author: REDMANN, Judge. BEER, Judge PER CURIAM.

text:
    FIDELITY STANDARD LIFE INSURANCE CO. et al. v. FIRST CITY FINANCIAL CORPORATION et al.
    No. 6896.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Rehearing Denied Feb. 10, 1976.
    Writ Refused March 19, 1976.

      Harry McCall, Jr., Norris S. L. Williams, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for plaintiffs-appel-lees.
    Michael F. Little, Little, Schwartz & Dussom, New Orleans, P. Wendell Calhoun, Jr., Vidalia, Ga., for defendants-appellants.
    Before REDMANN, LEMMON and BEER, JJ.
   REDMANN, Judge.

This case presents a complicated, ten-volume record (plus exhibits) of financial transactions manipulated by swindlers. There is some evidence tending to show that officers of both Fidelity Standard Life Insurance Company and First National Bank & Trust Company of Vidalia, Georgia — the only plaintiff and defendant involved in this appeal — were less than 100% innocent dupes.

The record as a whole, however, does suffice to support the trial judge’s conclusion that defendant bank knowingly took, in pledge on a third party loan, plaintiff insurer’s bearer securities without authorization for their pledge from plaintiff (and also dealt with others of plaintiff’s securities without plaintiff’s authorization). We therefore affirm judgment in plaintiff’s favor for their value.

We nevertheless mention, for any reviewing court, that circumstances strongly inclining one towards a contrary result do exist. Perhaps the most difficult to ignore are, first, that plaintiff’s vice-president (in his capacity as president of the related First City Financial Corporation) did sign an addendum to defendant’s loan commitment — and the commitment called for the pledge of an asset which had to come from plaintiff; and, second, that plaintiff’s secretary executed a certificate that a meeting of plaintiff’s executive committee approved pledging to a Louisiana bank a $15,000 asset which was supposed to have been delivered with the assets here involved to defendant bank ten days earlier, for conversion into a certificate of deposit not to be pledged — and the allegedly authorized later pledge was to secure a loan to the swindler-“messenger” who was to have taken the assets to defendant in Georgia.

There are of necessity many facts and factual arguments to which we do not advert in this opinion.

Facts

Defendant Georgia bank, through an officer brought to New Orleans the weekend of Saturday, May 18, 1968 for the purpose, negotiated in Louisiana a $330,000 loan to Texas National Capital, Inc. and issued in Louisiana its check dated May 18 on another Georgia bank for that amount. The check bore the notation “This draft to be accompanied by . 1,140,635 shs of . American Empire Life Corporation.” The check was payable to Texas National, First City Financial Corporation and a New Orleans bank, which held the American Empire shares in pledge against a loan to First City, and which on Monday, May 20, accepted the check for collection, ultimately applying its proceeds to pay First City’s loan as instructed. (Texas National made this new loan, while having First City co-sign the new note, in order to discharge William B. Abroms’s personal guaranty of the earlier loan. In exchange for discharge from that and other guarantees, Abroms had earlier agreed to transfer to Texas National his majority of First City’s shares.)

Defendant bank’s Louisiana loan commitment to Texas National further obliged Texas National and First City to “cause to be purchased” from defendant a $350,000 certificate of deposit to be pledged to the bank as additional security for the loan. The quoted language, as well as other evidence, supports the conclusion that the $350,000 cash for deposit was not to come from Texas National (which had to borrow $330,000 to pay First City’s debt) nor from First City (which couldn’t pay its own debt of $330,000), but from some other source. That source is indicated by other evidence — including that Abroms was guarantor on the First City loan and on other five- and six-figure loans to American Empire and First City; that Abroms owned the majority of the shares of First City; that First City controlled a substantial block of the shares of American Empire; that American Empire owned all of the shares of plaintiff insurer; that officers and directors of First City, American Empire and plaintiff were interlocking; that defendant bank’s officer during the Louisiana negotiations reviewed the financial statements of First City, American Empire and plaintiff insurer (of whom only plaintiff had significant liquid assets), as well as that of Texas National (whose statement defendant’s officer characterized as of questionable value because only quali-fiedly certified, and by a New Orleans rather than Texas accountant) ; and that defendant exacted as a condition of the loan a legal opinion that the loan “arrangements” would not violate Louisiana insurance law (although neither Texas National nor First City nor American Empire was an insurance company). Taken as a whole, this evidence supports the conclusion that defendant bank knew that the source of the $350,000 for the certificate of deposit was to be plaintiff insurer.

Plaintiff insurer had not been a party to these negotiations, and its executive committee did not by resolution authorize any pledge of any of the insurer’s assets. The executive committee did (at Abroms’s instance) by resolution of Tuesday, May 21, authorize withdrawal of $440,000 face value of most bearer securities from their Baton Rouge bank custodian, for conversion into a certificate of deposit in the insurer’s name. (An altogether unclear circumstance — perhaps only a diversion by Texas National — was an unsuccessful effort to obtain the certificate of deposit [and the loan with the deposit not as security but only as a compensating balance?] from a second New Orleans bank at this time, when defendant Georgia bank had already issued its check for the loan.) Plaintiff insurer’s officers entrusted these securities to a Texas National officer for delivery to defendant bank for conversion into a certificate of deposit.

The Texas National officers were swindlers — swindlers whose subsequent involvement in multi-million-dollar international thimblerigging makes the present ploy seem a trifling divertissement.

These Texas National swindlers did not cause the securities’ conversion into a certificate in plaintiff’s name. Instead, on Thursday, May 23 — the day on which the other Georgia bank honored defendant’s $330,000 check, allegedly after inquiry to defendant — the swindlers delivered in pledge to defendant bank $291,000 of plaintiff’s securities, reciting, in an “indenture” pre-dated (as were many documents) to the date of the Louisiana note and check, that the securities belonged to Texas National. The swindlers also persuaded defendant bank at this time (the bank’s attorney’s receipt is dated May 23) to accept and facilitate encashment of certain other of plaintiff’s securities (some of the same series as those “pledged”) in order to pay $1,000 to defendant for an NSF check given by one swindler for a money order, $700.to defendant’s officer for a loan by him individually to the swindler, perhaps another $1,000 to defendant for another loan to the swindler, $15,000 to the swindlers (Texas National’s own officers) as a “loan brokerage fee,” $4,500 to the bank’s attorney as his fee—and $1,000 to the bank as “additional discount” on the loan. Yet another curious result of defendant bank’s dealing with the swindlers was a $5,000 loan to one of them, to fund a never-used checking account in the swindler’s name over which defendant’s own officer was named deputy.

What happened to. the rest of plaintiff’s securities is not shown in this record. Those defendant bank held in pledge were all sold prior to trial, save a $40,000 certificate of deposit in a Baton Rouge bank which declined to honor defendant’s claim.

Jurisdiction

We mention and let fall defendant’s argument that it had allowed its check issued in Louisiana to be paid by the drawee bank in Georgia as a “new loan” made in Georgia to Texas National on new terms, including the pledge of $291,000 face value of mostly bearer securities from Texas National—the “new loan” being represented by the same note made in Louisiana and co-signed by First City, which was never present in Georgia to agree to any “new loan.”

We pretermit the reasoning from La.C.C.P. 7 by Mexic Bros., Inc. v. Sauviac, La.App.1966, 191 So.2d 873, that incidental demands like defendant’s reconvention here constitute a general appearance waiving objection to jurisdiction over the person. We need not answer defendant’s attack on C.C.P. 7 and Mexic as deprivations of due process. It is patent that plaintiff’s claim against the non-resident bank for return of the pledged securities is one “arising from the nonresident’s (a) transacting any business in this state . . .” within the Louisiana long-arm statute, R.S. 13:3201. The business defendant transacted in Louisiana included a loan intended (by borrower and lender but not plaintiff) to be secured by plaintiff’s assets.

Merits

It is also patent that plaintiff’s consent to- the pledge of its assets was never given. Plaintiff’s executive committee’s resolution restricted use of its assets to conversion into a certificate of deposit.

It is further patent that defendant knew of some “adverse claim” as a matter of law, Ga.U.C.C. 109A-8-304(2), as to the securities which it says it believed were Texas National’s but which it cashed “for the individual benefit” of Texas National officers (to pay defendant’s and its officer’s claims against them and commissions to them). The trial judge correctly held defendant liable for the value of these additional securities.

Finally, from the evidence as a whole, the inference is amply supported that defendant bank knew that the securities presented to it and accepted in pledge as Texas National’s were not Texas National’s but plaintiff’s.

Defendant as pledgee was accordingly not a “bona fide purchaser” within Ga.U. C.C. 109A-8-302 because it did not take “in good faith and without notice of any adverse claim . . . .”

Affirmed.

BEER, J., dissents with written reasons,

BEER, Judge

(dissenting).

I respectfully dissent.

Plaintiffs totally abdicated their responsibilities to their so-called “co-fiscal agents” — one obvious swindler and one self-serving manipulator apparently on the brink of serious fiscal difficulty. Their combined bizarre actions in connection with the pledge (and all other pertinent matters) makes it extremely difficult for me to finally conclude (as does the majority) “that defendant bank knew that the securities presented to it and accepted in pledge as Texas National’s were not Texas National’s but plaintiff’s.” I agree that this was plaintiff’s burden but I cannot agree that it has been successfully carried by any completely credible evidence.

For any reviewing court I mention the additional conclusion on my part that the contentions of the defendant bank are just as difficult for me to accept — and for essentially the same reasons for it, likewise, abdicated its responsibilities to self-serving schemers who were, at best, less than unwitting victims of the swindle.

In my view, neither of the litigating parties have shown a satisfactory basis for judicial resolution of their dispute.

ON APPLICATION FOR REHEARING

PER CURIAM.

Defendant bank complains that we overlook the delivery to plaintiff insurer by Texas National of $880,000.00 face value of worthless securities at about the time plaintiff delivered its $440,000.00 of securities to Texas National. Defendant theorizes that this circumstance proves that the insurer exchanged securities with Texas National. There is not only no evidence —and particularly no corporate resolution by the insurer — to support this theory: the corporate resolution is to the contrary.

Rehearing refused.

