author: PAVY, Judge. CULPEPPER, Judge DOMENGEAUX, Judge

text:
    Joycelyn ARDOIN et al., Plaintiffs-Appellants, v. STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS and Cumis Insurance Society, Inc., Defendants-Appellees.
    No. 5329.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976,
    Writs Refused Sept. 24, 1976.

      Ronald R. Thompson and D. Ross Banister, Wm. W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Baton Rouge, for defendant-appellant.
    E. M. Nichols, Lake Charles, for Linda Hardy.
    Baggett, McClain & Morgan by R. Scott McClain, Lake Charles, for plaintiff-appellant-appellee.
    Mayer) Smith & Roberts by Caldwell Roberts and Walter Hunter, Jr., Shreve-pol% for defendants-appellees.
    Before CULPEPPER, DOMEN-GEAUX, WATSON, GUIDRY and PAVY, JJ.
   PAVY, Judge.

These are consolidated suits for the wrongful deaths of two passengers, Mrs. Julius (Orelia) Henry and Eldridge Henry, Jr., in an automobile which was swept from a flooded highway. The companion case (Docket No. 5330) is Hardy v. Cumis Insurance Society, Inc., 333 So.2d 420, La. App., in which we are rendering a separate decision this date. Plaintiffs in this suit are the children of Mrs. Orelia Henry. Plaintiff in No. 5330 is the mother of Eld-ridge Henry, Jr. The defendants are (1) the Louisiana Department of Highways, (2) Julius Henry, who was driving the vehicle involved in the accident and (3) his insurer. The trial judge found the Louisiana Department of Highways negligent but absolved Mr. Henry and his insurer of all liability. From this decision, the Department of Highways and all plaintiffs appealed.

The issues are: (1) Were signs, barricades or signals placed by the Department of Highways in a manner sufficient to warn of the danger of the flooded highway? (2) Was Mr. Henry, the driver of the vehicle, negligent in proceeding on the flooded roadway?

At about 4:30 a. m. on the morning of April 12, 1974, Mr. Julius Henry left his home in Sulphur, Louisiana to visit his daughter in Bossier City. Accompanying Mr. Henry on this trip were his wife and Eldridge Henry, Jr., their grandson. Mr. Henry was driving a 1967 Mercury Monte-rey automobile. His wife was riding in the front seat, and his grandson in the back seat.

The weather had been cloudy and overcast since he left his home. It had rained in Sulphur the night before, although he had driven through no rain on the date of the accident. At around 6:00 a. m. he was traveling north on U. S. Highway 171. It was not full daylight, and Mr. Henry was traveling with his lights on.

The accident occurred just north of Hodges Gardens where Highway 171 crosses Toro Creek. On the night of Ap-pril 11-12, an unprecedented rain of over 9 inches had fallen in the general area and the streams were extemely swollen. Prior to midnight, the area maintenance crew of the Department of Highways had been called out to erect appropriate warning signs on the flooded highways and, between midnight and 2:00 a. m., they had placed some signs (the exact nature, location and number of which is in dispute) on the highway at Toro Creek.

Over the bed of this creek, Highway 171 is built on land fill except for three separate bridges. At the precise time of the accident, on approaching the Toro Creek from the south, one would first encounter a small, shallow area of water on the south end of the highway as it crosses Toro Creek. Immediately north of that is an unflooded stretch of the highway and next northwardly is a larger (deeper and more expansive) flooded area. According to the state trooper who arrived at the scene very shortly after the accident, the first flooded area was prior to (south of) the first bridge, the unflooded area extended from south of the first bridge to the middle of the second bridge and the larger flooded area extended from the middle of the second bridge to beyond the third bridge.

Shortly prior to the accident, Mr. Howard Quebedeaux and his son in a pickup truck and Mrs. Violet Kochell and several passengers in a station wagon had arrived at the crossing from the south. After reaching the unflooded area, they decided to investigate the possibility of crossing the larger flooded area by having Mr. Quebe-deaux and a teenager from the Kochell vehicle wade into the water ahead of the two vehicles. Quebedeaux’s son drove the pickup. After they had gone some distance into the larger body of water, Mr. Henry reached the accident site.

He (Henry) was preceded by two large trailer trucks loaded with logs. After the vehicles passed the Quebedeaux and Ko-chell vehicles some distance, the current swept the Henry car sideways off the west side of the road against two trees where it began to sink. Though he could not swim, Mr. Henry got out through a door window. He opened the trunk, obtained a tire tool and broke the rear window. He pulled his wife out of the back seat onto the trunk of the vehicle but could not find his grandson in the car. The water soon swept him and the wife off the trunk. He grabbed a nearby tree and held up his wife, administered mouth to mouth resuscitation and revived her. Rescuers soon removed them. Mrs. Henry died two days later in a hospital. The grandson drowned in the vehicle.

The district judge ruled that the accident was caused solely by the negligence of the Department of Highways and awarded $25,000 each to plaintiffs Mrs. Linda Lou Hardy and Eldridge Raymond Henry for the death of their child, Eldridge Raymond Henry, Jr. He awarded $10,000 each to the five children of Mrs. Orelia Henry for pain and suffering and subsequent death.

NEGLIGENCE OF DEPARTMENT OF HIGHWAYS

In written reasons, the trial judge held that the department was negligent in failing to warn of the dangerous situation at Toro Creek. We think there was ample evidence to sustain that conclusion.

It is well settled that the Department of Highways owes a duty to the traveling public to erect barricades, signs and adequate markings to warn against extremely dangerous, traplike hazards, unusual obstructions, perilous conditions or defects in the road. This is especially true where the situation is inherently dangerous or where specifically required by statute. See LSA-R.S. 32:235. Vervik v. Department of Highways, 302 So.2d 895 (La.S.Ct. 1974); Hall v. Department of Highways, 213 So.2d 169 (La.App. 3rd Cir. 1958); LeBlanc v. Estate of Blanchard, 266 So.2d 918 (La.App. 4th Cir. 1972); Falgout v. Falgout, 251 So.2d 427 (La.App. 1st Cir. 1971); Watts v. Baton Rouge, 248 So.2d 42 (La.App. 1st Cir. 1971); Gayle v. Department of Highways, 205 So.2d 775 (La.App. 1st Cir. 1967); Mixon v. Allstate Insurance Company, 300 So.2d 232 (La.App. 2nd Cir. 1974). Barricades and signs have been held to constitute a sufficient means of discharging duty to warn of dangers or defects. Munson v. Kendall, 290 So.2d 787 (La.App. 1st Cir. 1974).

The area in question is generally hilly, quick draining and subject to flash flooding and swelling of the streams. Almost yearly, the highway at Toro Creek is flooded over but rarely to the extent that occurred on this occasion. However, the testimony of the four maintenance employees of the Department of Highways who went to Toro Creek on that occasion makes it clear that by the time they reached Toro Creek the flooding was such as to require closing of the road over Toro Creek. They had approached Toro Creek from the north and according to them placed signs north of the creek. One of the signs was a “Road Closed” sign attached to a sawhorse type barricade. This barricade was about 4 feet high and 10 feet long with a 1" by 8" board (painted white and black) forming the crosspiece. The sign was attached to the board. Two of the employees were sent across (to the south side of) the creek in a dump truck to place similar signs. There was some apprehension among all of the crew as to whether the truck could cross and return safely. One of the employees sent to the south side testified that they placed a small (2 to 3 feet in height) metal sign on a stand about 50 yards south of the southernmost bridge. Another small sign was placed 50 yards further south. The testimony generally indicates that these two signs had such wording as “Men Working” or “High Water”. A sawhorse type barricade as previously described with a “Road Closed” sign was placed another 50 to 100 yards south of the second sign. All these signs and barricades had smudge pot flares about them and they were placed in the middle of the road. The other employee who placed signs on the south side stated that the first sign was 50 feet south of the first bridge, the second sign was 50 feet south of the first sign and the barricade type sawhorse with sign was 50 to 100 feet south of the second sign.

One of the Department of Highway employees who did not go to the south side testified at deposition that the crew had no barricade structures left when it got to Toro Creek. On trial, he testified to the contrary but did not satisfactorily explain the contradiction.

Mr. Quebedeaux saw only a small metal sign with the words “Men Working” in the first patch of water. It was still standing. He did not see any barricade or other signs. Mrs. Kochell saw neither sign nor barricade. Mr. William St. Ama, one of the truck drivers (the other did not testify) saw neither signs nor barricades. The state trooper who arrived at the scene from the south just after the accident saw neither signs nor barricades. He stated that later in the morning some children were wading in shallow water on the road and discovered a small metal sign.

