author: PETERS, Judge ad hoc.

text:
    Hubert MONK et ux., Plaintiff-Appellants, v. INSURANCE COMPANY OF NORTH AMERICA et al., Defendants-Appellees.
    No. 5234.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearings Denied Jan. 28, 1976.
    Writ Refused March 16, 1976.

      Jackson & Smith by S. Chris Smith, III, Leesville, for plaintiffs-appellants.
    Bolen, Halcomb & Bolton by Roy S. Halcomb, Jr., Alexandria, for defendants-appellees.
    John F. Simon, Gold, Hall, Hammill & Little, Alexandria, for intervenor-appellee-appellant.
    Before HOOD, HUMPHRIES and PETERS, JJ.
   PETERS, Judge ad hoc.

This is an action brought by Hubert Monk and his wife, Hollis Monk, against Borden, Inc., Borden’s employee, Leonard Seal, and Borden’s liability insurer, Insurance Company of North America. The petition alleges plaintiff, Hollis Monk, suffered personal injuries due to the negligence of defendant, Leonard Seal in an accident on October 2, 1972. Traders and General Insurance Company, the workmen’s compensation insurer for the Vernon Parish School Board (Mrs. Monk’s employer) filed a petition in intervention under LSA-R.S. 23:1102.

On the date of the accident, Hollis Monk was employed by Vernon Parish School Board as a cafeteria worker at Leesville High School. Defendant Leonard Seal was employed by Borden, Inc. as a route-man. Mr. Seal that day made a milk delivery to Leesville High School. He did not normally deliver milk to Leesville High but did so that day because the routeman who normally made the delivery was ill. Mr. Seal used a spare truck to deliver the milk and when he arrived at the high school he realized he had forgotten to bring a dolly to carry the milk from the truck to the kitchen refrigerator. He asked the school lunchroom supervisor if the school had a dolly he could use and he was given a flat, rectangular dolly with four wheels. It had sides on it which were several inches high. Mr. Seal loaded ten milk crates on the dolly in two stacks with five crates in each stack. He pushed the laden dolly to the refrigerator without trouble and dumped the half-pint containers of milk from the crates into the refrigerator. He then stacked the empty crates back on the dolly again in two stacks with five crates in each stack. The crates were of such a design that when properly stacked they “interlocked” in such a way that they could not slide off one another. Mr. Seal testified that when he stacked the crates they did in fact interlock. After stacking the crates, Mr. Seal pushed the dolly and crates back toward the kitchen door by pushing on one stack of crates with his hands while shoving the dolly with his foot. When he got to the door, he had to lift the front of the dolly to get the wheels over a door sill. As he did so, two of the crates fell off the rear stack and one of these struck Mrs. Monk in the back.

A civil jury found the defendant Leonard Seal free of negligence. Although the jury’s findings of fact are entitled to great weight, we are obliged to review the facts and to reverse if the jury was manifestly erroneous. Stoute v. Mobil Oil Corporation (La.App., 3rd Cir., 1974), 297 So.2d 276, writs denied La., 300 So.2d 839; Deshotel v. Aetna Casualty & Surety Company (La.App., 3rd Cir., 1972), 269 So.2d 850, writs denied La., 272 So.2d 374. We find the jury did commit manifest error and therefore reverse.

It is impossible to determine with certainty how the crates fell, though it appears likely that they fell because Mr. Seal failed to stack them in such a way that they interlocked and two crates slid off when he raised the front of the dolly. In any event, the conclusion is inescapable that the crates fell because Leonard Seal was in some manner negligent in moving the crates from the refrigerator to the door. He was solely in control of the stacking and the transport of the crates; they would not have fallen had he not been negligent. We therefore reverse the findings of the jury on the issue of the defendant’s negligence and hold that Leonard Seal, while in the course of his employment by Borden, Inc., negligently injured the plaintiff, Hollis Monk.

The jury made no findings concerning the amount of damages. As we have the evidence concerning damages in the record before us, we will determine the amount of recovery.

The plaintiff’s doctor, Dr. Edwin H. Byrd, a general practitioner, treated the plaintiff following the injury. He found that she had a splinting or straightening of the lumbar spine. He put her into the hospital and used traction to relax the muscle spasms that were causing the splinting. Mrs. Monk complained of neck and back pain while in the hospital. She spent eleven days under treatment in the hospital and has been treated by Dr. Byrd on an out-patient basis ever since. When Dr. Byrd first treated Mrs. Monk he did not think her injury was severe and expected her to recover in eight or ten weeks. However, Mrs. Monk continued to complain of neck and back pain up until the trial in November of 1974. Mrs. Monk had not returned to work at the time of the trial. She testified she was unable to work because of the pain in her neck and back.

Defendants introduced the testimony of two orthopedic surgeons, Dr. Edwin C. Si-monton and Dr. George P. Schneider. Dr. Simonton examined Mrs. Monk on December 27, 1972, approximately 12 weeks after the accident. At that time, he could find no evidence of any permanent disability. He found Mrs. Monk was recovering from injuries she had sustained and he felt the treatment she had been receiving was adequate. Dr. Schneider first examined Mrs. Monk on April 19, 1973, about six and one-half months after the accident. He could find no objective evidence of any disability at that time. He submitted Mrs. Monk to exclusion testing, which means that he did tests on Mrs. Monk that could not possibly cause back pain to see if she still complained of' back pain. These tests were all positive, i. e., no matter what type of tests Dr. Schneider made, Mrs. Monk complained of back pain, even when the tests could not possibly cause back pain. He further stated that he at no time found any medical basis for Mrs. Monk’s complaints of pain. Dr. Schneider examined Mrs. Monk again in April of 1974 and once again found no basis for her complaints of pain.

The testimony of a specialist, when he is testifying as to matters within his special field, are entitled to greater weight than those of a general practitioner. Odom v. Sanders (La.App., 4th Cir., 1973), 277 So.2d 188; Meche v. Maryland Casualty Company (La.App., 3rd Cir., 1967), 204 So.2d 719. We must conclude in the instant case that Hollis Monk was not permanently disabled by defendant’s negligence. We find she was disabled from working because of the accident but she had recovered from her injuries by April 19, 1973, the date Dr. Schneider first examined her. She is therefore entitled to recover for the pain she suffered from the time of the accident until April 19, 1973. We award her $1100.00.

Hubert Monk as head and master of the community is entitled to recover the medical expenses incurred for the treatment of his wife’s injuries. The evidence shows that the sum of $1837.33 was paid by the intervenor for those medical expenses. Mr. Monk also is entitled to recover the loss of wages sustained by his wife as a result of her disability. We find that she was disabled from the date of the accident until April 19, 1973, a period of approximately 6]/¿ months. The record indicates she was earning a salary of $194.42 per month at the time of the injury. Mr. Monk thus is entitled to recover $1263.73 for loss of wages.

The record shows that intervenor, Traders and General Insurance Company, has paid workmen’s compensation benefits to Mrs. Monk as a result of the accident amounting to $3388.69, and that it also has' paid medical expenses in the amount of $1837.33, making a total of $5226.02. Since the amounts paid by intervenor as compensation benefits and medical expenses exceed the total amount plaintiffs are entitled to recover in this proceeding, judgment must be rendered in favor of interve-nor, Traders and General Insurance Company, and against defendants, for the full amount of damages which plaintiffs are entitled to recover.

For the reasons assigned, the judgment appealed from is reversed, and judgment is hereby rendered in favor of intervenor, Traders and General Insurance Company, and against defendants, Borden, Inc., Leonard Seal and Insurance Company of North America, in solido, for the sum of $4201.06, with legal interest thereon from date of judicial demand until paid and for all costs of this suit. Judgment also is rendered in favor of plaintiffs, Hubert Monk and Hollis Monk, and against defendants, Borden, Inc., Leonard Seal, and Insurance Company of North America, in solido, for all court costs which said plaintiffs have incurred in connection with this proceeding. The costs of this appeal are assessed to defendants-appellees.

