author: GUIDRY, Judge. CULPEPPER, Judge, WATSON, Judge, SWIFT, Judge,

text:
    William Scott FARMER, Plaintiff-Appellee, v. HARTFORD ACCIDENT & INDEMNITY COMPANY et al., Defendants-Appellants.
    No. 6803.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 15, 1979.
    Rehearing Denied March 29, 1979.

      Gravel, Roy & Burnes by Chris J. Roy, Alexandria, for plaintiff-appellant, Deborah Crocker.
    Stafford, Trimble, Randow & Smith by Russell Potter and Grove Stafford, Jr., Alexandria, for defendants-appellees, Ray Sharpe, et al.
    Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for plaintiff-appellee Tom Hill and defendants-appellees Hartford.
    Lauve & Hill by Blaise L. Hill and Lewis O. Lauve, Alexandria, for plaintiff-appellee, William Scott Farmer.
    Before CULPEPPER, DOMENGEAUX, WATSON, GUIDRY and SWIFT, JJ.
   GUIDRY, Judge.

The above entitled matter was consolidated for trial in the lower court with the following companion cases:

Tom Hill and Jenny R. Hill v. Kenneth R. Sharpe, et al., our docket number 6804; and,
Deborah Crocker, Individually, Etc. v. Ray Sharpe, et al., our docket number 6805.

The cases remain consolidated on appeal and we this day render separate opinions in each.

These consolidated cases arise as a result of a single vehicular accident which involved, either directly or indirectly, three vehicles: a 1974 Mack truck owned by Ray Sharpe and driven by Kenneth R. Sharpe; a 1974 Chevrolet Camaro owned by William Scott Farmer and driven by Claude Crock-er; and, a 1964 Thunderbird, owned by Tom Hill and driven by Jenny R. Hill. The accident occurred on October 5, 1975, at approximately 1:30 p. m. At the time of the accident, the Camaro was traveling east on Louisiana Highway 112, toward Le-compte, Louisiana, with the truck following closely behind. Jenny Hill was traveling west on the same highway. Although some of the facts are disputed, it is undisputed that when the Camaro attempted to make a right hand turn into a private driveway, the truck collided with the right rear of the Camaro and then swerved into the westbound lane of Highway 112, causing Mrs. Hill, driver of the Thunderbird, to swerve into a ditch to avoid a collision with the truck. As a result of the accident Claude Crocker was killed and William Scott Farmer, a passenger in the Camaro, and Jenny R. Hill sustained serious personal injuries. In the Farmer suit (our docket number 6803) the following parties are made defendants: Hartford Accident & Indemnity Company (Hartford), insurer of the vehicle being driven by Claude Crocker; Kenneth and Ray Sharpe and their insurers, Bankers & Shippers Insurance Company of New York (Bankers) and National Indemnity Company (National); and Deborah Crocker. In the Hill suit, Hill v. Sharpe (La.App.1979) 368 So.2d 499, Ray Sharpe, Kenneth Sharpe and their insurers, Bankers and National are made defendants. In the Crockersuit, Crocker v. Sharpe (La.App.1979), 368 So.2d 500, Ray Sharpe, Kenneth Sharpe and their insurers Bankers and National are made defendants, along with Travelers Indemnity Company (Travelers), the alleged insurer of Ray and Kenneth Sharpe, and Hartford, the uninsured motorist carrier of the Camaro automobile owned by William S. Farmer. Travelers was dismissed from this suit on motion for summary judgment. No appeal has been taken from this judgment of dismissal.

The trial court ultimately concluded that the accident was caused by the joint and concurrent negligence of the driver of the Camaro (Claude Crocker) and the driver of the Mack truck (Kenneth Sharpe) and rendered judgments in favor of William Scott Farmer and Tom and Jenny Hill and dismissed the suit of the widow and survivors of Claude Crocker. Judgments were rendered against all named defendants excepting Deborah Crocker and Ray Sharpe, plaintiffs’ suits as to the latter two being dismissed for want of any evidentiary showing of liability on their part.

In the Farmer suit appeals were taken by Kenneth Sharpe, his insurers, Bankers and National, and Hartford. Farmer has answered these appeals seeking an increase in the quantum of damages awarded. In the Hill suit an appeal has been taken by Kenneth Sharpe and his insurers, Bankers and National. The Hills have neither appealed nor answered the appeal. In the Crocker suit plaintiffs have appealed and defendants have neither appealed nor answered the appeal.

The following issues are presented on appeal:

1. Was Kenneth Sharpe, driver of the 1974 Mack truck, negligent?

2. Was Claude Crocker, driver of the Camaro, guilty of negligence?

3. Did the trial court err in failing to impute the negligence of Crocker to William Farmer?

4. Did Kenneth Sharpe have the last clear chance to avoid the accident?

5. Did the trial court err in failing to hold Ray Sharpe liable under the doctrine of Respondeat Superior?

6. Are the trial court’s awards of damages reasonable and supported by the evidence?

I. WAS KENNETH SHARPE GUILTY OF NEGLIGENCE?

Kenneth Sharpe urges that prior to the accident, the Camaro signaled a left hand turn, pulled completely into the left or westbound lane, and then suddenly signaled a right hand turn, and pulled back into the eastbound lane directly into the path of his truck. The trial court concluded that for purposes of determining if Kenneth Sharpe was negligent, it did not matter whether Crocker had been attempting a wagon wheel turn from the left lane or executing his turn from the right lane. The court found that in either event, Sharpe’s negligence was a proximate cause of the collision. In its written reasons for judgment, the trial court stated:

“Considering the testimony of all witnesses, the opinion of Dr. Tonn and Trooper Blunski and the physical evidence, there is no issue as to where the point of impact was. It was in the east bound lane. Also there is agreement that Sharpe was partly on the highway and partly on the shoulder.
The undersigned has viewed the scene of the accident in addition to analysing the scenes depicted in the photographs in evidence and the photographs of the damages to the vehicles. As a result, the undersigned is of the opinion that the testimony and opinion of Dr. Tonn and Trooper Blunski is not dispositive of the factual issues in the case. Considering any theory of facts leads to a conclusion that both Crocker and Sharpe were guilty of negligence and their negligence combined to cause both accidents. The second accident occurred after the collision between the truck and Camaro. The truck and trailer momentarily went out of the control of Kenneth R. Sharpe and careened over into the left, or west bound lane. Sharpe then regained control and brougth (sic) his unit to a halt down the highway on the right side. However, as Sharpe’s unit entered the west bound lane it forced Mrs. Jenny Hill to take evasive action to avoid a head-on collision with the Sharpe truck. Mrs. Hill cut her Thunderbird to her right (north) and ran it into the ditch on the north side of the highway. Both Mrs. Hill and her passenger sustained injuries. (The passenger, Mrs. Salard, had settled her claims and was not a party litigant here.)
As stated above, both Sharpe and Crocker were negligent. Sharpe admittedly persisted in following too close to the Cama-ro at two to three car lengths. According to Sharpe, Crocker signaled a left turn and Sharpe sought to pass on the right side of the Camaro. It makes little difference whether Crocker was making a wagon wheel turn to the right from the left lane or attempted to turn from the right lane. Sharpe was following too close. Further, upon seeing the approach of Jenny Hill from the east he should have slowed and waited until the situation was clear before attempting to pass. If Sharpe was incorrect in his contention that Crocker was in the left lane when he began his right turn, Sharpe was still negligent. In such an instance, Sharpe was following too close, traveling too fast and failed to attempt to adjust in time to Crocker’s action in slowing down and turning right.”

Our careful review of the record supports the trial court’s determination that Kenneth Sharpe was negligent.

LSA-R.S. 32:81 in pertinent part provides:

“A. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”

The undisputed evidence establishes that at the time of the accident, Sharpe was operating his vehicle — a large tractor trailer carrying a load of gravel — along a winding road at a speed of at least 45 miles per hour at a distance of approximately 50-60 feet behind the Camaro. Following the Ca-maro at such a distance under the circumstances was clearly negligent. In addition, the record reflects that under Sharpe’s own version of the events directly preceding the collision, when he saw the Camaro pull into the left lane, he accelerated in an attempt to pass the automobile on the right. The physical evidence establishes that at the time of impact, the truck was partially on the shoulder of the eastbound lane. Attempting to pass partially on the shoulder under the prevailing circumstances was likewise negligent action on Sharpe’s part. Accomando v. St. Louis Fire and Marine Ins. Co., 228 So.2d 676 (La.App. 1st Cir. 1969). We agree with the trial judges conclusion that Sharpe was negligent in: a) failing to keep a proper distance between his truck and the Camaro, and b) attempting to pass on the shoulder, and that such negligence on his part proximately caused the ensuing collision.

II. WAS CLAUDE CROCKER GUILTY OF NEGLIGENCE?

The trial court concluded that even if it examined the evidence in a light most favorable to Claude Crocker, he was nevertheless contributorily negligent in causing the accident. In its written reasons for judgment, the court stated:

"Crocker was also negligent irrespective of whether he was in the left or right lane when he began his right turn. It was incumbent upon him to ascertain that he could safely make the right turn before he did so. A check to the rear would have shown Crocker that he could not safely slow down and make a right turn into a private driveway. He would have seen the truck following very close at his rear at a speed at which it could not stop or slow down quickly. He should have been aware of the oncoming Thunderbird which blocked the left lane of travel. We will never know whether Crocker actually saw the Sharpe truck trailer unit behind him. However, the evidence is uncontradicted to the effect that he turned on the turn indicator signal. Whether he signaled a left turn or a right turn is in dispute. Nevertheless, it is clear that Crocker made a turning maneuver, or began, to turn, to the right. Crocker failed to determine that he could not make the right turn he attempted. His action was a proximate cause of the collision of the truck with the rear of the Camaro and of the events which led to the action forced upon Mrs. Hill in leaving the highway to avoid collision with the truck.”