Considering this conflict between interested witnesses on the one hand and unbiased witnesses on the other, we think that the trial judge was fully justified in his ruling regarding the question of whether the danger at Toro Creek was adequately signed. There is no question that the situation required closing the road. Obviously, when Mr. Quebedeaux, Mrs. Ko-chell, the two truck drivers and Henry arrived at the creek, the road did not have an adequate road-closing warning.

The contention is made by counsel for the Department of Highways that the danger was adequately signed but that unanticipated flooding carried the signs off the highway. There was some evidence that smudge pot flares were seen flooding in the water off the highway. There was testimony by the Department of Highway employees that the two employees sent across the south end were instructed to place some of the signs all the way back to a curve in the road beyond the bed of Toro Creek. The general import of the evidence is that the department’s personnel were fully aware of the extent to which the water would continue to rise. Crucial on this issue is the testimony of Mr. Quebedeaux that he noticed the small metal sign but did not notice any barricade with “Road Closed” sign. This barricade, according to the testimony of the two employees who went to the south end of Toro Creek, would have been either 50 to 100 yards or feet or 100 to 150 yards or feet south of the first bridge, depending on whether the small sign Quebedeaux saw was the first or second sign south of the first bridge. It is difficult to believe that the small metal sign was still standing in the shallow water, but, at the same time, the large barricade type sign supposedly placed so far from the metal sign towards the outer limits of the creek would have been carried away by the current. Therefore, we conclude that the contention of the Department of Highways regarding the unanticipated flooding is without factual basis and the lower court was correct in rejecting said argument.

Thus, considering all the relevant circumstances and the interest of the witnesses, we conclude that the trial judge was not in “manifest error” in holding that the Department of Highways had failed in its duty to adequately warn of the hazardous situation at Toro Creek. See Canter v. Koehring Company, 283 So.2d 716 (La.Sup.Ct.1973).

NEGLIGENCE OF JULIUS HENRY

As previously noted, Julius Henry was unaware of the unusual downpour in the area the night before and was not chargeable with knowledge of a dangerously flooded highway. However, there are indications that he ought to have been on some notice that driving conditions may not have been absolutely normal. He knew he was in hilly country and had passed over a flooded stretch of highway some distance south of the Toro Creek site. Admittedly, this flooding had required a considerable slowing down of his vehicle. As he reached the site of the accident, he realized he was proceeding downhill and had again slowed down to get across the smaller (first) patch of water over the road at Toro Creek.

Mr. Willliam St. Ama, the driver of the second of the two preceding trucks, testified that the lead driver had stopped prior to proceeding into the larger expanse of water. He (St. Ama) stopped his truck, dismounted and proceeded to discuss with the forward driver whether it was safe enough to proceed. St. Ama was a disinterested witness, and we cannot imagine why he would have falsified in this respect. His testimony constitutes a positive recollection of a specific incident. None of the other witnesses were questioned as to that matter, and his testimony stands uncontra-dicted. The trial judge did not comment on this testimony one way or another. We think it should be accepted as true. It is difficult to understand how this did not caution Henry as to some possible problem ahead, or how, when he first proceeded into the second water, the thought did not strike him that the truck drivers may have had some doubt about proceeding into the second water.

Further, it is uncontradicted that after entering the second expanse of water, Henry had to pass the two stopped vehicles (the Kochell station wagon and the Quebe-deaux pickup). From the testimony of both Quebedeaux and Mrs. Kochell, it appears that those two vehicles were in the left (Southbound) lane of travel and that he did not have to go around them. However, photographs indicate the road over Toro Creek is a normal two-lane highway. We cannot envision how Henry failed to see those two vehicles other than because of complete failure of lookout. We think this is an additional and perhaps stronger reason for him to have been alerted to, or suspicious of, the situation ahead.

Another consideration indicative of Henry’s carelessness is the distance he proceeded into the second body of water without realizing the dangers. This is based on a comparison of the distance he went before being swept off the road in relation to where the Kochell car was when it was stopped and the occupants entertained grave doubts about proceeding any further.

According to both Quebedeaux and Mrs. Kochell, they were proceeding into the second body of water with Quebedeaux and the teenager from the Kochell vehicle wading ahead of the pickup truck with the Kochell vehicle following. Quebedeaux stated that the pickup truck moved over to the left to allow the trucks and Henry to pass, and he (Quebedeaux) decided to and was following them some distance when the Henry car was swept off the road. According to Mrs. Kochell, the water was in their car, almost up to the seats and they stopped at that point. Then, the teenager came to the car and suggested that they take the small children out of the Kochell car because of the danger. It was at this time that the two trucks and Henry passed them. There was some discussion (but no decision) between the adult occupants of the Kochell car as to whether to proceed behind the trucks and Henry. They thought the trucks would “tread the water” for them so as to allow a safe crossing. According to Quebedeaux, the Henry car proceeded 65 to 80 feet beyond where the Kochell car was stopped before it was swept away. According to Mrs. Kochell, when it was swept away, the Henry car was two to three car lengths in front of the Quebedeaux pickup. By then, the Quebe-deaux truck had proceeded some distance from the stopped Kochell car. The fact of water in the Kochell car is strongly confirmatory of Henry’s negligence in continuing beyond the point where the Kochell car had taken water to an alarming degree. We do not think Quebedeaux’s decision to proceed is significant that Henry was not negligent. If Quebedeaux’s decision was a prudent one, it was so only because of the height of the pickup truck.

Although a following motorist cannot see ahead of a preceding vehicle and must rely on the forward driver for lookout to a certain extent, he cannot blindly rely on the forward motorist. This is especially true as to dangers peculiar to the nature of the following vehicle. As to these, the following motorist must exercise all the more lookout and concern. For these type hazards, he should exercise an unusual degree of care. Here, at best for Henry and his insurer, the situation may not have been dangerous for the trucks (they were much heavier and much higher than an ordinary vehicle) but that did not mean that a hazard did not exist for the Henry car. That hazard was known to the occupants of the Kochell car: Henjj ought to have realized it also. He was creeping into the deeper water. With timely realization of the danger, he would have had ample opportunity to avoid the turbulent water.

Mr. Henry stated that the last time he had been over this highway was' 13 years before. He said that he did not know that there were bridges ahead where the water was over the road, and that he does not remember any parked vehicles on the side. He further testified that the road was covered with water and that he could not see the highway. The only way he could tell the location of the road was by the trees along the sides.

Mr. Henry stated that he did not look right or left. He just fixed his eyes on the trucks. He stated he could not see past the trucks; that he just followed right on behind the trucks into the water. According to Mr. Henry, although the roadway seemed to gradually decline as he proceeded on it, the surrounding land appeared to be flat. Thus, he did not expect the water to be deep. He said he had gone through the first patch of water across the road without difficulty and the water he was approaching seemed to be calm and still. He said neither he nor his wife was alarmed at entering the water and at no time did he have any doubts whatsoever about proceeding into it. Mr. St. Ama suggested that the appearance of the water was misleading.

Even considering this last bit of evidence, we must conclude that Mr. Henry was negligent in proceeding into the flooded highway. A motorist ordinarily has the right to assume his path is clear. However, where, as here, it is known to that motorist that danger lies ahead and that there is a hazard in the roadway, he can no longer assume the highway is safe for his travel. In the instant case, Mr. Henry was traveling very slowly at about 10 miles per hour, and he could plainly see the water ahead of him and all around him. Mr. Henry was unfamiliar with the road, not having traveled it in many years. He did not know the depth of the water, nor the swiftness of the current. He unreasonably assumed that if the log trucks could safely pass, he could also. It should have been obvious to him that the log trucks were much higher and heavier than his automobile and that even if they could safely cross, the water could be too too deep and the current too swift for his vehicle.

Counsel for Henry and his insurer cite the case of Rosier v. State, 50 So.2d 31 (1951, La.App. Ct. of App.) as controlling herein. We distinguish that case as involving a smaller and less dangerous appearing body of water without the several indications of hazard which were noticeable by Mr. Henry in the case at bar.

Considering the totality of the circumstances described above, we conclude that Henry was negligent in failing to maintain proper lookout and realize the impending danger and in venturing into the flooded waters of unknown depth, current etc.

QUANTUM

As previously noted, the trial judge awarded $25,000 to each of the parents of the child, Eldridge Raymond Henry, Jr., and $10,000 to each of the five children of Mrs. Orelia Henry.

We have carefully considered the general factors involved in determining the correctness of the amount decreed and the facts and circumstances peculiar to the case. It does not appear that we should disturb these awards. No useful purpose would be served by any detailed comparison of the awards in generally similar cases. We can only determine whether the award in this case was within the “much discretion” accorded the trial court under the provisions of Civil Code Article 1934. See Gaspard v. Lemaire, 245 La. 239, 158 So.2d 149 (La.1963); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (La.1967); Anderson v. Welding Testing Laboratory, 304 So.2d 351 (La.1974); Bitoun v. Landry, 302 So.2d 278 (La.1974); Walker v. Champion, 288 So.2d 44 (La.1973); Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971).