BEER, J., concurs in refusing rehearing.


source: Caselaw Access Project

author: COVINGTON, Judge: BARNETTE, Judge:

license: Public Domain

text:
    Sandra Mercier McLEOD v. Robert W. McLEOD.
    No. 10412.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    On Rehearing Jan. 20, 1976.

      Patrick W. Pendley, Plaquemine, for appellant.
    Hobart O. Pardue, Jr., Springfield, for appellee.
    Before SARTAIN, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

Robert W. McLeod and Sandra Mercier McLeod were married on August 12, 1973. He was injured on November 12, 1973, and on January 1, 1974, or thereabouts, they separated. On January 15, 1974, she filed a petition for separation and on June 28, 1974, he filed suit in the U. S. District Court for his personal injuries under the Jones Act (46 U.S.C.A. § 688) and the General Maritime Law.

On January 16, 1975, he answered her suit for separation and reconvened, asking that he be granted a separation. On March 4, 1975, the said Robert W. McLeod, hereinafter called appellant, was granted a separation from Sandra Mercier McLeod, hereinafter called appellee.

On April 30, 1975, she filed a suit for a partition of the community property, alleging that it consisted of the claim for damages for injuries which he sustained during their marriage, that the suit was then pending in federal court, and asking for one-half of all monies recovered by him. There is no question but that the couple were living together under the community of acquets and gains at the time of the alleged injury. The action which he had filed in the United States District Court asks for $500,000.00 for past and future loss of wages and future pain and suffering; this is set forth in Article 8 of the written stipulations of counsel filed April 30, 1975. The aforesaid stipulations also recognized that the appellee was entitled to one-half of all funds “ . . . attributable to the period of time of November 12, 1973 until January 15, 1974.” Therefore, the dispute concerns any other monies recovered by appellant in his suit.

The trial court rendered judgment in favor of petitioner-appellee, Sandra Mercier McLeod, and the defendant has taken this appeal. We affirm.

The position of the appellant is that his wife is entitled to a portion of the award, specifically for any portion thereof attributable to the period from November 12, 1973, the date of the accident, up to January 15, 1974, the date she filed a petition for separation, whereas appellee contends that, since the accident occurred during the community of acquets and gains, she is entitled to one-half of all monies collected.

The question to be decided on this appeal is, of course, whether funds to be received after a legal separation in a settlement of a claim filed under the Jones Act and the General Maritime Law for damages resulting from personal injuries suffered by the husband while married to and living in a community estate with his wife forms a part of their terminated marital community and is, therefore, subject to partition.

LSA-C.C. Art. 2334 provides, in part:

“The property of married persons is divided into separate and common property.
Separate property is that which either party brings into the marriage, or acquires during the marriage with separate funds, or by inheritance, or by donation made to him or her particularly.
The earnings of the wife when living separate and apart from her husband although not separated by judgment of court, her earnings when carrying on a business, trade, occupation or industry separate from her husband, actions for damages resulting from offenses and quasi offenses and the property purchased with all funds thus derived, are her separate property.
Actions for damages resulting from offenses and quasi offenses suffered by the husband, living separate and apart from his wife, by reason of fault on her part, sufficient for separation or divorce shall be his separate property.
Common property is that which is acquired by the husband and wife during marriage, in any manner different from that above declared ...”

LSA-C.C. Art. 2402 provides, in part:

“But damages resulting from personal injuries to the wife shall not form part of this community, but shall always be and remain the separate property of the wife and recoverable by herself alone; . . ."

Our Supreme Court, with some members thereof dissenting, handed down Chambers v. Chambers, 259 La. 246, 249 So.2d 896 (1971), certiorari denied 404 U.S. 856, 92 S.Ct. 102, 30 L.Ed.2d 97, which involved a former wife’s claim for one-half of the damages received in settlement by her husband for injuries sustained during the course of his employment with the Illinois Central Railroad Company. The injuries occurred while the husband was married to and living in community with his former spouse, although the settlement took place after the dissolution of the marital community. Parenthetically, the husband obtained the divorce on the ground of his wife’s adulterous conduct and he was awarded the custody of their minor children. The court therein stated, at page 907, in its per cur-iam to the application for rehearing :

“We have held that: ‘a husband’s cause of action for damages resulting from a tort committed against him while living with his wife in comnjunity is community property. It follows that the damages received by judgment of court or the funds received in settlement of a compromise of such cause of action are also community property’ ... By this the majority intended to hold that the time the husband’s cause of action arises determines the community or separate nature of the cause of action and the community or separate nature of the funds obtained when the suits on the cause of action were settled.” In a concurring opinion, Justice (now Chief Justice) Sanders stated, at page 905, that “ . . . since the codal articles classify the cause of action as community, the courts must apply the classification until it is changed by the Legislature.”

In the instant case, the injury occurred while the husband was married to and living in community with his spouse; therefore, Sandra Mercier McLeod is entitled to one-half of all funds received by appellant.

In discussing the apparent sexual discrimination set forth in Articles 2334 and 2402, the late Professor Clarence J. Morrow, of Tulane Law School, stated in Volume XXXIV, at page 25 of the Tulane Law Review:

“It is difficult to rationalize this obvious discrimination between husband and wife, and the distinction must be attributed to pressures on behalf of married women in the early part of this century, followed by a belated, ‘compromise’ provision with reference to the husband.”

The Chambers case seems to be the latest pronouncement of the Supreme Court; assuming arguendo, that the applicable statutes are unconstitutional and/or the interpretation thereof by our Supreme Court results in inequity, it is the proper forum to make such declaration.

The judgment of the trial court will, therefore, be affirmed at plaintiff’s costs.

Affirmed.

ON REHEARING

BARNETTE, Judge:

Our original opinion in this case was adopted and filed by this panel with considerable reluctance. It was the feeling of the Court that the result reached was inequitable, but we felt constrained to follow the opinion of the Supreme Court in Chambers v. Chambers, 259 La. 246, 249 So.2d 896 (1971). In doing so, however, we had serious doubt that the ultimate decree in that case actually reflected the majority view of the Court.

We held up action on the application for rehearing in view of the decision of the Third Circuit Court of Appeal in West v. Ortego, 309 So.2d 883 (March 19, 1975) and the granting of writs in that case by the Supreme Court. It was our hope that the Chambers decision would be reconsidered by the Supreme Court and the jurisprudence on the issue clarified. The Supreme Court has now done so by its decision handed down December 8, 1975. West v. Ortego, 325 So.2d 242 (La.1975).

The issue involved in this case is now clearly resolved by the Supreme Court’s decision in West v. Ortego, expressly overruling Chambers and holding in pertinent part as follows:

“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.”

It should not be difficult to establish what portion of the ultimate recovery in this case represents compensation for post-community damages.

For these reasons our original decree herein is recalled and it is now the decree of this court that the judgment appealed is annulled and set aside. The case is remanded to the trial court for further proceedings to determine by proper evidence the proportionate part of whatever award the husband, Robert W. McLeod, might ultimately recover which represents loss of income and for pain and suffering accruing after dissolution of the community formerly existing between him and Sandra Mercier McLeod, and that said amount be recognized as belonging to his separate estate and not included in the partition of the community estate.

The plaintiff-appellee is cast for all costs of this appeal. All other costs are to await a final determination.

Annulled and remanded.


author: SARTAIN, Judge.

text:
    Lynette Foster O’NEAL, Plaintiff-Appellant-Appellee, v. SOUTHERN FARM BUREAU INSURANCE CO., et al., Audubon Indemnity Company, Defendant-Appellant-Appellee, all other Defendants are Appellees.
    No. 10516.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.

      Robert J. Mack, Hammond, for appellant.
    Robert J. Vandaworker, Baton Rouge, for Southern Farm Bureau Cas. Ins. Co.
    Tom H. Matheny, Hammond, for Audubon Indem. Co.
    Edward L. Levert, Jr., and Robert J. Young, New Orleans, for Ins. Co. of North America.
    Gordon W. Matheny, Hammond, for Larry Moskau.
    Before SARTAIN, BAILES and PICKETT, JJ.
   SARTAIN, Judge.

The accident giving rise to this action occurred on December 11, 1971, at approximately 2:30 o’clock A. M. on the Old Hammond Highway at its intersection with the Pumpkin Center Road, in Tangipahoa Parish, Louisiana. Plaintiff, Mrs. Lynette Foster O’Neal, had been driving in a southwesterly direction on the Old Hammond Highway when, after giving a signal of her intention to make a left turn onto the Pumpkin Center Road, she was struck from the rear by a white Mustang, being operated by Larry Moskau. The Mustang vehicle was registered in the name of Robert Eaker, Moskau’s father-in-law.

Plaintiff initially instituted suit against Larry Moskau; her liability insurer, Southern Farm Bureau Insurance Company, under the uninsured motorist provisions of her policy; and, Audubon Indemnity Company, her collision insurer, for special damages, penalties and attorneys’ fees. However, during pretrial discovery procedures plaintiff learned that the Mustang vehicle was insured by the Insurance Company of North America (INA). She amended her petition to include this latter named insurer as a party defendant.

The trial judge rendered judgment in favor of the plaintiff only against her collision insurer, Audubon Indemnity Company, for the actual amount of the cost of repairs to her automobile and rejected her claim for penalties and attorneys’ fees against this defendant and, further, rejected her claim for personal injuries and other special damages against the remaining defendants, INA and Larry Moskau. It is from this judgment that plaintiff has appealed. The trial judge did not assign written or oral reasons for his decision. However, based on the fact that plaintiff’s claims against defendants, INA and Mos-kau, were rejected under the particular facts of this case, it must be assumed that the trial judge held her guilty of contributory negligence. In doing so we find that the judge a quo erred as a matter of law and reverse.

On the morning of the accident plaintiff and Moskau were at the Office Lounge located on U.S. Highway 190 approximately three miles west of the City of Hammond, Louisiana. When plaintiff decided to leave the lounge at approximately two o’clock A. M. Moskau offered to follow her home to make sure that she got there safely because of the heavy, intermittent fog condition existing in the area. Mos-kau followed the plaintiff’s vehicle down the road although he could not see it because of the dense fog. As plaintiff reached the intersection of the Old Hammond Highway and the Pumpkin Center Road she slowed her vehicle to a speed of approximately 10 m.p.h. and activated her left turn signal indicator. However, before she could complete her turn onto the Pumpkin Center Road she was struck in the rear by the Mustang driven by Mos-kau.