LSA-R.S. 82:101 in part provides:

“The driver of a vehicle intending to turn at an intersection shall proceed as follows:
(1). Right turns. Both the approach for a right turn and a right turn shall be made as close as practicable to the right-hand curb or edge of the roadway.”
LSA-R.S. 32:104 in part provides:
“A. No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.
B. Whenever a person intends to make a right or left turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning.
C. No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.”

In the recent case of Fidelity & Casualty Company of New York v. Continental Casualty Company et al., 347 So.2d 1224 (La. App. 1st Cir. 1977) our brethren of the First Circuit summarized the duties incumbent on a turning driver under the cited statutes stating:

“Thus, whether a driver intends to make a left turn or a right turn, he must under the statute: (1) make certain that he can complete the maneuver without endan gering traffic approaching from the front or rear; (2) make certain that any sudden decrease of speed on his part will not endanger the following vehicles; and (3) give timely and adequate signal of his intention. Reeves v. Caillouet, 46 So.2d 373 (La.App. 1st Cir.) (1950); McNeely v. United States Fidelity & Guaranty Company, 69 So.2d 600 (La.App. 2nd Cir. 1953); Nomey v. Great American Indemnity Company, 121 So.2d 763 (La.App. 2nd Cir.) (1960); Foreman v. American Automobile Insurance Company, 137 So.2d 728 (La.App. 3rd Cir.) (1962); Aetna Casualty and Surety Company v. Henry, 307 So.2d 375 (La.App. 1st Cir.) (1974); and Dupre v. Olympic Insurance Company, 232 So.2d 544 (La.App. 3rd Cir.) (1970).”

Although LSA-R.S. 32:104 provides that the signal of one’s intention to turn must be given continuously during “not less” than the last one hundred (100) feet traveled before turning, it is axiomatic that the timeliness and/or adequacy of the signal must be judged on the factual circumstances of each case, i. e., speed of the vehicles, the proximity of vehicles approaching from the front or rear, sharpness of the turn to be executed, etc. The trial judge did not categorically determine whether the Crocker vehicle displayed a left or right turn signal; whether such vehicle was in the left or right lane before turning; or, the distance west of the driveway when the turn indicator was first activated. However, the evidence presented, considered in a light most favorable to the Crocker vehicle, would indicate that the vehicle was in the right lane and the right turn signal was activated a distance of 150 feet west of the driveway. The trial court considered the evidence in this light and determined that Crocker was negligent concluding that, under the particular circumstances of this case, when Crocker’s intention to turn was formed and his turn signal activated “a check to the rear would have shown Crocker that he could not safely slow down and make a right turn into a private driveway.”

We have painstakingly considered the record in this case in light of the standard of appellate review of facts as enunciated in Canter v. Koehring Co., 283 So.2d 716 (La. 1973) as further defined in Arceneaux v. Domingue, et al., 365 So.2d 1330 (La.1978), and conclude that there is no manifest error in the trial court’s conclusion that Crocker violated the duties imposed upon him by the cited statutes.

It is undisputed that just prior to the accident, Crocker drove the Camaro into the eastbound lane of Highway 112 from the parking lot of a small store located on the south side of the highway, approximately 1000 feet west of the point of collision. When the Camaro pulled out onto the highway, it did so in such a manner as to cause Sharpe to slow his truck down in order to allow the Camaro to proceed in front of him. The Sharpe truck and trailer, fully loaded with some 22 yards of gravel, proceeded some two or three car lengths behind the Crocker vehicle at a speed of about 45 m. p. h. There is no evidence in the record which would even suggest that Sharpe ever lessened his speed or that the distance between the two vehicles was ever more than about sixty feet. Under such circumstances we cannot say that the trial judge clearly erred when he concluded that when Crocker formed his intention to turn a check to the rear would have disclosed that he could not safely slow down and make a right turn into a private driveway and his persistence in doing so was a proximate cause of the collision of the truck with the rear of the Camaro. As stated in Nesbit v. Travelers Ins. Co., 218 So.2d 396 (La. App. 2nd Cir. 1969):

". . . , where a motorist traveling on a highway intended to make a turn into a private driveway and was being closely followed by a truck, it was incumbent upon the motorist to keep his automobile in the right-hand lane of traffic and make no attempt to enter the private driveway unless he could do so safely, and, if he could not make a safe entry into the driveway, he should have permitted the following vehicle to pass before making the turn. Swift v. Barnett, 84 So.2d 241 (La.App. 2d Cir. 1955).” at pg. 398

III. DID THE TRIAL COURT ERR IN FAILING TO IMPUTE CLAUDE CROCKER’S NEGLIGENCE TO WILLIAM FARMER?

Kenneth Sharpe urges on appeal that Claude Crocker’s negligence should be imputed to the owner of the Camaro, William Farmer, and that he should be thereby precluded from recovering damages from defendants for injuries sustained in the accident. In support of his position, counsel for Sharpe relies upon the case of Mathews v. Employers Mutual Fire Ins. Co. of Wisconsin, 180 So.2d 38 (La.App. 2d Cir. 1965), wherein an owner-passenger was cast in judgment along with the negligent driver to a third party who suffered injuries in an accident caused by the negligence of the driver under a theory of imputed negligence. We decline to follow Mathews, supra, as in our view that decision is clearly contrary to the holding in Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963). In Gaspard, supra, our Supreme Court emphatically rejected the theory that negligence of the driver should be imputed to the non-negligent owner-passenger on the ground that the latter had a theoretical right of control over such driver. In doing so the organ of the court stated:

“We cannot subscribe to these holdings if they are intended, as seems to be the case, to impose a bar to recovery by the owner-passenger (or even a borrower-passenger, see Monroe v. Heard (La.App.) 168 So. 519) against a negligent third person by imputing to him the negligence of the driver of his car solely on the ground that he had a theoretical right of control over such driver. It is unrealistic to hold, in the present day uses of motor vehicles when heavy traffic is the rule and not the exception, that the occupant of a motor vehicle has factually any control or right of control over the driving of the operator. Therefore, in the absence of a relationship of principal and agent or other legal relationship for which responsibility is imposed on one of the parties for the fault of the other or of independent contributory negligence of the passenger, or a showing that the parties were engaged in a joint adventure, no cogent reason exists for denying to the injured passenger recovery against a third person who has been guilty of negligence having causal connection with the accident. ”

The trial court in rejecting this contention apparently found that the evidence fell short of establishing that any principal and agent or other legal relationship existed between Crocker and Farmer. We discern no manifest error in this conclusion.

In the recent case of Umbehagen v. Liberty Mutual Insurance Company, 348 So.2d 122 (La.App. 1st Cir. 1977) writs refused Oct. 26, 1977, which is factually analogous to the instant case, our brethren of the First Circuit, in rejecting a like contention stated:

“The applicable law is stated in the case of Gaspard v. LeMire, 245 La. 239, 158 So.2d 149 (La.1963), quoting with approval the following on page 152:
“As a general rule, it may be said that in order to impute the negligence of one person to another, there must exist between them some relation of master or superior and servant or subordinate or other relation akin thereto. The relation between them must be one invoking the principles of agency, or the persons must be co-operating in a common or joint enterprise, or the relation between the parties must have been such that the person to whom the negligence is imputed must have had a legal right to control the action of the person actually negligent. As the rule is stated by American Law Institute, the relation between the plaintiff and the third person must be such as to make the plaintiff responsible at common law for the negligent conduct of such third person. ”’ * * *
‘We are in accord with the views expressed by the American Law Institute Restatement and we hold that unless a plaintiff could be held responsible, as a matter of law, for the torts of the person whose negligence is sought to be charged to him the doctrine of imputed negligence cannot be applied.
In that case the court rejected the proposition that a mother passenger who had the theoretical right of control over the son’s operation of the family automobile was barred from recovery by imputation of the driver’s son’s negligence. In so ruling, the court specifically disapproved of the case of Rodriguez v. State Farm Mutual Insurance Company, [La.App. 88 So.2d 432] supra, insofar as it imputed negligence solely on the ground of theoretical right of control. Considering the facts in this case, we find the principles of Gasoard to be controlling, and that Mrs. Vanney is not barred from recovery.”

Considering the facts of the instant case in light of the holding in Gaspard, supra, we find that the trial court correctly concluded that William Scott Farmer is not barred from recovery by the negligence of Claude Crocker.

IV.DID KENNETH SHARPE HAVE THE LAST CLEAR CHANCE TO AVOID THE ACCIDENT?

In rejecting appellants’ contention that Kenneth Sharpe had the last clear chance to avoid the accident, the trial court stated:

“With respect to the invocation of the doctrine of last clear chance on behalf of the Crockers, the undersigned is of the opinion that the requisite facts for application of the doctrine have not been shown. Williams v. Inabnett, 345 So.2d 1294 (La.App. 3rd Cir. 1977). It has not been made to appear that Sharpe could have avoided the accident after he perceived that a right turn was being made. Sharpe was negligent for following too close. There is no evidence that the speed and distance factors afforded him a clear chance to avoid the accident after the right turn was actually indicated) !

In order for the doctrine of last clear chance to apply, Sharpe must have discovered Crocker to be in a position of peril at a time when Sharpe could have taken some action to avoid the accident. We find, as did the trial court, that at the moment Sharpe realized Crocker’s position of peril, there was no evasive action which he could have taken to avoid the collision, and consequently the doctrine of last clear chance has no application in this case.

V. DID THE TRIAL COURT ERR IN FAILING TO HOLD RAY SHARPE LIABLE UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR?

It is urged by counsel for Deborah Crocker and Jenny and Tom Hill that Kenneth Sharpe was employed by his father, Ray Sharpe, and was in the course and scope of such employment at the time of the accident. The trial court, however, dismissed all demands against Ray Sharpe, finding that the evidence failed to disclose any liability on his part, apparently based upon a determination that the evidence did not establish that there had been an employment relationship between Ray and Kenneth Sharpe at the time of the accident. The existence of an employment relationship is essentially a mixed question of law and fact which will not be disturbed in the absence of manifest error. Our examination of the record discloses no manifest error on this issue, and we affirm the judgment of the lower court dismissing all claims against Ray Sharpe.

