author: FORET, Judge.

text:
    DAMSON OIL CORP. et al., Plaintiffs-Appellees, v. Larry A. SARVER et al., Defendants-Appellants.
    No. 5993.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Pugh, Buatt, Landry & Pugh by John F. Craton, Crowley, for defendants-appellants.
    Bailey & Hollier by W. C. Hollier, Lafayette, Edwards Stefanski & Barousse by Homer E. Barousse, Jr., Crowley, for plaintiff s-appellees.
    Hugh E. Brunson, Crowley, for defendants-appellees.
    Before WATSON, FORET and HEARD, JJ.
   FORET, Judge.

This is a concursus action filed by Damson Oil Corporation, et al., hereinafter referred to as “Damson”, pursuant to Article 4651 et seq. of the Louisiana Code of Civil Procedure, to have determined the ownership of unit royalties allocable to a canal strip consisting of the western fifty (50') feet of the Northeast Quarter (NE Vi) of Section Twenty-One (21), Township Ten South (T-10-S), Range One East (R-l-E), Louisiana Meridian, Acadia Parish, Louisiana.

Impleaded as parties defendant are Larry A. Sarver, et als., hereinafter referred to as “Sarver”, on the one hand, and Louisiana Irrigation and Mill Co., hereinafter referred to as “Limco”, on the other hand, both of whom claim exclusive ownership of this canal strip.

On April 1, 1898, George Ferre, who then owned the whole of the Northeast Quarter of Section Twenty-One (21), executed an instrument in the form of a cash deed in favor of Roller Canal Company, Ltd., covering and affecting the western fifty (50') feet of this quarter section. A copy of the said deed appears in the record. Sarver, et al. have succeeded by mesne conveyance to all rights of George Ferre in this canal strip. They claim that the deed of April 1, 1898, merely conveyed a servitude for canal purposes, with the result that they are the exclusive surface and mineral owners of this canal strip. Limco has succeeded by mesne conveyance to all rights of Roller Canal Company, Ltd. in this canal strip. It claims that the deed of April 1, 1898, conveyed full ownership, with the result that it is the exclusive surface and mineral owner of this canal strip.

Both sets of adverse claimants granted separate oil and gas leases to Damson covering the canal strip in controversy. The lease covering the interest of Sarver, et al. provides for a one-sixth (/6) lease royalty, which could be deposited in concursus pending determination of the lessor’s title. The Limco lease provides for a one-fourth (Vi) lease royalty, which is required to be paid to Limco irrespective of adverse claims.

The deposit accompanying the petition in concursus, and the monthly deposits made thereafter, included the full one-sixth (Ve) lease royalty provided for in the Sarver lease. However, those deposits included no part of the one-fourth (Vi) lease royalty provided for in the Limco lease, since the Limco lease royalty has at all times been paid directly to Limco.

On June 14, 1974, Limco filed an Exception of No Right or Cause of Action to the concursus proceedings on the grounds that it had no claim to the fund on deposit, and since the one-fourth (Vi) lease royalty was currently being paid to Limco, use of the concursus procedure by Damson was improper. Following a hearing, this exception was overruled by the district court, and Limco’s application to the Third Circuit Court of Appeal for supervisory writs to review that interlocutory ruling was denied on December 3, 1974. Following trial on the merits, the district court granted judgment in favor of Sarver, et ah, decreeing them to be the owners of the canal strip here involved, and ordering the clerk to turn over to them all funds on deposit. Limco timely applied for and was granted a suspensive appeal from the judgment so rendered, and the matter is now before us on appeal.

Two issues are presented for this Court to review: (1) the propriety of the concursus proceeding, and Limco being made a party thereto; and (2) assuming that Limco is a proper party to the concursus proceeding, a determination of the correctness of the trial court judgment in declaring Sarver, et al. owners of the canal strip.

PROPRIETY OF CONCURSUS PROCEEDING

The legal issue raised by Limco’s Exception of No Cause or Right of Action is addressed to Damson’s right to provoke a concursus proceeding to have the question of disputed ownership of the canal strip judicially settled as affected by the fact that Limco was currently being paid its lease royalty, pending judicial determination of title, because of an express lease provision.

Limco cites and relies upon Transo Investment Corp. v. Oakley, 37 So.2d 560 (La.App. 2 Cir. 1948) as authority for the proposition that use of concursus procedure here was improper.

Transo involved a concursus proceeding brought under Act 123 of 1922, which was later incorporated into Louisiana Revised Statute 13:4811 et seq., now since repealed. That statute was a codification of common-law interpleader, and imposed numerous restrictions on the use of concur-sus, the chief among which was the requirement that the remedy was available only to a stakeholder. Stated differently, use of the concursus action under the old statute was limited to a situation where the only issue before the court was which of rival claimants — as between themselves — was entitled to the funds on deposit. Limco’s position might have some merit had the present concursus action been filed under La.R.S. 13:4811 et seq., as interpreted in Transo. However this action is brought by Damson under Articles 4651 et seq. of the Louisiana Code of Civil Procedure. Article 4651 of the Code of Civil Procedure provides as follows:

“A concursus proceeding is one in which two or more persons having competing or conflicting claims to money, property, or mortgages or privileges on property are impleaded and required to assert their respective claims contradictorily against all other parties to the proceeding.”

Article 4652 provides:

“Persons having competing or conflicting claims may be impleaded in a concursus proceeding even though the person against whom the claims are asserted denies liability in whole or in part to any and all of the claimants, and whether or not their claims, or the titles on which the claims depend, have a common origin, or are identical or independent of each other...."

The Louisiana Code of Civil Procedure worked a number of significant changes in the concursus procedure. Among the chief changes is that the remedy is no longer limited to a mere stakeholder, or to an obligor who admits his indebtedness but does not know to whom a fund in his hands belongs, as was the case under the old statute involving Transo.

The redactors of the Louisiana Code of Civil Procedure had this to say under Article 4652:

“Under the first paragraph of [Art. 4652], the remedy is no longer limited to a stakeholder, or to an obligor who admits his indebtedness but does not know to whom a fund in his hands should be distributed. The remedy may now be used not only to prevent multiple liability, but to prevent multiple litigation, and thus may be used by a person against whom multiple claims are asserted, although liability on some or all of these claims is denied.”

Limco’s exception is based on its contention that it does not claim the fund on deposit, and that therefore Damson’s petition does not state a cause or right of action. However, alternatively, Limco does claim ownership of the real estate involved, and this fact brings the situation precisely within the statutory definition of a eoncur-sus proceeding as. one in which two or more persons having competing or conflicting claims to property are impleaded and required to assert their respective claims contradictorily against all other parties to the proceeding. Article 4651, La.Code of Civil Procedure.

It has been held that the articles governing concursus suits should be construed liberally and given a broad application. Placid Oil Co. v. Young, 246 So.2d 306 (La.App. 3 Cir. 1971). The very purpose of a concursus action is to avoid a multiplicity of suits by providing for a single judgment which will finally adjudicate all issues between the contestants. Johnson v. Lemons, 157 So.2d 752 (La.App. 2 Cir. 1963).

Although Limco claims that it is not interested in the concursus proceeding, we surmise that the only reason for this , contention is that it is presently drawing a one-fourth (!4) royalty interest of the minerals produced under the said property in dispute, and that therefore Limco has nothing to gain by the title to the property being (as between Limco and Sarver) judicially determined in a concursus proceeding.

Alternatively, Limco asserts ownership to the canal strip in question. We are of the opinion that Limco’s interpretation of con-cursus proceedings under the Louisiana Code of Civil Procedure is too narrow a view, and we agree with the trial court’s judgment overruling Limco’s exception.

OWNERSHIP OF THE PROPERTY

The trial judge concluded that as between Limco and Sarver, et ah, the latter had better fee title to the property than the former and handed down excellent reasons for his conclusion, and we take the liberty to quote therefrom:

