in which plaintiff was performing the job. There was no duty owed by Debban personally to plaintiff in connection with the first incident, nor could there have been a personal breach of duty by Debban. Therefore, there was no actionable negligence on his part in connection with the first incident.

Plaintiff charges Honley with negligence in connection with the first incident in failing to give specific instructions as to how the job was to be done, in failing to adequately supervise the job, and in failing to provide adequate assistance and equipment when asked to do so. The facts do not justify a finding that Honley breached any duty of care owed to plaintiff. As previously mentioned, the task was basically simple and within the millwright’s experience and capability. Two able-bodied, experienced millwrights were assigned to change out the doors and were expected to use their judgment in selecting an appropriate and safe manner in which to carry out the task. The two men had mechanical equipment available upon request to assist in the job but elected to proceed without the equipment. Even so, the method selected by them of handling the heavy door was not itself inherently unsafe nor did it result in actual accident or untoward happening. Plaintiff and the other millwright found the door heavier than expected and asked for assistance which was provided in the form of two additional men. The four men completed the job. Sometime during the course of the job, and the evidence definitely does not establish at what point, plaintiff reinjured or aggravated his back at the location of his previous back surgery. This was a normal hazard of the heavy work plaintiff was hired to do. The evidence does not establish that the assignment was dangerous or that the manner in which it was actually carried out was dangerous. We find no duty on the part of Honley to have given specific instructions to experienced millwrights in connection with the assignment, nor to have exercised closer supervision, nor to have provided assistance beyond the two additional men who were furnished. Likewise, we find no breach by the foreman of the general duty he owed to the plaintiff to provide reasonably safe conditions in which to perform his employment. There was no actionable negligence on the part of Honley in connection with the dryer door accident.

In connection with the second incident involving the glue mixer machine, the question of actionable negligence of Debban and/or Honley is close. Debban, as plant manager, had direct knowledge that plaintiff was to do no lifting and had the duty of informing plaintiff’s foreman to that effect. Debban carried out this responsibility according to the evidence. Debban had no knowledge of the initial assignment of Miller to work on the glue mixer machine but became aware of it when he ran into plaintiff during a break. At that time plaintiff told Debban his back was hurting and that Honley had him working on the glue mixer machine. The question is whether Deb-ban’s failure to take affirmative steps at this point constitutes actionable negligence. There is also a question of whether there was actionable negligence on the part of Honley in connection with the glue mixer incident. Plaintiff contends that when Honley learned from plaintiff that the coupling would have to be changed, which would ordinarily involve moving the motor, his failure to be more specific in his instructions as to assistance or to take closer charge of the situation, in view of his knowledge that plaintiff was to do no lifting, was a breach of his duty owed to the disabled employee. On the other hand, it is argued by defendants that there was no negligence because plaintiff’s work assignment was made subject to previous clearly-stated instructions that plaintiff was to do no lifting. We need not, however, pass specifically on this issue because of our conclusion that plaintiff himself was negligent, barring his recovery.

Plaintiff was completely aware of his disability and of the fact that he was to do no lifting at all. The content of the doctor’s report was known to him and the doctor had advised him personally not to do any lifting. The plant manager had told plaintiff on several occasions that he was to do no lifting. For a period of several weeks he had regularly been assigned light duties that involved no lifting. Plaintiff could not be supervised at every moment. The plaintiff’s responsibility to avoid lifting was at least equal to that of his supervisory co-employees.

Even after the millwright-electrician unhooked the motor and left the job location, plaintiff had a number of alternatives available to him in carrying out the assignment of changing the coupling. He could have made a more specific request for help from Honley. He could have used mechanical equipment which was available to him. There is some evidence that the coupling could have been changed without actually completely removing the motor. The danger of lifting the motor was as obvious, if not more so, to plaintiff as it was to the foreman. Plaintiff’s action in lifting the motor fell below the standard to which he should have conformed for his own protection. His action was not that of a reasonable man under like circumstances.

A strong argument is made by plaintiff that he should not be held contributorily negligent for following orders and doing what he was told to do by his foreman. Plaintiff cites several cases in which contributory negligence defenses were rejected because the employee was faced with choosing between undertaking a dangerous assignment, or telling his supervisor how to run the job, or quitting.

In Chaney v. Brupbacher, 242 So.2d 627 (La.App. 4th Cir. 1970), it was held:

“The test for negligence is reasonableness. While it may be true that the reasonable man would wish to avoid the known risk here, an employee is not entirely free to do so. He cannot simply decline to do the work, because he would then subject himself to loss of his job, his means of support for self and family.”