Reversed and rendered.

HUMPHRIES, J. ad hoc, concurs.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Bessie I. HALL, Plaintiff-Appellee, v. Wayne JOINER, Sr., Defendant-Appellant.
    No. 5257.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.

      Bolen, Halcomb & Bolton by Roy S. Halcomb, Jr., David A. Sheffield, Vincent Hazelton, Alexandria, for defendant-appellant.
    Kenneth E. Doggett, Alexandria, for plaintiff-appellee; Wayne D. Joiner, Sr., in pro per.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   DOMENGEAUX, Judge.

This is a workmen’s compensation suit instituted by Mrs. Bessie I. Hall against her employer, Wayne Joiner, Sr., in which instance the District Court awarded the plaintiff compensation benefits for one hundred weeks under the provisions of LSA-R.S. 23:1221 (4) (i) plus medical expenses, but denied her claim for penalties and attorney’s fees. From the adverse judgment defendant has appealed, and plaintiff has answered the appeal asking that the judgment be modified to include penalties, interest, and attorney’s fees.

Defendant owned and operated an eleven-apartment complex at Hot Wells, Rap-ides Parish, Louisiana. He hired plaintiff to manage the apartments. As compensation for her services she was allowed to live in one of the apartments and received free rent and utilities in addition to a commission-type salary based on the rental receipts of the apartment complex. As manager, it was plaintiff’s responsibility to rent the apartments, receive the rent from the tenants, and clean and maintain the premises. As such, she was required to use an electric vacuum cleaner and plug and unplug electric window air conditioners. The trial judge found that plaintiff was on duty seven days a week, 24-hours a day.

Plaintiff contends that she was injured while mowing grass at defendant’s apartments on May 10, 1973. She alleged that a rock flew out of the lawn mower and struck her in the eye. Her daughter verified the fact that her mother did receive an injury to the eye on or about May 10th. Defendant was notified of the accident. A neighbor took Mrs. Hall to the Rapides General Hospital on May 16th, and observed that plaintiffs right eye was swollen, almost closed, and appeared to him to be a very painful injury. Defendant himself testified that he observed Mrs. Hall wearing sun glasses, and this was verified by his sons, Wayne, Jr., and Jerry.

Both sides are at odds as to whether or not the plaintiff was required to mow the grass while she was employed by the defendant. She claims that it was part of her duties and the defendant claims otherwise. The trial judge found that on some occasions the plaintiff did in fact mow the grass.

The trial judge did not determine whether mowing the grass was a part of her employment. Rather, he suggested that whether the plaintiff was injured as a result of the-rock being hurled by the lawnmower operated by her or was injured as a result of someone else operating the lawnmower or even if someone else had thrown a rock and hit Mrs. Hall in the eye, the injury would still have been compensable within the meaning of the compensation statute since it occurred at the place of employment during working hours.

We conclude, as did the trial judge, that the plaintiff was injured in an accident arising out of and in the course of her employment. In the recent case of Lisonbee v. Chicago Mill & Lumber Company, 278 So.2d 5 (La.1973) the question of the legal tests involved were considered as follows:

Section 23:1031 of the Workmen’s Compensation Act provides that the employer shall pay compensation to the employee who ‘receives personal injury by accident arising out of and in the course of his employment.’ The terms arising out of, and in the course of are not synonymous. The former suggests an inquiry into the character or origin of the risk, while the latter brings into focus the time and place relationship between the risk and the employment. The two requirements cannot, however, be considered in isolation from each other. A strong showing by the claimant with reference to the arise-out-of requirement may compensate for a relatively weak showing on the during-course-of requirement, or vice versa. As a corollary it follows that whenever the showing with respect to both requirements is relatively weak a denial of compensation is indicated. Malone, Louisiana Workmen’s Compensation, §§ 162, 192.
These concepts are developed from cases interpreting the spare phrases arising out of the employment, and in the course of the employment. But the question of which risk shall be included within the act and which shall be excluded cannot be decided by phrases. Each case must be determined from its own facts. Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932); Myers v. Louisiana Ry. & Nav. Co., 140 La. 937, 74 So. 256 (1917).
An accident occurs during the course of the employment when it occurs during the time of the employment and at a place contemplated by the employment. Kern v. Southport Mill, supra.
To ‘arise out of’ the employment, the accident must be the result of some risk to which the employee i.s subjected in the course of his employment and to which he would not have been subjected had he not been so employed. Time, place and circumstance must determine this. Kern v. Southport Mill, supra. Add to this a consideration of the character of the risk, which means ‘The accident must be the result of some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed.’ . . . ”

In Kern v. Southport Mill, 174 La. 432, 141 So. 19 (1932), the Supreme Court stated:

“In determining, therefore, whether an accident ‘arose out of’ the employment, it is necessary to consider only this: (1) Was the employee then engaged about his employer’s business and not merely pursuing his own business or pleasure; and (2) did the necessities of that employer’s business reasonably require that the employee be at the place of the.accident at the time the accident occurred?”

See also Powell v. Gold Crown Stamp Company, 204 So.2d 61 (La.App. 2nd Cir. 1967), where the employee was shot by her estranged husband while at work, and the court found this to be a compensable injury, since it occurred at the place of employment, during the time of the employee’s employment therein.

We also conclude that plaintiff’s employment was hazardous within the in-tendment of the Louisiana Workmen’s Compensation Act. Based on the case of Fontenot v. J. Weingarten, Inc., 259 La. 217, 249 So.2d 886 (1971), plaintiff is covered under the Compensation Act since her employment required that she come into contact with and operate electrical appliances, i. e. a vacuum cleaner and window air conditioning units. Our review of the record amply sustains plaintiff’s position that the requirements of her employment necessitated that she operate and be exposed to the electrical appliances frequently enough so as to meet the test in Fontenot, supra. See also Shepherd v. Fort Sherwood Apartments, 270 So.2d 298 (La.App. 1st Cir. 1972), writ refused 272 So.2d 375 (La.1973) “On the facts found by the Court of Appeal we find no error of law in its judgment.” See also Robbins v. Caraway-Rhodes Veterinary Hospital, 315 So.2d 688 (La.1975).

Mrs. Hall was examined by Dr. Lisso Nachman, a board certified ophthalmologist, who treated her until March 6, 1974, at which time she was discharged. Doctor Nachman’s examination indicated that the plaintiff had received a traumatic injury to her right eye. The cornea was torn and the eye had become severely infected. The doctor testified:

“Apparently when the rock hit her, taking a portion of the cornea with it, it left a defect which became severely infected. The corneal ulcer proceeded to a point where she had what’s technically and properly known as a hypopion (h-y-p-o-p-i-o-n), which means that the interi- or chamber of the eye which is filled with, in a normal state, a clear fluid like water. The clear fluid is aqueous. This was filled with pus to the point where she could not see and of course, the eye was quite painful . . . .”

Doctor Nachman, in response to a specific question answered as follows:

“Question: ‘Dr. Nachman, was there an apparent tear, cut or rip in the cornea when you first examined the lady ? Some evidence that she had suffered a trauma as opposed to some infection of the eye ?’
Answer: ‘Yes. There was a defect which was irregular. By the time I saw her, actually, the discrete edges of a laceration or a cut had just melted away, the infection was so severe. The ulcer that I found and earlier described essentially is the defect and the surrounding area was so severely infected that it wound up that the cornea presented pretty much with a defect and behind this defect protruding into the interior chamber a pocket of pus and the interior chamber filled with a pusy exudate or pusy material. There is very little doubt that the rock injury that she described corolates [sic] beautifully with the lesion that she walked in the office with.’ (Emphasis added.)”