Accordingly, for reasons assigned herein the judgment of the district court is affirmed insofar as it cast the State of Louisiana, through the Department of Highways, and it is reversed insofar as it rejected the demands against Cumis Insurance Society, Inc. It is now ordered that there be judgment herein as follows: (1) In favor of Joycelyn Henry Ardoin, Florence Henry Slominsky, Eldridge Raymond Henry, Lou Anna Henry Drounette and Elwood Henry in the full sum of $10,000 to each and against the defendant, State of Louisiana, through the Department of Highways, and Cumis Insurance Society, Inc. in solido, plus legal interest from date of judicial demand until paid and for all costs of the trial court, (2) in favor of Eldridge Henry, Sr. in the full sum of $25,000 and against State of Louisiana, through the Department of Highways, and Cumis Insurance Society, Inc., in solido, plus legal interest from date of judicial demand until paid and for all costs of the trial court. (3) Cost of this appeal assessed against Cumis Insurance Society, Inc.

AFFIRMED IN PART AND REVERSED IN PART AND RENDERED.

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

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

GUIDRY, J., concurs in part and dissents in part for reasons assigned by DOMENGEAUX, J.

CULPEPPER, Judge

(concurring in part and dissenting in part).

I agree with the majority holding that Mr. Julius Henry was guilty of negligence, and hence that his insurer, Cumis Insurance Society, Inc., is liable. However, I disagree with the finding that the Department of Highways was negligent.

Considering the totality of the testimony, I conclude that the Department of Highways did everything it could to prevent the occurrence of an accident, such as the one herein. The evidence clearly shows that signs, flares and a barricade with the words “Road Closed” on it, were placed upon the highway at the southern approach to the flooded area.

There can be no question that the signs, flares and barricades as left by the highway crew at about 2:00 a. m. were sufficient to adequately warn motorists of the hazard. Some of the signs, flares or barricades apparently had been moved or knocked down by the time Mr. Henry arrived at about 6:00 a. m. However, once the Highway Department has posted adequate signs, it has no duty to maintain guards or sentinels to protect these signs, unless it knows or should know there is a reasonable likelihood that they will be moved. Sapir v. Sewage & Water Board of City of New Orleans, 127 So.2d 283 (La.App. 4th Cir. 1974) and Vervik v. State, Department of Highways, 302 So.2d 895 (La.S.Ct.1974).

I conclude the Department of Highways breached no duty owed to motorists and particularly to these plaintiffs to warn of the flooded conditions.

However, even if we assume the Department of Highways was negligent in failing to place more signs, or signs of a different kind, I cannot conclude that such failure was a cause in fact of the accident. Mr. Henry saw no signs whatever, although all others did see them. Henry testified he blindly followed the log trucks into the water, relying on them to get him across. He was watching only the trucks. He did not even see the bridges. Under these circumstances, the presence or absence of signs is immaterial. For, even if more or different signs had been placed, Henry would not have seen them.

For the reasons assigned, I respectfully concur in part and dissent in part.

DOMENGEAUX, Judge

(concurring in part and dissenting in part).

I agree with the majority in its affirmation of the trial judge’s decision holding the Department of Highways negligent. I disagree, however, in the reversal of the finding of lack of negligence on the part of the defendant, Julius Henry.

I would affirm on this purely factual issue. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The trial judge rendered a well written and lengthy descriptive opinion. The facts are recited and analyzed in detail. He heard and observed the witnesses. He is thoroughly familiar with the area. Considering the sum total of the evidence I do not feel that there is an ample basis to justify our reversal of the trial judge’s finding to the effect that defendant Henry was free of negligence in this sad case. After reviewing this record, I find it reasonable to conclude that it was not foreseeable to defendant Henry that his car would have been swept off of the Highway by the rushing waters of the main creek. Petree v. Crowe, 272 So.2d 399 (La.App. 2nd Cir. 1973).

I find the case of Rosier v. State, SO So. 2d 31 (La.App. 2nd Cir. 1951) apposite to the facts of this case, not only for the proposition that the Department of Highways was negligent for not giving adequate warning of a hazardous condition, but also on the question of the alleged negligence of Mr. Henry.

Accordingly, I would affirm the judgment of the District Court.

      . In this suit, Eldridge Henry, Sr. asserts his claims as both the major child of Mrs. Henry and as father of his deceased child, Eldridge Henry, Jr.


source: Caselaw Access Project

license: Public Domain

text:
    Mrs. Linda Lou HARDY, Plaintiff-Appellant, v. CUMIS INSURANCE SOCIETY, INC., Defendant-Appellee.
    No. 5330.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Sept. 24, 1976.
    Ronald R. Thompson and D. Ross Banister, Wm. W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Baton Rouge, for defendant-appellant.
    E. M. Nichols, Lake Charles, for Linda Hardy.
    Baggett, McClain & Morgan by R. Scott McClain, Lake Charles, for .plaintiff-ap-pellee.
    Mayer, Smith & Roberts by Caldwell Roberts and Walter Hunter, Jr., Shreveport, for defendants-appellees.
    Before CULPEPPER, DOMEN-GEAUX, WATSON, GUIDRY and PAVY, JJ.
   PAVY, Judge.

This is a companion case to Jocelyn Ardoin et al v. State of Louisiana, through the Department of Highways, La.App., 333 So.2d 412 (Appellate Docket No. 5329) in which a separate judgment is being rendered by us this date.

For the reasons stated in our decision in the companion case, the judgment appealed in the present matter is affirmed as to the liability of the State of Louisiana, through the Department of Highways, and it is reversed insofar as it rejected the demands against Cumis Insurance Society, Inc. and Julius Henry. It is now ordered, adjudged and decree that there be judgment herein in favor of plaintiff, Mrs. Linda Lou Hardy, in the full sum of $25,-000 and against State of Louisiana, through the Department of Highways, Cumis Insurance Society, Inc. and Julius Henry, in solido, with legal interest from date of judicial demand until paid and for all costs of these proceedings in the trial court. All costs of this appeal are assessed to defendants, Cumis Insurance Society, Inc. and Julius Henry.

AFFIRMED IN PART AND REVERSED IN PART AND RENDERED.

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

DOMENGEAUX, J., concurs in part and dissents in part and assigns written reasons.

GUIDRY, J., concurs in part and dissents in part for reasons assigned by DOM-ENGEAUX, J. and both voted for rehearing.

CULPEPPER, Judge

(concurring in part and dissenting in part and voted for rehearing) .

For the reasons assigned in my opinion in the companion case of Jocelyn Ardoin, et al. v. State of Louisiana, through the Department of Highways and Cumis Insurance Society, Inc., La.App., 333 So.2d 412, I concur in that part of the majority opinion which finds that Mr. Henry was negligent, but I dissent as to the finding that the Department of Highways was negligent.

DOMENGEAUX, Judge

(concurring in part and dissenting in part).

For the reasons set out in the companion case of Jocelyn Ardoin, et al v. State of Louisiana, Through the Department of Highways and Cumis Insurance Company, Inc., La.App., 333 So.2d 412 (our docket No. 5329), I would affirm the judgment of the District Court.


author: GULOTTA, Judge.

text:
    Mrs. Ethyl M. MARSHALL, etc. v. MARSHALL-KOEHL, INC., et al.
    No. 7646.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 9, 1976.

      Keiler & Buckley, Edward H. Keiler, New Orleans, for plaintiff-appellee.
    Montgomery, Barnett, Brown & Read, Wood Brown, III, and Daniel Lund, New Orleans, for defendants-appellants.
    Before SAMUEL, GULOTTA and MORIAL, JJ.
   GULOTTA, Judge.

Defendants appeal from a judgment awarding plaintiff workmen’s compensation death benefits, based on a claim arising out of an automobile accident in which Gerard Marshall was killed while employed by Marshall-Koehl, Inc. The thrust of defendants’ appeal is two-fold: 1) that plaintiff failed to show by a preponderance of the evidence that the accident occurred while decedent was in the course of employment, and 2) that decedent’s intoxication at the time of the accident is a bar to recovery.

On December 20, 1973, at approximately 9:30 p. m., decedent, vice-president of Marshall-Koehl, Inc., while driving southbound on the Pontchartrain Expressway in a company-owned automobile, lost control of the vehicle, resulting in the accident and death of the employee.

According to defendants, plaintiff failed to establish that at the time of the accident, decedent was returning from delivering Christmas gifts to customers of Marshall-Koehl and was, therefore, on a mission for the employer. Defendants alternatively contend that the evidence shows that the accident was caused because of decedent’s intoxication and in such case, plaintiff is barred from recovery. We do not agree. We affirm.