Mr. Moskau stated that there was a heavy fog bank at this intersection and that he did not observe plaintiff’s vehicle until he was forty feet from it. He immediately applied his brakes but could not avoid the collision. He stated that at the moment he first observed plaintiff’s vehicle he was traveling approximately 40 m.p.h.

Thus, based on the facts above stated, we are concerned with a situation involving a rear-end collision in an area where visibility is impaired by fog.

Inasmuch as we are here concerned with a rear-end collision, Moskau, as the following motorist, bears the burden of exculpating himself from the inference of negligence, Strother v. State Farm Mutual Automobile Insurance Company, 238 So.2d 774 (1st La.Appeal, 1970).

The duty imposed upon Moskau in view of his limited visibility is set forth in Campbell v. American Home Assurance Company, 260 La. 1047, 258 So.2d 81, 83 (1972), viz:

It is well settled that when visibility is impaired by smoke, fog, or other unfavorable atmospheric conditions, a motorist must exercise care in the operation of his vehicle commensurate with the danger created by the conditions. He must reduce his speed and maintain a close lookout. As an extreme measure, when visibility is destroyed or greatly obscured, he must stop his vehicle until conditions permit him to resume travel in reasonable safety. See Demerest v. Travelers Insurance Company, 234 La. 1048, 102 So.2d 451 (1958); Castille v. Richard, 157 La. 274, 102 So. 398, 37 A.L.R. 586 (1924); 8 Am.Jur.2d, Automobiles and Highway Traffic, § 730, pp. 283-284.
Whether or not plaintiff’s conduct falls below the objective standard for his self-protection is a question of fact, depending upon all the circumstances. Among the factors to be considered here are the extent of visibility, nature of the roadway, and congestion of traffic, (citations omitted) •

Moskau, by his own admission, entered an area of. limited visibility at a speed of 40 m.p.h. and did not see plaintiff’s vehicle until he was forty feet from it. These facts dictate a finding that Mos-kau’s speed was excessive under the prevailing conditions and was a cause in fact of the accident.

We now turn to the question of plaintiffs contributory negligence. Defendants, INA and Moskau, argue that plaintiff was guilty of contributory negligence by driving her vehicle into a fog bank and endeavoring to make a left turn, an even more dangerous maneuver under the circumstances. They cite Walden v. Employers Liability Assurance Corp., 197 So.2d 350, (2d La.App., 1967) and the authorities therein relied upon as controlling. In Walden, the court stated: 197 So.2d 350, 351:

“There can be little doubt that plaintiff’s attempt to negotiate the dense area of smoke and fog under the circumstances was a proximate cause of the accident. A driver of a vehicle is guilty of negligence or contributory negligence, as the case may be, when he drives into a screen of dust, smoke or fog which greatly impairs his visibility. Castille v. Richard, 157 La. 274, 102 So. 398, 37 A.L.R. 586; McLelland v. Harper, La.App., 38 So.2d 425; Employers Fire Insurance Company v. Rodgers, La.App., 47 So.2d 404; Rosenbloom v. Mercer, La.App., 8 So.2d 328. Seal v. Core, La.App., 175 So.2d 676 (1st Cir. 1965).
“In McLelland v. Harper, La.App., 38 So.2d 425 (2nd Cir. 1948) the court declared :
“ ‘ * * * the record conclusively establishes the fact that the drivers of both vehicles were moving along the road in opposite directions, enveloped in a dense screen of smoke through which neither had any degree of visibility whatsoever. Under such circumstances there can be no question as to the fact that both drivers were guilty of negligence. The jurisprudence of this State is now well established to the effect that under similar or comparable circumstances the action of the driver of a vehicle in continuing the movement of his vehicle when vision is obscured or reduced to the danger point constitutes negligence.’ ” (38 So.2d 425)

We do not find that the facts in Walden or the authorities cited therein are entirely apposite to those in the litigation at hand because in the Walden case in each instance the visibility was either nil or practically nil. In such cases the court there held that it was negligence for any driver to attempt to maneuver a vehicle in or through an area of literally no visibility.

We believe the facts relating to speed and visibility as found by us in Dove v. Messina, 230 So.2d 615 (1st La.App.1969), writs refused 255 La. 471, 231 So.2d 392 (1970), are more analogous to those similar facts in the case at bar. In Dove, we quoted from Hernandez v. State Farm Mutual Automobile Insurance Company, 192 So.2d 679 (3rd La.App., 1966), writs refused as untimely applied for, 250 La. 103, 194 So.2d 99 (1967), as follows: 230 So.2d 615, 617:

“The jurisprudence of this state is firmly established to the effect that when visibility is materially impaired because of smoke, mist, dust, fog or other atmospheric conditions, a motorist is held to a duty of operating his vehicle with an unusually high degree of care. He should reduce his rate of speed to such an extent, and keep his car under such control as to reduce to a minimum the possibility of accident from collision. And, as an extreme measure of safety, it is his duty when visibility ahead is not possible or is greatly obscured, to stop his car and remain at a standstill until conditions warrant going forward. He does not have the right to assume that his course of travel is free from danger or obstruction in the absence of his ability to see clearly ahead, and if he continues to travel as if he knew there was perfect clearance ahead, he does so at his own risk and peril.” (citations omitted)

See also Ervin v. Burns, 126 So.2d 805 (2nd La.App., 1961).

We find that while these two lines of authority, i. e., Walden and Dove, are similar in their general requirements, they nevertheless vary in the application of these requirements because of the difference in the degree of visibility. In the Walden cases, visibility is practically nil whereas in the Dove authorities visibility is somewhat less restricted. In these latter situations a driver was not considered to be negligent and/or contributorily negligent if that driver was traveling at a reduced speed where such reduced speed met the test of conduct commensurate with the prevailing conditions. It is not negligence for a driver to proceed through or into an area of reduced visibility if his speed is such that he can stop his vehicle within the limits of his visibility.

On the question of defendants’ plea of contributory negligence on the part of the plaintiff, we accept as proven those facts as testified to by Moskau. By doing so our decision turns on an issue of law rather than one of fact. Moskau stated that he was traveling at a speed of 40 m. p.h. in this area of restricted visibility and did not discern the presence of plaintiff’s vehicle until it was forty feet from him. We conclude that visibility in the immediate vicinity of the accident was at least forty feet. Therefore, Moskau should have been driving his vehicle at no greater speed than that which would have enabled him to stop his vehicle within this distance. Common experience satisfies us that had Moskau been traveling at 10 m.p.h. (the same as plaintiff), he could have stopped his vehicle within a distance of forty feet and avoided the collision. In essence, we hold that a proper speed commensurate with the conditions prevailing at the time of this accident would have been 10 m.p.h. or less, again, the same speed as plaintiff. It is apparent to us that Moskau’s excessive speed and not the presence of plaintiff’s vehicle was the cause in fact of the ensuing accident and Moskau’s and INA’s plea of contributory negligence on the part of plaintiff must be rejected.

INA defended this action on two grounds, namely: (1) that Moskau was not negligent in any respect; and (2) alternatively, in the event of Moskau’s negligence, that the policy issued by it was inoperative on the ground of their assured’s failure to notify it that an accident had occurred. Inasmuch as we have discussed the negligence of Moskau, above, we turn to INA’s alternative plea of lack of notice.

On the night of the accident the plaintiff and Moskau decided that it was not necessary that an officer be called. At the trial Moskau testified that he did not advise the owner of the vehicle or the insurer of the accident because he did not think that it would result in litigation. INA offered no proof that its rights were prejudiced for failure to receive notice of the accident other than to state in brief that lack of such notice deprived it of the opportunity to obtain countervailing medical relative to plaintiff’s injuries. As a matter of fact, the only medical in the record other than the testimony of plaintiff concerning the latter’s injuries was a medical report from Dr. Alexander J. Feder, dated May 11, 1973, and an x-ray report of Dr. David S. Malen dated January 7, 1972. These two reports were offered in evidence by stipulation in lieu of the testimony of the named physicians. We concede that INA was not notified of the accident until the filing of a supplemental petition on July 11, 1974, naming them as a party defendant. By that time plaintiff had almost completely recovered from her injuries. However, INA has offered no other evidence in support of its claim of prejudice other than the possibility of any rebuttal medical that might have inured to its benefit. We do not find that the medical in this case is very complicated or such that might lend itself to exaggeration. Following INA’s entrance into this litigation no attempt was made by this particular defendant to depose the treating physician in an effort to minimize the consequences of his report of May 11, 1973. Under these circumstances, we do not find that lack of notice of the accident to INA by either Mr. Moskau or the owner of the vehicle constitutes a bar to liability under the policy.

The law pertaining to lack of notice by an insurer as a defense to liability under its policy is stated in West v. Monroe Bakery, 217 La. 189, 46 So.2d 122 (1950). Generally stated, the rule is that failure of notice does not affect the rights of a third party unless there is a showing of a conspiracy between the injured and the insured to defraud the insurer. There is not one scintilla of evidence in the record before us that such is the case here. Accordingly, INA’s defense in this respect is rejected.

As a result of the accident plaintiff suffered an acute whiplash, cervical neck sprain and an acute sprain of her lower back. In addition, she suffered bruises and contusions of the right hip, upper abdomen, lower chest, and right forehead. She was not hospitalized but was treated by Dr. Feder from December 13, 1971 until August 16, 1972. Initially he prescribed muscle relaxants and analgesics for pain. She received extensive physiotherapy treatments for two and one-half months and on a less frequent basis for five and one-half months. She incurred medical expenses totaling $703.00. She was unable to work at her employment from December 11, 1971 until February 29, 1972, a period of two and one-half months. For these injuries we feel the sum of $6,500.00 will adequately compensate her.

Plaintiff was employed at a salary of $500.00 per month. She lost two months and two and one-half weeks from work. She is entitled to special damages for loss of wages in the amount of $1,375.-00.