Doctor Nachman indicated that plaintiff would be left with a scar and an irregularity in the cornea of the eye, which would impede light going through and produce an irregular stigmatism, and that she .would never have any practical vision of her right eye. The doctor estimated that plaintiff lost approximately 80%' of the vision of her right eye as a result of the accident, which in his view left her with a legally blind eye. He opined, however, that she could still perform the duties required by her prior occupation, but that because of employers’ reluctance to hire handicapped people, she would be unable to do the kind of work she was doing before.

Plaintiff was examined at the instance of the defendant by Dr. Eustis Wilson, on April 9, 1974, almost one year following the accident. Doctor Wilson is also an ophthalmologist but is not board certified. His opinion, contrary to Doctor Nachman’s was that plaintiff could adequately see in the right or injured eye and that her complaints of blindness in that eye were unfounded. He estimated that she has a 20/50 vision of the right eye.

Confronted with opposite medical opinions, the District Judge stated:

“There is thus a diametrically opposite medical opinion in this case, and the Court must conclude which of the two physicians it is to believe, the treating physician or the examining physician. The law on the point was recently stated in the case of Oliver v. T. & C. Contractors, [La.App.,] 264 So.2d 225, at page 227, wherein the Court stated:
‘In establishing disability in a workmen’s compensation case, the testimony of a treating physician who has the benefit of repeated examinations and sustained observation is accorded greater weight than that of a physician who has seen the claimant but once, and then for only purposes of litigation. D’Avy v. Bituminous Casualty Company, 255 So.2d 645 (La. App. 3 Cir. 1971); also Moulard v. Massman Construction Company, 209 So.2d 742 (La.App. 3 Cir. 1968) and cases cited therein.’
In the instant case, the treating physician is Dr. Nachman and his conclusion that as to the extent of the injury will be accepted by the Court. Accordingly, we must find that Mrs. Hall has lost 83% [sic] of the use of her right eye.”

There is no error in the District Court’s acceptance of the medical testimony of Doctor Nachman. We might add that we were likewise impressed with Doctor Nachman’s testimony.

The trial judge correctly found that plaintiff was not entitled to benefits for total and permanent disability. He, instead, awarded benefits for 100 weeks under- the provision of LSA-R.S. 23:1221(4) (i). For all intents and purposes, plaintiff has lost the right eye within the meaning of the latter schedule. She has lost 80% of the vision in that eye and will never have any practical vision therefrom. This is tantamount to having no eye at all.

The record reveals that plaintiff worked for defendant 91 days, from April 10, 1973, to July 9, 1973, a total of 13 weeks. The trial judge found that plaintiff was employed under an agreement by which she was to receive a commission of 15% of the net rental receipts for the first month and a 25% monthly commission thereafter. In addition, plaintiff was given the use of an apartment and free utilities, the value of which amounted to $90.00 per month. In computing the rate of compensation the trial judge divided plaintiff’s total income from this employment by the total number of weeks (13) which she worked for the defendant. He thus reached the conclusion that her weekly income was $39.61 and based her compensation upon 65% of that figure, awarding her the amount of $25.75 for 100 weeks.

We find error in the trial judge’s calculations in that he misapplied the statutory formula applicable to this situation. LSA-R.S. 23:1021 (11) (d) as amended, provides that if an employee is not paid hourly, monthly, or annually and is employed on a “unit, piece work, or other basis” the wages shall be determined by computing the total amount of wages for the 26-week period immediately preceding the accident. If the employee has worked less than 26 weeks preceding the accident the wages shall be:

“. . . his gross earnings from the employer for the period immediately preceding the accident, divided by the number of days the employee actually worked for the employer during said period and multiplied by five.”

Since the plaintiff worked for thirty days prior to her accident we must determine the total amount of her gross earnings during that period, divide by the number of days she worked, and multiply by five. The record reveals that the plaintiff was paid a commission of $121.00 for that thirty day period preceding her accident and was given the use of an apartment and free utilities for that period. The total value of gross earnings then during the period preceding the accident was $211.00, which after necessary computation, reveals a weekly compensation rate of $22.85 for one hundred weeks, and not the figure of $25.75 as found by the trial judge.

The trial judge denied plaintiff’s claim for penalties and attorney’s fees. In so ruling, he found that defendant’s actions were not arbitrary and capricious in failing to pay compensation benefits. The trial judge obviously concluded that the defendant’s refusal to pay in this case was based on both the non-occurrence of the accident and a lack of causal connection between the accident and the disability. Starkey v. Louisiana Hatcheries, Inc., 262 So.2d 165 (La.App. 1st Cir. 1972); Hebert v. South Louisiana Contractors, Inc., 238 So.2d 756 (La.App. 1st Cir. 1970); Davis v. Zurich Insurance Company, 210 So.2d 620 (La. App. 2nd Cir. 1968); Martin v. Travelers Insurance Company, 200 So.2d 141 (La. App. 1st Cir. 1967). We will not substitute any opinion which we may have to the contrary for that of the District Judge on this factual finding.

In conclusion, appellant raises two procedural questions alleging error on the part of the trial court. On the first issue, appellant suggests that he was prevented by the District Court from taking the deposition of one Gary Whit. The transcript indicates that a minute entry on October 21, 1974, showed that the defendant had abandoned his request for the taking of the deposition, and consequently we deem the issue moot. Secondly, appellant complains that he was not granted a continuance of the trial on the merits, so that he could obtain the testimony of the said Whit, and further that he was erroneously denied the right to introduce Whit’s written statement into evidence.

This case was postponed many times. The record is clear that the trial judge bent over backwards in an effort to protect the rights of the unrepresented defendant after his two previous attorneys had withdrawn from the case. We find no error in his denying defendant’s final efforts to delay the trial. Neither was the trial judge in error in excluding the so-called written statement of Gary Whit.

For the above and foregoing reasons the judgment of the trial court is amended so as to award plaintiff weekly compensation benefits of $22.85 for 100 weeks with interest at the rate of 7% per annum on each past due payment from its due date until paid. In all other respects the judgment of the trial court is affirmed. Costs of this appeal are assessed against defendant-appellant.

Affirmed, as amended.

      . LSA-R.S. 23-.1221(4) (i). For the loss of an eye, 65 per centum of wages during 100 weeks.

      . Defendant was uninsured and in the early stages of this litigation was represented by an attorney who ultimately withdrew as counsel. Later defendant was represented by another attorney who likewise withdrew as counsel. On the trial of this matter the defendant represented himself. A review of the record indicates that defendant, although a non-lawyer, was competent in his self-representation. After trial, and on defendant’s application to the Alexandria Bar Association, the latter appointed an attorney to represent him, pursuant to its guidelines for appointed counsel. The appointed attorney applied for a new trial which was subsequently argued and denied, and said attorney has continued to represent the defendant on this appeal.

      . In Lisonjee recovery was denied, but only because the decedent, who was fatally shot, had left the premises of his employment contrary to the instructions of the employer.


author: WATSON, Judge. MILLER, Judge

text:
    Ronald C. McGUIRE, Plaintiff-Appellant, v. CENTRAL LOUISIANA ELECTRIC COMPANY, INC., Defendant-Appellee.
    No. 5279.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.
    Writ Granted March 12, 1976.
    Jake Shapiro, Alexandria, for plaintiff-appellant.
    Holt, Wagner & Lee by Richard E. Lee, Pineville, for defendant-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   WATSON, Judge.

Plaintiff, Ronald C. McGuire, filed this suit against defendant, Central Louisiana Electric Company, Inc. (hereafter Cleco), to recover damages for certain trees on plaintiff’s property which Cleco allegedly cut and trimmed. The trial court dismissed plaintiff’s suit stating that cutting and trimming the trees was within the purview of Cleco’s right-of-way agreement; and in any event, the cutting was done by an independent contractor, Meador Contracting Company of Louisiana, Inc. Plaintiff has appealed from the adverse judgment.