The automobile driven by decedent at the time of the accident was owned by the defendant company, and decedent had the business and personal use of the automobile on a 24-hour basis. The evidence is clear and uncontradicted that on the morning of the accident, decedent and another company employee loaded the decedent’s automobile with liquor and pen and pencil sets, Christmas gifts, for delivery to the company’s customers. Uncontradicted also is testimony that around noon of the same day, decedent advised a co-employee of the defendant corporation that he, Marshall, was delivering Christmas gifts “across the lake”. Further evidence indicated that the defendant corporation had performed work for customers in Bogalusa and Bay St. Louis.

An executive of one of the companies with which the defendant corporation had conducted business testified that he received a pen and pencil Christmas gift from Marshall-Koehl and remembered opening the gift at his home in Slidell. He could not say, however, whether the gift had been delivered to his home in Slidell or to his place of business in New Orleans.

A list of addresses to which decedent planned to deliver the gifts was introduced into evidence. Defendants contend that an examination of the list does not reveal any addresses that would have required decedent to travel “across the lake”. However, according to Joseph Marshall, brother of decedent and superintendent at Marshall-Koehl, the list introduced into evidence was incomplete.

Joseph Marshall further testified that on the date of the accident, he had fewer gifts to deliver than decedent, and that he (Joseph Marshall) completed his deliveries at approximately 8:30 p. m. The accident occurred at approximately 9:30 p. m.

Proof is sufficient to constitute a preponderance when the evidence, taken as a whole, shows that the existence of the disputed fact is more probable than not. See Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Hartdegen v. Juneau, 296 So.2d 334 (La.App. 4th Cir. 1974), writ refused, 300 So. 2d 184 (La. 1974); Hull v. Liberty Mutual Insurance Company, 236 So.2d 847 (La. App. 1st Cir. 1970). Applying the above cited jurisprudence to the instant case, we conclude, as did the trial judge, that plaintiff successfully carried the burden of showing that decedent was in the course of his employment at the time of the accident.

Defendants’ contention that plaintiff was voluntarily intoxicated at the time of the accident is an affirmative defense and must be proved as any other fact. The evidence relating to intoxication consists primarily of the testimony of a patrolman with the Greater New Orleans Expressway Commission, who investigated the accident and helped extricate the decedent from the wrecked vehicle. According to this witness, he smelled a distinctive odor of alcohol in the vehicle, saw two bottles of Scotch with broken cap seals in the vehicle, and smelled alcohol on decedent’s breath. The odor of alcohol from the interior of the wrecked vehicle was reasonably explained by the fact that some of the gifts included bottles of liquor. Furthermore, plaintiff, the widow of decedent, and decedent’s brother both testified that decedent did not drink Scotch.

The accuracy of the patrolman’s testimony is subject to question in view of the hospital discharge summary which states that when the policeman arrived, approximately two or three minutes after the occurrence of the accident, he found the injured driver completely unresponsive and thought that Marshall was dead at that time. The report goes on to state that the police officer felt no pulse in the neck or the wrist. On admission, the emergency room physician found no heartbeat, no pulse and no breath.

In reasons assigned by the trial judge, he stated, “As far as intoxication is concerned, that burden has not been met.” We cannot say that the trial judge erred when he reached this conclusion. The judgment is affirmed.

AFFIRMED.

      . See LSA-R.S. 23:1031.

      . See LSA-R.S. 23:1081.

      . The officer testified one bottle was half full and the other was broken.


author: PAVY, Judge.

text:
    Lynwood VINCENT, Plaintiff-Appellant, v. The WICKES CORPORATION and Employers Insurance of Wausau, Defendants-Appellees.
    No. 5459.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976.
    Bean & Rush by Warren D. Rush, Lafayette, for plaintiff-appellant.
    Mouton, Roy, Carmouche, Hailey & Biv-ens by John A. Bivens, Lafayette, for defendants-appellees.
    Before HOOD, CULPEPPER and PAVY, JJ.
   PAVY, Judge.

Plaintiff appealed from a judgment awarding him 100 weeks workmen’s compensation benefits and seeks an award for total and permanent disability plus penalties and attorney fees. Defendant has answered the appeal seeking to eliminate any award whatsoever.

The claimant was 50 years of age, educated through high school and had worked all his life as a clerk or inside salesman in retailing of building materials. After working as such a salesman for several years with the defendant-employer, he was made warehouse manager. This was about three months prior to his injury.

On January 20, 1970, a forklift truck crushed him against a stack of sheetrock. He sustained compressing injuries to his torso and was hospitalized for ten days, and paid workmen’s compensation benefits for about six weeks. At about that time (March 9) he returned to employment with his former employer. However, he did not resume the duties of warehouse manager but was put to work as an over-the-counter salesman at practically the same salary. It was understood that he was suffering from a hernia and would not be required to lift heavy objects. He continued this work until August 16, 1971, when he underwent a hernia operation. This suit was filed March 1, 1971, and tried October IS, 1971. The note of evidence was left open to take a deposition of Dr. Lewis Merrell. This doctor was unavailable for some time and his deposition was not taken until January, 1975. The judgment herein was rendered in July, 1975.

Dr. William Zink was plaintiff’s main treating physician and performed the hernia operation in August, 1971. He diagnosed plaintiff’s condition originally as a compression injury to the chest and abdomen with pneumonitis. Because plaintiff had been rendered unconscious by the injury he referred him to Dr. Robert Rivet, a neurologist. This doctor examined plaintiff in February, 1970, and found no neurological deficits or any objective basis for any neurological complaints. He noted plaintiff had complaints of pain in the calf region of his left leg where the arm of the forklift truck had hit him.

Plaintiff had complained of unusual sensations in the left leg and foot. Because of this Dr. Zink had him evaluated by Dr. John Jackson, an orthopaedist, in June, 1970. This doctor found no abnormalities other than the foot sensation which he attributed to a stretching of the nerve roots by the injury. He expected this condition to remain symptomatic for some months and expressed no opinion as to disability but recommended activity.

In April, 1970, plaintiff consulted Dr. Edgar Breaux, a surgeon who determined that plaintiff had a recurrent left inguinal hernia. It appears that plaintiff had a bilateral hernia operation in 1966.

Dr. Fred Webre, an orthopaedist, examined plaintiff in March and May of 1970. He found some limitation of motion but no serious impairment and thought plaintiff would be symptomatic for some time but considered him able to resume work.

In September, 1971, plaintiff was examined by Dr. Warren Levy, a neurological surgeon. He found no neurological basis for plaintiff’s complaints of odd sensations in the foot or pain in the hip and leg regions.

In July, 1970, plaintiff was examined by Dr. Lewis Merrell, then an orthopaedic resident at the VA hospital in Alexandria. X-ray reports at that institution showed fractures of three lumbar vertebrae with lateral wedging and the presence of Schmorl’s nodes. The significance of this latter was never explained. None of the x-rays taken by the various other specialists revealed these findings. Dr. Merrell thought plaintiff had reached a plateau of recovery but would not express an opinion as to his disability and limited his testimony to his physical findings.

Plaintiff offered testimony of several co-employees. They all testified that he did not or could not lift heavy objects after his return to work. Plaintiff’s complaints of pain and guarded movements were confirmed to some extent by these lay witnesses, but overall the testimony as to any disability other than from the hernia is not impressive. There was ample evidence that he was unable to lift heavy objects, and it is apparent that this was the result of his hernia condition.

Dr. Zink expressed considerable doubt as to whether plaintiffs complaints (other than the hernia) such as hip-leg pain and the odd sensations in the foot were sufficiently intense to disable plaintiff. The doctor was uncertain as to whether the hernia plaintiff developed (it first appeared definitely two or three months after the accident) was attributable to the accident. However, from the operation he was able to definitely conclude that the hernia was attributable to the accident. In the operation, he repaired a portion of the old hernia near the pubic bone which had been injured in the accident. He expressed the opinion that plaintiff would recover completely from the hernia operation and allotted three months for such full recovery. Thus it appeared that plaintiff would have been able to return to full duty as a warehouseman including heavy lifting around mid-November of 1971, approximately a month after the trial.

The trial judge awarded plaintiff 100 weeks’ compensation at $49 per week, his compensation rate. It was not stated whether this was for loss of a physical function under the provisions of R.S. 23:1221 (4) (p) or for temporary disability.

We conclude that the evidence does not preponderate that plaintiff’s condition (other than the hernia) was disabling. This conclusion is based on the fairly constant and definite opinions of the various experts and the absence of lay testimony sufficiently strong to overcome that expertise. However, we think plaintiff’s hernia prevented him from lifting heavy objects and engaging in loading and unloading.