Similarly, in Coco v. Winston Industries, Inc., 330 So.2d 649 (La.App. 3d Cir. 1976), reversed as to quantum, 341 So.2d 332 (La. 1977), the court stated:

“The law is well settled that a workman is not to be held contributorily negligent because he does work assigned to him under dangerous conditions for which his employer is responsible and at which assignment he must work or suffer dismissal.”

See also O'Keefe v. Warner, 288 So.2d 911 (La.App. 1st Cir. 1974).

On the other hand, there are cases in which an employee’s contributory negligence has been held to bar recovery against a supervisory co-employee or executive officer. See Laborde v. Martin, 316 So.2d 437 (La.App. 3d Cir. 1975) and Richardson v. Heyd, 323 So.2d 507 (La.App. 4th Cir. 1974). In these cases, the employee was found to have had sufficient knowledgeable control over his situation at the time of the injury to make an evaluation of his conduct, a pertinent factor in considering negligence which contributed to cause the harm. Other cases have held that an employee who exposes himself to a known danger assumes the risk of such exposure and is guilty of contributory negligence if he suffers injury as a result thereof. Swilly v. American Fire & Casualty Company, 148 So.2d 157 (La.App. 1st Cir. 1962); Spears v. American Fidelity & Casualty Company, 123 So.2d 513 (La.App.Orl.1960); Pfister v. Phoenix of Hartford Insurance Company, 290 So.2d 362 (La.App. 4th Cir. 1962).

Emerging as criteria for determining an employee’s contributory negligence are: (1) relative knowledge of the danger by the supervising employee and the injured employee; (2) relative control over the employee’s situation; (3) the degree to which the employee’s conduct is voluntary on his part; (4) alternatives available to the employee; (5) obviousness of the danger; and (6) relative ability to eliminate the danger.

Applying these criteria to this case, the evidence establishes that plaintiff had as great or greater knowledge of the risk of lifting the motor as the foreman. In fact, the foreman had no specific knowledge that plaintiff intended to manually remove and replace the motor. Although the foreman had control over the particular work assignment, the plaintiff millwright had control of the specific manner in which the assignment was carried out. The plaintiff had instructions to change the coupling but there was no direct instruction for him to manually move the motor. The procedure followed by him was voluntary on his part. There is nothing in the record to indicate that plaintiff was motivated, or had any reason to be motivated, by a fear of losing his job if he called for additional assistance or used alternative methods of moving the motor. There was no emergency pressure to get the job done. Plaintiff had been told repeatedly not to do any lifting. He had, in fact, for several weeks, been given only light work to do. His election to manually move the motor was voluntary on his part. As previously explained, there were safe alternatives available to plaintiff. The risk or danger was in no way hidden, but was perfectly obvious to plaintiff. At the point in time when the millwright-electrician walked away and plaintiff was faced with completing the job, he and he alone had the ability to eliminate or avoid the danger.

For these reasons, plaintiff’s conduct was not that of a reasonable man and cannot be excused on the basis of following orders or the pressure of job security. Knowing that he should not lift and was not expected to do so, knowing the risk involved, and knowing available alternatives, plaintiff did not conform to the standard required for his own self-protection, was contributorily negligent, and as a matter of law is barred from recovery.

V.

At this point, it is appropriate to discuss the weight given to testimony by plaintiff’s witness, C. D. Attaway, upon which plaintiff heavily relies. Attaway, a safety consultant and safety professional, was qualified as an expert safety engineer with many years experience and excellent credentials in the field of industrial safety. The expert was asked hypothetical questions based on the facts involved in the two incidents and, in general, testified that in his opinion what was done by Honley and Debban was unsafe and that each assignment could have been handled in a safer manner through better safety programs and training, more specific instructions, closer supervision, and the like. An example of the line of questions and answers is the following:

“Q Assume in connection with the dryer door in question that an effort is made by two men to remove a dryer door and that after one door has been removed one or both of these men advised the foreman, the supervisor that they need more help or words to that effect. Further assume that the supervisor sends two more men to help and that his involvement in the job terminates at that point. Is there any unsafe procedure involved in that?
“A In my opinion there is.
“Q What is that, sir?
“A The very fact that the supervisor was notified that they were having a problem should have indicated that they had some condition down there that was going to cause an exposure or some kind of an incident, therefore merely sending manpower muscle to the job does not constitute a solution to the problem. That supervisor should make a personal visit to the area, observe what the conditions are and what problems have arisen and from there making a decision as to how the job should proceed and be carried on further without exposure to damage or injury of personnel.”