Plaintiff contends that the trial court erred in finding: that the trees in question interfered with Cleco’s lines; that Cleco had the right to go outside its ten-foot right-of-way to trim and cut trees which were interfering with Cleco’s electric lines; and that the trees were cut by an independent contractor outside Cleco’s control.

The factual issue as to whether the trees interfered with the electric lines was resolved by the trial court in favor of Cleco on the basis of ample evidence. Not only Thomas Edwin Orr, who supervised the clearing of the right-of-way, but Coy A. Purkey so testified.

The exact location of the right-of-way in relation to McGuire’s property is not clear from the record, but a marginal encroachment on the property apparently occurred.

The primary issue for decision is thus whether Cleco’s right-of-way permit gave it the right to trim trees and shrubbery located off of the right-of-way proper. If Cleco’s permit gave it this right, then the secondary issue of whether the cutting was done by an independent contractor outside Cleco’s control is immaterial.

The right-of-way permit granted to Cle-co for electric lines provides that Cleco has a ten-foot right-of-way and easement and is granted the right:

“. . . to cut and trim trees and shrubbery to the extent necessary to keep them clear of said electric line or system and to cut down from time to time all dead, weak, leaning or dangerous trees that are tall enough to strike the wires in fallings.”

LSA-C.C. art. 709 provides that owners of land may establish such servitudes as they deem proper and the use and extent of these servitudes are regulated by the title granted. The servitude here established is conventional, rural, continuous and apparent. LSA-C.C. arts. 710, 727 and 728. The accessory right in question is granted by the terms of the right-of-way permit, but, even without establishment by title, the necessary accessory rights accompany the servitude. LSA-C.C. art. 771.

Sticker v. Southern Bell Telephone & Telegraph Co., 101 So.2d 476 (La.App. 1 Cir. 1958), is in point. There, a telephone company had a two-foot right-of-way but cleared a path 12 feet in width. The servitude was established without title but the court held that, under the provisions of LSA-C.C. arts. 771 and 772, the telephone company did not act unreasonably in clearing trees to a distance of six feet on either side of the line. Exactly the same situation is present here, although the instant case is stronger because the right to clear trees and shrubbery to keep them clear of the electric lines was specifically granted in the right-of-way permit. The right must be exercised in a reasonable manner, but the evidence is that Cleco’s cutting and trimming of McGuire’s trees was necessary. Purkey testified that it was not only necessary but desirable because the trees were too thick and needed trimming.

For the foregoing reasons, the judgment of the trial court is affirmed. All costs are assessed to plaintiff-appellant, Ronald C. McGuire.

Affirmed.

MILLER, J., dissents and assigns written reasons.

MILLER, Judge

(dissenting).

CLECO has a conventional servitude affecting the rear five feet of McGuire’s one acre homesite located in a developed subdivision. CLECO issued a workorder to its subcontractor Meador instructing it to clear a right-of-way ten feet wide at the extreme rear of McGuire’s property. Tr. 220-2. In compliance with the order Mea-dor cut an 8" (in diameter) pine tree 2.1 feet off CLECO’s (five foot wide) R/W, an 8" pine 5.6 feet off the R/W, and an 8" pine 1.6 feet off the R/W. Under the same workorder, Meador trimmed all limbs off one side of three pines, one of which was a 10" tree located II1/2 feet off the R/W. The stumps of the three trees cut off the R/W (and three more 8" trees cut from the five foot wide R/W) were not removed and presented a problem to the landowner. Three to four inch deep ruts of some thirty to forty feet in length were made during the cutting operation. Some of these were across the front of McGuire’s property. Tr. 158. All this activity occurred without prior notice to the McGuires and while they were away.

This case was tried to one trial judge and decided by another. Portions of the trial evidence were lost, but both counsel stipulated the lost evidence was irrelevant. The deciding judge bottomed the decision on his finding the cutting to have been that of an independent contractor, Meador, for which CLECO was not liable. I respectfully submit there is manifest error in that conclusion, and in the majority’s affirmation based on other grounds.

The majority erred in stating the exact location of the right-of-way in relation to McGuire’s property is not clear. A surveyor employed by McGuire testified at Tr. 136 that he located CLECO’s transmission line “right along the south line of Lot 10 (rear of McGuire’s property).” The R/W instrument grants a ten foot R/W affecting the rear five feet of McGuire’s property and five feet off his neighbor’s lot. CLECO does not contend it did not know where its R/W was located.

The majority has disregarded McGuire’s argument claiming damages for ruts left on his premises on the grounds there is no such assignment of error. That is no basis for refusing damages which have been proved. *

As I read this record CLECO has, throughout these proceedings, acknowledged its error and has attempted to settle McGuire’s claim. McGuire’s demands were excessive and the matter had to go to trial. But McGuire established, and CLECO does not seriously contend to the contrary, that his property has been damaged and some damages are due.

The majority’s reliance on Sticker v. Southern Bell Telephone Company, 101 So.2d 476 (La.App. 1 Cir. 1958) is misplaced. The court there interpreted LSA-C.C. art. 771 as it applies to a servitude established by construction and maintenance of telephone lines. No other rights were established between the parties. But the accessory rights necessary to preserve the right-of-way were also acquired under C.C. art. 771.

CLECO’s servitude is conventional and is expressly limited to the rear five feet of McGuire’s property. Immediately following the terms of the servitude which are quoted by the majority, the limits of the R/W are set forth in these terms:—

It is understood and agreed that the Right-of-Way and easement hereby granted is 10-feet in width.

Half of this “10 feet” applies to McGuire’s neighbor’s property.

The majority now disregards the express terms of the R/W instrument and finds the extent of the servitude to be a reasonable distance. The majority not only failed to quote the provision limiting the grant to five feet of McGuire’s property, but has, for all practical purposes, read the provision out of the contract.

The vice of the majority opinion is that an owner can no longer expressly limit the extent of a conventional servitude. The servitude will be expanded to whatever a “reasonable” limit may be. This is not the intent of C.C. art. 771. It seeks to insure that an acquired right (the servitude) may not be obliquely defeated by denying to its owner another right essential to the exercise of the first. It applies where the right has been acquired by operation of law. It is not intended nor should it be used to strike down limits of an obligation, which limits are expressly established by the parties’ agreement.

Actually, LSA-C.C. art. 771 does not authorize a reasonable extension to the acces-sorial right, but only:—

the most direct, the shortest, and the least inconvenient to the estate subject to the servitude.

A finding that the exercise of accessory rights is reasonable does not, of itself, satisfy the plain language of the article. To the extent Sticker is taken as authority for the extension of the limits of a R/W, it is respectfully submitted it goes beyond the terms of the Code.

I would hold CLECO responsible for issuing a workorder to its sub-contractor instructing it to cut all trees within 10' of its transmission poles, when it knew its R/W was limited to 5'. I would also hold CLECO responsible for repairing ruts its sub-contractor placed on McGuire’s property and for removing stumps its sub-contractor created on this developed property. Court costs and expert fees (but not attorney fees) should be taxed to defendant. Five hundred dollars would constitute a proper award for the damage CLECO caused to McGuire’s property.

I respectfully dissent.

      . There is an allegation in plaintiff’s petition that the property was damaged by ruts left on the premises and testimony to this effect, but no assignment of error is made concerning the trial court’s failure to award this item of damages.


author: PAVY, Judge.

text:
    Mrs. Lovenia WILLIS, Plaintiff-Appellant, v. CALCASIEU PARISH SCHOOL BOARD, Defendant-Appellee.
    No. 5256.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 9, 1976.
    Smith, Taliaferro, Seibert & Boothe by Leo Boothe, Jonesville, and Ernest L. Jones, New Orleans, for plaintiff-appellant.
    Joseph W. Greenwald, Asst. Dist. Atty., Lake Charles, for defendant-appellee.
    Before CULPEPPER, DOMEN-GEAUX, and PAVY, JJ.
   PAVY, Judge.