Much argument centered around the question of whether plaintiff’s job as warehouseman entailed loading and unloading (lifting heavy objects) to such an extent that his inability to do so disabled him within the meaning of the law. A subsidiary issue under this disability problem would be whether the warehouseman’s job and the postaccident employment were “reasonably similar” as that language is understood in the jurisprudence. We do not deem it necessary to resolve these issues because the judgment of the district court must be upheld regardless of how wc might view the matter.

If the hernia was not disabling, that is, the lifting was not an integral part of the warehouseman’s job or there was not sufficient dissimilarity between the two employments, still plaintiff’s other nondis-abling conditions such as the hip and leg pain and the foot numbness would justify an award for permanent impairment of a physical function under the provisions of R.S. 12:1221 (4) (p). See Ball v. American Marine Corporation, 150 So.2d 865 (La.App. 4th Cir. 1963) and Hammond v. Sewerage & Water Board of New Orleans, 204 So.2d 699 (La.App. 1967 4th Cir.). The amount of such an award is largely within the court’s discretion and will not be modified by us. See Courville v. Ashy Const. Co., 207 So.2d 910 (La.App. 3rd Cir. 1968) and Serean v. Kaiser Aluminum & Chem. Corp., 277 So.2d 732 (La.App.4th Cir. 1973).

If the hernia was disabling, then, under the record made up at trial, it was temporary. According to Dr. Zink, plaintiff would have been able to return to full duty in mid-November of 1971. This would have been roughly one month short of the 100 weeks allowed by the judgment herein. Under the provisions of R.S. 23:1222, allowing an award for probable duration of temporary disability, the trial judge was well within his discretion in making the 100-week allowance.

We do not think the penalty and attorney fees should be imposed in this case. Defendant had a reasonable basis for its argument regarding disability.

It appears that, at the conclusion of the trial, the note of evidence was left open for the taking of Dr. Merrell’s deposition. It was over three years before this doctor became available. In that time, plaintiff's counsel took his client’s deposition and the deposition of Dr. Edward LeBlanc. This testimony is strongly indicative of’ a recurrence of the hernia involved in the operation of August, 1971. The depositions were physically filed in the record but never formally introduced in evidence. An attempt by rule was made to have these introduced but was never heard by the trial judge. Plaintiff argues that we should consider this additional evidence and defendant objects to same on the ground that the evidence was not taken as part of the trial and is not actually before us. Ordinarily, we might be inclined to overlook defendant’s technical objection and attempt to use all available evidence if such would be possible without prejudice to either party. But the possible issues attendant a claim for hernia recurrence subsequent to trial require that we restrict our adjudication to the record as made up on trial plus the agree-to deposition of Dr. Merrell. It is noted that the 1968 amendment adding paragraph q under subsection 4 of R.S. 23:1221 provides that such a recurrence is to be considered a separate hernia. See Owens v. Liberty Mutual Insurance Co., 307 So.2d 313 (1975 S.Ct.La.). It is evident that there are several possible issues involved in a hernia-recurrent claim which may not be properly presented under the evidence and cannot be correctly resolved by us on the record as made up. To attempt to adjudicate on the additional evidence would be proceeding riskily and might prejudice one of the litigants. Therefore ws do not consider the depositions of plaintiff and Dr. LeBlanc and adjudicate on the record without that evidence.

For reasons assigned the judgment of the district court is affirmed. Appellant is to bear all costs of this appeal.

AFFIRMED.


author: BERTRAND, Judge.

text:
    William DUNMAN, Plaintiff-Appellant, v. The KROGER COMPANY and Employers National Insurance Company, Defendants-Appellees.
    No. 5462.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976.

      McHale & Bufkin by Louis D. Bufkin, Lake Charles, for plaintiff-appellant.
    Plauché, Smith & Hebert by Andrew L. Plauché, Jr., Lake Charles, for defendants-appellees.
    Before MILLER, WATSON and BERTRAND, JJ.
   BERTRAND, Judge.

William Dunman brought suit against The Kroger Company, his former employer, and its insurer, Employers National Insurance Company, for total and permanent disability workmen’s compensation benefits. The alleged disability arose out of an accident which occurred on September 24, 1973. Dunman appeals the trial court decision rendered in favor of defendants. We affirm the trial court’s decision.

Dunman worked as a truck driver for Kroger for some ten years. On September 24, 1973, while in the process of delivering goods for Kroger, Dunman stopped his truck to inspect the refrigeration system. He climbed up on his truck, slipped, and jumped to the ground. Dunman landed on his feet, which caused an injury to • his back. He was taken to a Dr. Drez for treatment, and was off wofk for approximately two (2) weeks. Dr. Drez, an orthopedist, diagnosed Dunman’s injury as a back sprain and discharged him on October 11, 1973. On October IS, 1973, Dr. Drez reported to Kroger and its insurer that Dunman was capable of doing the same work he had performed before the injury and Dunman had sustained no permanent injury. Dunman was discharged as cured on October 11, 1973.

Dunman was paid compensation benefits for the two weeks that he was incapacitated, and he returned to work for Kroger for an additional nine (9) months.

In June of 1974, Dunman quit Kroger, purchased his own truck, and began working for Dixie Transport Company as a truck driver, using his own truck and Dixie’s trailer. The work involved with Dixie did not include the lifting of heavy items for unloading that had been a regular part of Dunman’s job at Kroger. The work at Kroger was strenuous work for one man, but Dunman was entitled to assistance from store personnel. The income derived from working for Dixie was equal to or in excess of the income Dunman received from Kroger.

Several days before the trial, Dunman quit working for Dixie, bought his own refrigerated produce trailer, and began working as an independent. Dunman hasn’t yet hauled with his new van. His expected income for this new work will be equal to or slightly in excess of that which he was receiving from Kroger,

Just prior to trial, Dunman, at his attorney’s request, consulted another orthopedist, Dr. George P. Schneider. This was the first time since his initial treatment with Dr. Drez that Dunman had gone to a doctor for his hack ailment. At trial the evidence disclosed that Dunman gave false information to Dr. Schneider with regard to the length of time he received treatment from Dr. Drez and the amount of time that he continued working for Kroger after the accident. Dr. Schneider testified that the history of an ailment related to him by a patient was an important diagnostic tool, and that if a false history had been given, such could change his diagnosis. Dr. Schneider further testified that subjective testing, i. e., reactions to pain by the patient, were an important part of his diagnosis that Dunman’s injury was caused by the accident in question.

Both doctors agreed that Dunman has a congenital defect in his back, a spondylol-isthesis. Dunman contends that the accident on September 24, 1973, rendered his condition symptomatic. He further alleges that as a result he is in constant pain, requires corrective surgery, and is unable to do essential work as a truck driver since he is no longer able to do any significant lifting without substantial pain. Therefore, Dunman contends that he is totally and permanently disabled within the meaning of the law.

In ruling in favor of the defendants, the trial judge stated:

“The evidence most damaging to plaintiff’s position is as follows.
1)The testimony of Dr. Drez, the treating physician, who saw plaintiff from September 25, 1973, the day following the accident, through October 11, 1973, when plaintiff was released to return to full work. He was of the opinion that plaintiff had suffered only a muscular strain of his lumbar muscles and that the injury had not caused an aggravation of the preexisting bony condition or any nerve damage because if it had, his back complaints would not have improved to the point that he was virtually asymptomatic by October 11, 1973. While acknowledging that if it were true that plaintiff has not had a pain-free day since the accident, he would agree that the injury rendered the spondylolisthesis symptomatic, but the medical probability is that plaintiff’s present complaints are not caused by the accident.
2) The fact that plaintiff did not consult a physician from October 11, 1973, until he was examined at his attorney’s request by Dr. Schneider ten days before the trial.
3) The testimony of Leroy Landrum, M. C. House, Paul Moreau, and Rodney Hoots, all friends of plaintiff, who together have seen plaintiff many times while working since the accident, and who saw no evidence and heard no complaints from plaintiff or any disability.
4) The fact that plaintiff has worked continuously as a truck driver since October, 1973, and has invested a large sum of money in the purchase of a truck and trailer.
5) Little, if any, evidence to support the conclusion that men engaged in the general field of truck driving, as distinguished from the work required of Kroger drivers, are required to do heavy lifting or heavy manual work.
6) Plaintiff’s answer 'went into business for myself’ with no mention of difficulty in doing the work, in answer to defendants’ interrogatory asking him for his reason in quitting work at Kroger.
7) Plaintiff’s application for employment submitted to Dixie, and in particular, his statement in the application that he was physically capable of heavy manual work. His explanation of the reason for answering this question as he did was unsatisfactory. In fact, his response to the last question asked him at the trial, to the effect that he knew that he could do anything Dixie required of him as being the reason he filled out the application like he did, not only casts doubt on the degree of pain of which he complains, but is certainly an acknowledgment that he can work generally at least as a truck driver without substantial pain, even if not for Kroger.
Considering all of the evidence, plaintiff has failed to bear his burden of proving the essential elements of his case.
I cannot say that he has proved (1) that he suffers substantial pain or if he does it is related to the accident, and (2) that a substantial portion of the work required of men engaged in the general field of truck driving consists of more strenuous work than the work he admits he can perform without substantial pain.”