We recognize the expert’s considerable knowledge and experience in the field of safety and that his opinion as to safe and unsafe procedures has some weight or value. In determining the issue of legal duty and breach thereof, the weight and value of the expert’s testimony is, however, reduced because the opinions expressed by him are not tied in to or related to any standards established by the industry, by safety organizations, by government safety agencies or otherwise, and because the ultimate determination is one of law. Almost any task in a manufacturing plant has some risks or hazards attached to it and in this sense is unsafe. Risks and hazards can always be reduced by extraordinary supervision and safeguards. Hindsight in viewing a particular situation which produced an injury can always suggest a safer way of handling the situation. The record contains no evidence of what safety standards are usually or customarily followed relating to supervision of millwrights by foremen in manufacturing plants. LSA-R.S. 23:13 itself refers to accepted and approved practice in the same or similar industry considering the normal hazards of the employment. The weight to be given to the testimony of the safety expert is reduced by his failure to relate his opinions to accepted and approved practices. Failure to use extraordinary care and to take every precaution against injury is not actionable negligence. His opinions, to a large extent, also fail to take into account the basic nature of a millwright’s work as disclosed by the evidence. The millwright’s experience and expertise are greater than a common laborer, as reflected by his position and pay scale. His work is maintenance and repair, consisting of both routine and emergency jobs, requiring independent judgment and discretion. The necessity for detailed instructions and close, direct supervision is reduced with the increase in the level of experience, independence and discretion demanded by the job and exhibited by the worker. These factors were not covered in the expert’s evaluations, which were not tied in to legal standards of negligence. We find his testimony helpful and of some value, but unpersuasive in the ultimate legal determination of actionable negligence or absence thereof.

YI.

For the reasons expressed in this opinion, the judgment of the district court is reversed and set aside. Judgment is rendered in favor of defendants, Ace Lee Honley, Ivan Debban, and General Insurance Company of America, rejecting the demands of plaintiff, Glen E. Miller, and intervenor, Employers Mutual Liability Insurance Company of Wisconsin, and dismissing plaintiff’s and intervenor’s actions, at their costs, including the costs of appeal.

Reversed and rendered.


text:
    John S. BREWTON, Jr., Plaintiff-Appellee, v. L. L. BREWTON LUMBER COMPANY, INC., Defendant-Appellant.
    No. 13303.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 29, 1977.
    En Banc. Rehearing Denied Sept. 26, 1977.

      Bice, Russell & Allen by Charles B. Bice, Winnfield, for defendant-appellant.
    Martin S. Sanders, Jr., Winnfield, for plaintiff-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

After being injured in. a highway accident while returning to Winnfield from a logging site, plaintiff brought this workmen’s compensation suit against the defendant lumber company for which he regularly and exclusively cut and hauled pulpwood and logs. The district court awarded -.plaintiff benefits for total and permanent disability, medical expenses, penalties and attorney’s fees.

Defendant appealed, contending that:

(1) Plaintiff was not an employee of the defendant but was an independent contractor who did not spend a substantial part of his work time in manual labor and, therefore, is not covered by the Workmen’s Compensation Law;

(2) The accident did not occur within the course of plaintiff’s employment or in the course of his contract with the defendant in that plaintiff had completed his workday and was on his way home at the time of the accident;

(3) Plaintiff’s claim for medical expenses has prescribed in that plaintiff did not allege nor pray for medical expenses in his original or amended petitions, the issue being raised for the first time at the trial of the action more than four years after the medical expenses were incurred; and

(4) The defenses raised were serious and in good faith, defendant’s refusal to pay benefits was not arbitrary and capricious, and it should not be cast for penalties and attorney’s fees.

This court finds no manifest error in the decision of the district court resolving each of the issues adversely to defendant and we affirm the judgment appealed from.

Plaintiff and his father were engaged in cutting and hauling wood and logs regularly and exclusively for defendant for a period of at least two years prior to the accident. They owned and furnished four trucks and various tools and equipment, and employed a crew of men to do the work. Defendant’s buyer negotiated with plaintiff for cutting and hauling from tracts of land on which defendant had bought the right to cut timber. Plaintiff was paid on the basis of an agreed amount per cord or per thousand board feet cut and hauled to the mill, the amount taking into consideration the distance of the tract from the mill. Plaintiff paid his own employees and his other expenses.

Plaintiff kept his trucks at a Winnfield service station which served as a terminal for his operations. Plaintiff’s workday began with the entire crew meeting at the service station and then departing for the tract or tracts to be worked that day. His workday ended after the last delivery of logs to the mill when the trucks and crew returned to the service station.