“The property in question is a strip of land in Acadia Parish being used for irrigation canal purposes and the parcel of land emanates from one George Ferre, who in the year 1898 conveyed the strip to Roller Canal Company, predecessor of one of the claimants, Louisiana Irrigation & Mill Company. The instrument between George Ferre and Roller Canal Company provided that Ferre did “grant, bargain, sell, assign, convey, set over and deliver unto Roller Canal Company” the following strip of land: “The Northeast Quarter of Section 21, Township 10 South, Range 1 East, Louisiana Meridian. Said strip of land hereby conveyed being 50' wide and extending from the North to the South line of the said quarter section and adjoining the West line of said quarter section.”
“The consideration recited as follows: “One Dollar” and “The building and operating on said land an irrigating canal, said strip of land to revert to vendor, his heirs or assigns, in case the same is not used as a canal right-of-way for a term of three years”.
“Since the conveyance from George Ferre to Roller Canal Company the land in question has been continuously used for irrigation purposes. This Court must decide whether the instrument in question conveyed a full fee ownership or whether it conveyed a servitude of right-of-way to the canal company and it’s successors. “Sohio Petroleum Company vs. Hebert, [La.App.], 146 So.2d 530, held that the conveyance of land with a reservation of a right-of-way could mean that either title or servitude had been reserved, depending on the language of the document and the circumstances surrounding the transfer taken as a whole. See also Welsh Southern Oil Company vs. Scurlock Oil Company, [La.App.], 210 [201] So.2d 376. It has been held that if the term right-of-way is used it usually means that only a servitude is conveyed unless the intent of the parties indicates the contrary. The instrument before the Court uses terms normally associated with sales in all instances except in the consideration clause of the contract. There it provides for a reversion of the strip of land to the vendor in case the same is not used as a canal right-of-way for a term of 3 years.
“Several factors must be considered in determining the intent of the parties: (1) Consideration : Consideration is described as “One Dollar” and the building of the canal which would serve to irrigate vendor’s land. While undoubtedly, as argued by counsel for Louisiana Irrigation & Mill Company, the construction of the canal was an expensive undertaking and while .it did in fact favor plaintiff’s land by irrigating the same for rice production, yet it seems likely to this Court that had the parties intended a sale of the fee a much larger sum than One Dollar would have been recited as a consideration for the sale.
“(2) Exact measures were given : The Court in the Sohio Case felt that if exact measurements were given this would constitute a plus factor in finding that a sale had taken place. In this case exact measurements ' for the location of the canal were given but this Court feels that it is not a strong factor since the fact that measurements were available for determination of the location of a right-of-way could just as well have motivated the parties to include them in the contract. “(3) A need for full ownership : The canal company needed a strip of land on which to build their canal. This need could have simply been served by acquisition of a servitude of right-of-way. It is unlikely that they would have bought the strip when a right-of-way would have sufficed for their purposes.
“(4) Assessments and taxes: This Court finds a very important consideration to be given in this matter is the fact that since before the execution of the contract in question the property has been assessed to and the taxes have been paid by George Ferre and his successors in title. This factor strongly points to the finding that the instrument conveyed a mere right-of-way and not full ownership in the canal company.
“(5) Purpose: The Court finds that the instrument was executed for a specific and limited purpose, namely to provide a right-of-way for the Roller Canal Company. If the land were not used for that purpose for 3 successive years it would then revert back to the vendor and its successors in title without any action having to be taken on their part.
“(6) Perpetuity: The Court feels that perpetuity is a factor of little importance since servitudes may be granted in perpetuity as well as for limited periods of time. While the Court in Sohio felt that a grant in perpetuity would favor finding an intent to sell rather than grant a servitude, in the instant case the rights granted are not in perpetuity but only so long as the land continues to be used as a canal.
“(7) Treatment of the property by the parties: Both sets of claimants granted mineral leases covering the property in question. It is important to note here that Louisiana Irrigation & Mill Company’s lease to Frank’s Petroleum, Inc. contains a clause acknowledging that there may be a dispute as to ownership of the strip and providing for payments to Louisiana Irrigation & Mill Company regardless of actual ownership. Secondly, an examination of the transfer of the assets from Roller Canal Company to LIMCO reveals the following language, “Strips of land owned, used, occupied by and in possession of Roller as canal rights-of-way.” This language indicates that in the eyes of Louisiana Irrigation & Mill Company it did not possess the land as owner but merely had a right-of-way upon which to build the canal. Again the assessment and payment of taxes enters the picture as a real factor in determining who the parties felt owned the land in question.
“For the foregoing reasons it is the opinion of this Court that the strip of land in question is owned by the successors in title of George Ferre and that the Canal Company and its successors in title possess merely a right-of-way on the property in question.
“Accordingly, the Court will find the fee of the land in question to be owned by defendant, Larry A. Sarver, and the minerals to be owned by Sarver and his predecessor in title in accordance with the stipulation which was entered into the record between those two claimants as to the proceeds of the funds in the Registry of the Court.”

For the foregoing reasons, we affirm the judgment of the trial court which is disposi-tive of the issues involved iii this appeal.

All costs of this appeal are assessed against the mass deposited in the Registry of the Court.

AFFIRMED.

WATSON, J., concurs in the result.

      . See also Austral Oil Co., Inc. v. Milliken & Farwell, Inc., 307 So.2d 377 (La.App. 1 Cir. 1974), writ denied, 310 So.2d 642 (La.); La. Intrastate Gas Corp. v. Muller, 290 So.2d 888 (La.1974); Pogue v. Ray, 212 So.2d 454 (La.App. 2 Cir. 1973); Placid Oil Co. v. Young, 246 So.2d 306 (La.App. 3 Cir. 1971), writ refused, 259 La. 56, 249 So.2d 201; Helis’ Est. v. Hoth, 150 So.2d 106 (La.App. 4 Cir. 1963); Phelps v. State et al., 1 So.2d 806 (La.App. 2 Cir. 1941).


source: Caselaw Access Project

author: ROGERS, Judge.

license: Public Domain

text:
    Wilton Robert CASON, Plaintiff-Appellant, v. Rex CHAMPAGNE, Defendant-Appellee.
    No. 5994.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Logan & deLaunay by Gerald deLaunay, Lafayette, for plaintiff-appellant.
    Shushan, Meyer, Jackson, McPherson & Herzog by John A. Stassi, II, New Orleans, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

Plaintiff, Wilton Robert Cason, instituted this suit against Rex J. Champagne, defendant, for breach of contract and is asking primarily for specific performance and in the alternative, damages in the amount of $175,000.00.

The trial court ruled in favor of defendant, holding that there was no meeting of the minds between the parties. Plaintiff appeals.

Plaintiff proposed to purchase all of the outstanding stock of Rex Truck Lines, Inc. owned by defendant. Defendant was interested in selling this stock to plaintiff, and began negotiating with him after negotiations by defendant with a Mr. Jim Bertrand had terminated (Mr. Bertrand could not finance the $485,000.00 price agreed upon by defendant and Bertrand.)

The controversy stems mainly from what was said by the parties, their lawyers, and accountants at a meeting held on April 17, 1975, at the office of plaintiff’s attorney.

What was said at this meeting and at various other times was testified to at the trial, the trial judge admitting to unusual effort to follow them.

The April 17th meeting was arranged mainly for the purpose of adjusting the initial $485,000.00 selling price upward so as to include the value of additional physical assets acquired since the Bertrand proposal. Defendant’s corporation acquired additional equipment and it was agreed by both parties during the first part of this meeting that the hard or physical assets of the corporation had a value of $600,000.00 as of the March 31, 1975 financial statement.

It was at this time that plaintiff contends he had a meeting of the minds with defendant to the end that a firm proposal was made by defendant and accepted by plaintiff. However, later in the meeting, plaintiff and defendant discussed the proposal of further compensating defendant for good will of the corporation and the Public Service Permits of the corporation in the form of a consulting agreement. The specific terms of the consulting agreement without question could not be agreed upon at this meeting.

Subsequent to the April 17 meeting, there were telephone conversations, a meeting on May 6,1975, further discussing the terms of the proposals and finally, by letter dated May 14,1975, defendant terminated the negotiations with plaintiff.

Plaintiff contends that there was a meeting of the minds insofar as defendant agreed to sell him all of his stock in Rex Truck Lines, Inc. for $600,000.00 which alleged agreement was separate from the proposed consulting agreement.

Defendant contends the proposed consulting agreement was an integral part of the agreement to sell all of defendant’s stock to plaintiff and since there was no definitive accord to the consultation agreement, there was no meeting of the minds to the sale of defendant’s stock.

Plaintiff further argues that defendant’s testimony was full of inconsistencies and contradictions and this appears to be true from a reading of the records, however, the record also bears out that there were some inconsistencies and contradictions on plaintiff’s side also, but to a lesser extent.

The trial judge stated in his brief reasons for judgment that there were inconsistencies of testimony on both sides and concluded that the weight of the evidence supported defendant’s contention that there was no meeting of the minds in the matter. We agree. The trial judge further went on to say, relative to defendant’s testimony, “. . .it was more a matter of context and an inability to articulate rather than anything else.”

It is well settled that factual conclusions of the trial judge should not be disturbed absent a finding of manifest error. As set forth in Canter v. Koehring Co., La., 283 So.2d 716:

“. . .' [t]he reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review . . .”

From the above, combined with the concession by both plaintiff and defendant that the proposed agreement was to be reduced to writing, we can only conclude that the trial judge was correct and we affirm his decision.

In support of this, we rely on Breaux Brothers Const. Co. v. Associated Contractors, 226 La. 720, 77 So.2d 17 which states:

“ * * * ..It Is elementary in our law, that where the negotiations contemplate and provide that there shall be a contract in writing, neither party is bound until the writing is perfected and signed.”