Plaintiff was discharged by the Calca-sieu Parish School Board shortly before the end of her three-year probationary period as school bus driver. The discharge was after hearing and upon recommendation of the superintendant. She sued for reinstatement, salaries and bonuses. The district court upheld the school board’s action and she has appealed.

The law applicable to tenure of school bus operators (R.S. 17:491-493) provides that they shall serve a three-year probationary term during which they may be discharged upon the written recommendation of the parish superintendant of schools “.accompanied by valid reasons therefor”.

In Chantlin v. Acadia Parish School Board, 100 So.2d 908 (1st Cir. La.App.1958) the court stated:

“When the Legislature has provided that a probationary school bus driver can be discharged simply for “valid reasons”— in contradistinction to the specified grounds of discharge alone available in the case of tenured bus drivers — this indicates to us a legislative intent to provide a large measure of discretion to school boards in the discharge of such probationary school employees. And although the school board is not authorized to discharge a probationary school employee without any cause at all, State ex rel. Nobles v. Bienville Parish School Board, 200 La. 983, 9 So.2d 310, we think that our brethren of the Second Circuit in Kilpatrick v. Ouachita Parish School Board, La.App., 91 So.2d 453, correctly stated in discussing the standard for discharge of the probationary bus driver, LSA R.S. 17-491, that “By ‘valid reason’ is meant a sound and sufficient reason”, 91 So.2d 455.”
“We think that the discretion given to the school board in discharging for valid reasons school employees during their probationary terms is precisely for the purpose of weeding out personnel whose attitude or performance, while perhaps not so flagrantly faulty as might be required for the discharge of a tenured school teacher, indicate it to be undesirable for reasons of efficiency, morality, or harmony, among others, to grant them permanent status as members of our professional educational force. That is, the grudging performance of the minimum duties required of him does not, in our opinion, prevent a school board from terminating before he attains tenure the services of a probationary employee whose provable acts may indicate him to be a potential source of disharmony and whose attitude indicates that as a permanent employee he will be a drag upon, rather than an assistant in, its mission of educating the children.”

The reason specified by the superinten-dant was that the principals had evaluated her work as being incompetent because of (1) failure to maintain discipline on the school bus and (2) failure to accept and act upon constructive criticism.

Appellant presented several parents of students and a few of the students themselves. The substance of the parents’ tesi-mony was that they considered appellant competent and knew nothing to the contrary. The students related certain incidents in which disciplinary problems were presented on the bus. Generally, their testimony is of only minor significance.

Appellant herself admitted to numerous disciplinary problems but blamed these on the principal’s action in not letting her exercise discipline on the bus, requiring her to report all behavior problems to the principal and in siding with the students and the parents. She further suggested that a segregation effected during the three-year term had contributed to the disciplinary problems and that the black parents were resentful of her because of her nonmem-bership in the NAACP.

These contentions are not borne out by the evidence. Other than appellant’s testimony, there is no evidence of any general resentment against appellant. Many of the parents sided with her in the suit, and none of these testified to the alleged resentment. If anything, the segregation lessened rather than increased the disciplinary problems. Appellant admits her troubles were with the black children and not the white children. Originally appellant had two small busloads of black children on her route. During her three-year term there was a sudden influx of white parents in the area served by her bus route. To adjust for this situation, the school board combined the two previous loads of black children into one load and the white children into another load. It was decided that the children of the newcomer families would have to ride the earlier (less desirable) trip and the other students (mostly black children) who had been riding previously would take the second (more desirable) trip. Appellant claims the black parents resented this and blamed her for it. We find no evidence to that effect and doubt that she would have been blamed for the official action in any event.

Mr. Gabriel Barkate was principal at the high school served by appellant’s bus. He had personally recommended her for the job. Shortly after she started operating the bus, he heard that a rival for the job would try to discredit appellant. Accordingly, he told her to report all behavior incidents to him and started to keep a record of these for appellant’s benefit. He was emphatic that he did not restrict her authority over the students on the bus. The evidence further shows that the principal would seek to resolve the behavior problems with conferences between appellant, the students and parents. On several occasions Barkate temporarily suspended busing privileges of these students.

We do not think it necessary to relate all the incidents recorded in Barkate’s log concerning appellant’s behavior problems. He stated that she had more disciplinary problems than all the other bus drivers combined. Perhaps some of this was due to the fact that she was specially reporting her problems. However, Barkate testified that many of the incidents involving appellant were not recorded in his log, and that he could state that her disciplinary problems were excessive and burdensome to the administration of the school system.

It is particularly noted that the bus driver prior to appellant had no such disciplinary problems. Appellant’s successor had no such problems.

The trial judge wrote a well considered opinion. We think he was correct in his conclusion that:

"Besides the superior authority of a principal, it is necessary to have a bus operator who can maintain discipline when trouble occurs. Although she was otherwise capable, the preponderance of evidence establishes that for some reason or another Mrs. Willis’ ability fell short in this respect. Certainly it was not established that plaintiff’s discharge was arbitrary.”

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

Affirmed.


author: PETERS, Judge ad hoc. HUMPHRIES, Judge

text:
    Joseph R. DESHOTELS, Plaintiff-Appellee, v. The FIDELITY AND CASUALTY COMPANY OF NEW YORK, Defendant-Appellant.
    No. 5275.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Dissenting Opinion Jan. 2, 1976.
    Rehearing Denied Jan. 28, 1976.
    Writ Refused March 19, 1976.

      Allen, Gooch & Bourgeois by Kenneth Cole, Lafayette, for defendant-appellant.
    Devillier, Ardoin & Morrow by J. Michael Morrow, Eunice, for plaintiff-appel-lee.
    Before WATSON, HUMPHRIES and PETERS, Judges.
   PETERS, Judge ad hoc.

This is an appeal’ from a judgment awarding plaintiff the sum of $49.00 per week in workmen’s compensation benefits for total and permanent disability. Plaintiff answered the appeal asking for an award of past and future medical expenses and for attorney’s fees.

Plaintiff was employed by Evangeline Timber Company, primarily to make fence posts. Plaintiff cut trees ranging from two and one-half to six inches in diameter, trimmed the branches and cut the trees into sections using a chain saw. When the cutting was done, he loaded the sections on to a one and one-half ton truck and drove to a creosote plant several miles away where the sections were treated to be used as fence posts.

At the time of the accident, plaintiff was rebuilding a fence for Evangeline. This was a job he had never done for Evangeline before. Plaintiff broke off a vine, clinging to the fence, which struck him in the right eye. It is undisputed that plaintiff lost all vision in his right eye as a result of the accident. The medical evidence clearly shows plaintiff has suffered a loss in range of vision and a loss of depth perception due to the loss of vision in the right eye.

The trial judge found plaintiff was disabled from doing the same work or work of a reasonably similar character as that which he was performing at the time of the accident. This holding by the trial judge indicates that he found the plaintiff to be at least a semi-skilled worker. We are unable to find any error in this conclusion. Although plaintiff had been working for Evangeline only one or two weeks at the time of the accident, he had been employed by Evangeline on at least one other occasion to do similar work. He was sufficiently knowledgeable about his job duties that his employer sent him to work without supervision. He was entrusted with driving a truck. Mr. Richard Allen Waltrip, a timber buyer and pulpwood procurer, testified he had employees doing the same type of work plaintiff was doing for Evangeline and he would not hire a man to do this type of work unless that man had some experience in the logging business. While it is probably true that no special skill is required to operate a chain saw or to drive a one and one-half ton truck, the plaintiff’s experience in performing, and ability to perform well, all his job tasks make him at least a semi-skilled worker. Smith v. Traveler’s Insurance Company (La.App. 3rd Cir., 1972), 267 So.2d 622.