VI. WERE THE TRIAL COURT’S AWARDS OF DAMAGES IMPROPER?

Defendants allege that the awards to William Farmer of $50,000.00 for his injuries and $139,000.00 for loss of future income, as well as the award of $20,000.00 to Jenny Hill for her injuries were excessive. We disagree.

A) William Farmer

The record reveals that as a result of the accident, William Farmer suffered extensive injuries, including six fractured ribs, a fractured clavicle, a fractured scapula, numerous contusions, including contusions to his kidney and bladder, a punctured lung, and numerous residual protrusions at fracture sites. He was hospitalized for nine days following the accident, and experienced considerable pain and discomfort during the recuperative period. The evidence indicates that he will experience additional pain in the future due to abnormal healing processes of the fractures, producing the abnormal union of several bones. As a result of the accident, he suffers a neurological disorder known as “Horner’s Syndrome”, which causes his right eyelid to droop, and produces frequent headaches. He also has a permanent three inch scar on his forehead. We find that the general damage award to Mr. Farmer in the sum of $50,000.00 was made with careful consideration of the evidence and was within the discretion of the trial court.

The trial court concluded that as a result of the accident, William Farmer will suffer a net loss of earning capacity in the amount of $4,800.00 per year until he reaches age 65, or a total loss of earnings in the amount of $139,200.00. At the time of the accident, Mr. Farmer worked as a carpet installer. Part of his duties included the carrying of large rolls of carpeting and the moving of furniture. Co-workers of Mr. Farmer testified at trial that following the accident, he was no longer able to do many of the tasks demanded of a carpet installer, and was unable to use certain tools required to install carpeting. Testimony of Mr. Farmer’s former employer indicated that his attendance at work following the accident was sporadic, and that he had to go home early many times due to pain. In the trial court’s written reasons for denying defendant’s motion for a new trial, the court stated:

“From the evidence describing the trade of carpet layers it is evident that skill is a much less important factor than physical strength and physical endurance. Farmer has been materially affected in physical strength, agility and ability to use his tools. He has also been affected in physical endurance.”

The trial court was in the best position to evaluate the testimony of the medical experts and to determine the extent of Mr. Farmer’s residual disability. An award for future earnings cannot be made with mathematical exactitude, it is necessarily speculative in nature, and the appellate court must give great weight to the trial court’s findings. We find no abuse of discretion on the part of the trial court in making an award of $139,200.00 to Mr. Farmer for loss of earnings.

B) Mrs. Jenny Hill

Appellants urge that the trial court erred in awarding Mrs. Hill the sum of $20,000.00 for her injuries. We find that this award was made after a thorough evaluation of the medical evidence, and we will not disturb it on appeal. Shortly after the accident, Mrs. Hill complained of pain in her neck, right upper extremity and lum-brosacral spine. She was diagnosed as having sustained mild sprains of these areas. She complained of numbness in the right arm which was diagnosed as outlet thoracic syndrome. She complained also of earaches, and difficulty hearing. Surgery was performed to alleviate the numbness in her arm, but she nevertheless suffers a certain degree of residual pain. She has been able to work as a cashier at K-Mart, but after a full day at work, she develops pain in her arm. We do not find that the general damages award of $20,000.00 constitutes a manifest abuse of discretion on the part of the trial court.

For the above and foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are to be paid by appellants.

AFFIRMED.

SWIFT, J., concurs in part and dissents in part.

CULPEPPER, J., dissents in part and assigns reasons.

WATSON, J., concurs in part and dissents in part and assigns reasons.

CULPEPPER, Judge,

dissenting in part.

I respectfully dissent from the majority holding that Claude Crocker was contribu-torily negligent. It is my view that Crock-er, the driver of the Camaro, fully complied with all of the duties of a motorist making a right turn from the highway, and that the sole cause of this accident was the gross negligence of the heavily loaded tractor-trailer in literally running over the smaller vehicle.

Of course, I agree with the statutory rules stated in the majority opinion that a right turn shall be made from the right-hand lane of the roadway, that a motorist intending to make a right turn must reasonably ascertain that such movement can be made with safety, that he must give a signal of such intention for not less than 100 feet, and that he must not suddenly decrease his speed or stop without adequate warning to the vehicle in the rear. In the present case, I think Crocker reasonably complied with all of these duties.

Both the trial judge and the majority in this Court find that the Camaro and the truck were proceeding at a speed of about 45 miles per hour, with the truck 50 to 60 feet to the rear, that Crocker intended to turn to the right, that he gave a turn signal for about 150 feet prior to turning, and that he slowed down gradually and turned to the right into the private driveway.

Neither the trial judge nor the majority decided whether Crocker gave a left or a right turn signal or whether he was in the left or the right-hand lane at the time he commenced his turn, they being of the opinion that in any event Crocker was negligent for failing to keep a sufficient lookout to the rear. I find a preponderance of the evidence shows Crocker gave a right turn signal. Mrs. Hill and her passenger, who were in the vehicle approaching from the east, testified that when they first saw the Crocker vehicle, it had on its right turn signal lights. Also, there was no road to the left near the point of impact. Additionally, the evidence clearly shows that he actually turned to the right. The testimony of the truck driver, Sharpe, and his witness that Crocker gave a left turn signal is not worthy of belief.

As to whether Crocker drove into his left-hand lane and commenced his right turn from there, Mrs. Hill and her passenger testified to the effect that when they first saw the Crocker vehicle its left-hand wheels were slightly over the center line. Mrs. Hill and her passenger probably first saw the Crocker vehicle when it was in the curve approaching the private driveway. By the time Crocker commenced his turn, he probably at most had his left wheels at or near the center line. He probably was in the right-hand lane by the time he actually started to turn. This is indicated by the fact that at the time of the impact the large truck was partially on the east shoulder and the Crocker vehicle was entering the driveway.

Thus, I find no negligence by Crocker in the execution of his right turn. Of course, neither the trial judge nor the majority find any negligence in this respect. The only negligence found by the trial judge and the majority as to Crocker is that he failed to observe the truck was following too close for Crocker to turn to the right in sáfety.

Crocker died as a result of the accident, so we don’t have his testimony as to whether or when he saw the truck to his rear. The district judge concluded, and the majority agrees, that before making his right turn Crocker had the duty to observe that the truck was following too close, at too great a speed and with too heavy a load to be able to slow down sufficient to avoid striking Crocker as he made his right turn. I think this places an unreasonable burden of observation and care on the right-turning motorist.

This case is similar to Fidelity & Casualty Company of New York v. Continental Casu alty Company, 347 So.2d 1224 (La.App. 1st Cir. 1977), where the following vehicle, a tractor-trailer, swerved into the left lane and struck an oncoming vehicle, in order to avoid the right-turning motorist. The court rioted that the preceding motorist was making a normal and orderly right turn, that there was no evidence that he failed to give a proper turn signal or that he suddenly decreased his speed. The court concluded the accident was caused solely by the negligence of the truck driver in following too close at too great a speed and not keeping a proper lookout.

This case is readily distinguished from Schwartzberg v. Clark-Dunbar, Inc., 309 So.2d 754 (La.App. 3rd Cir. 1975), and Williams v. State Farm Mutual Automobile Insurance Company, 266 So.2d 718 (La.App. 3rd Cir. 1975), where the preceding motorists made sudden, unsignaled and unnecessary stops in the highway.

Also applicable here is the rule that the motorist proceeding in compliance with the law can assume that other motorists will likewise observe the law until he sees or should see that the other motorist is not going to comply with the law. Waters v. Pharr Bros., Inc., 228 So.2d 91 (La.App. 2d Cir. 1969); Hughes v. Whitten, 276 So.2d 405 (La.App. 2d Cir. 1973). Under this rule, Crocker had a right to assume that the truck driver would see his right turn signal, that he would observe that Crocker was slowing down and preparing to make a right turn, and that as a result of these observations, the truck driver would not follow too close or at such a speed with such a load that he could not avoid the collision.

Of course, the motorist who is in his own lane and is struck from the rear is presumed to be free of negligence, and the burden is on the following motorist to prove negligence. We don’t know whether Crock-er looked to the rear and saw the truck behind him. However, we must assume, as the trial judge did, that Crocker did make this observation. The question is when is he assumed to have made his observation, and what did he see or should he have seen. If he looked to the rear before or at about the time he initiated his right turn signal, 150 feet before impact, he would have seen the truck following at a distance of 50 to 60 feet and at a speed of about 45 miles per hour. From this observation, it would have been reasonable for Crocker to assume that as he reduced his speed the truck would also, and that he could make his right turn in safety. It may be that actually the truck could not have slowed down sufficiently within 200 feet, because of its heavy load, and because of the fact that it had actually begun to accelerate as a result of the truck driver’s erroneous and unreasonable assumption that Crocker was going to turn to the left, instead of to the right. Nevertheless, Crocker should not be required to observe that the truck was heavily loaded and that it was accelerating. The ordinary reasonable right-turning motorist should not be required to anticipate such gross negligence on the part of a truck following behind him.

Assuming that Crocker looked to the rear and observed the truck at some point within the 150 feet before impact, it would probably have been too late for Crocker to take any action which would have avoided the accident. The truck was traveling too close with too heavy a load at too great a speed to avoid the collision.

I conclude this accident was caused solely by the gross negligence of the driver of the tractor-trailer rig.

For the reasons assigned, I respectfully dissent in part. Otherwise, I vote to affirm.

WATSON, Judge,

dissenting in part and concurring in part.

In the captioned case which was consolidated with No. 6804, Hill v. Sharpe, 368 So.2d 499 (La.App. 3 Cir. 1979) and No. 6805, Crocker v. Sharpe, 368 So.2d 499 (La.App. 3 Cir. 1979), I respectfully submit the following reasons.