The judgment of the trial court is affirmed. All costs of this appeal are assessed to plaintiff.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Donald Glenn DOWDEN, Plaintiff-Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellants.
    No. 5996.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Stafford, Randow, O’Neal & Smith by Hodge O’Neal, III, Alexandria, for defendants-appellants.
    Whitehead & McCoy by Charles R. Whitehead, Jr., Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Donald Glenn Dowden, sued the City of Natchitoches, Louisiana, and its insurer, Liberty Mutual Insurance Company, for workmen’s compensation benefits. He allegedly developed an inguinal hernia during the course and scope of his employment as a police officer for the City of Natchi-toches. The district court judge awarded plaintiff compensation for approximately four months based on findings of total temporary disability, in addition to medical expenses and penalties and attorney’s fees as provided for by R.S. 22:658. Defendants have taken this appeal. Plaintiff has neither appealed nor answered the appeal. We amend and affirm the holding of the district court.

Plaintiff was injured on May 8, 1976, while taking a subject, Marvin Brice, into custody. Plaintiff and three other officers answered a call for help to quell a disturbance in the Pan-Am section of Natchitoch-es, Louisiana. The subject Brice was drunk and resisted arrest by hitting and kicking both the plaintiff and his partner, Officer Durr. Cursing accompanied this violent activity. Brice was finally subdued and taken to the police station for booking and interrogation. Plaintiff claims that in the interrogation room Brice delivered a hard kick to his groin which made him so ill that he stayed away from work for several days. Later plaintiff was informed by his doctor that he had an inguinal hernia which needed surgical repair. The surgery was performed and plaintiff was told by his doctor not to return to work until September 1, 1976.

Defendant complains that the trial judge erred in finding plaintiff’s injury was caused by an accident occurring in the course and scope of his employment. Even if there was such an accident, defendant further claims that the plaintiff provoked a fight with the prisoner and therefore cannot recover compensation. R.S. 23:1081. In addition, it asserts plaintiff failed to promptly report his claim, and alternatively if the award stands, it should be modified to reflect sums received by plaintiff for temporary employment with Louisiana Paving Company. Finally, defendant states that penalties and attorney’s fees were not in order.

We feel that plaintiff adequately proved his claim. The medical and other evidence satisfies us that a blow to plaintiff’s groin area caused the hernia. Although it is not clear from the testimony which particular kick or punch caused the injury to plaintiff, it is not essential for him to pin-point the exact contact' which disabled him. It is sufficient within the context of this case that he proved that he was kicked or otherwise hit in the lower abdominal area.

Defendants complain that plaintiff provoked a fight with Brice in the interrogation room which resulted in plaintiff being kicked in the groin. It is obvious to us that the physical abuse delivered by the prisoner prior to this scuffle caused the injury. We are not called upon to nor do we express an opinion regarding the plaintiff’s reactions to the prisoner’s harassment of him. The record shows that plaintiff was suspended temporarily from the police force for his actions in the later stages of the confrontation. We note here that the plaintiff pleaded guilty to battery charges and received a suspended sentence which was later dismissed. Be that as it may, we feel that this is irrelevant considering our finding that the injury occurred prior to the scuffle in the interrogation room and during the time that plaintiff was acting in the course and scope of his employment. Therefore we find R.S. 23:1081 to be inapplicable in this case.

The proof of plaintiff’s case, and of the defense of intent to wilfully injure another are both factual determinations to be made by the trial judge. He has much discretion in the finding of facts and we give great weight to such findings. Canter v. Koehring Company, 283 So.2d 716 at 724 (La.1973).

Defendants cite R.S. 23:1221(4)(q)(i) which states:

“In all claims for inguinal hernia, it must be established by a preponderance of the evidence that the hernia resulted from injury by accident arising out of and in the course and scope of employment; that the accident was reported promptly to the employer, and that the employee was attended by a licensed physician within thirty days thereafter.”

Defendants argue for the first time on appeal that plaintiff did not promptly report the accident to the employer. Plaintiff was injured on May 8, 1976. He consulted a physician on May 16th or May 17th, and reported the injury to Chief Harry Hyams of the Natchitoches City Police Department some time prior to June 4, 1976. This indicates that plaintiff waited some three or four weeks to report the claim. In Womack v. Pickett, 283 So.2d 852 (La.App. 2nd Cir. 1973), the court found that a five week delay did not satisfy the requirement of the statute to report promptly, but also stated:

. . What constitutes prompt reporting of an accident is a matter which must be determined under the facts of each particular case. In Porter v. Ceco Corporation, 261 So.2d 235 (La.App. 4th Cir. 1972) the court held two weeks was prompt notification, under the facts of that case.”

In this instance, the plaintiff did not become aware of the severity of his injury until May 16th. He reported the accident during a time when there was much confusion about his job status, and we cannot say that the delay was unjustifiable. We find no error in the trial judge’s finding under the facts herein, that plaintiff promptly reported his injury as required under the inguinal hernia statute.

The original judgment awarded plaintiff $85.00 per week for the period of May 8, 1976, to September 1, 1976, with 7% per annum interest from the due date of each installment until paid. Defendants note the judge’s failure to adjust the award to reflect plaintiff’s employment with Louisiana Paving Company, when he was suspended from the police force. Plaintiff acquiesces in this claim. Plaintiff in brief correctly outlined the reduction which should be made in the award according to R.S. 23:1221(3).

“Donald Glenn Dowden
Monthly Earnings
City of Natchitoches $662.00
State Supplement 200.00
Total $862.00
Weekly Earnings
$862.00 X 12 - 52 = $198.92
Compensation due while employed with Louisiana Paving Company
Week ending Earnings
May 22 $106.74
Compensation due 66%% of $198.92 - $106.74 = $61.46
May 29 $127.31
Compensation due 66%% of $198.92 - $127.31 = $47.74
June 5 $ 48.60
Compensation due 66%% of $198.92-$ 48.60 = $85.00
June 12 $ 7.50
Compensation due 66%% of $198.92-$ 7.50 = $85.00

We agree and therefore amend the award for compensation representing the weeks of May 22 and May 29,1976, to the amounts of $61.46 and $47.74, respectively, and otherwise affirm the compensation award.

Finally, defendants claim that it should not be cast in penalties and attorney’s fees. We disagree.

The insurer failed to fully investigate the claim by taking written statements of Chief Hyams and the other officers. It decided not to pay the claim even before it received plaintiff’s medical reports. Significantly, it indicated to plaintiff’s counsel that the time of plaintiff’s disability ran concurrently with the time of his suspension from the police force. Liberty was aware that the other officers had not implicated plaintiff as the aggressor in the scuffle with Brice. Therefore, Liberty had a duty to investigate further before arbitrarily refusing to pay the claim, and we affirm the casting of the statutory penalties and attorney fees (R.S. 22:658), against Liberty Mutual Insurance Company. See Norris v. Southern Casualty Insurance Company, 342 So.2d 874 (La.App. 3rd Cir. 1977) and cases cited therein.

However, an insured employer should not be assessed penalties and attorney fees. R.S. 23:1201.2 and DeJean v. B. F. Trappey’s Sons, Inc., 285 So.2d 297 (La.App. 3rd Cir. 1973). We amend the judgment to exempt the City of Natchitoches from the payment of penalties and attorney fees.

For the foregoing reasons, the judgment of the trial court is amended to the extent hereinabove shown, and is otherwise affirmed.

Costs of this appeal to be paid by appellant.

AMENDED AND AFFIRMED.

      . “No compensation shall be allowed for an injury caused (1) by the injured employee’s wilful intention to injure himself or to injure another or (2) by the injured employee’s intoxication at the time of the injury, or (3) by the injured employee’s deliberate failure to use an adequate guard or protection against accident provided for him or (4) by the employee’s deliberate breach of statutory regulations affecting safety of life or limb.
      In determining whether or not an employer should be exempt from and relieved of paying compensation because of injury sustained by an employee for the causes and reasons set forth in this Section, the burden of proof shall be upon the employer.”

      . Defendant also claims that plaintiff failed to call an essential corroborating witness, Dr. Kaufman, who advised him only once and then on a casual basis. We feel this contention is without merit and does not affect the adequacy of plaintiffs proof. See Malbroux v. Guice, 322 So.2d 390 at p. 391 (La.App. 3rd Cir. 1975).

       (Limited to maximum of $85.00) ”


author: GUILDRY, Judge.

text:
    David T. SHIVELY and Deanna Bodin Shively, Plaintiffs-Appellees-Appellants, v. Peter PICKENS et al., Defendants-Appellants-Appellees.
    No. 5997.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Kramer & Davis by James D. Davis, Alexandria, for plaintiff-appellant.
    William J. Doran, Jr., Baton Rouge, for defendant-appellant.
    Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for defendants-appellees.
    Otis E. Lomenick, Jr., and Kenneth Boag-ni, Jr., Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUILDRY, Judge.

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

Pickens v. State of Louisiana, through the Department of Highways, Docket No. 5998, 346 So.2d 1325 (La.App.3rd Cir. 1977).
Richard v. Zurich Insurance Company et al., Docket No. 5999, 346 So.2d 1327 (La.App.3rd Cir. 1977).
Thierry v. Pickens et al., Docket No. 6000, 346 So.2d 1328 (La.App.3rd Cir. 1977). Charles v. Pickens et al., Docket No. 6001, 346 So.2d 1329 (La.App.3rd Cir. 1977).