In addition, plaintiff’s vehicle was damaged to the extent of $797.69.

As stated above, the trial judge rendered judgment in favor of plaintiff and against her collision insurer, Audubon Indemnity Company. The sum decreed was $697.69, the amount of the loss less the deductible. Audubon appealed and argues that it should not be liable under its policy for the reason that plaintiff failed to advise it of the accident, thereby precluding Audubon from instituting suit in subrogation for reimbursement of its loss. Proof of loss filed in the record is dated February 9, 1972. The trial judge, of necessity, had to render judgment in favor of the plaintiff against her liability insurer because he denied her claim against Moskau and INA. As a result of our decision herein, holding Moskau negligent and INA liable under its policy, plaintiff is entitled to recover the amount of special damages for the repair of her automobile from INA under the property damage portion of its policy. The judgment against Audubon should therefore be reversed.

INA’s policy covering the Mustang automobile was filed in evidence. It indicates a coverage of $5,000.00 to each person for bodily injury and a $5,000.00 limit for property damage.

For the above and foregoing reasons, the judgment of the district court in favor of the plaintiff and against Audubon Indemnity Company is reversed and judgment is rendered herein in favor of the latter and against plaintiff, rejecting plaintiff’s demands. The judgment of the district court in favor of Southern Farm Bureau Casualty Insurance Company and against plaintiff is affirmed. The judgment of the district court in favor of the defendants, Larry Moskau and Insurance Company of North America, rejecting plaintiff’s claim is reversed and judgment is rendered herein in favor of the plaintiff, Lynette Foster O’Neal, and against Larry Moskau and Insurance Company of North America, jointly and in solido, in the sum of $5,797.69, together with legal interest thereon from date of judicial demand, until paid. Judgment is rendered herein in favor of the plaintiff, Lynette Foster O’Neal, and against defendant, Larry Moskau, in the full sum of $3,578.00 together with legal interest thereon from date of judicial demand, until paid. All costs are assessed against defendant, Insurance Company of North America.

Affirmed in part, reversed in part and rendered.

      . Actual insurer Southern Farm Bureau Casualty Insurance Company.

      . See footnote on p. 888.


author: MARVIN, Judge.

text:
    Lizzie Claudine FARRAR v. GUY ATKINSON COMPANY et al.
    No. 12794.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.

      James E. Franklin, Jr., Shreveport, for plaintiff-appellant.
    Mayer, Smith & Roberts, by Alex F. Smith, Jr., Shreveport, for defendants-appellees.
    Before PRICE, MARVIN and GLAD-NEY, JJ.
   MARVIN, Judge.

Miss Farrar, the plaintiff-employee in a workmen’s compensation proceeding appeals from the lower court rejecting her demands for total and permanent disability, and awarding instead compensation benefits for impairment of a physical function under R.S. 23 :J221(4) (p). We affirm.

Plaintiff’s accident occurred July 26, 1974, when she was attempting to move with mechanical and hydraulic assists, a pallet loaded with several machined parts. She sensed pain in her spine in the area of the top of her shoulders, but worked for the remainder of the day and a portion of the next working day. The following day (Sunday), she reported to the emergency room of a local hospital for medical attention. The diagnosis was immediately made, and later confirmed, as a herniated cervical disc.

Miss Farrar had been afflicted with osteoarthritis for several years. In 1968, she had lower back surgery in Texas which resulted in a fusion of two or more lumbar vertebrae. In 1973, about one year before the date of the accident complained of, she underwent cervical surgery in Shreveport which resulted in a fusion of C-5, C-6 and C-7 vertebrae. In each instance mentioned, she was paid workmen’s compensation benefits and received a “settlement” from each employer for whom she was working at the time.

Miss Farrar began working for defendant-employer on May 28, 1974, some two months before the accident complained of. On her application for employment she denied receiving any compensation. benefits and did not acknowledge her prior accidents or surgery until the employer learned otherwise and confronted her with the information.

Following her 1973 surgery, Miss Farrar worked for two other employers without medical incident before she obtained employment with the defendant-employer.

The orthopedic surgeon who performed the 1973 operation was the treating physician of Miss Farrar and eventually performed cervical surgery, after conservative treatment, following the July 26, 1974 accident. On August 28, 1974, the orthopedist surgically removed the intervertebral disc at the C-7 and T-1 interspace and fused the two vertebrae. According to this doctor, who was Miss Farrar's sole medical witness, the 1973 fusion resulted in a ten percent permanent partial disability of the spine, while the 1974 fusion resulted in an additional ten percent disability of the spine. The 1973 and 1974 vertebral fusion produced 30-40 percent limited motion of the neck.

Miss Farrar returned to work on Monday, November 11, 1974. She worked eight hours for four days of that week and worked ten hours on Thursday of that week. The following week, she worked eight hours Monday, ten hours Tuesday, and about one and a half hours Wednesday, when she informed her supervisor that she could not continue working. She has contended since that time, and contends here, that she is totally and permanently disabled because of the pain which she says prevents her from working. In support of her testimony, she offers the testimony of a husband and wife who are her neighbors, and the testimony of the .orthopedist, who was the only medical witness below.

As appellant, Miss Farrar generally contends the lower court erred in not awarding her benefits for total and permanent disability and alternatively, that the award below of $25.00 per week for 100 weeks under the impairment section (R.S. 23:1221(4)(p)) should be increased to the maximum $65.00 per week. Collateral arguments made here concern the lower court’s rejecting her demand for attorney’s fees and penalties (R.S. 22:658, R.S. 23:1201.2) and the receipt into evidence of a letter from Miss Farrar’s orthopedist to the attorney for defendant-employer and workmen’s compensation insurer dated January 29, 1975, that Miss Farrar was able to return to work. It was at this time that the insurer terminated weekly compensation benefits.

Miss Farrar’s orthopedist testified during the trial. After he had left the stand and when defendants were presenting their side of the case, defense counsel, under oath, identified the letter he had received from the orthopedist as mentioned above. The letter was accepted as evidence by the trial court over plaintiff’s objection that it was hearsay and that the doctor was not subject to cross-examination. The receipt of the letter was offered as a defense to the allegations of plaintiff for attorney’s fees and penalties and was properly admitted when defendants were presenting their evidence. Indeed, except by agreement between the litigants, the letter could not have been admitted as a defendant’s exhibit when the doctor was on the witness stand because the doctor was plaintiff’s witness and the offering was made, not to show the truth of its contents, but to show that it was received by defense counsel a day or two after it was dated. The doctor’s testimony while under oath, in any event, is not contrary to the content of the letter.

TOTAL DISABILITY (1221 (2)) OR SERIOUS AND PERMANENT IMPAIRMENT OF THE USEFULNESS OF A PHYSICAL FUNCTION (1221(4))

R.S. 23:1221 includes three approaches of determining the period and amount of the weekly compensation award to an injured employee: (1) Total disability, either temporary or permanent (subsections 1 and 2); (2) Partial disability (subsection 3); and (3) Scheduled losses (subsection 4). See Malone, Louisiana Workmen’s Compensation Law and Practice, Chapter 13, for excellent comparison of application by the courts of the statutory approaches.

Partial disability apparently was intended to cover those situations where the injured employee, after injury, is able to perform work of some degree, but because of his disability he has lost some of his earning capacity. This subsection was appropriate for as long as total disability was defined as lack of ability to do work of “any reasonable character.” Since the definition of total disability has been expanded to mean lack of ability to do the same work after the injury as before, this subsection has not been widely applied.

In this instance the issue is between a scheduled loss under subsection four and total disability to perform work of the same kind the employee was performing at the time of the accident under subsections one and two. Where there is a physical injury but no resulting disability as that term has been defined by the courts, the schedule of R.S. 23:1221(4) serves as an arbitrary criterion for determining compensation. Where the physical injury has an appreciable effect on the worker’s ability to perform the same operations as he did before the accident, or where the injury produces substantial pain, neither the schedule loss nor the medical estimate shall apply, and compensation for total disability shall apply. See Malone, supra, section 278, 1964 Supp.; also, Ball v. American Marine, 245 La. 515, 159 So.2d 138 (1964); Griffin v. Liberty Mutual, 131 So.2d 153 (La.App. 2d Cir. 1961); and Cormier v. Zigler Shipyards, 264 So.2d 236 (La.App. 3d Cir. 1972).

The issue of substantial pain is essentially a credibility question and we reverse only where the trial court, in weighing the lay and medical testimony, has committed manifest error. Here we adopt some of the conclusions of the lower court. Miss Farrar’s work required her to clean machined metal parts weighing from a few pounds to several hundred pounds, using mechanical and hydraulic powered assists. Other employees testified as to the manner in which this work was performed. Plaintiff acknowledged that she had applied for unemployment benefits wherein she stated she was able to work and that she had also applied for a job with another employer, Western Electric, since being discharged by her doctor as able to work after the 1974 accident. Her doctor unequivocally testified that she could return to her work without appreciable pain or discomfort; that her complaints following the 1974 surgery were the same type complaints made by her after the 1973 surgery, following which she did resume working for several months before the 1974 accident. The trial court also noted that Miss Farrar’s medical history revealed some painful episodes while working before the 1974 accident which the orthopedist said resulted from arthritis, which she yet has. The lower court concluded “. . . all [this], when added together, causes us to discount the plaintiff’s description (as well as the lay witnesses) of her present condition and to accept the analysis of her treating physician . . .” Emphasis supplied.

Appellant contends the lower court erred in these conclusions, contrary to the recent case of Tantillo v. Liberty Mutual, 315 So.2d 743 (La.1975). There the Supreme Court said:

“We reject the rule . . . ‘ * * * [i]f there is no conflict of the medical testimony, then the lay testimony should not be considered by the court * * We therefore overrule specifically [ten cases from 1955 to 1972 by the Courts of Appeal and the Supreme Court, citations omitted]. By overruling this specific expression in those cases, we do not conclude that the cases were wrong in result. It is only that we disapprove of the rule of evidence as expressed.
“It is generally true that medical testimony which is not in conflict cannot be overcome by lay testimony. Nevertheless, in every case it is the totality of the evidence, medical and lay, which must be examined by the court in making its determination of whether to grant an award for disability. Great weight, almost to the point of exclusion of other evidence, is given to uncontradicted medical evidence which is directed toward a complex scientific question. However, in all cases, it is the judge’s function to determine the weight which is to be accorded the medical testimony as well as the lay testimony. Lay testimony has great probative value in establishing certain facts, such as the existence and location of pain and the actual ability or inability of a claimant to perform certain physical functions or to pursue his regular employment. See Larson, supra, at § 79.53. We conclude that lay evidence must be weighed with consideration for the medical fact to be established, of the conclusiveness and validity of the medical evidence and the materiality, relevance and reliability of the particular lay evidence, according to its focus, foundation and its source.” 315 So.2d 748-749.