As to liability, I agree with the majority that Kenneth R. Sharpe was negligent but disagree with the conclusion that Claude Crocker was negligent. In my opinion, the trial court was manifestly in error. Too stringent a burden of conduct was placed on the right turning motorist under the facts of the case. I also adopt the reasons assigned by Culpepper, J. on this point.

As to quantum, I agree with the affirmation of the award of general damages to William Farmer. However, the trial court and the majority has fallen into grave error in failing to discount the award for loss of future wages. While there may be some question as to the annual loss of wages of $4,800 (as persuasively suggested by Swift, J.), I would defer to the trial court’s much discretion in fixing the annual loss. However, the trial judge made an error of law in holding that the Coco case establishes a rule that loss of future wages must not be discounted to present value in Louisiana.

In Coco, the jury awarded a very substantial lump sum of damages, including both general and special, to the plaintiff. One witness, an expert in economics, testified that plaintiffs loss of future wages might amount to as much as $225,000. This expert said that the wages should not be discounted due to various factors and the Supreme Court noted his testimony as one reason for not reducing the large award. I think this falls short of establishing a rule, either: (1) that future wages lost are never to be discounted; or (2) that expert testimony must establish whether there will be' a discount in each case.

If our courts are to try the question of discount in each case, I suggest that an unfair burden will be placed on all concerned, including the attorneys, the litigants and the courts. If there is to be no discount, I suggest that an unfair burden will be placed on those cast in judgment and that unjust enrichment will result to the party recovering. For example, in the present case, the trial court awarded and the majority affirmed $139,200, simply taking the $4,800 annual loss of future wages and multiplying by 29 years. All Farmer has to do, is invest the proceeds at 10%, which is currently available on longterm certificates of deposit and make more money each year than he ever has before, with the added benefit of having the $139,000 intact at the end of the 29 years.

Even after Farmer pays his attorney the customary fee, he will still have almost $100,000 of his award for loss of future wages to invest as suggested above.

I strongly suggest that Farmer’s loss of future wages should be discounted at the rate of 6% over the period of 29 years. According to American Jurisprudence 2d Deskbook, Document 133, a factor of 13.591 should be used and when it is multiplied times $4,800 the resulting figure is $65,-236.80, an appropriate award for this item of damages. See Lanclos v. Hartford Accident & Indem. Co., 366 So.2d 621 (La.App. 3 Cir. 1978). There would be no abuse of discretion in awarding a slightly higher (or lower) amount, but the award of $139,200 is clearly wrong.

Therefore, I respectfully concur in part and dissent in part.

SWIFT, Judge,

dissenting in part.

With all due respect, I dissent from the affirmation by the majority of that part of the judgment in Suit No. 6803 on the docket of this court awarding William Scott Farmer $4800.00 per annum until he reaches 65 years of age, a total of $139,200.00, for loss of future earnings.

Mr. Farmer suffered a severe crushing of his chest wall and right shoulder, including numerous fractures, as well as a Horner’s Syndrome of his right eye, and was subjected to considerable pain and suffering. Consequently, I do not question that the award of $50,000.00 for general damages was within the “much discretion” afforded the trial judge. However, I am convinced this is not the case with respect to the award for future earnings.

After nine days in the hospital and about five additional weeks of recuperation the plaintiff, to his credit, resumed his occupation installing carpet with his crew on a contract basis. At first, because of soreness and headaches (for which he took only an ordinary sedative), he was unable to do the heavy lifting and employ what is known in the trade as a “knee kicker” to stretch carpet. Around January 1, 1976, he was employed by Ray Warren and worked with the latter’s brother, Victor, on an hourly basis laying carpet. Both earned approximately $5,000.00 in 1976 (Victor estimated his at $5,000.00 to $6,000.00), despite the fact that Farmer’s work was limited by what his doctor termed a “slight instability of the right sternoclavicular joint” which was subjected to a great deal of stress while using a carpet stretcher. Farmer and Victor Warren testified the plaintiff could not lift the carpet rolls or use a knee kicker and that he missed a number of days of work from time to time because of pain and suffering. The plaintiff contended he could have made more money if his disability had not prevented him from working more hours. Nevertheless, both Farmer and Victor continued in their same jobs with Ray Warren receiving the same rate of pay until the end of 1976 when their employer retired and gave them his tools. Farmer and his partner were still in the same business dividing the profits equally when the case was tried. They had no records to establish their earnings for 1977, nor did they estimate same. Victor Warren testified they were unable to work four or five days each month, because on such occasions they did not have money to purchase the necessary supplies. Mr. Farmer said he had difficulty getting carpet in the first part of 1977 and there were no jobs on which to bid at the time of the trial. He said, however, he could make more than $6,000.00 per year “if I can get enough work”. According to the W-2 forms filed in evidence, the plaintiff’s gross wages as a carpet salesman were $6,088.26 in 1973 and $6,245.00 in 1974. For the three months period immediately preceding the accident of October 5, 1975, during which the plaintiff changed from his usual occupation selling and estimating carpet to an independent contractor partnership installing carpet, he and his partner grossed $2,045.00 and incurred expenses found by the trial judge to be $100.00 per month. Projected for a 12 month period, this would indicate an annual earning for the plaintiff in his work of carpet installation before the accident of $6,980.00, or $735.00 more than he earned in 1974 selling carpet.

From my review of the record I have some doubt as to whether the plaintiff has established to any degree of certainty that he will sustain a loss of earnings in the future by reason of this accident. But I certainly am convinced that the evidence does not establish with reasonable probability that he will lose $4800.00 annually for the next 29 years of his life as a result thereof. Also, like Judge Watson, I must dissent from the failure of the majority to discount the annual loss of future earnings in the computation of the award.

For these reasons, I respectfully dissent in part, but otherwise vote to affirm the trial judge’s decision in these consolidated cases.

      . “Note that a vehicle traveling at the rate of forty miles per hour is traveling at the rate of 58.7 feet per second. At fifty miles per hour a vehicle travels at the rate of 73.3 feet per second.”

      . Other special damages totalling $3,460.90 were awarded to Mr. Farmer, which are not herein disputed.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    Tom HILL and Jenny R. Hill, Plaintiffs-Appellees, v. Kenneth R. SHARPE et al., Defendants-Appellants.
    No. 6804.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 15, 1979.
    Rehearing Denied March 29, 1979.

    Gravel, Roy & Burnes by Chris J. Roy, Alexandria, for plaintiff-appellant, Deborah Crocker.

      Stafford, Trimble, Randow & Smith by Russell Potter and Grove Stafford, Jr., Alexandria, for defendants-appellees, Ray Sharpe et al.
    Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for plaintiff-appellee, Tom Hill and defendants-appellees, Hartford.
    Lauve & Hill by Blaise L. Hill and Lewis 0. Lauve, Alexandria, for plaintiff-appellee, William Scott Farmer.
    Before CULPEPPER, DOMENGEAUX, WATSON, GUIDRY and SWIFT, JJ.

       Culpepper, Watson and Swift, JJ., voted to grant rehearing.

   GUIDRY, Judge.

For the reasons this day assigned in the companion matter of Farmer v. Hartford Accident & Indemnity Company, et al., 368 So.2d 487, we affirm the decision of the trial court at appellants’ costs.

AFFIRMED.


text:
    Deborah CROCKER, Individually, etc., Plaintiffs-Appellants, v. Ray SHARPE et al., Defendants-Appellees.
    No. 6805.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 15, 1979.
    Rehearing Denied March 29, 1979.

    Gravel, Roy & Burnes by Chris J. Roy, Alexandria, for plaintiff-appellant, Deborah Crocker.
    Stafford, Trimble, Randow & Smith by Russell Potter and Grove Stafford, Jr., Alexandria, for defendants-appellees, Ray Sharpe et al.
    Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for plaintiff-appellee, Tom Hill and defendants-appellees, Hartford.
    Lauve & Hill by Blaise L. Hill and Lewis 0. Lauve, Alexandria, for plaintiff-appellee, William Scott Farmer.
    Before CULPEPPER, DOMENGEAUX, WATSON, GUIDRY and SWIFT, JJ.

       Culpepper, Watson and Swift, JJ., voted to grant rehearing.

   GUIDRY, Judge.

The reasons this day assigned in the companion matter of Farmer v. Hartford Accident & Indemnity Company et al., 368 So.2d 487, our docket number 6803, we affirm the decision of the trial court at appellants’ costs.

AFFIRMED.

CULPEPPER, J., dissents for the reasons stated in his opinion in the companion case.

WATSON, J., dissents for the reasons assigned by CULPEPPER, J.


author: CULPEPPER, Judge.

text:
    Lawrence J. LACHNEY, Plaintiff and Appellee, v. CABOT CORPORATION and Texas General Indemnity Company, Defendants and Appellants.
    No. 6821.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 15, 1979.
    Rehearing Denied March 29, 1979.

      Dubuisson, Brinkhaus & Dauzat by James G. Dubuisson, Opelousas, for defendant and appellant.
    Fusilier, Pucheu & Soileau, A. Gaynor Soileau, Ville Platte, for plaintiff and appel-lee.
    Before CULPEPPER, GUIDRY and SWIFT, JJ.
   CULPEPPER, Judge.

This is a suit for workmen’s compensation benefits. The plaintiff, Lawrence Lachney, contends he is totally and permanently disabled as the result of an injury to his knee which occurred in 1976 while working for the defendant, Cabot Corporation, in its carbon plant. The trial court found plaintiff is totally and permanently disabled and awarded $85 per week commencing October 16, 1977 for the duration of his disability. The district judge also awarded penalties and attorney’s fees for the arbitrary termination of compensation benefits. From this judgment, the defendants appealed. Additionally, defendants filed in the appellate court an exception of prescription to the plaintiff’s claim.