We decide all of these cases today. The facts and law common to all are set forth herein, however, those facts and questions of law peculiar to each of the consolidated cases are set forth in separate opinions which we likewise hand down this date.

These consolidated cases arise out of a two-car head on collision which occurred when an automobile being driven by Peter Pickens skidded out of control and struck a vehicle being driven by David Shively. Guest passengers in the Pickens vehicle included Robert Richard, Floyd Thierry, Sr., Whitney Charles and Peter Barnaby. Mrs. Deanna B. Shively was a passenger in the vehicle being driven by her husband, David. The accident occurred at approximately 3:00 P. M. on September 2, 1973, on the “Old River Bridge”, U.S. Highway 84, in LaSalle Parish.

The instant suit was filed by David T. Shively, individually and as head and master of the community, seeking to recover damages for his personal injuries, property damage, and medical expenses for himself and his wife, all incurred as a result of the alleged negligence of defendants, Peter Pickens and the State of Louisiana, through the Department of Highways (hereinafter referred to as the Highway Department). Plaintiff’s wife, Deanna Shively, joined in her husband’s suit seeking to recover damages for her personal injuries. Also made defendant is Zurich Insurance Company, insurer of the Pickens’ vehicle.

The Highway Department filed answer denying any negligence on its part and alleged that the accident was solely caused by the negligence of Peter Pickens. Alternatively, the Highway Department pleaded the contributory negligence of David T. Shively. Peter Pickens and his insurer, Zurich, filed answer denying any negligence on their part, alleging in answer and by way of a third party demand that the sole cause of the accident was the negligence of the defendant, Highway Department. The third party demand of Peter Pickens and his insurer seeks contribution from the Highway Department in the event that Pickens and the Highway Department are cast as joint tortfeasors.

In Suit No. 5998, supra, Peter Pickens brought an action against the Highway Department seeking to recover damages for personal injuries, medical expenses, property damage, and lost wages. The Highway Department filed answer denying any negligence on its part.

In Suit No. 5999, supra, Robert Richard seeks to recover damages for personal injuries, medical expenses, and lost wages sustained as a result of the alleged negligence of Peter Pickens and the Highway Department. Defendants, Peter Pickens and his insurer Zurich, and the Highway Department answered denying any negligence on their respective parts. Pickens by way of a third party demand seeks contribution from the Highway Department. Also named as defendant in this suit was Allstate Insurance Company. Plaintiff alleged that he had a policy of liability insurance issued to him by Allstate which policy contained provisions extending uninsured motorist protection to petitioner. Allstate filed a motion for summary judgment. After a hearing on the motion the trial court granted judgment in favor of Allstate. Richard appealed. On appeal the trial court judgment granting Allstate’s motion for summary judgment was affirmed. Robert Richard v. Zurich Insurance Company, et al, 318 So.2d 83 (La.App.3rd Cir. 1975). The judgment dismissing Richard’s claim against Allstate is now final.

Suit Nos. 6000 and 6001, supra, were brought by Floyd Thierry, Sr. and Whitney Charles, respectively. Both seek to recover damages for personal injuries and medical expenses, and lost wages all incurred as a result of the negligence of Peter Pickens and the Highway Department. Again, each defendant answered denying any negligence on its part, alleging instead that the sole cause of the accident was the negligence of the other defendant. As in the other suits Pickens seeks contribution from the Highway Department by way of a third party demand.

After trial of these consolidated actions the district court found that the accident was caused solely by the negligence of the Highway Department. Accordingly, in the case at bar judgment was rendered as follows:

In favor of Mrs. Deanna Shively and against the Highway Department in the sum of $125,000.00.
In favor of Mr. David Shively, individually, and against the Highway Department in the sum of $15,000.00.
In favor of Mr. David Shively, as head and master of the community, and against the Highway Department in the sum of $7667.46.

In Suit No. 5998 judgment was rendered in favor of Peter Pickens and against the Highway Department for the sum of $22,-500.00 in general damages and $17,496.60 in special damages.

In Suit No. 5999 judgment was rendered in favor of Robert Richard and against the Highway Deparment for $3,000.00 in general damages and $1,120.15 in special damages.

In Suit No. 6000 judgment was rendered in favor of Floyd Thierry, Sr., and against the Highway Department for the sum of $4,000.00 in general damages and $2,717.49 in special damages.

In Suit No. 6001 judgment was rendered in favor of Whitney Charles and against the Highway Department for the sum of $3,000.00 in general damages and $1,559.20 in special damages.

The Highway Department has appealed from these judgments. The plaintiffs, other than Peter Pickens and Whitney Charles, have appealed from that portion of the judgments dismissing their respective demands against Pickens and his insurer, Zurich. Pickens and Charles have neither appealed nor answered the appeals filed by the other parties.

The issues presented on appeal are:

1. Was the Highway Department guilty of negligence which proximately caused the accident?

2. Was Peter Pickens guilty of negligence which caused or contributed to the accident?

3. If there is liability on the part of the Highway Department, were the damages awarded excessive?

The issues numbered 1 and 2 are common to all of the suits and will be fully treated in this opinion, however, issue number 3, insofar as it applies to the respective plaintiffs will be discussed and disposed of in the separate opinions rendered in suits numbered 5997 through 6001.

WAS THE HIGHWAY DEPARTMENT GUILTY OF NEGLIGENCE?

Plaintiffs contend that the Highway Department’s negligence consists of having failed to properly surface and maintain highway U.S. 84 at the “Old River Bridge”. Specifically, plaintiffs aver that a dangerous condition existed in that the section of highway 84 referred to was excessively slippery when wet; that the Highway Department had knowledge of such condition both actual and constructive; and, despite knowledge of said condition, which was both obviously and patently dangerous, the Highway Department failed to remedy such condition and/or failed to place warning signs at the said bridge, to warn of the dangerous condition. The trial court so held.

Our review of the record discloses that generally the facts in regard to this issue are undisputed.

The testimony of James W. Pharis, the investigating trooper, reveals that the accident occurred at approximately 3:00 P. M. on September 2, 1973, midway across the “Old River Bridge” on U.S. 84. The bridge is a two-laned asphalt highway, which is 1003 feet long and 23 feet wide. The bridge is flat and straight. The testimony of Officer Pharis, as well as all of the witnesses, indicates there was a drizzling rain at the time of accident and that the highway was wet. Officer Pharis stated his investigation of the accident revealed that just prior to impact the Pickens vehicle, a 1964 Chevrolet, was headed in an easterly direction and that the Shively vehicle, a 1969 Ford stationwagon, was headed in a westerly direction. He observed that both of the vehicles were heavily damaged. The officer testified that the surface of the roadway was very slick. He was not able to discern any skid marks on the bridge surface. The posted speed limit was 60 mph, and there were no warning signs posted on either of the two approaches to the bridge.

State Trooper Wayne McGuffee also visited the scene of the accident on September 2, 1973. He testified that a personal examination of the bridge on this date showed it to be slicker than the asphalt approaches on either end. He found the bridge to be unusually slick. Officer McGuffee had investigated two previous accidents on the bridge, one which occurred on August 16,1973 and the other on August 17, 1973, and a subsequent accident which occurred on the bridge on September 5, 1973. In this connection three Louisiana traffic accident reports were introduced into evidence. A review of the accident reports show that three accidents, excluding the one in question herein, occurred on the “Old River Bridge” within a relatively short period of time. All three of the- accidents occurred under similar weather conditions as existed in the instant matter. The road surface was wet. The accidents occurred on August 16, 1973, August 17, 1973 and September 5, 1973, the last occurring three days following the accident in question herein. Officer McGuffee, who investigated these other accidents, testified that all of the vehicles involved in said accidents had gone out of control while traveling across the bridge. Although unsure about the exact date, Officer McGuffee testified that he contacted Dixie Finley, the Highway Department maintenance superintendent for LaSalle Parish, regarding the condition of the bridge surface.

Aaron Creel, an employee of the Highway Department, testified he was in charge of laying cationic asphalt and light weight clay aggregate on the “Old River Bridge” on November 10, 1972. He stated that the bridge was first sprayed with a layer or film of cationic'asphalt. Secondly, a layer of light weight clay aggregate was spread across the asphalt, and then passed over by machine rollers. He testified that he was not aware of any minimum temperature requirements which had to be met in order to lay this type of asphalt. He admitted that you should pour asphalt in warm weather, otherwise you might get a surface that will slip. He stated that it was possible that the temperature on November 10, 1972 was less than 60 degrees.

Dixie Finley, LaSalle Parish maintenance superintendent for the Highway Department, testified that following the surfacing of “Old River Bridge” on November 10, 1972 that he performed no inspections of the bridge, nor were any skid tests or co-efficient of friction tests performed. He stated that following this series of accidents in August and September of 1973 that he did personally drive over the bridge and apply his brakes. He found no difficulty in stopping. He admitted that the roadway was not wet at this time, but was damp. Dixie Finley stated that he was informed by Trooper McGuffee after one of the accidents that some inspection of the bridge ought to be performed. He did not know the exact date of his conversation with the trooper.