It is well settled that the decision of a trial judge, who has weighed and determined the amount of credibility to be given to each witness, is entitled to great weight and should not be overturned in the' absence of manifest error. The reason for this principle of review “is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Canter v. Koering Company, 283 So.2d 716 (La.1973). We find no manifest error in the trial judge’s conclusions.

The plaintiff in a workmen’s compensation suit has the burden of proof. Toomer v. Highlands Insurance Co., 295 So.2d 844 (1st Cir. La.App. 1974); Dupard v. M & C Construction Co., 312 So.2d 660 (4th Cir. La.App. 1975).

When two physicians, both qualified in the same specialty, have testified as to different conclusions regarding the patient’s condition, the attending physician’s testimony should be accorded greater weight. Breaux v. Kaplan Rice Mill, Inc., 280 So.2d 923 (3rd Cir. La.App. 1973). This is especially true in this case where the attending physician made his diagnosis on objective findings while Dr. Schneider used the subjective reactions of Dunman in making his diagnosis. Dr. Drez examined Dunman immediately after the accident on three separate occasions, while Dr. Schneider’s examination took place almost nineteen (19) months from the time of the accident. Additionally, Dunman related a false medical history to Dr. Schneider, which as Dr. Schneider testified at trial, could have altered Dr. Schneider’s findings.

The lay witnesses at trial were either friends or relatives of Dunman. One group testified that Dunman did seem to be in pain and that he complained to them of it. But another group, including the steward of the union in which Dunman was a member, testified that they saw no difference in Dunman’s physical condition since the accident and that Dunman had never complained to them about being in pain. We find that there was a reasonable factual basis for the trial judge’s determination that the testimony of lay witnesses did not establish that Dunman had been disabled as a result of the accident.

The trial judge determined that Dunman’s application for employment at Dixie (stating that Dunman did not have any physical limitations), could not be discounted. This was amply supported by the evidence.

Finally, the trial judge correctly concluded that the plaintiff failed to prove that lifting heavy items was a part of the general trucking profession. The evidence showed that Dunman, as well as a coworker at Kroger with no back problems, have been employed as truck drivers with Dixie for the same or more pay. No evidence Was presented to show that working as a truck driver with no lifting duties was a specialized field of trucking.

For the above and foregoing reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: CULPEPPER, Judge.

text:
    Philip DESORMEAUX, Plaintiff and Appellant, v. CENTRAL INDUSTRIES, INC., et al., Defendants and Appellees.
    No. 5449.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976.
    Writ Refused Sept. 29, 1976.

      Pugh, Buatt, Landry & Pugh by Lawrence G. Pugh, Jr., Crowley, for plaint’ff-appellant.
    Mouton, Roy, Carmouche, Hailey, Biv-ens & McNamara by John Bivens, Lafayette, for defendants-appellees.
    Before HOOD, CULPEPPER and PAVY, JJ.
   CULPEPPER, Judge.

Plaintiff seeks damages for loss of part of his rice crop caused by his inability to secure water from his father. His father had contracted to furnish plaintiff water through an irrigation system that ran under a road. The defendant, a contractor employed by South Central Bell Telephone Company to bury a telephone cable along the road, broke the culvert through which the water flowed. The district judge sustained an exception of no cause of action on the basis that plaintiff cannot recover from the tort-feasor whose negligence caused plaintiffs father to be unable to perform his contract to furnish plaintiff water. Plaintiff appealed.

The decisive issue is whether the trial judge properly sustained the exception of no cause of action.

Plaintiff leases 46 acres of land on which he raises rice. The rent is one-fifth of the crop. He has a contract with his father who furnishes the necessary water and receives one-fifth of the crop. The water is furnished through an irrigation system of canals and ditches owned by the father, who also supplies other farmers with water. The ditch leading to plaintiff’s field passes through a concrete culvert under a road.

In 1973, South Central Bell contracted with defendant, Central Industries, Inc. for laying of a telephone cable to a depth of 36 inches along the road. In November of 1973, while digging the trench to bury the cable, defendant negligently broke the culvert.

Though the fracture of the culvert occurred in November of 1973, it was not until March of 1974, when plaintiff needed water to flood his rice crop for that year, that the damage was discovered. Plaintiff’s father contacted South Central Bell, and they in turn contacted the defendant contractor concerning the problem. In mid-April of 1974, defendant attempted to patch the broken culvert with a sheet of tin covered with concrete, but this did not hold. Finally, in mid-June, plaintiff and his father removed the culvert from the ground and replaced the two broken links with new ones. This was successful.

In 1974, plaintiff obtained a yield of only 10.84 barrels of rice per acre. He contends that he would have harvested about 29 barrels per acre had it not been for the failure of his water supply.

The trial judge, apparently believing the exception at issue to be one of “no right of action”, referred it to the merits. The exception was based upon the rule of law that a “tort to the. person or property of one man does not make the tortfeasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong.” Robins Drydock & Repair Company v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927). After trial on the merits, the district judge found the quoted rule to be applicable to the facts presented in the instant case. In his written reasons for judgment, the trial judge stated: “Were it not for the contract, plaintiff would have no claim whatsoever to the water supply which was interrupted by defendants’ negligence.” The judge sustained the exception of no “right” of action and dismissed plaintiff’s suit.

LSA-C.C.P. Article 927(5) provides for the peremptory exception of “No right of action, or no interest in the plaintiff to institute the suit.” Clearly, the plaintiff in the present suit has the legal capacity to sue, and he has a pecuniary in-terest in the damaged crop. He therefore has a “right of action.” Babineaux v. Pernie-Bailey Drilling Company, 261 La. 1080, 262 So.2d 328 (1972).

The question presented by the exception at issue here is whether plaintiff has a “cause of action” against this particular defendant. LSA-C.C.P. Article 927; Babineaux v. Pernie-Bailey Drilling Company, supra. LSA-C.C.P. Article 931 provides that “No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” The trial judge erred in referring this exception to the merits. However, where an exception of no cause of action is referred to the merits without objection, and evidence is introduced at the trial without objection, that evidence may be considered by the court in deciding the exception. Bielkiewicz v. Rudisill, 201 So. 2d 136 (3rd Cir. 1967).

As previously stated, the judge dismissed the suit on the basis that the only damages suffered by plaintiff arose out of the contractual relationship between plaintiff and the injured party. This concept was first espoused in Robins Drydock & Repair Company v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927). There the court held that where the owner had placed a ship in dry dock for repairs, and the repairs were delayed due to the negligence of the dry dock, the charterer of the ship had no cause of action against the dry dock for the profits which the charterer might have earned from the use of the ship during the delay. The court noted that but for the contract between the charterer and the ship owner, the negligence of the dry dock in delaying the ship would have caused no harm to the charterer.

The Robins rule has been followed by Louisiana courts and by Federal courts applying Louisiana law. See Forcum-James Company v. Duke Transportation Company, 231 La. 953, 93 So.2d 228 (La.1957); Kaiser Aluminum & Chemical Cor poration v. Marshland Dredging Company, 455 F.2d 957 (5th Cir. 1972); Baughman Surgical Association, Ltd. v. Aetna Casualty & Surety Company, 302 So.2d 316 (1st Cir. 1974); Messina v. Sheraton Corporation of America, 291 So.2d 829 (4th Cir. 1974); In Re Lyra Shipping Company, Ltd., 360 F.Supp. 1188 (E.Dist.La.1973); J. Ray McDermott & Company v. S. S. Egero, 453 F.2d 1202 (5th Cir. 1972). See also Prosser, Law of Torts, 4th Ed. Sec. 129 for a general discussion of the rule and its application in other states.

Counsel for plaintiff-appellant urges the instant case is distinguishable. He suggests first that in this case plaintiff’s damage would have ensued regardless of the existence of a contractual relationship between plaintiff and his father. Second, he urges that in this case, unlike Robins and its progeny, plaintiff has a vested interest in the thing damaged. Third, he urges that in the instant case the damage to this particular plaintiff was foreseeable by the alleged tort-feasor and that therefore recovery should be allowed.

We cannot agree. However, in order to adequately consider plaintiff’s arguments it is necessary to examine pertinent jurisprudence.