The trial judge’s conclusion that plaintiff was disabled from performing the same or reasonably similar work as he was performing when injured is correct. The medical evidence clearly shows plaintiff has suffered a loss in range of vision and depth perception. Plaintiff testified he now has trouble staying in his lane of traffic when driving. He further stated he would have trouble working among tree branches and stumps because he cannot estimate properly the height of branches and stumps. Mr. Waltrip’s testimony is highly relevant because it indicates plaintiff is unable, due to his disability, to compete in the labor market with able-bodied workers with similar skills. According to Futrell v. Hartford Accident and Indemnity Company, 276 So.2d 271 (La., 1973), the test for disability is whether the injury has substantially decreased claimant’s ability to compete with able-bodied workers with similar skills in the general labor market. Therefore, even if plaintiff in the instant case were able to perform the same job duties he was performing at the time of the accident, he is disabled under LSA-R.S. 23:1221 if he is unable to compete with able bodied workers for such a job. The only evidence tending to show plaintiff’s position in the labor market is the testimony of Mr. Waltrip, who testified unequiv-ocably that he would not hire a one-eyed man to do the type of work plaintiff was doing.

We therefore affirm the trial court’s award of benefits for permanent total disability.

We find no merit in plaintiff’s contention that the trial court erred in not awarding plaintiff past and future medical expenses. It was stipulated by counsel at trial that medical payments in the amount of $3,'466.62 had been paid and there were no medical bills outstanding at the time of trial; it is therefore apparent plaintiff was entitled to no award for past medical expenses. Plaintiff also is not entitled to an award for future medical expenses. There is no liability for medical expenses until they are incurred. Reed v. Employer’s Mutual Liability Insurance Company of Wisconsin (La.App. 2nd Cir., 1974), 303 So.2d 506; Manuel v. Jennings Lumber Company (La.App. 3rd Cir., 1971), 248 So.2d 908. Furthermore, the right to assert a claim for medical expenses that arise in the future is always reserved to the plaintiff and need not be specifically so reserved in the judgment. Reed v. Employer’s Mutual Liability Insurance Company of Wisconsin, supra; Welch v. Clemons Brothers Lumber Company, Inc. (La.App. 1st Cir., 1972), 262 So.2d 79.

Plaintiff is not entitled to penalties and attorney’s fees because defendant’s refusal to pay benefits was not arbitrary and capricious. There apparently was an honest dispute between plaintiff and defendant concerning whether plaintiff was entitled to benefits for permanent disability or merely to benefits for 100 weeks under the schedule and defendant did voluntarily pay plaintiff $49.00 per week for 100 weeks under the schedule.

All costs in this court and in the court below are to be paid by defendant-appellant.

Affirmed.

HUMPHRIES, J., dissents and assigns written reasons.

HUMPHRIES, Judge

(dissenting).

I find that I am not in agreement with the majority opinion in affirming the decision of the trial court awarding permanent and total disability for the loss of an eye.

I agree with the majority and the trial judge that the plaintiff has lost all vision in his right eye.

The majority finds that the plaintiff is totally disabled from performing the same or reasonably similar work as he was performing when injured and that the plaintiff’s loss of vision in his right eye has substantially decreased his ability to compete with able bodied workers with similar skills in the general labor market. I submit that there is no evidence in the record to support these two findings.

Whether the plaintiff can perform work of similar character to that he was performing at the time of the accident is a legal question that addresses itself to the trial judge. This opinion of course must be based upon sufficient, competent evidence.

Two doctors testified by depositions. The plaintiff called Dr. Merrick J. Wyble and the defendant called Dr. Larry E. Baker. Dr. Wyble was the attending physician. He stated that he felt that the plaintiff should not return to work in the timber business and do different jobs as driving a tractor, cutting timber and working around the timber yard. This is not what the plaintiff was doing. He stated that the plaintiff was employed with the timber company and working in a hazardous condition as manifested by the fact that he got injured and lost an eye. He stated that if the plaintiff returned to work he could place “himself and others in a very bad situation, that he could either injure himself of injure his eye or injure someone else, because he only had one eye, which would be true of any one-eyed patient.” The doctor, surprisingly, expressed an opinion on the plaintiff’s ability to procure employment. He stated “I think with the employment situation now, I don’t think Mr. Deshotels would be hired. I think that here is a man that is unskilled primarily, and would have to more or less work at a hazardous type situation to be hired, and I don’t think he could compete in the job market.” There is nothing in the record to qualify the doctor as an expert in employment or the labor market. No other,person who had any knowledge about the labor market or the employment of handicapped persons testified. It is hard to believe that the doctor, who is an expert in the medical field, would express an opinion in the field of the labor market. Also he has disqualified himself from expressing such an opinion by his own statement. He stated that an unskilled person would have to engage in hazardous type of employment. This is the first time that I have in all of my experience heard such an opinion as this expressed. One only has to look around to see that this opinion is entirely false as unskilled workers fill positions in non-hazardous trades. Then inconsistent with his other inconsistent testimony the doctor stated that the plaintiff could return to his usual employment of farming and should do so.

This doctor was just not familiar with the facts of this man’s employment or the manner in which he was injured, even though he was the treating physician. He stated that the plaintiff was injured when a limb struck him while he was on a tractor. He was asked and testified (Tr. 44).

“Q. I believe you stated that you are not sure of the exact duties which Mr. Deshotels performed for Evangeline Timber Company, is that correct ?
A. No. He mentioned to me that the limb that hit him when he was on a tractor and that he did other types of duties for them and I never did really go into great detail about the different duties other than that the original duty was hazardous enough to cause him to lose an eye.”

When this doctor was asked if he felt that the plaintiff was disabled in any way from pursuing his occupation as a potato farmer he replied:

“I think Mr. Deshotels- can farm as a potato farmer. I think that in his daily job as a potato farmer, or any kind of farmer, where he has got equipment to handle and potentially dangerous equipment, doing repair work on machines, lifting crates about his head and placing them in dangerous positions, and everything else, that his job is certainly made a little bit more difficult with one eye, but that because of necessity he has to do it.”

Dr. Baker examined the plaintiff and found that he has lost the sight in his eye. Dr. Baker was asked a hypothetical question which included all of the duties that Mr. Deshotels did for his employer and he stated that he felt that the plaintiff could perform that type of employment.

The only other person who sought to enlighten the court regarding the claimant’s disability was one Richard Allen Waltrip. Mr. Waltrip is in the pulpwood business. He is not in the same type of business that Evangeline Timber is in. He testified that he had a couple of fellows down in South Louisiana that were in the fence post business that sold him some fence posts. Mr. Waltrip was not an expert in the labor market or in the ability of handicapped people to perform various types of employment. Mr. Waltrip stated that he would not hire the plaintiff. Mr. Waltrip has never had any experience with an employee with only one eye. It is obvious that Mr. Waltrip got to court because of his friendship with the plaintiff or someone connected with the plaintiff. Mr. Waltrip was not in anywise qualified to express an opinion as to the plaintiff’s ability to perform any labor. Mr. Waltrip has never even worked around a laborer who had only one eye. He has no knowledge of the ability of Mr. Deshotels to perform the duties that he was performing with Evangeline Timber Company. His testimony is utterly useless and it is error to accept his testimony as proof of anything.

It must be kept in mind that the plaintiff is principally a potato farmer. In the off season he works for Evangeline Timber Company. His duties consist of using a chain saw to cut trees of 2 and l/j to 6 inches in diameter and then trim the limbs and cut the trunk into lengths of approximately 6 to 8 feet, place them on a ton and a half truck and drive the truck to the creosote plant where they are unloaded by other employees. At the time that the plaintiff was injured he was in the process of rebuilding a fence. He was digging the holes with a power auger, placing the fence posts in the holes and stringing wire to the fence posts.

Plaintiff’s duties as a farmer and his duties with Evangeline Timber are exactly the same. If he can perform the duties in one field he can perform the duties in the other.