The assistant district engineer for the Highway Department, Benny Sharp, testified that prior to the accident on September 2, 1973 his department had decided to resurface the “Old River Bridge” with a hot mix asphalt. His testimony reflects that hot mix asphalt, although more expensive, is more durable than the cationic asphalt. He indicated that the hot mix asphalt would be safer. Sharp’s testimony reveals that the hot mix asphalt was laid on the bridge’s surface during the first part of December, 1973. Sharp stated that at no time following the decision to re-surface the bridge did anyone make any decision to put any signs at the bridge. He testified that warning signs were not placed at the bridge until after the fourth accident, on September 5, 1973.

In regards to laying light weight clay aggregate Sharp stated that it should not be done in a temperature of less than 60 degrees because there is a possibility you will not get a good job. Specifically, the light weight aggregate in low temperatures might not adhere to the cationic asphalt. Such a result would leave only the smooth asphalt remaining on the roadway’s surface.

Sharp admitted that the only inspection of the bridge consisted of employees’ periodic and unscheduled crossings of the bridge.

Edgar Mitchell, district engineer for the Highway Department, testified that a few days following the second accident, on August 17, 1973 Dixie Finley came into the office and told him that Trooper McGuffee had contacted him and requested that the Highway Department look into the condition of the bridge. Mitchell stated that he subsequently sent two employees to check the bridge, however the record is unclear as to their findings. Mitchell admitted that sometime following the accidents on August 16 and 17, 1973 and prior to the September 2nd accident a decision was made to re-surface the “Old River Bridge” with hot mix asphalt. Mitchell testified that there had been some talk previous to any of the accidents about re-surfacing the bridge. He stated that there were cracks and spaulds in the surface of the bridge which were a source of worry. The testimony of Mitchell reveals that the cationic asphalt with light clay aggregate laid on the “Old River Bridge” on November 10,1972 should have lasted from 3 to 5 years. He stated that the bridge, although a primary route, was not heavily traveled.

James Lyons, a research and development engineer for the Highway Department, stated that the department has two skid trailers which are used in testing co-efficient of friction on highways. He stated that skid test numbers 35-37 are used as a basic point from which to determine the safety of highway surfaces. He stated that these numbers, i. e., 35-37, are not absolute determinants, although a skid test number of 20 or less would without question indicate an unsafe roadway. Lyons testified that cationic asphalt with light weight aggregate, when properly applied, should show a skid test number of 45-50. He further testified that if the light weight aggregate did not adhere to the cationic asphalt the skid test number could be as low as 12.

Hollins Rushing, a materials engineer for the Highway Department, stated that it is his responsibility to test various materials used on the surface of roads and bridges in the state. He testified that he performed no test on the light weight aggregate used on the surface of the “Old River Bridge”.

Dr. Joseph Barnwell, who qualified as an expert in the field of engineering and accident reconstruction, testified that he first visited the “Old River Bridge” on August 22, 1973. Dr. Barnwell was at the time investigating the accident which had occurred on August 17, 1973. His inspection of the bridge revealed that there was absolutely no aggregate on the bridge’s surface. He stated that the surface, which looked like it had been coated with a plastic like material, had no abrasive qualities whatsoever. Subsequently, Dr. Barnwell conducted skid tests on the bridge’s surface. It is admitted that at the time of Dr. Barnwell’s test the bridge had been re-surfaced. However, Dr. Barnwell, also conducted an independent skid test which simulated the conditions of the bridge as he saw them on August 22, 1973. Dr. Barnwell was of the opinion that the bridge’s surface, which his test showed to have a skid test number of 8, was so slick that it could be compared to ice. Dr. Barnwell found this condition resulted from the fact that the light weight clay aggregate laid oh the bridge’s surface had been reduced to a powder. Presumably the powder was thereafter washed or blown off of the bridge’s surface. Dr. Barnwell concluded that this condition, combined with the fact that the bridge was wet, was the reason for Peter Pickens’ vehicle going out of control. He stated that Peter Pick-ens, given the low co-efficient of friction on this surface, would have been unable to stop his vehicle.

Dr. William Tonn, Jr., who also qualified as an expert in the field of engineering and accident reconstruction, testified on behalf of the Highway Department. Dr. Tonn performed no test on the bridge’s surface. He opined that the cause of the accident was due to the actions of the driver Peter Pickens in either accelerating or in decelerating by brake application. Dr. Tonn stated that it was possible the accident was contributed to by the condition of the bridge’s surface.

It is well settled in the jurisprudence of this state that the Highway Department is obliged to use ordinary and reasonable care in inspecting and repairing bridges in its system and to keep them in reasonably safe condition. Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App.3rd Cir. 1974, writs refused, La., 303 So.2d 182). This duty also includes the duty to provide adequate warnings and safeguards against dangerous situations. Von Cannon v. State through the Department of Highways, 306 So.2d 437 (La.App.3rd Cir. 1975, writs refused, La., 309 So.2d 681, 682); Aymond v. State, through the Department of Highways, 333 So.2d 380 (La.App.3rd Cir. 1976, writs denied Sept. 29, 1977). In Laborde, supra, 583, the court in speaking to this duty stated:

“The Department of Highways is not responsible for every accident which occurs on state highways. It is not a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from defects in the highways. The duty of the Department of Highways is only to see that state highways are reasonably safe for persons exercising ordinary care and reasonable prudence. The department is liable for damages only when it is shown (1) that the hazardous condition complained of was patently or obviously dangerous to a reasonably careful and ordinarily prudent driver, and (2) that the department had notice, either actual or constructive, of the existence of the defect and failed within a reasonable time to correct it. Dupre v. Louisiana Department of High ways, 154 So.2d 579 (La.App.3 Cir. 1963); Mistich v. Matthaei, 277 So.2d 239 (La.App.4 Cir. 1973); St. Paul v. MacKenroth, 246 La. 425, 165 So.2d 273 (1964).”

After reviewing the evidence, as herein-above outlined, we agree with the trial court’s finding that the Highway Department was guilty of negligence, which negligence was the proximate cause of the accident between the Shively and Pickens vehicles. Our conclusion in this regard is based upon the following determinations which are all amply supported by the evidence:

1. The Highway Department failed in its duty to properly surface the “Old River Bridge”, as a result of which failure the bridge’s surface, under the wet conditions that existed, was excessively slick having the co-efficient of friction of ice.

2. The Highway Department further failed in its duty to properly inspect and maintain the aforesaid bridge surface.

3. The condition of the bridge surface on and prior to September 2, 1973 was extremely hazardous to the motoring public. Further, such condition was patently and obviously dangerous to a reasonably careful and ordinarily prudent driver.

4. The Highway Department had both actual and constructive knowledge of this patently dangerous situation (i. e., notice from Trooper McGuffee to Dixie Finley and knowledge of the accidents on August 16 and 17, 1973).

5. The Highway Department in spite of both actual and constructive notice of the hazardous and dangerous condition of the bridge failed to correct the situation and/or warn the motoring public of its existence.

Having determined that the Highway Department was guilty of actual negligence, it is not necessary for us to consider the appellants’ alternate contention that the Highway Department is strictly liable under R.C.C. Article 2317.

WAS PETER PICKENS GUILTY OF ANY NEGLIGENCE?

Plaintiff, David Shively stipulated at the time of trial that he was traveling towards Jena, Louisiana, at approximately 50 miles per hour and was about mid-way across the “Old River Bridge” on U.S. 84 when he saw an approaching vehicle go out of control. He stated he saw the vehicle straighten up slightly and then come over into his lane of travel and hit his car head-on. David Shively stated that he never lost control of his automobile and was hit entirely in his lane of travel. There was a drizzling rain at the time of the accident. Mrs. Deanna Shively, who was riding with her husband at the time of the accident, could remember nothing in regards to the collision.

Peter Pickens testified that he was heading in an easterly direction on U.S. 84 and as he approached the “Old River Bridge” was traveling at approximately 40-45 miles per hour. He stated that when his vehicle entered the bridge it suddenly and unexpectedly went out of control. Pickens testified that he did not apply his brakes prior to the vehicle going out of control. He did state that he tried to regain control of his vehicle, by taking his foot off the accelerator and applying the brakes, but was unable to do so. The car fish-tailed and spun into the lane of traffic occupied by the Shively car. Pickens’ testimony in this regard was corroborated by all of the guest passengers in his vehicle. Further, the guest passengers testified that at all times prior to the accident, Pickens was driving his vehicle in his proper lane of travel and in a reasonable, proper, and cautious manner.

Pickens further testified that this was the first time he had driven over the “Old River Bridge”, although he had ridden over it on one previous occasion. He testified that he had experienced no previous mechanical difficulty with his automobile and that his tires were in good condition. At the time of the accident Pickens and his passengers were on their way home from work after having been discharged for the day due to the rain.