The issues are: (1) Was there an accident in 1976 in which the plaintiff suffered injury to his knee? (2) If such an acc1' lent did occur, what is the extent of the plaintiff’s disability resulting therefrom? (3) Has the plaintiff’s claim prescribed? (4) Were the defendants arbitrary, capricious and unreasonable in their termination of workmen’s compensation benefits, subjecting them to penalties and attorney’s fees under LSA-R.S. 22:658 and LSA-R.S. 23:1201.2 respectively?

The facts prior to the alleged accident in 1976 are virtually undisputed. The plaintiff severely injured his left knee on April 9, 1975 by slipping on a wet concrete floor while working for Cabot. As a result of the fall, the medial meniscus of plaintiff’s left knee was removed in July of 1975. Lach-ney received workmen’s compensation during the period of his disability resulting from this accident until his return to work for Cabot on November 13, 1975.

Plaintiff contends that on March 4, 1976 he reinjured his left knee by hitting it on a motor while performing his duties as a repairman for Cabot. This is the accident at issue. There were no witnesses to the accident, but on the same day plaintiff reported it to his acting supervisor, Audrey Guillory, when Guillory asked plaintiff to help another worker unload some large crates of soap. As a result of Lachney’s refusal to do the job, because of pain in his knee, he was laid off as a disciplinary measure. A report of the accident was made in Cabot’s files.

Plaintiff did not go to a doctor on this occasion. After four days, he returned to his job as a repairman. This job required climbing, but plaintiff was not required to climb. In September of 1976, he was assigned duties as a carpenter, a job which did not require climbing, but paid more wages. He worked as a carpenter until April 27, 1977. Plaintiff contends that by this date the pain and swelling in his knee had become so bad that he could no longer perform his duties as a carpenter. From April 27, 1977 until October 16,1977 he was paid workmen’s compensation. This suit was filed October 18, 1977, just two days after the plaintiff’s compensation benefits were terminated.

The trial court found as a fact that there was an accident on March 4, 1976 in which the plaintiff reinjured his left knee. As the company’s own records reveal, the accident was reported to the proper authority. The plaintiff told two doctors who subsequently examined him about the reinjury. Importantly, we are impressed, as was the trial judge, with the man’s excellent work record prior to the accident. In the ten or eleven years that he had worked for the company, he had missed very little work. His fellow workers, as well as the company representatives, testified that the plaintiff was an excellent worker and not a person who would malinger. These facts substantiate the plaintiff’s claim. Under the standards of appellate review of fact enunciated by our Supreme Court in Arceneaux v. Do-mingue, 365 So.2d 1330 (La.1979), we hold that the trial court’s finding of a reinjury on March 4, 1976 is not clearly wrong.

The extent of the plaintiff’s injury is a separate issue. Lachney complains that his knee swells in proportion to his activities, it constantly pains him, and tends to give way on him without notice. Additionally, there is a crunching sound when the knee joint moves. Without exception, all of the doctors whose testimony is in the record stated that the plaintiff has a degenerative arthritic condition in the left knee which will only get worse with time and which causes him pain. Such a condition, several of the experts state, is often found in patients after a medial meniscectomy. Another expert states that in a man as young as the plaintiff, 44 years of age, the arthritis is probably trauma induced. Additionally, plaintiff suffers crepitation of the patella.

Without exception, the five doctors whose testimony is in the record are of the opinion that plaintiff suffers some degree of disability. Four of the doctors believe that although the plaintiff could not perform without substantial pain any job which requires stooping, climbing or squatting, he is capable of performing some types of work. For example, when asked if the plaintiff could perform a job which required stooping, . bending, kneeling or climbing,. Dr. Louis Blanda, one of the plaintiff’s experts replied:

“Most of the instability that this man has is with certain maneuvers and planting his foot and making certain turns. I suppose some of these maneuvers with climbing and stooping would also give him trouble, especially with the arthritic changes that have developed. I don’t think he could probably do that type of work.”

When asked if Lachney’s injury ruled him out of the common labor market, Dr. Blan-da replied:

“No sir, I don’t believe he needs necessarily to be completely ruled out but I feel that perhaps his type of work should be modified to protect his knee and perhaps even, you know, endangering his — endangering him from other injury if his knee does give out when he is doing a dangerous type of job.”

Another orthopedic surgeon called by the plaintiff, Dr. F. Lionel Mayer, stated that Lachney could perform the duties of a job which did not require stooping, climbing, or other twisting motion. The plaintiff, in his opinion, could do some types of light manual labor, but would have difficulty doing any heavy work:

“I think that he could do heavy manual labor for short periods of time, but over the long haul, I believe, he would have difficulty. I believe that he would probably have substantial amount of knee pain.”

The third expert called by the plaintiff, Dr. Kenneth Saer, estimated a physical impairment of 30%. He stated:

“I thought that he could function with his problem. The problem did not seem to be of such a degree that it would preclude most types of activities. It might limit him from a lot of repetitive climbing, squatting or stooping.”

When asked if the plaintiff’s complaints of pain were reasonable, considering the work he was doing, Dr. Saer replied:

“. . . basically he has a type of knee that I think might well give him difficulty in doing a lot of stooping and climbing. Other activities I’d be surprised if he had a lot of pain. I wouldn’t be surprised if he has discomfort, but surprised if he has a lot of pain in activities not involving a lot of climbing or stooping.”

Dr. Thomas Campanella, a witness for the defense, expressed a similar opinion: “. . . some days he may not have

any pain and other days, depending on how much squatting and climbing he would do, he would have some mild pain, but this should not be to the point where it will make him 100 per cent disabled, but a little aspirin or some medication should make him do his work without trouble.”

The other expert witness for the defense, Dr. Meuleman, was the physician who performed the operation on the knee the first time it was injured. Of the experts who testified, Dr. Meuleman discounted the plaintiff’s complaints of pain and disability the most. However, he fixed the plaintiff’s disability at 25% of the knee joint.

It is clear from the above medical testimony that the plaintiff will never be able to do heavy manual labor. However, it is the concensus of the doctors’ testimony that he can perform some types of activities without pain.

This Court must determine how these factual findings translate into a legal holding as to the extent of disability. Prior to 1975, LSA-R.S. 23:1221(2) defined total disability as the disability “to do work of any reasonable character.” This statutory definition was construed by the jurisprudence to mean that an employee is totally and permanently disabled when he is unable to perform the same type of work as that which he performed at the time of the accident. Brannon v. Zurich General Accident and Liability Insurance Company, 224 La. 161, 69 So.2d 1 (S.Ct.1953); Futrell v. Hartford Accident & Indemnity Company, 276 So.2d 271 (S.Ct.1973); Malone, Louisiana Workmen’s Compensation Law and Practice, Sec. 273, p. 328.

The 1975 amendment to LSA-R.S. 23:1221, Act 583 of 1975, substantially changes the definitions of disability. Under the new act, total and permanent disability is no longer defined as the inability “to do work of any reasonable character.” Instead, it is defined in subdivision (2) as the inability “to engage in any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience . . . .”

Partial disability is now defined in subdivision (3) as the inability “to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature or description for which he was fitted by education, training and experience, . . whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training and experience . . .

The plaintiff has a seventh grade education. At the time of the accident, he was customarily engaged in strenuous physical labor requiring climbing, stooping or squatting. As a result of the accident, and, in particular, because of the instability of his left knee, he cannot now engage in work which requires climbing, stooping or squatting. However, all of the expert medical witnesses agree that he can engage in work which does not require these activities.

We conclude the trial judge was clearly wrong in finding plaintiff permanently and totally disabled under LSA-R.S. 23:1221(2). Plaintiff is only partially disabled under LSA-R.S. 23:1221(3), since he can perform some types of work for wages.

LSA-R.S. 23:1221(3) provides benefits for partial disability resulting from an accident which occurs between September 1, 1975 and August 31,1976, at the rate of 66%% of the difference between the wages being earned at the time of the injury and any lesser wages actually earned during the period of disability, not to exceed 400 weeks. At the time of the March 4,1976 injury, the plaintiff was earning $5.76 per hour, an average of $252 per week, as a repairman. He is therefore entitled to the maximum of $85 per week under LSA-R.S. 23:1202 during the period of his disability, not to exceed 400 weeks.

This award is subject to a reduction under LSA-R.S. 23:1221(3) as follows:

“. . . provided further that for any week during which the employee is paid any compensation under this subdivision (3) the employer shall be entitled to a reduction of one full week of compensation against the maximum number of weeks for which compensation is payable under this subdivision (3) and for any week during which the employee is paid no compensation, because of the employee’s actual earnings during that week, the employer shall not be entitled to a reduction for that week against the maximum number of weeks for which compensation is payable under this subdivision (3),

In the present case, plaintiff was paid compensation after the March 4, 1976 accident for the period April 27, 1977 to October 16, 1977, a total of 24 weeks and 3 days. Thus, the employer is entitled to a reduction of 25 weeks during which compensation was paid. The employer is not entitled to any reduction for the wages paid during the period March 4,1976 to April 27, 1977, because the plaintiff actually earned these wages and the employer paid no compensation during that period. See Madison v. American Sugar Refining Company, 243 La. 408, 144 So.2d 379 (1962) for the rule that an employer gets no credit for wages actually earned by the employee retained after the accident.

Defendants’ exception of prescription is based on the premise that the only accident was on April 9, 1975, when plaintiff slipped and fell on the wet concrete. If this were true, the compensation benefits paid for that accident terminated on November 13, 1975, at which time plaintiff returned to his original duties as a repairman. Under LSA-R.S. 23:1209, any suit for benefits resulting from injuries received in the April 9, 1975 accident would have to have been filed within one year from the time workmen’s compensation payments were terminated on November 13, 1975, or, in any event, within two years from the date of the accident. The present suit was not filed until October 18, 1977, and would be prescribed by both one and two years if the only accident was on April 9, 1975.