In Forcum-James Company v. Duke Transportation Company, supra, plaintiff had a contract with the State to rebuild a bridge and to erect and maintain a temporary bridge during construction. Defendant’s employee negligently damaged the temporary bridge while traversing it in an overloaded truck. Plaintiff repaired the bridge and sued defendant for the cost of repairs. The Louisiana Supreme Court affirmed the trial court’s dismissal of the suit on an exception. The decision explains the rule and its rationale as follows:

“It is a basic principle of the law that a tort-feasor is responsible only for the direct and proximate result of his acts and that, where a third person suffers damage by reason of a contractual obligation to the injured party, such damage is too remote and indirect to become the subject of a direct action ex delicto, in the absence of subrogation. See Foret v. Board of Levee Com’rs of Orleans Levee Dist., 169 La. 427, 125 So. 437, citing, among other authorities, Sutherland on Damages, Vol. I, p. 127. And see also D. R. Carroll & Co. v. New Orleans, J. & G.N.R. Co., 26 La.Ann. 447. This appears to be the general rule, to which the Supreme Court of the United States has given its stamp of approval. Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 135, 72 L.Ed. 290. In that case, Justice Holmes remarked that ‘ * * * no authority need be cited to show that, as a general rule, at least, a tort to the person or property of one man does not make the tort-fea-sor liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong. * * * The law does not spread its protection so far.’
“Even the broad language used in Article 2315 of our Code does not justify a departure from the above stated doctrine. Indeed, to permit a person to proceed against a wrongdoer in every instance where such person has sustained damage by reason of his contractual obligation to the injured party would open the door to the prosecution of claims for damages indirectly and remotely connected with the tortious act and encourage a multiplicity of suits from which numerous conflicts of interest might ensue.”

In Kaiser Aluminum & Chemical Corporation v. Marshland Dredging Company, supra, the defendant Dredging Company had negligently punctured a high pressure gas pipeline owned by Sugar Bowl Gas Company which, under contract with plaintiff, supplied gas fuel service to plaintiff’s plant. Defendant’s motion for summary judgment was granted under the rule of Robins.

In Messina v. Sheraton Corporation of America, supra, a boxer was injured when a Venetian blind collapsed in his motel room. The Court of Appeal, Fourth Circuit, held that plaintiff, who had a contract with the boxer to promote a match in New Orleans, had no cause of action against the defendant motel, citing Forcum-James and Robins.

From these cases, it is clear that plaintiff-appellant’s first argument is without merit. Plaintiff’s damages would not have occurred in the absence of a contract whereby his father agreed to supply irrigation water. It matters not that had this contract not been confected, plaintiff may have arranged to obtain water from some other source had one been available. In this case, plaintiff in fact contracted to receive water from his father. Had that contract not been in existence, plaintiff would have suffered no loss.

We also find no merit in plaintiff’s argument that the Robins rule does not apply because he had a vested interest in the rice crop. The facts are that at the time the damage occurred to the culvert in November of 1973, plaintiff’s rice crop had not even been planted. He had no vested interest in it. Additionally, even assuming plaintiff had a vested interest in the rice crop at the time of the tort, the negligent act of defendant caused no direct damage to the crop. The damage to the crop was caused by the inability of plaintiff’s father to perform his contract to supply plaintiff with water.

Neither do we believe that “foreseeability” is a distinguishing factor here. The damage to plaintiff’s rice crop was certainly as foreseeable as the damage to the ship charterer in Robins, the damage to whoever had to repair the bridge in For-cum-James, and the damage to those who received gas from the broken pipeline in Kaiser Aluminum.

The Robins rule has been adopted by our Louisiana Supreme Court and is still the law of this state. We are aware that the rule has been criticized. See 1 F. Harper and F. James, The Law of Torts, Section 6.10 at 5.01 through 505 (1956); 88 Hav. L.Rev. 444 (1974); Prosser, supra at 940; Federal Commerce & Navigation Company, Ltd. v. M/V Marathonian, 392 F.Supp. 908 (So.Dist.N.Y.1975). Nevertheless, we are bound by the established jurisprudence of our Supreme Court.

Of course, plaintiff had a remedy, but he chose not to follow it for personal reasons. He could have sued his father who had contracted to supply him with irrigation water. The father in turn could have sued the tort-feasor for damage to the culvert and any damages he suffered by reason of the fracture.

For the reasons assigned, the judgment of the district court is affirmed. All costs of this appeal are to be paid by plaintiff-appellant.

AFFIRMED.

PAVY, J., concurs.


author: BERTRAND, Judge. DOMENGEAUX, Judge

text:
    Andrew J. LOWERY, Plaintiff-Appellee, v. CENLA BEVERAGE, INC., Defendant-Appellant.
    No. 5446.
    Court of Appeal of Louisiana, Third Circuit.
    May 26, 1976.
    Rehearing Denied June 30, 1976.

      Mansour & Davis by Alfred A. Man-sour, Alexandria, for defendant-appellant.
    Bernard Kramer & Ellis Saybe by Ellis Saybe, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and BERTRAND, JJ.
   BERTRAND, Judge.

Cenia Beverage, Inc., appeals from a judgment awarding to its former employee, Andrew J. Lowery, penalties and attorney’s fees under LSA-R.S. 23:632 for failure to. pay timely his earned wages after demand. The trial court awarded $1,860.00 in penalties and $750.00 for attorney’s fees. We affirm.

Lowery worked for Cenia as a truck driver from May 14, 1974 through May 17, 1974, and May 20, 1974 through May 22, 1974. His salary was $20.00 a day.

On May 22, 1974, Lowery drove a company-owned truck into the gate at Cenla’s plant in Alexandria, causing damage in the amount of $30.00. Lowery reported this accident to a superior. Cenia contends that on the same day Lowery damaged a building owned by Central Bottling Corporation in Jennings, Louisiana, by driving his truck into it. The extent of damage to the building was in the amount of $244.00. Although Lowery disputed this contention at trial, testimony showed that a Mr. Chal-ette had reported to the president of Cenia that Lowery had driven his truck into the building.

On May 23, 1974, Lowery’s wife telephoned Cenla’s office to report that her husband was ill. The following day, Mrs. Lowery appeared at Cenla’s office asking for her husband’s check. Because it was Cenla’s policy to pay its employees one week following the week in which the wages were due, the check received by Mrs. Lowery covered the pay period of May 14 through May 17. Mrs. Lowery neither demanded nor received Mr. Lowery’s wages for May 20 through May 22.

On May 31, 1974 Lowery telephoned Mr. Leo P. Dobard, Jr., the president and manager of Cenia. Lowery demanded his remaining pay in the amount of $60.00 for the time period extending from May 20 through May 22, 1974. Mr. Dobard refused payment, and stated that he must first determine the extent of damages to the gate in Alexandria and the building in Jennings before any payment would be forthcoming. It was Mr. Dobard’s position that the amount necessary to repair these damages would be taken from the pay due Lowery. Mr. Dobard told Lowery that he would be willing to give him a written acknowledgment that he had worked those three (3) days and earned wages of $60.00. Lowery refused Mr. Dobard’s offer.

After Mr. Dobard’s refusal, Lowery contacted the Louisiana Department of Labor on June 5, 1974, and filed a labor claim for $60.00 in wages. On June 10, 1974, Mrs. Melba Guillot, an employee of the Labor Department, contacted Mr. Dobard regarding Lowery’s claim. Again Mr. Dobard refused to pay Lowery’s wages and told Mrs. Guillot of his intention to withhold payment of the wages until the property damages were determined.

Lowery filed this suit on September 3, 1974, claiming his earned wages (he mistakenly claimed $70.00 rather than the $60.00 actually owed), as well as $1,750.00 as wages for a ninety (90) day period due from May 14, 1974 plus reasonable attorney’s fees under the provisions of LSA-R. S. 23:632. In answer, Cenia reconvened for damages in the amount of $214.00 allegedly owed for the repair of its gate and the warehouse at Central Bottling Corporation. Cenia thereby implied that it credited Lowery with the $60.00 wages due him.

Lowery denied knowledge of any damage to Central Bottling Company’s premises. Lowery also filed a third party demand against Fireman’s Fund and American Insurance Company, alleging that if he was found culpable for those damages, the insurance company, as liability insurer of the truck driven by him, would be liable to him because he was insured under the policy. Fireman’s Fund thereafter paid to Cenia the sum of $244.00. Apparently, this payment by Fireman’s Fund to Cenia was triggered by Cenla’s payment of the same amount to Central Bottling Company for the damage to its building.

After Cenia received this payment from Fireman’s Fund, its attorney wrote to Lowery’s attorney to inform him of this payment, and admitted to owing and offered to pay to Lowery $30.00. Lowery refused to dismiss the suit against Cenia but did dismiss his third party demand against Fireman’s Fund.

Cenia amended its answer to show that it had been reimbursed by its insurer for the damages paid to Central Bottling Company and to claim that Lowery was now entitled to $30.00 in wages after the $30.00 expenditure for the repair of Cenla’s fence had been subtracted from the $60.00 in wages due. Cenia deposited the $30.00 in the trial court’s registry as a legal tender of the amount allegedly due.