We recognize that under the facts as presented above Peter Pickens, whose vehicle crossed the center line and collided with the Shively vehicle, is presumed under these circumstances to be negligent. In this regard the court in Simon v. Ford Motor Company, Inc., 282 So.2d 126, 133 (La.1973), stated:

“The trespassing motorist ‘having caused the accident by leaving his own traffic lane, is presumed guilty of negligence and the onus rested on him to demonstrate that the accident resulted from such a state of unforeseeable circumstances beyond his control (and to which he did not contribute), that he could not extricate himself, despite the efficient use of all protective measures at his command. In other words, it was his burden to show that he was not guilty of any dereliction, however slight, which may have had causal connection with the accident. We say this because it seems only reasonable to resolve that a motorist owes to the traveling public the duty of remaining in his own lane of traffic and, when he undertakes to enter the lane devoted to approaching traffic, he must be held strictly accountable for all damages resulting therefrom unless he clearly exhibits that his conduct in no wise contributed to the accident. By this, of course, we do not mean that such a motorist is the insurer of the safety of those injured in an accident such as the one in the instant case but only that, in order to be exonerated, he must establish his freedom from all fault by convincing proof.’ ”

As set forth in Simon, supra, it is equally well established that this presumption is a rebuttable one and that the motorist seeking to exculpate himself must establish his freedom from fault by convincing evidence.

The trial court found that Peter Pickens was without any fault whatsoever in connection with the automobile accident and further, that he could have done nothing to avoid the collision with the Shively vehicle.

Our review of the record reveals that the evidence fully supports the trial court’s conclusion. There is simply no evidence showing that at the time of the accident or prior thereto, Peter Pickens was driving his vehicle in a reckless or negligent manner; or that he failed to act reasonably in avoiding the collision; or that his vehicle was defective and he knew of it. Rather all the evidence is to the contrary, clearly indicating that Peter Pickens was at all times, driving in a reasonable, prudent, and cautious manner and that his vehicle, without warning skidded out of control and struck the Shively vehicle. We conclude that Peter Pickens has established his freedom from fault. Accordingly we find that the accident occurred solely and proximately as a result of the Highway Department’s negligence.

QUANTUM

The remaining issue for determination in this matter is whether the trial court’s awards to David Shively and Deanna Shively are excessive. Defendant, although it does not question the awards of special damages, contends that the trial court awards of general damages in the amount of $15,000.00 to David Shively and $125,-000.00 to Deanna Shively should be reduced.

In this connection the trial judge in his written reasons for judgment fully described the injuries sustained by David and Deanna Shively. I quote from his reasons:

“Mrs. Deanna Bodin Shively was severely injured as a result of this accident. She sustained severe head injuries as well as internal injuries which included severance of the right rectus muscle, a tear of the mesentery of the small bowel, laceration of the greater omentum and intraperito-neal bleeding and perforation of the small intestine. Her injuries were diagnosed as being a closed head injury with cerebral concussion, intraabdominal injuries and rectus muscle avulsion and a laceration of her eyelid. In addition, it (sic) it has been demonstrated substantially that she sustained traumatic personality changes which have effectively reduced her functional level and modified her behavior. It has also been established that Mrs. Shively sustained a partial permanent hearing deficiency as a result of this accident.
The treatment she received has been discussed in great detail in the evidence presented. The Court is convinced that she experienced a very painful injury and suffered extensively while on the road to recovery and still experiences occasional headaches that can be directly traced to injuries sustained on September 2, 1973. The Court is further convinced that Mrs. Shively has suffered brain damage of a mild to moderate nature and as a result thereof experienced depressive neurosis with anxiety. She also has experienced an impairment of memory and a reduction in her formal (sic) mental ability to make good judgment of ordinary complexities. Concerning her condition, one of her physicians, Dr. Phillips stated his conclusions were as follows:
'Well, it was my impression that this lady, although perhaps prone to become depressed under the right circumstances, would likely not have been as profoundly depressed following the accident of 1973 had she not had some brain damage. It is further my impression that she, at the time I initially saw her, had an early organic brain syndrome and a rather profound depression. I considered the prognosis for relief only fair. — relief of her depression — because of what I perceived her ability to cope, which had been decreased somewhat by the accident. The overall prognosis was guarded although further recovery was considered possible at the time of the initial interview, since only six months had elapsed since the time of the accident.’ (Page 20 of Dr. Phillips’ deposition) ,
My opinion is that she is not likely to ever totally regain her ability to recall as she had prior to the onset of the brain syndrome. In other words, I would say that there would be some permanent impairment. (Ibid, Page 27)
Q. In what specific area? You mentioned five areas that you customarily conduct mental status evaluation on. In what areas would you think there would be some permanent effects?
A. Number one, memory. I think that she is going to have minimal difficulty recalling for an indefinite period, very likely permanently. This will not prevent her coping with everyday life, but it certainly will be a frustration on occasion. Number two, her feeling tones, or her affect, will also be minimally constricted. She will not be as likely to respond as spontaneously with the feeling that she very likely could have expressed previously. The third area that I would consider her to not likely have any improvement is in the intellectual area. With her previous history, one would consider that she likely was more capable intellectually prior to the brain damage than she has been since. The history of her being a valedictorian of high school, finishing college in education, her teaching junior and senior English in high school, these types of accomplishments in the intellectual field are rarely achieved by someone with an average I.Q. such as she tested out to have. So that I would think that her improvement intellectually, not having occurred from the initial visit in March to the September visit, she had no improvement intellectually according to the psychological tests that I requested, I would think that she is not likely to have significant improvement in this area, too.’
The conclusions reflected by the above cited portions of Dr. Phillips’ testimony is well supported by the evaluations of psychologists who conducted various tests on Mrs. Shively. It is also well supported by lay testimony of her husband and Mr. George Griffing who is a neighbor and an attorney well known to this Court. Other evidence concerning her achievements in high school and college and the testimony of her sister indicate conclusively that Mrs. Shively did suffer mental damage as a result of the accident on September 2, 1973.
For the pain and suffering which she experienced between September 1, 1973 and the date of the trial of these proceedings and for all future pain and suffering and disabilities which she experienced and will experience as a result of her multiple injuries and pain and suffering associated therewith, this Court would award to Mrs. Deanna Bodin Shively the sum of $125,000.00.
Mr. David T. Shively was injured in this accident as well. He received a depressed fracture of the left malar compound with comminution of the inferior orbital rim and orbital floor. Swelling associated with these fractures required surgical intervention accomplished on September 7, 1973. Dr. Eugene Worthen wired the interior orbital rim with a transfixion karschner wire which was left in place and was in place at the time of the trial. The injury affected his left upper eyelid. In addition, he sustained chest contusions as a result of striking the steering wheel of his vehicle.
At the trial, Mr. Shively testified very stoically. There is no doubt that he must have experienced some pain in connection with his injuries but from his testimony it is evident that Mr. Shively is most reluctant to discuss such things and to minimize the extent of his pain and suffering. This type of attitude is admirable and entirely understandable when viewed in light of the circumstance that his wife was severely injured in the same accident and his attention and concern was obviously directed' toward her and nonin-volved members of his family for whom he was responsible more than toward himself. For all the injuries sustained by David Shively and pain and suffering associated therewith, this Court would award him the sum of $15,000.00 . . ”

In approaching a review of the awards made in this case we are guided by the well established rule that before an appellate court can disturb an award made by a trial court the record must clearly reveal that the trier of fact abused its discretion in making its award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). This principle was explained in Bitoun v. Landry, 302 So.2d 278, 279 (La.1974), thusly:

“The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidénce before it. That such evidence might also support a greater (or smaller) award will not justify a change in the amount by the appellate court. Only when the trial court abuses its broad discretion should the award be adjusted, either up or down.”

Our examination of the record reveals that the awards made by the trial court to David and Deanna Shively are reasonably supported by the evidence and justifiable inferences therefrom. Although we are of the opinion that the evidence in the instant matter might support smaller awards, we can find no abuse of the trial court’s great discretion and accordingly will not substitute our opinion, in this regard for that of the trial court.

For the reasons assigned the judgment appealed from is affirmed, defendant-appellant to be taxed with such costs as are legally assessable against it under LSA-R.S. 13:4521.

AFFIRMED.

      . We note that the evidence as to the previous accidents occurring on “Old River Bridge” was properly admitted for the limited purpose of proving notice of any defects or physical conditions in the roadway which were dangerous. Carriere v. Aetna Casualty Company, 146 So.2d 451 (La.App.4th Cir. 1962).


author: GUIDRY, Judge.

text:
    Peter PICKENS, Plaintiff-Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Defendant-Appellant.
    No. 5998.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    William J. Doran, Jr., Baton Rouge, for defendant-appellant.
    Alfred Octave Pavy, Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case of Shively et al. v. Pickens et al., 346 So.2d 1314, we conclude that the accident giving rise to this litigation was caused solely and proximately by the negligence of the defendant, State of Louisiana, through The Department of Highways. Accordingly, we affirm the trial court’s determination that the defendant is liable in damages to the plaintiff.

The sole remaining issue in the instant suit concerns the correctness of the trial court’s award of damages. Defendant does not seriously question the award of special damages but does seriously contend that the award of general damages is excessive and should be reduced.