The plaintiff was paid compensation for 100 weeks. Certainly the Legislature must have realized that an employee with a loss of one eye will have a little more difficulty performing his duties and a little more difficulty in procuring employment. Presumably, because of this, the Legislature provided for a payment of 100 weeks to any employee who loses the sight of one eye. This payment is due the employee without regard to any resultant disability.

In Green v. Coal Operators Casualty Company, 84 So.2d 843 (La.App., 2d Cir. 1956) the Court held that a pulpwood employee (employment that is more hazardous and strenuous than that of the plaintiff) was only entitled to 100 weeks for the loss of an eye. In Franklin v. Cashio, 111 So.2d 536 (La.App., 1st Cir. 1959) the Court held that a swamper or logger who lost the sight of an eye that was subsequently removed, was not totally disabled and awarded 100 weeks. In Anderson v. Bayham et al., 107 So.2d 531 (La.App., 1st Cir. 1958) the Court awarded 100 weeks to a logger for the loss of an eye. The Court reversed an award of total disability granted by the trial judge. Anderson was a logger and it was necessary for him to use axes and saws to cut down trees and trim branches. He did most of his work in swampy areas. One of the witnesses for Anderson was a logger who had lost the sight of one eye and testified that he had been working for 15 years with that condition and worked as well as a worker with both eyes.

This writer recognizes that there are instances, perhaps many, where the loss of one eye would render a workman totally disabled but this is not one of those instances.

I would reverse the judgment of the trial court and dismiss the plaintiff’s demands at his costs as he was paid 100 weeks of workmen’s compensation benefits prior to the institution of this action.


author: HUMPHRIES, Judge.

text:
    Nathaniel J. ALLEN, Plaintiff-Appellant, v. GEORGIA CASUALTY & SURETY COMPANY, Defendant-Appellee.
    No. 5274.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.
    Writ Refused March 16, 1976.

      Mitchel M. Evans, DeRidder, for plaintiff-appellant.
    Hall, Coltharp & Lestage by H. O. Les-tage, III, DeRidder, for defendant-appellee.
    Before WATSON, HUMPHRIES and PETERS, JJ.
   HUMPHRIES, Judge.

This is an appeal from an unsuccessful demand for workmen’s compensation benefits. We affirm.

The plaintiff was injured on November 7, 1974 and was treated on the date of the injury and three subsequent days by a general practitioner. He was discharged by the doctor on December 3, 1974 as able to return to work. On December 16th he was examined by an orthopedic surgeon who failed to find any disability. In total this plaintiff was either treated or examined by two general practitioners, one thorasic and chest surgeon, one neurosurgeon and two orthopedic surgeons. One doctor testified in open court and the written reports of the others were filed in evidence. The only doctor to indicate that the plaintiff was not able to go back to work was a general practitioner who would only state that he felt that the plaintiff should do light work before engaging in heavy manual labor. He stated that it would be necessary for the plaintiff to “limber up.”

The trial court handed down excellent reasons for judgment. He properly analyzed all of the evidence, applied the proper law and found that the plaintiff had failed to sustain his burden of proof. The trial court summed up the case as follows:

“The plaintiff’s complaints of continuing pain and suffering in his back and chest were not supported by any of the medical testimony but in fact were contradicted by the majority of it. The rule has been consistent in workmen’s compensation cases that the claimant may establish a right to workmen’s compensation benefits by his testimony alone where the testimony is consistent and supported by the surrounding circumstances, provided there is nothing to discredit his testimony. Stoddard v. Insurance Company of North America, et al. 271 So.2d 367, Court of Appeal, Second Circuit, November, 1972.
The Court can only conclude that the plaintiff failed to support his claim by the required preponderance of evidence, and accordingly, the plaintiff’s suit should be dismissed at his cost.”

Not only did the trial court not commit manifest error but it is our opinion that his findings and the application of the law are manifestly correct.

The plaintiff is to pay for all costs of this appeal.

Affirmed.


author: CULPEPPER, Judge.

text:
    FORET & ASSOCIATES, INC., Plaintiff and Appellee, v. STANDARD FITTINGS COMPANY, Defendant and Appellant.
    No. 5272.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.
    Writ Refused March 19, 1976.

      Louis B. Viviano, Opelousas, for defendant and appellant.
    McBride & Brewster by Norman P. For-et, Lafayette, for plaintiff and appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   CULPEPPER, Judge.

Plaintiff sued for the balance of $18,054 allegedly due by defendant under a contract. The district court awarded plaintiff judgment for $15,654. Defendant appealed. We affirm.

The substantial issue is what was the agreement between the parties, an issue which is factual and depends largely on the credibility of the witnesses.

The defendant, Standard Fittings Company, operates a large machine shop and manufacturing plant in Opelousas, Louisiana. Its president and general manager is Mr. Erwin Davlin. Several times, Mr. Davlin, on behalf of Standard Fittings Company, had entered into contracts with the United States Department of Labor to train for industrial employment persons who were otherwise unemployable. In the course of the performance of one of these contracts, under which the subcontractor was Skills Development, Inc., Mr. Davlin met Mr. Nolan Foret, the center director for that firm. Davlin and Foret started discussing an agreement whereby Foret would subcontract to furnish certain portions of the training required under contracts secured by Standard from the Government.

Ultimately, Mr. Davlin offered to undertake a Department of Labor contract with Mr. Foret acting as subcontractor for him. Mr. Davlin drew up, in the form of a handwritten memo filed in evidence as exhibit P-2 a “proposed understanding” of the basis on which they would work under the Department of Labor contracts. The memo was undated and unsigned but both Davlin and Foret were fully aware of its contents and Foret began to take certain actions on the basis of the memo. Mr. Davlin took the memo to his attorney, Mr. Schiff, for use in preparing a formal written contract. Mr. Foret ceased employment with Skills Development and organized Four-A of Lafayette, Inc. to furnish training services as a subcontractor of Standard Fittings.

Mr. Davlin, Mr. Foret, Mr. Schiff and Mr. Toups, comptroller for Standard Fittings Company, met to discuss the written contract which Schiff had prepared. It contained generally the provisions of the earlier memo, except that it included a new provision that Standard could seek other such training contracts for other employers. Mr. Foret refused to sign because he obj ected to this new provision.

It is at this point that Davlin contends he offered and Foret accepted an alternative agreement. He says he agreed to pay Mr. Foret $200 a week for his services as personnel director and $6,500 for performance of only the “Orientation” portions of the Department of Labor contract. Davlin contends this is corroborated by Foret’s letter (D-2) written to Standard’s comptroller requesting payment of $5,920. For-et testified this letter was merely to inform the comptroller as to the method of payment for certain interim funds which For-et based on the Department of Labor contract price for “Orientation”.

The contract with the Department of Labor was obtained by Mr. Davlin to employ and train 40 workers for a total price of $56,840. Training began and services were performed by Four-A of Lafayette, Inc. under its subcontract with Standard Fittings Company to furnish certain portions of the training. Four-A of Lafayette, Inc. sent bills for its work to Mr. Davlin of Standard Fittings. Bills were sent and paid in the months of August, September, October, November and December of 1971. Only a part of the bill for January of 1972 was paid, and the February bill, as well as other subsequent ones were not paid. Mr. Foret then prepared a final bill showing Four-A earned a total of $22,880 under its subcontract, of which Standard had paid $4,825, leaving $18,054 due. Defendant refused to pay this bill and this suit followed.

Mr. Foret claims the handwritten memorandum (P-2) represents his contract with Standard Fittings Company and that he quit his job with Skills Development, Inc. in reliance on that memo. He contends the document designated “D-2” is simply an arrangement for the payment of part of the funds due under his subcontract. Mr. Davlin, however, claims the agreement between him and Mr. Foret was simply to pay Mr. Foret $200 a week and $6500 for performance of only the “Orientation” phase of the Department of Labor contract. He says the document (D-2) was prepared by Mr. Foret to particularize and finalize that oral agreement.