In the field, in addition to his supervising duties, plaintiff regularly operated a hydraulic loader on the job site and frequently drove trucks to the mill. On the day of the accident he had operated the hydraulic loader and a bulldozer all day.

The accident happened about four o’clock in the afternoon while plaintiff was returning to Winnfield from a logging site. He was riding as a passenger in his pickup truck which was following trucks carrying the day’s last load of logs to the mill. It was plaintiff’s responsibility to see that the trucks were unloaded at the mill although plaintiff’s presence at the mill was not always required.

The trial court found that plaintiff was either an employee of the defendant or an independent contractor who spent a substantial part of his work time in manual labor. Defendant contends that plaintiff was not an employee and that the evidence does not support a finding that, as an independent contractor, he did substantial manual labor. There is ample evidence in the record to support the trial court’s conclusion that a substantial part of plaintiff’s work time was spent doing manual labor in carrying out his responsibilities. He regularly operated the hydraulic loader and on the day of the accident had worked all day on the loader and a bulldozer. Plaintiff was either an employee or an independent contractor performing substantial manual labor and is covered by the Workmen’s Compensation Law. LSA-R.S. 23:1021(6); Crow v. Jones, 233 So.2d 58 (La.App.2d Cir. 1970); Woodard v. Southern Casualty Insurance Company, 305 So.2d 528 (La.1974).

Defendant contends plaintiff was returning home from work and points out the general rule is that an accident which occurs while an employee is going to or returning from work is not considered as occurring within the course of his employment. The trial court concluded that plaintiff was injured while seeing that the last load of wood and logs was properly delivered to the defendant’s mill. This conclusion is reasonable and in accord with the testimony offered by plaintiff. It was part of his responsibility to oversee the delivery and unloading of logs at the mill and the course of his employment continued until that was done. Whether plaintiff actually intended to go to the mill himself or whether he intended to fulfill this responsibility by meeting the drivers at the service station when they returned with the trucks is immaterial. He was pursuing the interests of his employer or principal and was within the course of his employment at the time the accident happened.

Defendant argues that plaintiff’s claim for medical expenses prescribed. The original petition, filed in 1972, did not allege that medical expenses had been incurred nor did it pray for recovery of medical expenses. About four years later, shortly before trial, plaintiff filed an amended petition praying for penalties and attorney’s fees, and alleging that defendant had failed to pay either benefits or medical expenses. The amended petition did not, however, pray for recovery of medical expenses. At the trial, plaintiff offered evidence of his medical expenses and the defendant objected to this evidence as being beyond the pleadings. Plaintiff moved that the pleadings be amended to conform with the evidence. LSA-R.S. 23:1315 and 1317 expressly provide that in workmen’s compensation cases the court may in its discretion allow amendments of the petition at any stage of the proceedings, and that the court shall not be bound by technical rules of evidence or procedure. LSA-C.C.P. Art. 1154 provides that the court shall freely allow amendment of the pleadings when the admission of such evidence would not prejudice the opposing party’s action or defense on the merits. There was no showing that the defendant was surprised or prejudiced by the amendment of the pleadings or the admission of the evidence. The trial court properly allowed the amendment and considered the evidence which established the amount of medical expenses which plaintiff incurred by reason of the accident.

LSA-C.C.P. Art. 1153 provides that when the action asserted in an amended petition arises out of the conduct, transaction or occurrence set forth in the original pleading, the amendment relates back to the date of filing of the original pleading. The claim for medical expenses asserted by amendment of the petition arises out of the compensable accident alleged in the original petition, which was filed within the one-year prescriptive period. The claim for medical expenses should be considered as having been timely filed and is not prescribed. See Lemieux v. Cousins, 154 La. 811, 98 So. 255 (1923).

Defendant’s final contention is that the trial court erred in allowing penalties and attorney’s fees. LSA-R.S. 23:1201.2 provides that when failure to make payments is found to be arbitrary, capricious or without probable cause the employer shall be subjected to penalties and attorney’s fees. We accept defendant’s argument that its defenses have been asserted seriously and in good faith. Nevertheless,. the defenses are without a solid or substantial basis either in fact or in law. The facts of this case were virtually undisputed, as shown by the fact that defendant called no witnesses to contradict any of the facts asserted by plaintiff. On each of the issues asserted by defendant, the law is well settled as applied to the established facts. The trial court's determination that defendant’s failure to pay benefits was arbitrary, capricious and without probable cause is correct.

For the reasons assigned, the judgment of the district court is affirmed at appellant’s costs.

Affirmed.