In concluding that plaintiff was entitled to a general damage award of $22,500.00 the trial judge stated as follows in his written reasons:

“Plaintiff sustained injuries as a result of this accident. In his petition he alleged that he sustained multiple rib fractures, a fracture of the midshaft of the right humerus, contusions and abrasions in the chest, injuries to his right shoulder and right arm, injuries to his neck, injuries in the thoracic area, abrasions about the forehead, an injury to his pelvis, and lacerations of his left foot, right foot and forehead. Immediately after the accident he was transported by ambulance to the Catahoula Parish Hospital at Jones-ville and later he was transferred by ambulance to St. Landry Clinic in Opelousas. Initially he was treated by Dr. Charles W. Roberts of Ferriday who practices in Jonesville who made the initial determination that he sustained a fracture of the left midshaft of the right humerus, multiple fractures of his ribs and lacerations to his forehead. At the Jonesville hospital the fracture of the humerous (sic) was reduced and the extremity was placed in a splint. Lacerations were sutured under local anesthesia. He received conservative treatment for his other injuries and on September 4th at his request was transferred to the care of a physician near his home and was discharged from the Catahoula Parish Hospital.
On the same date, September 4, 1973 he was admitted to the St. Landry Clinic where he was treated until September 21, 1973. At that time it was observed he was 35 years of age and complained of pain in his entire right side of his body, his neck, his shoulder, his hip and his leg. Close examination by the physicians revealed that he was alert and well oriented, suffered from abrasions of the forehead, was complaining of pain in the thoracic area on motion of his neck, his right shoulder and upper extremities were in a plaster splint and on its removal it was observed that circulation, motor reflexes and sensitivity were intact and his hand and his right shoulder and elbow were extremely swollen. There was tenderness to palpation of the thoracic area, the right rib cage, and right pelvis. Passive motion of the right hip produced a claim of pain in his pelvis and circulation and motor ■ reflexes and sensations were present in the lower extremities. A fracture in the right humerous (sic) and multiple fractured ribs were confirmed. On the 17th of September 1973 plaintiff’s physicians performed an open reduction of the fracture to his right humeral shaft. Exhibit — Pichens (sic) 8-A, a photograph, displays vividly where this operation was performed on his arm.
His primary attending physician was Dr. George Bourgeois of Opelousas, Louisiana. He testified on deposition that the rib fracture was of a nature that usually would be painful and the fractures would cause moderate to moderately severe pain when moved including movement of the rib cage caused by breathing. He was of the opinion that by early November of 1973 plaintiff was reasonably free of discomfort with reference to his ribs. He further testified that the arm injury, specifically the fracture of the humerous (sic) required treatment by an orthopedic specialist and in his opinion this type of fracture would cause substantial pain and necessitated use of medication to control pain. Dr. Bordelon assisted in the open reduction of the humerous (sic) on September 17th where internal fixation was done to stabilize the shattered bone.
He testified that plaintiff was discharged from the hospital in Opelousas on September 22,1973 and was seen later by his physician on September 25, October 2, October 9, October 16, October 23, November 6, and finally on December 7, 1973.
He testified that the pneumothorax condition was a condition in which presence of air was found in the chest cavity between the chest wall and the outer surface of his lung. This caused partial collapse of his lung which contributed to the pain he experienced in connection with movement of his rib cage and was caused by the accident. He regarded complaints from this type of condition as substantial and fortunately, plaintiffs lung expanded without necessity of intervention by his physicians. The pneumothorax condition lasted about two weeks after the accident.
Dr. Robert Bordelon was the orthopedic surgeon who participated in the treatment of plaintiff and testified by deposition in this case. He testified that in the operation that occurred on September 17th he placed in position over the fractured portions of plaintiff’s humerous (sic) a special plate and two screws which snugged the bone fragments together. The plate was not removed from the plaintiff’s arm. He was treating plaintiff after his release by Dr. Bourgeois and advised plaintiff he could return to work on a limited basis after February 8, 1974. He further stated that complaints of pain by the plaintiff almost a year after the accident would be consistent with the injuries that he sustained. He stated further that it was possible he would continue to suffer from his arm injury for an indefinite length of time.
Dr. Bordelon discharged plaintiff from his treatment on June 20, 1974. At that time he determined that the union between the separated portions of his fractured arm was such that effectively the bone was about only one-third of its normal size. Accordingly, it would not be as strong as before the fracture. Evaluating the plaintiff’s condition, he found a ten per cent impairment of his right arm and five per cent impairment of his body as a whole. He indicated further that the plaintiff worked very hard to loosen up a very stiff shoulder and arm to get the good result that he did achieve and he was of the opinion that the ten per cent physical impairment entitled plaintiff to a lot of credit for having endured the discomfort and working hard to rehabilitate himself.” (TR. 50-53)

Our examination of the record reflects the above to be a fair summation of the injuries sustained and the treatment received by plaintiff.

We have reviewed the award in this case in light of the principles of appellate review of damage awards recently reiterated by our Supreme Court in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) and conclude that the award made should not be disturbed.

For the reasons assigned the judgment appealed from is affirmed, defendant-appellant to be taxed with such costs as are legally assessable against it under LSA-R.S. 13:4521.

AFFIRMED.

      . The trial court awarded plaintiff the total sum of $17,496.00 in special damages which breaks down as follows:
      (1) Expenses in Opelousas Orthopedic Clinic $1,016.00
      (2) Expenses of Dr. G. S. Bourgeois 423.00
      (3) Expenses of C. W. Lanusse (PI 1) 19.00
      (4) Expenses of Lee W. Chachere (Court Reporter) 47.25
      (5) Joe’s Ambulance Service 35.00
      (6) Concordia Parish Ambulance Service 205.00
      (7) Dr. Charles W. Roberts 40.00
      (8) Catahoula Parish Hospital 365.35
      (9) Expenses — St. Landry Clinic (Medical Records) 20.00
      (10) For total loss of his 1964 Chevrolet Sedan 400.00
      (11) Loss of income for the period September 4, 1973 to June 20, 1974 13,100.00
      When the formal judgment was prepared, although the correct total of damages was awarded, i. e., $39,996.60, the author thereof inadvertently omitted item 11 and made a typographical error in transposition of item 8, i. e., $365.53 in lieu of $365.35. These errors can and should be corrected by the trial court under authority of LSA-C.C.P. Article 1951.


text:
    Robert RICHARD, Plaintiff-Appellee-Appellant, v. ZURICH INSURANCE COMPANY et al., Defendants-Appellants-Appellees.
    No. 5999.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    See also, La.App., 318 So.2d 83.

      William J. Doran, Jr., Baton Rouge, for defendant-appellant-appellee.
    Dubuisson, Brinkhaus & Dauzat by Jimmy L. Dauzat, Opelousas, for plaintiff-ap-pellee-appellant.
    Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case of Shively et al. v. Pickens et al., 346 So.2d 1314, we conclude that the accident giving rise to this litigation was caused solely and proximately by the negligence of the defendant, State of Louisiana, through the Department of Highways. Accordingly, we affirm the trial court’s determination that the defendant is liable in damages to the plaintiff.

In this case the trial court awarded plaintiff the principal sum of $4120.15 for both special and general damages. The amount due as special damages was stipulated. The trial judge awarded plaintiff the sum of $3000.00 in general damages, his injuries being described in trial judge’s written reasons for judgment as follows:

“The court finds that as a result of this accident, the plaintiff sustained a cervical and lumbosacral strain, was struck in the groin, and suffered contusions of his chest and right ankle.”

Although the Highway Department does not question the quantum of this award we have reviewed same in light of the principles of appellate review of damage awards recently reiterated in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) and conclude that such award should not be disturbed.

For the reasons assigned the judgment appealed from is affirmed, defendant-appellant to be taxed with such costs as are legally assessable against it under LSA-R.S. 13:4521.

AFFIRMED.


text:
    Floyd THIERRY, Sr., Plaintiff-Appellant-Appellee, v. Peter PICKENS et al., Defendants-Appellees-Appellants.
    No. 6000.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      William J. Doran, Jr., Baton Rouge, for defendant-appellant.
    Sandoz, Sandoz & Schiff by Leslie J. Schiff, Opelousas, for plaintiff-appellee.
    Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case of Shively et al. v. Pickens et al., 346 So.2d 1314, we conclude that the accident giving rise to this litigation was caused solely and proximately by the negligence of the defendant, State of Louisiana, through the Department of Highways. Accordingly, we affirm the trial court’s determination that the defendant is liable in damages to the plaintiff.

In this case the trial court awarded plaintiff the principal sum of $6,717.49 for both special and general damages. The amount due as special damages was stipulated.

The trial judge awarded plaintiff the sum of $4,000.00 in general damages, his injuries being described in the trial judge’s written reasons for judgment as follows:

“On the basis of the evidence presented in this case the Court finds that Floyd Thierry, Sr. sustained a displaced fracture of his right fibula, a lumbo sprain, a contusion of the right arm and lacerations to the scalp.
Plaintiff was given emergency treatment at the Catahoula Hospital in Jonfesville, Louisiana and then returned to Opelousas where he was treated by Dr. Emile K. Ventre and hospitalized for a period of about seven days at the Opelousas General hospital. Subsequent to his release from the hospital he received outpatient care from Dr. Ventre for an additional three weeks at which time he was released to return to work on a light work basis. He was ultimately discharged on November 26, 1973, approximately two months after the accident. He complained that he continued to suffer minimal pain and discomfort and difficulty from his leg and back injuries.”