We do not agree that the trial court acted contrary to Tontillo. The opinion below is to the effect that the trial judge did not reject and refuse to consider the lay testimony, but instead that he considered “. . . the plaintiff’s description (as well as that of the lay witness) . . .” and that he discounted, or did not accept at full face value, its credibility. We find no manifest error or error in legal application in this respect by our brother below.

A motion for a new trial was made by plaintiff and considered below. The prime allegation was that the “. . . testimony of plaintiff, two lay witnesses [etc] .” established that plaintiff was still experiencing pain and could not work. This allegation concerning the lay testimony and the trial court’s ruling on the motion for a new trial substantiates our conclusion that the lower court originally, and on the motion for a new trial, considered, but did not accept, the credibility of the testimony of plaintiff and the lay witnesses that Miss Farrar was totally disabled because of substantial pain. In the opinion below on the motion, the lower court said:

“As we stated during oral argument on this Motion, we are not kindly disposed toward reconsidering the question of the plaintiff being totally and permanently disabled.”

R.S. 23:1221 (4) (p) provides in part where the usefulness of a physical function is seriously and permanently impaired, as is the case here, “. . . the court may allow such compensation as is reasonable . not to exceed sixty-five per cen-tum of wages during one hundred weeks.” Cases interpreting this statute clearly and without exception hold that while the period of compensation must be 100 weeks, the amount of compensation is left to the sound discretion of the court. See this court’s opinion, per Bolin, J., Griffin v. Liberty Mutual, supra, at page 158. In its opinion on the motion for a new trial, the lower court categorized Miss Farrar’s situation as “minimal.” We find no abuse of discretion by the trial court.

Appellant also contends the lower court erred in allowing credit on the award made for the $1,755.00 paid in compensation benefits while Miss Farrar was temporarily but totally disabled. The compensation statute expressly requires this.

“Where compensation has been paid under subdivisions (1), (2), or (3), of R.S. 23:1221, the amount of such payment shall be deducted from any compensation allowed under subdivision (4) thereof or under Sub-part C of this Part.” R.S. 23:1223. (Emphasis supplied)

There was no abuse of discretion below in the denial of penalties and attorney fees under the circumstances presented.

At appellant’s cost, the judgment below is

Affirmed.

      . See Malone, supra, section 278, page 341.


author: BOUTALL, Judge.

text:
    Mary Ann Belvin, wife of Norris BELVIN v. Mike J. CALI and the Travelers Indemnity Co.
    No. 7195.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.

      Daniel E. Becnel, Jr., Reserve, for Mary Ann Belvin, wife of Norris Belvin, plaintiff.
    Taylor, Porter, Brooks & Phillips by Eugene R. Groves, Baton Rouge, for Mike J. Cali and the Travelers Indemnity Co., defendants.
    Before GULOTTA, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

This is a suit in tort by Mary Ann Bel-vin and her husband against Mike Cali and his insurer to recover damages for personal injuries received by Mrs. Belvin as a passenger in Mr. Cali’s automobile. The trial court rendered judgment in favor of plaintiffs and defendants, Mike Cali and Travelers Indemnity Company, have appealed.

The uncontested facts are that Mike Cali owns and operates a restaurant in LaPlace, Louisiana. Mrs. Belvin was employed by Mr. Cali two days prior to the accident. The second day Mrs. Belvin worked was Saturday, August 25, 1973. After she finished her work at 11:00 P.M. she punched out and waited for her husband to pick her up. At 11:30 P.M. Mr. Cali and the other employees closed the restaurant and seeing that Mrs. Belvin was still waiting they offered her a ride, which she accepted. In the car were Mr. Cali, the driver; Linda Morris, an employee, seated in the front seat and Mrs. Belvin seated in the back seat. On the Garyville road Mr. Cali’s car hit a railroad crossing described by him as approximately ten feet in height. The car left the road and came down on the other side of the crossing striking an iron pole and a concrete culvert.

Mrs. Belvin sustained a moderate to severe cervical and lumbosacral strain. She also injured her right arm which injury gave rise to carpal tunnel syndrome. An operation was performed on her right wrist to alleviate the carpal tunnel syndrome.

Defendants filed an exception of no cause of action on the basis that Mrs. Bel-vin was an employee injured in the course of her employment, and therefore her exclusive remedy is Workmen’s Compensation benefits. The trial court overruled this exception; it was reurged at the trial and again overruled. This contention now forms the major issue before us on appeal from the merits of the case.

This issue and similar cases have arisen before. The general rule is that employees going to or returning from work are not covered by the Workmen’s Compensation Act. Vincent v. Service Contracting, Inc., 108 So.2d 281 (Orl.App.1958) and Hay v. Travelers Ins. Co., 106 So.2d 791 (La.App. 2nd Cir. 1958). To this general rule there are several exceptions, the one pertinent here is best expressed by Professor Malone in his work Louisiana Workmen’s Compensation at Section 173:

“An accident that happens while an employee is being transported to or from work by his employer is compensable under the Act if the transportation is furnished as an incident of the employment.
* * * * * *
“The rule applies whenever the employer has interested himself in the transportation to and from work as an incident to the employment agreement, . . ."

The issue becomes a factual one. The inquiry to be made is, do the facts show that transportation was an incident to the employment agreement?

The record shows the following: Mr. Cali contends that he informs all his employees that they can get a ride home with him at any time. He stated that he asked Mrs. Belvin if she had transportation and she told him that she did. Mrs. Belvin agrees with this statement, but further states that Mr. Cali never told her he would give her a ride any time she needed one.

We hold that Mrs. Belvin was not acting in the course of her employment when she was injured. The facts evidence no agreement between Mr. Cali and Mrs. Belvin as to Mr. Cali providing transportation. On the contrary, the agreement was for Mrs. Belvin to provide her own transportation. Additionally, we note that Mrs. Belvin had been fired by her employer and was actually waiting for her husband to pick her up. The night was rainy, the hour late, and the place closed. Mr. Cali was heading in the direction of Mrs. Belvin’s home, in fact, almost the next house. We perceive these facts to evidence a ride offered out of courtesy and not out of an obligation from an employment agreement.

In distinguishing between transportation furnished as an incident to employment as opposed to a gratuitous or voluntary giving of a ride home, we consider it pertinent to inquire whether the activity undertaken was in furtherance of the employer’s business when the injury occurred. Under the facts outlined above we see nothing to indicate a furtherance of Mr. Cali’s business by riding Mrs. Belvin home.

Defendants have cited us to several cases which held that employees going to or returning from work have come within the purview of the Act. In every one of these cases there was evidence of an employment agreement concerning transportation. In Willis v. Cloud, 151 So.2d 379 (La.App. 3rd Cir. 1963) the court found that the plaintiff was similar to an independent contractor and required to provide his own truck as part of his employment agreement. In Boutte v. Mudd Separators, Inc., 236 So.2d 906 (La.App. 3rd Cir. 1970) the court found that the truck was provided to the employee for the employer’s convenience and that the employee was actually furthering the business of the employer by taking the truck to his home. In Welch v. Travelers Ins. Co., 225 So.2d 623 (La.App. 1st Cir. 1969) the employee was paid mileage and was injured while returning to his motel room from the job site.

We believe this case to be controlled by the principles enunciated in Bass v. Shreveport-El Dorado Pipe Line Co., 4 La.App. 107 (2nd Cir. 1926). In that case an employee was injured after falling from the employer’s truck returning to town. The employer did not allow employees to ride on the truck, but often let them ride into town as a courtesy. The Court stated:

“In the case at bar, the plaintiff’s work was finished for the week and he had been paid off; he was on his way home when the accident happened, and was more than a mile from defendant’s premises. He was entirely out of his employer’s control and was not where he was performing or where he could perform any service for his employer; he was riding on a conveyance not used to carry him as an incident of his employment or as part of his compensation, but he was permitted to ride on it as a matter of accommodation; he was not on his way to living or boarding quarters furnished or controlled by the employer as an incident of his employment or part of his compensation; he was on his way to his own home. Under such circumstances, the accident did not arise out of or in the course of plaintiff’s employment nor was it an incident thereto, and therefore he is not entitled to recover.”

In accord with the above case and holding to the general rule are Vincent v. Service Contracting, Inc., 108 So.2d 281 (Orl.App.1958) and Hay v. Travelers Ins. Co., 106 So.2d 791 (La.App. 2d Cir. 1958), supra.

Having decided that plaintiff’s proper remedy was in tort, we now reach the merits of the case.

Mr. Cali was obviously negligent in losing control of his car and striking an object off the highway. He estimated his speed at 30 to 35 miles per hour. Miss Morris placed the speed at 60 miles per hour and plaintiff merely said that he was going too fast. The night was rainy and misty and Mr. Cali was under a duty to drive according to the conditions of the road. LSA-R.S. 32:64. This he did not do and his negligence is the sole proximate cause of the collision. We see nothing in the record to indicate assumption of risk by Mrs. Belvin.

Defendants contend that the trial court abused its discretion by granting excessive damages. Mrs. Belvin was awarded $7,000 in pain and suffering, plus her medical and doctor bills. After reading- all the medical testimony the trial court felt that Mrs. Belvin’s carpal tunnel syndrome was causally related to the automobile accident. We cannot find error with that decision. Carpal tunnel syndrome, plus a moderate to severe lumbosacral strain can cause appreciable pain and suffering. An award of $7,000 for these injuries is within the sound discretion of the trial court and we will not disturb it. RCC Article 1934 (3).