However, for the reasons stated above we find that there was a second accident on March 4, 1976. After four days, plaintiff returned to work as a repairman, but not climbing, until September of 1976, at which time he was assigned duties as a carpenter, which did not require climbing. He was performing the duties of a carpenter at the time he terminated his employment on April 27, 1977. Compensation benefits for injuries received in the March 4, 1976 accident were paid for the period from April 27, 1977 to October 16, 1977. This suit was filed on October 18,1977, two days after the termination of compensation payments. Therefore, the present suit was timely filed, and defendants’ exception of prescription must be overruled.

The final issue is whether plaintiff is entitled to penalties and attorney’s fees. In his written reasons, the trial judge did not expressly state his reasons for granting penalties and attorney’s fees, but we assume he did so on the basis that all of the expert medical witnesses agreed plaintiff was at least partially disabled at the time workmen’s compensation payments were terminated on October 16, 1977. We agree.

LSA-R.S. 23:1201.2 provides that any employer who discontinues payment of workmen’s compensation benefits shall be liable for penalties and attorney’s fees “when such discontinuance is found to be arbitrary, capricious, or without probable cause.” A similar provision applicable to workmen’s compensation insurers is in LSA-R.S. 22:658.

Mr. Charles Cox, safety director for Cabot, testified that workmen’s compensation payments were terminated in October of 1977 on the basis of medical reports received from Drs. Meuleman, Campanella and Saer. From the above discussion of the reports of these three physicians, it is apparent that not one of them reported that plaintiff could return to work which would require climbing, squatting or stooping, although they were of the opinion that he could perform work which did not require these activities. Expressed in terms of the definitions of disability in the Workmen’s Compensation Act, the unanimous opinion of these doctors was that the plaintiff was partially disabled.

There is no evidence that at the time workmen’s compensation payments were terminated on October 16, 1977, either Cabot or its insurer had any medical or other evidence which justified them in completely ceasing all payments. Clearly, the employer and the insurer were arbitrary, capricious and without probably cause in terminating payments. The award of penalties and attorney’s fees must be affirmed.

For the reasons assigned, the judgment appealed is reversed insofar as it finds plaintiff totally and permanently disabled and awards compensation at the rate of $85 per week, commencing October 16, 1977 for the duration of disability. The judgment is amended so as to award plaintiff compensation for partial disability under LSA-R.S. 23:1221(3) at the rate of $85 per week commencing April 27, 1977 and continuing during the period of his disability, not to exceed 400 weeks, subject to a reduction of 25 full weeks of compensation, with legal interest on each past due installment from its due date until paid. Otherwise, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants-appellants.

REVERSED IN PART, AMENDED AND AFFIRMED IN PART.


author: TORBERT, Chief Justice.

text:
    Albert JOHNSON v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY et al. Alfred LOVE v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY et al. Martha SIMMONS v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY et al.
    CER 13, 13A.
    Supreme Court of Alabama.
    Sept. 22, 1978.
    James C. Wood and J. Randall Crane of Simon & Wood, Mobile, for plaintiffs Albert Johnson and Martha Simmons.
    W. Boyd Reeves of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for defendant American Mutual Liability Ins. Co.
    Alton R. Brown, Jr., and James H. Crosby of Brown, Hudgens & Richardson, Mobile, for defendant Clemco Industries.
    Robert G. Kendall of Johnston, Johnston & Kendall, Sintz, Pike, Campbell & Duke, Mobile, for defendant Pulmosan Safety Equipment Corp.
   TORBERT, Chief Justice.

Pursuant to Rule 18 of the ARAP, the United States District Court for the Southern District of Alabama, Southern Division, has requested this court to answer certain questions of law which that court deemed determinative of an action before it and on which there is no clear controlling precedent in the decisions of this court. Three civil actions, Nos. 75-20-T, 75-147-T, and 75-19-T, were consolidated by the federal district court for the sole purpose of certification.

The federal district court, in support of the certificate, submitted the following facts:

II

Albert Johnson, one of the plaintiffs in the above Civil Actions, is a forty-six year old male who went to work for Bender Welding & Machine Company, Inc., and Bender Ship Repair, Inc., [hereinafter referred to jointly and severally as Bender] in the latter part of 1959. From 1959 until 1968, Albert Johnson alleges that the majority of his work at Bender was associated with sandblasting. In 1968, Johnson was hospitalized with a lung condition, and later that same year he returned to work until 1972. During the period from 1959 to 1972 while Johnson was employed at Bender, he claims he was exposed to a great deal of sandblasting dust. Johnson seeks relief of Clemco Industries and Pulmosan Safety Equipment Corporation solely under the theories of breach of warranties set forth in Code of Ala.1975, § 7-2-313, § 7-2-314, § 7-2-315. Prior to the filing of the complaint alleging breaches of warranties, Johnson had not given Clemco any notice (written or oral) of any claim arising from their alleged breaches of warranties. .

Ill

Alfred A. Love, another plaintiff in the above Civil Actions, is a fifty-six year old male who went to work for Bender in 1956. From 1956 through 1965 Love alleges that the majority of his work at Bender was associated with sandblasting. In 1965, Love was hospitalized for a lung¡ condition, and in 1967, Love returned tb work at Bender where he worked usfal April of 1973. Love contends that during the entire period while employed at Bender he was exposed to a great deal of sandblasting dust.

Love seeks relief of Clemco Industries and Pulmosan Safety Equipment Corporation solely under the theories of breach of warranties set forth in Code of Ala. 1975, § 7-2-313, § 7-2-314, and § 7-2-315. . . .

IV

Thomas Simmons had previously filed a Civil Action for injuries which he claimed arose out of his employment at Bender. Simmons claimed that he was employed at Bender from January of 1966 until March 29, 1974, except for a period from November 5, 1972, to December 29, 1972, when he was employed by Offshore Trawlers, Inc. Simmons claimed that during the entire period from January, 1966, through March 29,1974, that he was primarily a sandblaster and was exposed to a great deal of sandblasting dust. Simmons died on January 12, 1977, and his Civil Action has been revived by the Executrix of the Estate of Thomas Simmons.

Martha Simmons seeks relief of Clemco Industries and Pulmosan Safety Equipment Corporation solely under the theories of breach of warranties set forth in Code of Ala.1975, § 7-2-313, § 7-2-314, and § 7-2-135. . . .

V

The following questions are presented [CER 13]:

1. Does Code of Ala.1975, § 7-2-725 require that all actions based on breach of warranty under Code of Ala. § 7-2-313, § 7-2-314, § 7-2-315 and § 7-2-318 be brought within four years after tender of delivery is made unless the damages are injuries to the person in the case of consumer goods or unless a warranty ex-plicitely [sic] extends to future performance of the goods?

2. Does Code of Ala.1975, § 7-2-725 require that all actions for personal injury arising out of an alleged breach of warranty under Code of Ala.1975, § 7-2-213, § 7-2-314, § 7-2-315, and § 7-2-318 be brought within four years after the discovery of injury or the discovery of facts which would reasonably lead to such discovery?

3. Under the provisions of Code of Ala.1975, § 7-2-39 [7-2-309], must an action for personal injury arising out of an alleged breach of warranty under Code of Ala.1975, § 7-2-313, § 7-2-314, § 7-2-315, and § 7-2-318 be brought within one year after the discovery of injury or the discovery of facts which would reasonably lead to the discovery of an injury.

4. Does Code of Ala.1975, § 7-2-607, require all persons seeking recovery under Code of Ala.1975, § 7-2-313, § 7-2-314, § 7-2-315 and § 7-2-318 to give notice of an alleged breach of warranty prior to filing a civil action based on either Code of Ala.1975, § 7-2-313, § 7-2-314, § 7-2-315, and/or § 7-2-318?

5. Does Code of Ala.1975, § 7-10-101 prevent recovery for injuries or damages sustained from goods obtained in transactions entered into and events occurring prior to midnight December 31, 1966, when such recovery is sought solely by virtue of Code of Ala.1975, § 7-2-313, § 7-2-314, § 7-2-315, and § 7-2-318; and where there is no privity of contract between the plaintiff and the defendant, from who relief is sought?

After submission of the above questions to this court, the federal district court requested that we answer the following additional question:

The following question is presented [CER ISA]:
Does an action for breach of warranty brought by a plaintiff under Title 7, §§ 7-2-313, 7-2-314 and 7-2-315 survive the death of the plaintiff in favor of his personal representative, for the recovery of lost wages, pain and suffering, medical expenses and other damages which accrued between the time of the alleged breach of warranty and death of the plaintiff, in the circumstance where the plaintiff died as a result of the alleged breach of warranty, after the action had been brought by him.

Because this court answers Certified Question No. 5 in the affirmative, we will pretermit any consideration of the remaining questions.

It is well settled that prior to the adoption of the Uniform Commercial Code in Alabama, a plaintiff had to establish privity of contract before he could recover for personal injury arising from breach of warranty. See, e. g., Bishop v. Faroy Sales, 336 So.2d 1340 (Ala.1976); Harnischfeger Corp. v. Harris, 280 Ala. 93, 190 So.2d 286 (1966); Birmingham Chero-Cola Bottling Co. v. Clark, 205 Ala. 678, 89 So. 64 (1921). The pivotal issue, then, is whether the transaction falls within the effective date of the Uniform Commercial Code.

The Code expressly applies only to “transactions entered into and events occurring” after December 31, 1966. Alabama Code § 7-10-101 (1975). The crux of the matter is whether “events occurring” after the effective date of the Code, as opposed to the date the transaction was entered into, are determinative as to the applicability of the UCC where the sale occurred prior to the enactment of the Code. Other jurisdictions have determined the operative date to be the date the transaction was entered into regardless of the occurrence of subsequent events. See, e. g., Harvey v. Sears, Roebuck & Co., 315 A.2d 599 (Del.Super.1973); Kates v. Pepsi Cola Bottling Co., 263 A.2d 308 (Del.Super.1970); Great Atlantic & Pacific Tea Co. v. Rust Engineering Co., 75 Misc.2d 920, 349 N.Y.S.2d 243 (Sup.Ct.1973).