The trial court awarded Cenia, plaintiff in reconvention, the sum of $30.00 for the damage to its gate. Lowery did not appeal from this judgment.

LSA-R.S. 23:631 reads as follows:

“It shall be the duty of every person, employing laborers or other employees of any kind whatever when discharging any laborer or other employee, or when any such laborer or employee has resigned, with twenty-four hours after such discharge or resignation, to pay the laborer or employee the amount due under the terms of employment whether the employment is by the day, week or month, upon demand being made upon the employer by the discharged or resigned laborer or employee at the place where the employee or laborer is usually paid.”

Cenia alleges that the trial court erred in granting judgment to Mr. Lowery because:

1. Lowery did not make sufficient demand for his wages; and
2. Cenia withheld Lowery’s wages in good faith and the reasons for doing so constituted equitable defenses.

I. SUFFICIENT DEMAND

At trial, Lowery admitted that there was no demand made for the second week’s wages by his wife on May 24, 1974. However, the trial court found that Lowery made sufficient demand when he telephoned Mr. Dobard on May 31, 1974 to apprise him of his termination as an employee of Cenia and to ask for the wages due for May 20 through May 22, 1974. The trial court did not hold, as Cenia contends, that the demand by Mrs. Guillot on June 10, 1974 would have constituted sufficient demand. Instead, it was held that the demand by Mrs. Guillot merely strengthened Lowery’s position that his demand was in earnest.

Cenia urges that under the language of the statute Lowery should have personally come to Cenla’s place of business to make his demand. It cites Mitchell v. Fein, 281 So.2d 463 (4th Cir. La.App.1973), for the proposition that telephoned demands are not sufficient under the statute. However, the facts in Mitchell are different from those in the case now before us. In Mitchell, the telephone call by the plaintiff was to the person who formerly distributed checks to the defendant’s employees. In the present case, Lowery telephoned Mr. Dobard, the president and manager of Cen-ia. The court in Mitchell said:

“A telephone call to the person who formerly distributed checks is thus not in itself compliance with the statutory requirement. Perhaps being advised, upon telephoning, by a person in authority that the wages will not be paid would relieve one of the need of further demand (and readiness to accept delivery) at the place of usual payment as an act known beforehand to be futile.”

Lowery, in the instant case, did telephone “a person in authority” to whom he made his demand. It is the opinion of this court that such a demand is sufficient. (See also Jones v. LeBlanc, 263 So.2d 119 (1st Cir. La.App.1972), where an angry husband’s telephone demand for his wife’s wages was found to be sufficient under the statute.) It is true that the statute in question is to be strictly construed. Becker v. Choate, 204 So.2d 680 (3rd Cir. La.App.1967). Colbert v. Mike Baker Brick Company of New Iberia, Inc., 326 So.2d 900 (3rd Cir. La.App.1976). However, in a situation as we have here, to require Lowery to initiate an additional personal confrontation with Dobard would be “an act known beforehand to be futile,” and should therefore not be required.

III. EQUITABLE DEFENSES

Cenia contends that it had just cause to withhold Lowery’s wages because it was in good faith and there existed a bona fide dispute as to whether they were due.

As the trial judge noted, this court succinctly stated its position on equitable defenses as they pertain to LSA-R.S. 23:632 in Becker v. Choate, supra:

“Although an employer’s delay in paying wages earned by employees within twenty-four hours after their discharge or resignation renders him liable for penalties under R.S. 23:632, this statute must be strictly construed, and it is well settled that the courts will refuse to allow penalties if the employer had some equitable justification for not paying the wages timely. Mitchell v. First Nat. Life Ins. Co., of La., 236 La. 696, 109 So.2d 61 (1959); Clevy v. O’Meara, 236 La. 640, 108 So.2d 538 (1959). See also, Strickland v. American Pitch Pine Export Co., 224 La. 949, 71 So.2d 338; Deardorf v. Hunter, 160 La. 213, 106 So. 831 (1926); Tuberville v. Foster, La.App. 1st Cir., (1959), 113 So.2d 805.
“While cases on this point generally state that R.S. 23:632 is subject to 'equitable defenses’, we are of the opinion that the word 'defenses’ does not mean a ‘defense’ in the strict sense of the word. Rather, the tenor of these cases seems to indicate that the court will refuse to assess penalties and attorneys’ fees where the facts of the particular case strongly indicate that greater justice will be attained by such refusal. These facts then become equitable considerations, or ‘defenses’ in a loose sense of the word, which will move the court to deny the penalties.”

In the later case of Pittman v. Eyland, 290 So.2d 800 (4th Cir. La.App.1974), the Fourth Circuit Court of Appeal expanded on the interpretation of R.S. 23:632:

“Our courts have not permitted the imposition of the penalties provided under LSA-R.S. 23:632 when wages are withheld by the employer without the right to do so, unless the employer is found to be motivated by bad faith or is arbitrary or unreasonable. See Becker v. Choate, 204 So.2d 680 (La.App. 3rd Cir. 1967). Nor have penalties and attorney’s fees been awarded where there is a bona fide dispute as to wages due, and the employer refuses to pay the disputed wages. See Clevy v. O’Meara, 236 La. 640, 108 So.2d 538 (1959). The statutory provisions on penalties and attorney’s fees were enacted in order to protect employees from being taken advantage of by unscrupulous employers who wrongfully refuse payment of wages. It was not intended to apply to situations in which the employer in good faith refuses wages due.”

Although the Fourth Circuit Court of Appeal used a stronger test under which an award of penalties and attorneys’ fees would be proper, by stating that the employer must have acted in an unscrupulous manner, that part of the opinion in Pittman has not been followed by this court. Therefore, we concur with the trial court’s decision in refusing to use the standards as set out in Pittman.

The trial judge’s application of the law to the facts of this case is as follows:

“The bill from Central Bottling Corporation submitted to defendant was dated July 23, 1974. The suit of plaintiff, Andrew J. Lowery, was filed on September 3, 1974. Defendant made payment by check to Central Bottling Corporation of the $244.00 claimed by that company on October 24, 1974. On the same day defendant filed its answer setting up the indebtedness of plaintiff for the $30.00 for fence damage and the $244.00 damages to the building of Central Bottling Corporation, for both of which plaintiff was alleged to be responsible. Ed’s Fence Company was not paid for the repair of the fence gate until September 23, 1974.
“The implication is clear that defendant did not actually intend to assert a claim against plaintiff for the $244.00 until plaintiff’s claim was put into suit. Without attempting to determine whether plaintiff was legally liable to Central Bottling Corporation for the $244.00, for which Cenia Beverage, Inc. would in such a case also be legally liable, there was insurance coverage for such liability. After plaintiff third-partied the insurer, the insurer reimbursed defendant promptly and apparently without question. The undersigned considers it a matter of bad faith for the defendant employer to attempt to interpose Andrew Lowery’s alleged liability for damages of $244.00 as a defense to his claim for wages when defendant well knew that if legal liability existed it was covered by liability insurance but where no report of the incident was made to the insurer in an attempt to keep defendant’s insurance rate down.
“With respect to the claim for $30.00 for repair of defendant’s fence, asserted as an equitable defense, if defendant was not in bad faith, it was at least arbitrary and unreasonable. Evidently, the damage was minor. Its extent could have been easily and promptly determined. Although the damage was done on May 22, at the time plaintiff requested his wages on May 31, all Mr. Dobard could do was offer a receipt or acknowledgement that plaintiff had accrued three days wages. Ultimately, defendant offered this amount to plaintiff and then deposited the sum of $30.00 in the registry of court. This offer should have been made on May 31, or very soon thereafter in order to qualify defendant’s position as reasonable and not arbitrary. Inasmuch as defendant asserted the re-conventional demand for the $244.00 as well as the $30.00, it may well be assumed that defendant had no intention of offering the $30.00 until it was sued and until after plaintiff’s third party demand resulted in the insurer issuing its reimbursement check to defendant.
“Although the law is established that imposition of penalties does not automatically follow when an employer withholds wages due without right to do so, considering the analysis of facts set forth above, the undersigned is of the opinion that the penalties should be imposed.”

We agree with the trial court’s findings of fact and conclusions of law. The judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.

DOMENGEAUX, J., concurs in result and assigns reasons.

DOMENGEAUX, Judge

(concurs in the result).

Plaintiff, after working only a few days, was involved in two accidents on the same day while on the job. He chose not to come back to work. It would seem to me that the employer was justified in attempting to offset the damages caused by plaintiff against the $60.00 due him in wages. But, jurisprudentially, I agree that we have no choice but to affirm in view of the trial judge’s strong language concerning the alleged bad faith of the employer. I nevertheless personally believe that the result reached herein is harsh under all of the facts and circumstances herein.