Finally, plaintiffs have answered this appeal seeking lost wages for Mrs. Belvin. Loss of wages was denied for a lack of evidence and we agree with that finding. Plaintiffs seek 17 months lost wages, yet, except for the S days Mrs. Bel-vin was in the hospital there is no proof that she could not work.

For the above reasons the judgment of the lower court is affirmed. Defendants are to pay all costs.

Affirmed.

      . There are cases in which a fired employee would still be covered by Workmen’s Compensation benefits. See for example Matthews v. Milwhite Mud Sales Co., 225 So.2d 391 (La.App.3rd Cir. 1969), but factually, this is not such a case.


author: WALKER, Justice.

text:
    MAINSTREAM SAVINGS & LOAN ASSOCIATION v. WASHINGTON FEDERAL SAVINGS & LOAN ASSOCIATION et al.
    No. 48485.
    Supreme Court of Mississippi.
    Jan. 27, 1976.

      Robertshaw & Merideth, Greenville, for appellant.
    Clark, Davis & Belk, Indianola, Bogen & Bogen, Greenville, for appellees.
    Before GILLESPIE, WALKER and BROOM, JJ.
   WALKER, Justice.

This is an appeal from the Chancery-Court of Washington County reversing and vacating an order of the Mississippi Board of Savings & Loan Associations which had approved the appellant’s petition for a charter of incorporation of Mainstream Savings & Loan Association in Greenville, Mississippi. We reverse and reinstate the order of the Board.

The appellees, Washington Federal Savings & Loan Association, Delta State Savings & Loan Association and First Savings & Loan Association of West Mississippi, contested Mainstream’s application. Six banks and one other savings and loan association doing business in Washington County did not contest the application.

The primary issue in this case is whether the appellant presented substantial evidence to support the Board’s decision. That determination must be made in view of the rule that our Constitution does not permit the judiciary of this State to retry de novo matters on appeal from administrative agencies. Our courts are not permitted to make administrative decisions or perform the functions of an administrative agency. Administrative agencies must perform the functions required of them by law. When an administrative agency has performed its function, and has made the determination and entered the order required of it, the parties may then appeal to the judicial tribunal designated u, hear the appeal. The appeal is a limited one, however, since the courts cannot enter the field of the administrative agency. The court will entertain the appeal only to determine whether or not the order of the administrative agency (1) was supported by substantial evidence; (2) was arbitrary or capricious ; (3) was beyond the power of the administrative agency to make; or (4) violated some statutory or constitutional right of the complaining party. This rule has been thoroughly settled in this State. Mississippi State Tax Commission v. Mississippi-Alabama State Fair, 222 So.2d 664 (Miss.1969). See Loftin v. George County Board of Education, 183 So.2d 621 (Miss.1966); City of Meridian v. Davidson, 211 Miss. 683, 53 So.2d 48 (1951); California Co. v. State Oil & Gas Board, 200 Miss. 824, 27 So.2d 542 (1946), suggestion of error overruled, 200 Miss. 824, 28 So.2d 120 (1946).

Mississippi Code Annotated section 81-11-11 (1972) requires that before the board shall approve a charter, the petitioners must show (1) there is a need for the association in the area in which it is to be domiciled; (2) the presence of the proposed association will not jeopardize the financial stability of any existing association if the existing association is fulfilling the needs of the area of the proposed association; and (3) the organization of the association will benefit the area in which it is to be located.

It is not necessary for us to detail the evidence in this case. Suffice it to say that Mainstream produced nine witnesses, including the Mayor of Greenville, the President of the Chamber of Commerce, an economic expert and two local builders as well as other local businessmen, whose testimony provided substantial evidence with respect to the first and third requirements above mentioned.

As to the second requirement of the statute, i. e., that “the presence of the proposed association will not jeopardize the financial stability of any existing association if the existing association is fulfilling the needs of the area of the proposed association,” we must accept the evidence which supports or reasonably tends to support the conclusion upon which the order is based, together with all inferences favorable to it which may be drawn from the evidence. We also recognize that the Board has a certain amount of expertise in its field and has a reasonable latitude in the exercise of sound judgment in the performance of its specialized function. First National Bank of Vicksburg v. Martin, 238 So.2d 856 (Miss.1970). With these rules in mind, we are of the opinion that the Board correctly concluded from the testimony of the Executive Secretary of Delta State that Delta’s problems stemmed not from the economic situation in the community at the time, but was the result of a lack of management that occurred after the death of Delta’s founder and president, Bob Love, who was the moving force behind Delta.

Next, there is evidence in the record that First Savings & Loan Association of West Mississippi established a branch office in Greenville in November, 1972, approximately one year before the Board granted a charter to Mainstream. Although the First Savings Branch Office in Greenville is steadily increasing its share of deposits and loans, it was nevertheless operating in the red at the time of the hearing. However, this would not be unusual for a newly established branch of a savings and loan association. Moreover, there is nothing in the record to show that this would affect the stability of First Savings & Loan Association. To the contrary, the record reveals that First Savings & Loan, which is domiciled in Indianola, Mississippi, is a healthy, prosperous and growing institution.

We are of the opinion that the order of the Savings and Loan Board granting a charter of incorporation to Mainstream Savings & Loan was based on substantial evidence, and that the lower court erred in voiding that order.

Therefore, the judgment of the lower court is reversed and the order of the Savings & Loan Board is reinstated granting a charter of incorporation to Mainstream Savings & Loan Association.

Reversed and order of board reinstated.

RODGERS, P. J., and PATTERSON, INZER, SMITH, ROBERTSON and SUGG, JJ., concur.

      . The need must be substantial or' obvious. Planters Bank v. Garrott, 239 Miss. 248, 122 So.2d 256 (1960); Bankers Trust Savings and Loan Association v. Bank of Winona, 243 So.2d 415 (Miss.1971).


text:
    STATE HIGHWAY COMMISSION OF MISSISSIPPI v. Dr. John H. LONG et ux.
    No. 48492.
    Supreme Court of Mississippi.
    Jan. 27, 1976.
    S. E. Allen, Jr., Lamar A. Conerly, Jr. Hazlehurst, for appellant.
    Armstrong & Hoffman, John T. Armstrong, Jr., Olen C. Bryant, Jr., Hazle-hurst, for appellees.
    Before INZER, SMITH and ROBERTSON, JJ.
   Affirmed.


text:
    Schaffier Glenn SMITH v. Betty Smith SMITH.
    No. 48480.
    Supreme Court of Mississippi.
    Jan. 27, 1976.
    Harry Lanier Foote, Eugene Sexton Berry, Jr., Jackson, for appellant.
    Roland C. Lewis, C. A. Henley, Jr., Sam S. Allred, for appellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   Affirmed on direct and cross-appeal.


author: SMITH, Justice:

text:
    George WALKER v. V. M. BOX MOTOR COMPANY, INC.
    No. 48181.
    Supreme Court of Mississippi.
    Jan. 27, 1976.

      Mize, Thompson & Blass, Harris H. Barnes, III, Gulfport, Stanley L. Taylor, Jr., Oxford, for appellant.
    Smith, Downs, Coleman & Ross, Wendell H. Trapp, Jr., Corinth, for appellee.
    Before GILLESPIE, C. J., and SMITH and SUGG, JJ.
   SMITH, Justice:

George Walker has appealed from a judgment entered against him in the Circuit Court of Alcorn County at the suit of V. M. Box Motor Company, Inc. The pleadings and proof show that Box had repossessed from Walker, without legal proceedings, a 1967 Ford automobile, which had been purchased by the latter secondhand, under a retail installment “retained title contract.” Judgment was entered for the balance remaining on Walker’s debt after applying the proceeds of the sale of the-automobile by Box and rejecting Walker’s cross-claim for damages. It followed a directed verdict for Box on all issues.

Several complaints are made of the action of the trial court.

First, it is contended that repossession of the automobile by Box was made unlawfully. The record indicates the contrary. The car was voluntarily surrendered by Walker to Box and there is nothing in the record to support the proposition that the retaking was improper or unlawful in any respect or that it was not within the provisions of Mississippi Code Annotated section 75-9-503 (1972), permitting such a repossession. As to the repossession, there was no material conflict in the evidence and the action of the trial court as to this issue was correct and is affirmed.

The automobile was sold by Box at private sale. Walker complains that Box failed to give him “reasonable notification of the time” after which the automobile would be sold. Mississippi Code Annotated section 75-9-504(3) (1972).

It is undisputed that. the required notice was not given Walker by Box. This does not, however, work an absolute forfeiture of Walker’s indebtedness to Box, since the security agreement provides that Walker shall be liable for the -deficiency after application of the proceeds of the sale. Mississippi Code Annotated section 75-9-504(2) (1972). The failure to give the notice does entitle the debtor, Walker, to recover from the secured party, Box, any actual loss caused by such failure and, in the case of the sale of consumer goods such as the automobile in this case, the debtor also shall have the right to recover “in any event an amount not less than the credit service charge plus ten per cent (10%) of the principal amount of the debt or the time price differential plus ten per cent (10%) of the cash price.” Mississippi Code Annotated section 75-9-507(1) (1972).

In addition, failure to give the required statutory notice imposes upon the creditor the burden of establishing by proof that the sale was made in conformity with “reasonable commercial practices” as required by Mississippi Code Annotated section 75-9-507(2) (1972). The creditor in such case also must assume the burden of establishing by proof that the sum received for the chattel represented its fair market value.

There is no dispute that, after making necessary repairs, the vehicle was sold at private sale to the highest bidder for $450, after Box had privately solicited and obtained bids from four bidders.

However, in his answer, Walker denies that this sum represented the fair market value of the automobile and contends that it was worth between “$600 and $900.” In his answer to interrogatories propounded to him he testified that the sale produced considerably less than the true fair market value of the automobile. Norton v. No tional Bank of Commerce, 240 Ark. 143, 398 S.W.2d 538 (1966).

In directing a verdict for Box the trial court correctly held that there was no factual issue to be submitted to the jury as to the legality of the repossession.

However, in the above state of the record, a factual question was raised by the pleadings and conflicting testimony as to the fair market value of the automobile. This should have been submitted to the jury.