Blankenship v. Morrison Machine Co., 255 Md. 241, 257 A.2d 430 (1969) involved a suit against a machine designer and vendor for personal injuries sustained by an employee of a bleach and dye mill while using the machine in the course of his employment. The machine was purchased by the employer in 1955, and in 1964, Maryland adopted the UCC. The plaintiff was injured in 1965. The Maryland Court held that pre-Code law, which required privity, governed since the machine was sold prior to the effective date of the UCC. The court stated: “The appellant [plaintiff] was not one of those given protection by the legislature in the original statute and both statutes came long after the sale of the machine, which is the determinative date for the applicability of the [UCC].” Id. at 433.

In Harvey v. Sears, Roebuck & Co., supra, the plaintiff was injured when an aluminum step ladder upon which she had been standing collapsed. The ladder was sold by the defendant to a Mr. White before the effective date of the UCC, but the plaintiff received the ladder through a “series of loans” after the effective date of the Code. The court regarded the sale of the ladder as the “significant transaction” to determine the applicability of the UCC. The fact that the ladder was loaned to the plaintiff and the injury occurred after the effective date was held immaterial.

[T]he transaction upon which the Court’s attention should be focused is not the loan made subsequent to the 1967 enactment of the Uniform Commercial Code but rather the 1965 sale.
Since the sale occurred prior to the enactment of the Uniform Commercial Code, the provisions contained therein are found to be inapplicable under the circumstances present in this case. Thus, in the absence of privity, there is no implied warranty applicable as to the defendants in this case.

315 A.2d at 601.

The court in In Re Appliance Packing & Warehousing Corp., 475 F.2d 1011 (2d Cir. 1973) reversed the referee’s decision that a provision for payment of 22 of 24 installments after the enactment of the UCC on a promissory note executed prior to the effective date of the Code constituted “events occurring” so that the transaction was governed by the UCC. The court reasoned that the date the transaction was entered into was when the note was made. Since this date was prior to the effective date of the UCC, the Code was not applicable. Accord, Hall v. Gurley Milling Co. of Selma, N. C., 347 F.Supp. 13 (E.D.N.C.1972).

Accordingly, if the sale of goods occurs prior to the effective date of the UCC, then pre-Code law governs and the requirements of privity must be satisfied. We answer Certified Question No. 5 in the affirmative.

Since pre-Code law controls, it is unnecessary to consider the other questions concerning the operation of the UCC.

CERTIFIED QUESTION ANSWERED.

BLOODWORTH, MADDOX, FAULKNER, JONES, ALMON, SHORES, EMBRY and BEATTY, JJ., concur.

      . In 1969, Maryland amended its version of § 2-318 to expand the class of persons afforded protection by the seller’s warranties. 257 A.2d at 433.


text:
    Martha SIMMONS, etc. v. CLEMCO INDUSTRIES et al. Albert JOHNSON v. CLEMCO INDUSTRIES et al. Alfred A. LOVE v. CLEMCO INDUSTRIES et al.
    CER 13, 13A.
    Supreme Court of Alabama.
    Jan. 12, 1979.

      James C. Wood and J. Randall Crane of Simon & Wood, Mobile, for plaintiffs Albert Johnson and Martha Simmons.
    W. Boyd Reeves of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for defendant American Mut. Liability Ins. Co.
    Alton R. Brown, Jr., and James H. Crosby of Brown, Hudgens & Richardson, Mobile, for defendant Clemco Industries.
    Robert G. Kendall of Johnston, Johnston & Kendall, Sintz, Pike, Campbell & Duke, Mobile, for Pulmosan Safety Equipment Corp., defendant.^
   TORBERT, Chief Justice.

The United States District Court for the Southern District of Alabama, Southern Division, requests that this court re-examine certain questions previously certified to this court in an action for breach of warranty brought by Albert Johnson, Alfred Love, and Thomas Simmons for personal injuries they sustained due to defects in sandblasting hoods manufactured and distributed by Clemco Industries and/or Pulmosan Safety Equipment Company.

The plaintiffs were employed as sandblasters for Bender Welding and Machine Company and contracted silicosis (a lung condition), which they attribute to defects in the hoods which were designed to protect them from such hazards. Thomas Simmons died as a result of his condition, and his action was revived by his wife, Martha Simmons, as executrix of his estate. The federal district court pursuant to Rule 18 of the ARAP submitted six certified questions dealing with breach of warranties and the survival of actions. We only fpund it necessary to answer Certified Question No. 5 since, in light of that question as framed, the UCC was not applicable and pre-Code law governed. See Johnson v. American Mutual Liability Insurance Co., Ala., 368 So.2d 506 (1978). However, on October 17, 1978, the federal district court resubmitted the remaining questions along with the following additional facts:

Each plaintiff contends that he was supplied by his employer with canvas sandblasting hoods manufactured by Pul-mosan and/or Clemco and that these goods were purchased and used after the effective date of the Uniform Commercial Code as well as before. Furthermore, the plaintiffs contend that these goods also caused or contributed to their injuries and/or the death of Thomas Simmons.

Since from the additional facts it appears the UCC is applicable, the question as to the effective date of the Code is no longer determinative of the action and we now answer the remaining questions. For convenience, we consider Certified Questions Nos. 1 and 2 together.

I & II

Does Code of Alabama 1975, § 7-2-725 require that all actions based on breach of warranty under Code of Alabama § 7-2-313, § 7-2-314, § 7-2-315 and § 7-2-318 be brought within four years after tender of delivery is made unless the damages are injuries to the person in the case of consumer goods or unless a warranty explicitly extends to future performance of the goods?

Does Code of Alabama 1975, § 7-2-725 require that all actions for personal injury arising out of an alleged breach of warranty under Code of Alabama 1975, § 7-2-313, § 7-2-314, § 7-2-315, and § 7-2-318 be brought within four years after the discovery of injury or the discovery of facts which would reasonably lead to such discovery?

The statute of limitations for breach of warranty is found in section 7-2-725, which states in pertinent part:

(1) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. .
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered; however, a cause of action for damages for injury to the person in the case of consumer goods shall accrue when the injury occurs.

Ala. Code § 7-2-725 (1975).

The Code, then, provides that generally an action for breach of warranty must be brought within four years of tender of delivery. However, there are two exceptions to this general rule, one, where the warranty explicitly extends to future performance of the goods, and the other, where the damages are injury to the person in the case of consumer goods. The question is whether all personal injuries are included within this latter exception from the tender of delivery rule.

The addition of the provision for personal injury in the case of consumer goods to section 7-2-725 is a departure from the standard version of the UCC and is unique among the states adopting the Code. The legislature was specific in creating this exception from the tender of delivery rule, and it clearly applies only to personal injuries in the case of consumer goods. Had the legislature intended all actions for personal injury resulting from breach of warranty to come within the exception, then it would have been a simple matter to omit the phrase “in the case of consumer goods” particularly in light of the language employed in section 7-2-715(2)(b), which speaks in terms of personal injury only. To go beyond the plain meaning of section 7-2-725 and exclude all actions involving personal injury from the tender of delivery date would result in judicial legislation which we are not prepared to do.

Other jurisdictions, relying on the plain meaning of the statute, have held in actions involving personal injury sustained as a result of breach of warranty that the UCC statute of limitations starts to run at tender of delivery. In Moody v. Sears, Roebuck & Co., 324 F.Supp. 844 (S.D.Ga.1971), the plaintiff was injured when an aluminum extension ladder failed in use. The court held that suit for breach of warranty must be commenced within four years of tender of delivery regardless of the aggrieved party’s lack of knowledge of the breach. The plaintiff in Hoffman v. A. B. Chance Co., 339 F.Supp. 1385 (M.D.Pa.1972), was injured when he fell from an allegedly defective hydraulic aerial platform purchased by his employer to facilitate his work. The court computed the limitation period as beginning from tender of delivery and not from the date of the injury. Accord, Waldron v. Armstrong Rubber Co., 64 Mich.App. 626, 236 N.W.2d 722 (1975).

Accordingly, we answer Certified Question No. 1 in the affirmative and No. 2 in the negative.

Ill

Under the provisions of Code of Alabama 1975, § 6-2-39, must an action for personal injury arising out of an alleged breach of warranty under Code of Alabama 1975, § 7-2-313, § 7-2-314, § 7-2-315, and § 7-2-318 be brought within one year after the discovery of the injury or the discovery of facts which would reasonably lead to discovery of an injury?

In answering Certified Question No. 3, we note that the parties agree that section 6-2-39 is not applicable. By its terms, this section does not apply to actions for breach of warranty since such actions are ex con-tractu. The statute provides: “(a) The following must be commenced within one year: ... (5) Actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section . . . .” Ala. Code § 6-2-39(a)(5) (1975) (emphasis added). This court has held actions for breach of warranty ex contractu, Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436 (1973), and that the one year statute of limitations is not applicable to breach of warranty even when the breach results in personal injury, see Vines v. Crescent Transit Co., 264 Ala. 114, 85 So.2d 436 (1955). Accord, Roberts v. General Dynamics, Convair Corp., 425 F.Supp. 688 (S.D.Tex.1977); Anderson v. Fairchild Hiller Corp., 358 F.Supp. 976 (D.Alaska 1973); Waldron v. Armstrong Rubber Co., supra; Salvador v. I. H. English of Phila., Inc., 224 Pa.Super. 377, 307 A.2d 398 (1973), aff’d sub nom. 457 Pa. 24, 319 A.2d 903 (1974).

Furthermore, in Atkins v. American Motors Corp., 335 So.2d 134 (Ala.1976), we maintained the distinction between remedy in tort and for breach of warranty. Id. at 139. To apply the one year statute of limitations to breach of warranty actions would help obliterate the distinction between the two theories of recovery. Accordingly, we answer Certified Question No. 3 in the negative and hold that section 7-2-725 contains the appropriate statute of limitations.