Although the Highway Department does not question the quantum of this award we have reviewed the same in light of the principles of appellate review of damage awards recently reiterated in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) and conclude that such award should not be disturbed.

For the reasons assigned the judgment appealed from is affirmed, defendant-appellant to be taxed with such costs as are legally assessable against it under LSA-R.S. 13:4521.

AFFIRMED.

      . The trial court awarded plaintiff the total sum of $6,717.49 which was broken down in his reasons for judgment as follows:
      Medical expenses .$ 883.43
      Lost Wages. 1,834.06
      General damages . 4.000.00
      $6,717.49
      We here note that when the formal judgment was prepared, although the correct numerical total of damages in the judgment was designated as $6,717.49, the judgment incorrectly refers to the figure as Six Thousand Six Hundred Seventeen and 49/ioo Dollars. This error can and should be corrected by the trial court under authority of LSA-C.C.P. Article 1951.


text:
    Whitney CHARLES, Plaintiff-Appellee, v. Peter PICKENS et al., Defendants-Appellants.
    No. 6001.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      William J. Doran, Jr., Baton Rouge, for defendants-appellants.
    Kenneth Boagni, Jr. and Otis E. Lomen-ick, Jr., Opelousas, for plaintiff-appellee.
    Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case of Shively et al. v. Pickens et al., 346 So.2d 1314, we conclude that the accident giving rise to this litigation was caused solely and proximately by the negligence of the defendant, State of Louisiana, through the Department of Highways. Accordingly, we affirm the trial court’s determination that the defendant is liable in damáges to the plaintiff.

In this case the trial court awarded plaintiff the principal sum of $4,559.20 for both special and general damages. The amount due as special damages was stipulated. The trial judge awarded plaintiff the sum of $3,000.00 in general damages, his injuries being described in the trial judge’s written reasons for judgment as follows:

“The evidence in this case supports and the Court finds that Whitney Charles was a 37 year old black working man when injured on September 2, 1973. As a result of the accident, he sustained a laceration of the right arm, a bruise and contusion of his nose and face, contusion of the chest, multiple abrasions and contusions of the body and a mild cerebral concussion which caused him to loose consciousness for a few minutes. The laceration on his right arm was large and required multiple stiches (sic). He sustained a nondisplaced fracture of the nose with no misalignment of the septum. He also sustained a fracture of the second anteri- or left rib. He also sustained a small occipital scalp laceration and experienced neck pain and stiffness.
Plaintiff received emergency treatment at Catahoula Hospital in Jonesville, Louisiana after which he returned to his home in Opelousas, Louisiana where he was examined and treated by Dr. Emile K. Ventre. He was an outpatient from September 4, 1973 until October 15, 1973. He returned to work on September 25, 1973 being able to do light duty without substantial interference with his work resulting from his injuries. At the time of the trial of these proceedings he claimed residual pain, disability and discomfort, particularly in reference to the large laceration on his arm and rib and neck injuries.”

Although the Highway Department does not question the quantum of this award we have reviewed same in light of the principles of appellate review of damage awards recently reiterated in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977) and conclude that such award should not be disturbed.

For the reasons assigned the judgment appealed from is affirmed, defendant-appellant to be taxed with such costs as are legally assessable against it under LSA-R.S. 13:4521.

AFFIRMED.


author: WATSON, Judge.

text:
    STATE FARM FIRE AND CASUALTY COMPANY et al. v. SENTRY INDEMNITY COMPANY et al.
    No. 6011.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Voorhies & Labbe, by W. Gerald Gaudet, Lafayette, for defendants-appellants.
    Stockwell, Sievert, Viccellio & Clements, by John S. Bradford, Lake Charles, for plaintiff s-appellees.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, by Robert M. Mahony, Lafayette, for third party defendant-appellee.
    Before WATSON, FORET and HEARD, JJ.
   WATSON, Judge.

This is a subrogation claim brought by three fire insurers against Mrs. Emma Bay-lot and her liability insurer, Sentry Indemnity Company, to recover fire loss to a residence. Plaintiffs are State Farm Fire and Casualty Company, Central Mutual Insurance Company and Hanover Insurance Company.

The three plaintiffs issued policies to the First Baptist Church of Jennings for fire and extended coverage on all church property including the parsonage (or “pastori-um”) which was the home furnished to the Rev. Baylot by the church. Central Mutual’s policy covered sixty per cent of the risk while State Farm and Hanover each had twenty per cent. On March 3, 1973, the parsonage sustained fire damage of $25,-101.44, but the amount claimed is $25,000, the limits of the Sentry policy. The plaintiff insurers paid the loss to the church and then filed a subrogation suit against Rev. and Mrs. Baylot and Sentry. They allege that Rev. Baylot’s wife, Emma Baylot, caused the fire by negligently failing to turn off a stove burner under a pot containing grease.

After trial on the merits, judgment was rendered in favor of plaintiffs and against Sentry and Mrs. Baylot: $5,000 to State Farm; $15,000 to Central and Mutual and $5,000 to Hanover.

The issues on appeal, as framed by the specifications of error urged by counsel for Sentry, are as follows:

(1) Was Mrs. Baylot an employee of the First Baptist Church of Jennings?
(2) Was the trial court manifestly in error in finding Mrs. Baylot negligent?
(3) Did the trial court err in finding that the plaintiff insurance companies were subrogated to the claim?

Employee Status

Sentry argues that, under the policies of the three plaintiff insurers, an employee of the church is a co-insured against whom plaintiffs have no claim. It is contended that Mrs. Baylot was such an employee because she taught Sunday school, instructed in training union, visited the sick and sang in the church choir. It is common knowledge that many people perform similar services for the various protestant churches but do not have employee status.

Judge Schott, in Wambles v. State, 283 So.2d 331 (La.App. 4 Cir. 1973), summarized the four primary factors to be considered in determining employee status:

(1) selection and engagement;
(2) payment of wages;
(3) power of dismissal; and
(4) control.

Mrs. Baylot meets none of these tests: she was not selected by the church but rather by the pastor; she is not paid wages; the church does not have the power to dismiss her; and the church has only limited powers of control over her, if any.

The trial judge was correct in concluding that Mrs. Baylot is not an employee of the church.

Negligence

Next, Sentry argues that the trial court erred in holding Mrs. Baylot responsible for the fire, either under the doctrine of res ipsa loquitur or negligence.

It is not clear that the trial court applied the doctrine of res ipsa loquitur, but, if so, this was not error. The doctrine is not a rule of pleading or substantive law but a rule of evidence. Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (1972). The question to be posed is whether the facts suggest negligence of the defendant rather than other factors as the most plausible explanation of the accident. 264 So.2d 621 at 636. The record here supports the application of res ipsa loquitur.

As to Mrs. Baylot’s negligence, she testified that she went to the electric stove to turn off a burner under some eggs, but also had on the stove a gumbo pot and a skillet of grease. She then accompanied her husband and some guests on a short drive to a museum. Upon arrival, they heard the fire alarm and their 15-year-old son rushed up to advise them that the house was on fire. The first fireman who entered the burning area, Richard Earl Edwards, observed that the stove was turned on; a burner was on; and a pot which he remembered as being either the gumbo pot or the skillet of grease had burned and was empty. There was fire in the cabinet above the stove and in the ceiling of the kitchen, which extended into the den of the house. Under the factual circumstances presented, the trial court was not manifestly erroneous in concluding that Mrs. Baylot had negligently turned on or left on the burner under the skillet of grease and this caused the fire.

Subrogation

The final argument of Sentry is that the plaintiff insurers are not entitled to subrogation rights. Subrogation agreements were signed by a representative of the First Baptist Church of Jennings in accordance with the terms of the fire insurance policies. Defendants point out that these agreements are not dated and LSA-C.C. art. 2160(1) requires that conventional subrogation must be expressed and made at the time of payment. However, a stipulation for subrogation was part of the insurance policies and subrogation took place at the time of payment as a necessary incident. Cooper v. Jennings Refining Co., 118 La. 181, 42 So. 766 (1907). The district court correctly held that the insurers were subrogated to the claim.

For the reasons assigned, the judgment appealed from is affirmed. Costs are taxed against the defendants, Mrs. Emma Baylot and Sentry Indemnity Company.

AFFIRMED.

      . This litigation has been before this court on a previous occasion, see 316 So.2d 185 (La.App. 3 Cir. 1975), at which time the dismissal of the Rev. Lawrence Baylot as a party was affirmed essentially and the matter was remanded for trial on the merits.

      . See P-2, p. 3, and D-3 (in globo); the provisions are substantially the same in all three policies; State Farm’s states in pertinent part:
      “In the event of any payment under this policy, the Company shall be subrogated to all the insured’s rights of recovery therefor against any person or organization . . . ”