Also, Walker’s cross-claim demanding damages fr.om Box should have been submitted to the jury in keeping with the provisions of Mississippi Code Annotated section 75-9-507(1) (1972).

The case will be affirmed as to the legality of the voluntary repossession of the automobile by Box. It will be reversed and remanded for determination of the questions stated above.

The case was considered by a conference of the Judges en banc.

Affirmed in part and reversed in part.

All Justices concur.


text:
    Robert B. WALLER and Mrs. Lillian M. Waller v. ROSS E. COX, INC. and the City of Hattiesburg.
    No. 48450.
    Supreme Court of Mississippi.
    Jan. 27, 1976.
    Heidelberg, Sutherland & McKenzie, Hattiesburg, for appellants.
    Zachary, Weldy, Ingram & Stroud, Dan R. Wise, Hattiesburg, for appellees.
    Before RODGERS, P. J., and INZER and SMITH, JJ.
   Affirmed.

GILLESPIE, C. J., and PATTERSON, ROBERTSON, SUGG, WALKER and BROOM, JJ., concur.


text:
    Gregory BARNES v. STATE of Mississippi.
    No. 48881.
    Supreme Court of Mississippi.
    Jan. 27, 1976.
    Jerry L. Bustin, Forest, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before INZER, SMITH and ROBERTSON, JJ.
   Affirmed.

GILLESPIE, C. J., RODGERS, P. J., and PATTERSON, SUGG, WALKER and BROOM, JJ., concur.


text:
    Leah Powell SMITH v. Joseph L. POWELL.
    No. 48991.
    Supreme Court of Mississippi.
    Jan. 27, 1976.
    James R. Allen, Carthage, for appellant.
    J. Ronald Parrish, Laurel, for appellee.
    Before GILLESPIE, C. J., and WALKER and BROOM, JJ.
   Appeal dismissed.

RODGERS, P. J., and PATTERSON, INZER, SMITH, ROBERTSON and SUGG, JJ., concur.


text:
    PRAIRIE LIVESTOCK COMPANY, INC. v. H. T. CHANDLER.
    No. 48452.
    Supreme Court of Mississippi.
    Jan. 27, 1976.
    Williams, Gunn, Eppes & Crenshaw, Robert D. Jones, Meridian, for appellant.
    Warner & Ray, Meridian, Coleman & Cothren, Jackson, for appellee.
    Before RODGERS, INZER and SMITH, JJ.
   SMITH, Justice:

In a suit for damages for personal injuries tried in the Circuit Court of Lauder-dale County, H. T. Chandler Jr., recovered a judgment against Prairie Livestock Company, Inc., in the amount of $10,000, and the latter appeals.

The episode, out of which the action arose, is correctly described in the briefs as bizarre. It took place at a public cattle sale and involved three individuals who were cattle buyers, one of whom was Boyce Davis, a buyer for appellant, Prairie.

When Boyce Davis entered the stands which surrounded the arena, the other two buyers, James Crenshaw and Willie Jim Mitchell, with neither of whom Boyce or Prairie had any connection whatever, were already seated. Mitchell was sitting in the row back of Crenshaw, and was occupying a seat behind that occupied by Crenshaw. Davis thought there was a vacant seat in the row in which Crenshaw was sitting and started to enter the row. This required him to get by the seated Crenshaw. Davis was mistaken or the seat he had in mind was filled before he could get to it. When he observed this, he jokingly requested Crenshaw (with whom he was acquainted), to give him, Davis, his seat and playfully sat down on Crenshaw’s lap for a moment. Mitchell, sitting behind Cren-shaw, immediately then and without warning, “goosed” Crenshaw from behind. This caused Crenshaw to react violently by suddenly jumping up and hurling Davis bodily down the aisle steps which descended between the sections of seats. The body of the falling Davis, in the course of his fall, struck Chandler, who was sitting on the steps in the aisle a few rows down.

Prairie’s request for peremptory instruction was denied and the facts were submitted to a jury which returned a verdict for Crenshaw against Prairie in the amount of $10,000.

The principal grounds assigned for reversal will be discussed in the order following and are that Prairie was not liable because:

(1)The act of Davis was not within the scope of Davis’ employment by Prairie or in furtherance of Prairie’s business.

(2) Davis’ action was mere horseplay and was such a complete departure from the scope of his employment by Prairie and from any business of Prairie that it imposed no liability on Prairie therefor.

(3) The act of Mitchell in suddenly “goosing” Crenshaw, without warning, could not reasonably have been foreseen or anticipated by Davis, and was the independent, intervening and efficient proximate cause of Chandler’s injury and, therefore, if Davis’ action in sitting momentarily on the lap of Crenshaw was negligence, it was only a remote cause of Chandler’s injury and was superseded and insulated by the intervening act of Mitchell.

(1) In Grier v. Thomasson, 254 Miss. 491, 495, 182 So.2d 398, 399 (1966), it is stated:

This Court has repeatedly held that it is incumbent upon the claimant under the doctrine of respondent superior to show that the employee was acting within the scope of his employment in order to hold the employer responsible for the negligence of the servant.

In Lovett Motor Co., Et al. v. Walley, 217 Miss. 384, 390, 64 So.2d 370, 372 (1953), this Court stated:

The question as to whether or not the servant in the particular instance was acting within the scope of his employment is a question of law for the court if there is no conflict in the facts, but if there is conflict in the facts then it is a question to be submitted to the jury. (Emphasis added).

In Stovall v. Jepsen, 195 Miss. 115, 122, 13 So.2d 229, 230 (1943), this Court said:

. . . If a servant steps aside from the master’s business for some purpose of his own disconnected from his employment, the relationship of master and servant is temporarily suspended and “this is so no matter how short the time, and the master is not liable for his acts during such time.” . . . (Emphasis added).

In Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 157, 28 So. 823, 824 (1900), the rule was stated thus:

. . . The inquiry is not whether the act in question in any case, was done, so far as time is concerned, while the servant was engaged in the master’s business, nor as to mode or manner of doing it; whether in doing the act he uses the appliances of the master, but whether, from the nature of the act itself as actually done, it was an act done in the master’s business, or wholly disconnected therefrom by the servant, not as servant, but as an individual on his own account. . . . (Emphasis added).

(2) In Thomas-Kincannon-Elkin Drug Co. v. Hendrix, 175 Miss. 767, 771, 168 So. 287, 288 (1936), the plaintiff was given a. drink containing a large quantity of Ex-Lax by an employee at a soda fountain. In reversing the lower court and entering judgment for the defendant, this Court stated:

Smith’s employment, as disclosed by the evidence, was simply to sell soft drinks for the appellant; and there is nothing in the evidence charging the appellant with any reason to suspect that he would in any way' depart therefrom. In administering the drug to the appel-lee, if such he did, he acted wholly without the scope of his employment, not in furtherance of the appellant’s business, and solely for a purpose of his own. It is true that for the accomplishment of that purpose he used facilities supplied him by the appellant; nevertheless it is not liable for the injury thereby inflicted on the appellee. . . .

This rule is in keeping with the authorities generally. In 57 C.J.S., Master and Servant § 574 c (1948), the text writer states as follows:

If the servant does an act merely to frighten a third person or an animal or to perpetrate a joke on a third person, and the act is entirely disconnected from the purpose of the employment, the master generally is not liable therefor.

(3) The rule is stated in Mississippi City Lines v. Bullock, 194 Miss. 630, 639-640, 13 So.2d 34, 36 (1943):

. . . Negligence which merely furnishes the condition or occasion upon which injuries are received, but does not put in motion the agency by or through which the injuries are inflicted, is not the proximate cause thereof. The question is, did the facts constitute a succession of events so linked together as to make a natural whole, or was there some new and independent cause intervening between the alleged wrong and the injury? .. .

In Sturdivant v. Crosby Lumber & Manufacturing Co., 218 Miss. 91, 100-101, 65 So.2d 291, 295 (1953), the Court had this to say:

The likelihood of the result happening must be more than a remote possibility to fulfill the requirements of this rule of liability. The likelihood “which furnishes the essential ligament between the negligence and the injury must be one of weight and moment.” Mauney v. Gulf Refining Co., supra. The area of foreseeable liability does not include remote possibilities. The legal standard of the reasonable man can be guided only by a reasonable estimate of probabilities.

Milam v. Gulf, Mobile & Ohio Railroad Co., 284 So.2d 309 (Miss.1973), approves language contained in Robison v. McDowell, 247 So.2d 686, 689 (Miss.1971):

. . . The requirements of the law as to foreseeability can probably be better expressed in terms of how far the responsibility of an actor extends. If the act complained of is only a remote cause, superseded by an independent, efficient intervening cause that leads in unbroken sequence to the injury, the original negligent act is not a proximate, but a remote, cause. Thus, not being foreseeable, the original cause is not actionable. In our view, when measured by the settled rules of the law of negligence, Robi-son is not liable.

The facts in the present case are undisputed in the record.

The testimony that Crenshaw’s involuntary action in throwing Davis down the steps resulted solely from Crenshaw’s involuntary reaction when he was, without warning, unexpectedly goosed by Mitchell is uncontradicted. Crenshaw himself testified :

Q. Did Boyce (Davis) do anything to you to cause you to throw him down the steps or was that something Mitchell did?
A. Mitchell was the one that caused the whole outfit.

Davis, Mitchell and Crenshaw were not made defendants to the suit. Neither Prairie nor Davis had any connection with Mitchell or Crenshaw. Liability of Prairie must rest upon a theory of agency or re-spondeat superior and required that it be shown that Davis was acting within the scope of his employment or in the furtherance of Prairie’s business. This clearly was not the case. Davis’ entire contribution to the events which resulted in the injury of Chandler was restricted to his jokingly requesting Crenshaw to give him his seat and in playfully sitting down on Cren-shaw’s lap. This personal prank on the part of Davis in no way furthered Prairie’s business and was not within the scope of Davis’ employment by Prairie. The “goosing” of Crenshaw by Mitchell, was exclusively Mitchell’s idea and act, and Davis was associated with neither. The precipitating act was done by Mitchell, entirely without warning, and could not reasonably have been foreseen by Davis.