IV

Does Code of Alabama 1975, § 7-2-607, require all persons seeking recovery under Code of Alabama 1975, § 7-2-313, § 7-2-314, § 7-2-315 and § 7-2-318 to give notice of an alleged breach of warranty prior to filing a civil action based on either Code of Alabama 1975, § 7-2-313, § 7-2-315, and/or § 7-2-318?

Section 7-2-715 provides for recovery for personal injury as part of the buyer’s consequential damages for breach of warranty. The seller’s warranty is extended in section 7-2-318 to any natural person who is reasonably expected to use, consume, or be affected by the goods and who is injured in person by the breach. Accordingly, the legislature has eliminated the requirement of privity when the breach causes personal injury and has extended the right to recover for such injuries to the third party beneficiaries of the warranty, i. e., the warranty beneficiaries.

As a precondition to recovery, however, the seller is entitled to notice of his breach at least by the buyer. Section 7-2-607(3)(a) provides: “Where a tender has been accepted: (a) The buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy . .” The question arises whether the warranty beneficiary must give notice or likewise be barred from recovery. We hold that he does not.

The express language of the Code is “the buyer must within a reasonable time . notify the seller . . . or be barred from any remedy . . . .” Ala. Code § 7-2-607(3)(a) (1975) (emphasis added). There is no provision for anyone other than the buyer to give notice. A buyer is defined as “a person who buys or contracts to buy goods.” Ala. Code § 7-2-103(l)(a) (1975). Clearly, then, a warranty beneficiary is not within this definition. Although in Bishop v. Sales, 336 So.2d 1340 (Ala.1976), we held that “[sjellers and buyers are not limited by definition to retailers and consumers,” id. at 1343, a careful reading reveals that we did not extend the term “buyer” beyond the Code definition. Since the express language of the Code requires only buyers to give notice and a warranty beneficiary is not within the definition of buyer, notice is not required of such beneficiaries. As was said in Frericks v. General Motors Corp., 278 Md. 304, 363 A.2d 460, 465 (1976), quoting Tomczuk v. Town of Cheshire, 26 Conn.Sup. 219, 217 A.2d 71 (1965):

“Simply because the legislature created certain rights in a third party beneficiary as to express or implied warranties, in adopting § 42a-2-318, does not mean that by implication such a beneficiary must give notice of an alleged breach to the manufacturer. If it were the legislative intent to require such notice, the code would have said so. Nowhere is there any indication that the manufacturer and the third party beneficiary are to be construed as seller and buyer, respectively. Just the contrary appears evident. It may have had its own reason for not setting forth a requirement of giving notice by a third party beneficiary to the manufacturer. Even though it might seem more just or equitable that such a beneficiary be required to give notice in the same manner as a buyer, this court cannot legislate what Union Cycle seeks here.”

We note that Comment 5 to section 7-2-607 states:

Under this Article various beneficiaries are given rights for injuries sustained by them because of the seller’s breach of warranty. Such a beneficiary does not fall within the reason of the present section in regard to discovery of defects and the giving of notice within a reasonable time after acceptance, since he has nothing to do with acceptance. However, the reason of this section does extend to requiring the beneficiary to notify the seller that an injury has occurred. . . .

Though the official comments are a valuable aid in construction, they have not been enacted by the legislature and are not necessarily representative of legislative intent. The legislature has manifested by amendments to the standard version of the Uniform Commercial Code an intent to expand the right of recovery for personal injury arising from breach of warranty. Atkins v. American Motors Corp., 335 So.2d 134, 141-42 (Ala.1976). If the legislature intended to require warranty beneficiaries to give notice, then it is presumed the legislature would have included such a provision particularly in light of the other specific amendments. Cf. Page v. Camper City & Mobile Home Sales, 292 Ala. 562, 297 So.2d 810 (1974).

Furthermore, holding the notice requirement inapplicable to warranty beneficiaries does not frustrate the purposes of section 7-2-607 which are often stated as guarding against stale claims, enabling the setter to marshal evidence for a defense, and allowing the seller to correct the defect or to mitigate damages. See J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code 344 (1972). The statute of limitations adequately protects against stale claims, and in cases of personal injury, notice is inconsequential in preventing or mitigating the harm since the injury has already occurred. Frericks v. General Motors Corp., supra. Finally, the second policy, that is, to afford the seller an opportunity to prepare a defense, is not given much weight by the courts, writers, and even the draftsmen of the Code. See J. White & R. Summers, supra, at 345.

Though there are no decisions in Alabama dealing with this question, other jurisdictions have uniformly held that the notice requirement is inapplicable to a warranty beneficiary. See, e. g., Tomczuk v. Town of Cheshire, supra; Chaffin v. Atlanta Coca Cola Bottling Co., 127 Ga.App. 619, 194 S.E.2d 513 (1972); Mattos, Inc. v. Hash, 279 Md. 371, 368 A.2d 993 (1977) (employee was injured by clamp purchased from defendant by employer for use by employees on the job); Frericks v. General Motors Corp., supra.

For the above mentioned reasons, we answer Certified Question No. 4 in the negative.

VI

Does an action for breach of warranty brought by a plaintiff under Title 7, §§ 7-2-813, 7-2-314, and 7-2-315 survive the death of the plaintiff in favor of his personal representative, for the recovery of lost wages, pain and suffering, medical expenses and other damages which occurred between the time of the alleged breach of warranty and death of the plaintiff, in the circumstances where the plaintiff died as a result of the alleged breach of warranty, after the action had been brought by him?

By statute, claims for personal injury survive the death of the plaintiff in favor of his personal representative.

[A]ll claims upon which an action has been filed and all claims upon which no action has been filed on a contract, express or implied, and all personal claims upon which an action has been filed, except for injuries to the reputation, survive in favor of and against personal representatives .

Ala. Code § 6-5-462 (1975).

There is a line of decisions of this court dating from 1930 holding that actions for personal injuries do not survive if death results from the injuries. See, e. g., Carroll v. Florala Memorial Hospital, Inc., 288 Ala. 118, 257 So.2d 837 (1972); Parker v. Fies & Sons, 243 Ala. 348, 10 So.2d 13 (1942); Bruce v. Collier, 221 Ala. 22, 127 So. 553 (1930). These decisions, however, do not distinguish between actions based on tort and those based on contract. In fact, it seems these cases contemplate only a tort action where an action for wrongful death lies.

In Bruce v. Collier, supra, plaintiff brought suit for injuries he sustained as a result of the negligent or wanton operation of a truck on the public highways by defendant’s employee. While that action was pending, plaintiff died as a result of the injuries sustained. This court stated the issue as follows: “Does an action for personal injuries begun by the decedent while in life, survive to his personal representative if death results from the same tort, giving rise to an action under the homicide act ?” [emphasis added.] Id. at 23, 127 So. at 554. The court, in holding such actions do not survive, stated:

[T]he Code . . . was amended . so that now actions for “injuries to the person” do survive. Does this mean injuries causing death, those covered by the Homicide Act? We think not. There is a clear field for the operation of this amendment in cases where pending a suit for personal injury the plaintiff dies from other cause than the injury sued for.
Two actions by the same administrator against the same defendant for the same tort, prosecuted to separate judgments, would present a situation so unusual and extraordinary that clear legislative intent should appear.

Id.

The subsequent cases reaching this same result also involve a tort action with a “consequent right of action for wrongful death.” See, e. g., Carroll v. Florala Memorial Hospital, Inc., supra; Parker v. Fies & Sons, supra.

The instant case involves a contract action, not a tort action, for breach of warranty where plaintiff is seeking only compensatory damages. Furthermore, Geohagan v. General Motors Corp., 291 Ala. 167, 279 So.2d 436 (1973), held that an action ex contractu does not give rise to an action for wrongful death. Therefore, the instant case appears to fall outside the purview of Bruce and its progeny. Ordinarily, contract actions do survive in favor of the personal representative, State ex rel. King v. Pearce, 14 Ala.App. 628, 71 So. 656 (1916), and the fact that plaintiff died as a result of the injuries sued upon does not change this general rule. Accordingly, we answer Certified Question No. 6 in the affirmative.

CERTIFIED QUESTIONS ANSWERED.

All the Justices concur.

      . Section 7-2-715(2)(b) provides for the recovery of personal injuries arising from breach of contract. It states in part: “(2) Consequential damages resulting from the seller’s breach in-elude: . . .(b) Injury to person or property proximately resulting from any breach of warranty.” Ala. Code § 7-2-715(2)(b) (1975) (emphasis added).

      . Alabama adopted the UCC in 1965 as Act. No. 549, effective January 1, 1967, with six major amendments to the standard version. These amendments are:
      (1) § [Section] 2-316 was amended to add subsection 5 prohibiting the seller from limiting or excluding his liability for damages for injuries to the person in the case of consumer goods.
      (2) § [Section] 2-318 was amended to extend the ambit of the seller’s warranty to any natural person who might reasonably be expected to use, consume or be affected by the goods.
      (3) § [Section] 2-714(2) was amended so as to make it clear that the damages allowable in actions for injury to the person are the same as those damages ordinarily allowable in such actions at law.
      (4) § [Section] 2-715(2)(b) was added to allow the recovery of consequential damages in cases involving injuries to personal property resulting from a breach of warranty.
      (5) § [Section] 2-719(4) was added to prevent the seller from contractually modifying or limiting the buyer’s remedy in cases for damages for injury to the person in the case of consumer goods.
      (6) § [Section] 2-725(2) was amended to provide that a cause of action for injury to the person in the case of consumer goods arises when the injury occurs as opposed to when the sale takes place, thus extending the statute of limitation.

        Atkins v. American Motors Corp., 335 So.2d 134, 141-42 (1976).