The peremptory instruction requested by Prairie should have been granted.

The case was considered by a conference of the Judges en banc.

Reversed and judgment here for appellant.

All Justices concur except RODGERS, P. J., and INZER, J., who dissent.


text:
    PEARL RIVER VALLEY WATER SUPPLY DISTRICT v. Coleman L. BURCH.
    No. 48513.
    Supreme Court of Mississippi.
    Feb. 3, 1976.
    Watkins, Pyle, Ludlam, Winter & Sten-nis, William A. Pyle, Jackson, J. M. Ritch-ey, Cain & Cain, Canton, for appellant.
    Roy Noble Lee, Forest, for appellee.
    Before PATTERSON, ROBERTSON and SUGG, JJ.
   Affirmed.


text:
    J. R. ADAMS v. A. R. TAYLOR, Jr.
    No. 48511.
    Supreme Court of Mississippi.
    Feb. 3, 1976.
    Troutt, Moore & Johnson, Senatobia, for appellant.
    McClure, McClure & May, Sardis, Johnson & Adams, Senatobia, for appellee.
    Before INZER, ROBERTSON and SUGG, JJ.
   Affirmed.


text:
    Christine HORTON v. William E. BROOKS.
    No. 48500.
    Supreme Court of Mississippi.
    Feb. 3, 1976.

      J. A. White, Durant, for appellant.
    Brooks & Guyton, Koscisuko, for appel-lee.
    Before GILLESPIE, WALKER and BROOM, JJ.
   WALKER, Justice.

This is an appeal from the Circuit Court of Holmes County which entered a judgment based upon a jury verdict in the amount of $1,500 in favor of appellant for damages resulting from an automobile and truck collision. The appellant being aggrieved at the amount of the judgment takes this appeal. We reverse with suggestion of additur.

The accident out of which the damages arose occurred on Friday, September 14, 1973, at about 8:30 p. m. The appellant was unconscious from the time of the acci-defit until Saturday morning, September 15, 1973. She thereafter remained in the hospital from September 14 until October 2, 1973, when she was released. The appellant was discharged from her physician’s care on December 17, 1973. Her injuries from the accident consisted of a fracture of both bones of the left forearm, two fractured ribs and a small laceration on her forehead. The doctor testified that the injuries appellant received were painful and uncomfortable; that the fracture to her left arm necessitated an operation to reduce the fracture and for the insertion of two large compression plates; that the arm is not as strong as the normal arm; and that “ . . . she has some limitation of this motion we call pronation and supernation— has about 25% limitation here — has a little limitation of the wrist flexion that we call —about 25% there.” In addition to her personal injuries, appellant proved specials of $560 allowed to be considered by the jury. When $560 is subtracted from the jury verdict of $1,500, it is apparent that the jury assessed appellant’s personal injuries at only $940.

I.

The first question presented for our consideration is whether the verdict of the jury was so grossly inadequate as to evidence bias or prejudice on the part of the jury and to shock the conscience of the court. We are of the opinion that it was. There is no showing of contributory negligence on the part of the appellant. She occupied the status of a guest passenger and no negligence may be imputed to her under the facts presented. We are aware of the rule that a jury has a wide latitude in assessing damages. However, a verdict should be in such an amount as to reasonably compensate a person who is entitled to recover for injuries and damages sustained; and, we do not hesitate to set aside those verdicts which wholly failed so to do. In a case where a person who is not negligent is injured by the negligence of another to the extent of being knocked unconscious for sereval hours; suffered a fracture of both bones of the left forearm necessitating an operation and the insertion of compression plates with an ultimate loss of 25% supernation and pronation movement of that portion of the arm and 25% loss of flexion of the wrist; suffered two broken ribs and a laceration of the forehead; was hospitalized for 18 days; disabled for a total of 94 days; and had special expenses of $560, it is our opinion that a jury verdict of $1,500 for those damages and injuries is unconscionable and must be set aside.

We are also of the opinion that this is a case where the suggestion of an additur is appropriate as permitted under Mississippi Code Annotated section 11-1-55 (Supp.1975). Therefore, if the appellee, William E. Brooks, accepts' an additur within fifteen days in the amount of $6,000 to make a total judgment of $7,500, this cause will be affirmed. If the appellee fails to enter an additur within the time suggested, this cause will be reversed and remanded to the lower court for a new trial on the question of damages only.

II.

The appellant next contends that the lower court erred in not instructing the jury, as requested by appellant, that under certain circumstances it could assess punitive damages. We have carefully considered the record in this regard and are of the opinion that this was a case, at most, of simple negligence and that there were no facts upon which a jury could have assessed punitive damages.

III.

The next question presented is whether the hospital expenses which were paid by Medicaid were recoverable by appellant as an element of her damages.

The lower court refused to permit the appellant to include in her instructions to the jury that it could consider her hospital bill as an element of damages.

In support of her contention that the lower court erred in this regard she cites Coker v. Five-Two Taxi Service, Inc., 211 Miss. 820, 826, 52 So.2d 356, 357 (1951), where it quoted from 25 C.J.S. Damages § 99, which states:

“ ‘Compensation or indemnity for the loss received by plaintiff from a collateral source, wholly independent of the wrongdoer, as from insurance, cannot be set up by the latter in mitigation or reduction of damages, and, by some authorities, this rule also applies to payment of salary or expenses.
‘The wrongdoer is not entitled to have the damages to which he is liable reduced by proving that plaintiff has received or will receive compensation or indemnity for the loss from a collateral source, wholly independent of him. Under this general rule, insurance in behalf of the injured person cannot be set up by the wrongdoer in mitigation of the loss.’ To the same effect is 15 Am.Jur., Damages, Sec. 201.”

Appellant also quotes 15 Am.Jur. Damages, section 199, page 615 (1938), where it is said:

The fact that medical attention and nursing have been rendered gratuitously to one injured by the wrongful act of another will not preclude the injured party from recovering the value of such services as a part of his compensatory damages.

And 15 Am.Jur. Damages, section 201, page 617 (1938), where it says:

It is well settled that the damages recoverable for a wrong are not diminished by the fact that the party injured has been wholly or partly indemnified for his loss by insurance effected by him and to the procurement of which the wrongdoer did not contribute. This is equally true although the defendant was not guilty of any wrongdoing or negligence, if the law has made him liable for the injury in their absence. This rule is not affected by the fact that the insurer is entitled to be subrogated to the rights of the insured as against the tortfeasor or to recover back from him the amount he recovers. The question of the rights to the proceeds of the recovery is a matter between the insurer or the insured; it constitutes no defense to an action for the damages caused by the wrong which must be brought in the name of the insured, although it might be for the use of the insurer. The reasons generally given for the rule are that the contract of insurance and the subsequent conduct of the insurer and the insured in relation thereto are matters with which the wrongdoer has no concern and which do not affect the measure of his liability. The insurance is to be treated as a mere indemnity and the insured and insurer are regarded as one person, so that payment by the insurer before suit brought cannot affect the right of action. The rule applies in cases of accident insurance, insurance against loss from the payment of hospital bills, life insurance, and insurance against injury to, or the destruction of, property.
Of the same character as insurance money proper are the sick benefits and other aids received from benefit societies, fraternal societies, and other organizations of that class. Benefits received by the plaintiff from a source other than the defendant and to which he has not contributed are not to be considered in assessing the damages. The same has been held true of compensation received by an employee from a benefit fund maintained by the employer.

On the other hand, the appellee relies upon Mississippi Code Annotated, section 43-13-125 (1972)-, to support his position that the hospital bill is not recoverable by the appellant. That section reads as follows :

If medical assistance is provided to a recipient under this article for injuries, disease or sickness caused under circumstances creating a cause of action in favor of the recipient against any person, firm or corporation, then the commission shall be entitled to recover the proceeds that may result from the exercise of any rights of recovery which the recipient may have against any such person, firm or corporation to the extent of the actual amount of the medical assistance payments made by the commission on behalf of the recipient. The recipient shall execute and deliver instruments and papers to do whatever is necessary to secure such rights and shall do nothing after said medical assistance is provided to prejudice the subrogation rights of the commission.
The commission may compromise or settle any such claim and execute a release of any claim it has by virtue of this section.
Any amounts recovered by the commission under this section shall, by the commission, be placed to the credit of the funds appropriated for benefits under this article proportionate to the amounts provided by the state and federal governments respectively.

We are of the opinion that the hospital bill which was paid by the Mississippi Medicaid Commission was not recoverable as an element of appellant’s damages. The Commission is a creature of the Legislature set up to administer and oversee the disbursement of benefits to persons entitled thereto. In so doing, the Legislature had the right to impose limitations and conditions upon which the funds would be disbursed. One of the conditions imposed was that the Commission would be entitled to recover the proceeds resulting from the exercise of any rights of recovery which the recipient may have against any person, firm or corporation to the extent of the actual amount of the medical assistance payments made by the Commission on behalf of the recipient. The act clearly provides that the recipient “ . . . shall do nothing after said medical assistance is provided to prejudice the subrogation rights of the commission.” Miss.Code Ann. § 43-13-125 (1972).

In our opinion, this statute clearly gives the Medicaid Commission the exclusive right to make claim for or bring suit for sums paid by the Medicaid Commission for medical assistance to a recipient for injuries, disease or sickness caused under circumstances crfeating a cause of action in favor of the recipient against any person, firm or corporation.

The authorities relied upon by the appellant which permit an injured person to recover for medical assistance paid gratuitously or by insurance companies, benefit societies, fraternal societies, employers and other collateral sources are not applicable where the benefits are paid by Medicaid, as the statute gives the exclusive right of recovery for such payments to the Medicaid Commission.

The judgment of the lower court is affirmed if the appellee enters an additur, in writing, within fifteen days from the date this judgment becomes final; otherwise, the judgment of the lower court is reversed and the cause remanded for a new trial on the question of damages only.

Affirmed on condition of additur in the amount of $6,000 making a total judgment of $7,500; otherwise, reversed and remanded for a new trial on damages only.

GILLESPIE, C. J., RODGERS, P. J., and PATTERSON, INZER, SMITH, ROBERTSON, SUGG and BROOM, JJ., concur.