The trial judge determined that the handwritten memorandum designated “P-2” was the contract agreed upon by the parties. In his written reasons for judgment he said: “. . .an original agreement (P-2) was entered into and acted upon’’. Thus, he found the plaintiff was entitled to the $18,054 sued for, but he gave defendant credit for $2400 ($200 per month paid to Foret for 12 months), thereby reducing the award to $15,654.

The ultimate issue in this case resolves itself into an evaluation of credibility. We will not disturb the finding of fact of the trial judge, which is based on a reasonable evaluation of credibility. See Canter v. Koehring, 283 So.2d 716 (La., S.Ct.1973).

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

Affirmed.


text:
    David CONNER, Plaintiff and Appellant, v. TRAVELERS INSURANCE COMPANY et al., Defendants and Appellees.
    No. 5267.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.
    Writ Refused March 12, 1976.

      Bolen, Halcomb & Bolton by Roy S. Halcomb, Jr., Alexandria, for plaintiff-appellant.
    Gold, Hall, Hammill & Little by James D. Davis, Alexandria, for defendants-appel-lees.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   CULPEPPER, Judge.

Plaintiff seeks workmen’s compensation benefits for total and permanent disability arising out of an injury to his back. The defendants are his employer, Jack Lacy, d/b/a Lacy Cattle Company, and his insurer, The Travelers Insurance Company. The district judge found plaintiff failed to prove a compensable accident. From a judgment rejecting his demands, plaintiff appealed.

The issues are: (1) Was there an accident? (2) Is plaintiff disabled? (3) Is plaintiff entitled to penalties and attorney’s fees?

The general facts are that plaintiff was 26 years of age and, prior to the events at issue here, had worked as a common laborer for about 10 years without difficulty relating to his back. In July of 1973, he commenced work for the defendant, Lacy Cattle Company, as a general farm laborer. His duties included herding and penning cattle, using shovels, hauling hay, lifting bales of hay, riding horses, etc. On about June 18, 1974, plaintiff was using a pry bar to raise a bridge beam out of the mud so that a chain could be placed beneath it. He testified he felt a sudden pain- in his lower back and that he complained to his fellow workmen. A co-employee, Earnest Belgard, corroborated the fact that plaintiff “grabbed his back and complained”. Furthermore, the evidence shows that plaintiff reported the incident to his foreman, David Ferguson, who filed an accident report with the defendant insurer of date, June 20, 1974 stating: “Strained lower part of back while using pry bar to raise bridge beam to put chain under it.”

Nevertheless, on the suggestion of the foreman, plaintiff did not go to see a doctor. He continued to work. Plaintiff testified that during the ensuing months he occasionally experienced some pain in the lower part of his back but he was able to do the work.

On January 14, 1975, plaintiff was loading bales of hay on a trailer to feed the cattle. These bales weighed about 60 pounds each. Plaintiff testified that they had started loading the bales at about 7:00 a. m. and that by about 9:30 a. m. his back was hurting so bad he had to quit. He does not remember any particular bale which caused an unusual strain of his back, nor did he slip or fall or suffer any unusual trauma or physical exertion.

On that same day, January 14, 1975, he reported the injury to his foreman who filed an accident report with the defendant insurer stating: “He was loading hay and hurt his back.” The foreman sent plaintiff to the company doctor, a general practitioner, who in turn referred plaintiff to an orthopedic surgeon, Dr. D. M. Kingsley. This physician took from plaintiff a history which relates both the incident of June 18, 1974, when plaintiff hurt his back with the pry bar and the incident of January 14, 1975, when he lifted the bales of hay. Dr. Kingsley performed a thorough examination, including an x-ray, which showed a pre-existing congenital spondylolysis at the L-4 level. This physician diagnosed an acute lumbo-sacral strain caused by lifting the hay at work. On the basis of a report by Dr. Kingsley of job-related disability, the defendant insurer commenced compensation payments.

Dr. Kingsley prescribed drugs for pain and muscle relaxation and thought plaintiff improved. However, due to plaintiff’s continued complaints of pain, for which Dr. Kingsley could find no objective cause, a myelogram was performed on February 3, 1975. This test was negative.

Dr. Kingsley continued to see plaintiff through February 19, 1975, as of which date he filed a report with the defendant insurer that he could find no objective cause for plaintiff’s continued complaints and recommended that he return to work. Based on this report, the defendant insurer terminated compensation.

On March 19, 1975, plaintiff was examined by Dr. John T. Weiss, an orthopedic surgeon of Alexandria. This physician was of the opinion plaintiff had mild residual symptoms of a lumbar strain and was disabled from heavy manual labor. He prescribed a lumbo-sacral corset and drugs for pain and muscle relaxation. Dr. Weiss continued to see plaintiff through April 23, 1975 and found his complaints were virtually unchanged. At that time, plaintiff decided that due to lack of finances he would move with his wife and child back to Oklahoma to live with his parents and seek further medical attention there.

On May 1, 1975, plaintiff went to Dr. James C. Mayoza, an orthopedic surgeon in Tulsa, Oklahoma. From the history, the x-ray showing the spondylolysis and a physical examination, it was the opinion of this physician that plaintiff was suffering from an aggravation of the spondylolysis and that he was still disabled from heavy manual labor. He prescribed a chair-back brace and drugs for pain and muscle relaxation. As of the date of his deposition on June 24, 1975, Dr. Mayoza was of the opinion plaintiff was still disabled and could not say how long this disability would continue. He suggested that conservative treatment be continued in the hope that it would be successful. But he stated “that if the pain is not relieved with conservative treatment that surgery, in all probability, may be necessary in the future.” The surgery referred to is fusion of the vertebrae. This case was tried on July 8, 1975, which was about two weeks after Dr. Mayoza’s deposition.

THE ACCIDENT

The district judge found plaintiff did not prove a compensable accident. Thus, the district court did not reach the question of disability or penalties and attorney’s fees.

In written reasons dictated at the conclusion of the trial, the district judge stated that he was not satisfied the activities of January 14, 1975, when plaintiff’s back began to hurt while he was loading the bales of hay, constituted an accident within the meaning of the Workmen’s Compensation Statute. We cannot agree. LSA-R.S. 23:1021(1) defines “accident” as an “unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury.” This language does appear to suggest the requirement of a blow or a trauma or an unusual physical exertion which causes an immediate injury. However, the jurisprudence construing this statute is now clear that extraordinary physical stress and strain or physical blow or trauma are not essential to the definition of disabling accident. Where the performance of the usual and customary duties of a workman cause or contribute to physical breakdown, the statutory requirements for an accident are present. Ferguson v. HDE, Inc., 270 So.2d 867 (La.,1972); Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1968); Landry v. Bituminous Casualty Company, 244 So.2d 105 (La. App., 3rd Cir. 1971); Gotte v. Cities Service Oil Company, 298 So.2d 920 (La.App., 3rd Cir. 1974). These rules have been applied in cases involving back strains superimposed on spondylolysis, as in the present case. Seaman v. Fidelity & Casualty Company of N.Y., 295 So.2d 899 (La.App., 2d Cir. 1974); Jones v. Douglas Public Service, 264 So.2d 267 (La.App., 4th Cir. 1972); and Theriot v. Schlumberger Wells Servicing Corporation, 131 So.2d 94 (La. App., 4th Cir. 1964). See also the discussion in Malone, Louisiana Workmen’s Compensation Law and Practice, Section 216 at page 274, et seq.

Under the above cited authorities, we have no difficulty concluding that the lumbo-sacral strain suffered by plaintiff while loading the bales of hay on January 14, 1975 satisfied the requirements of an accident within the meaning of the Workmen’s Compensation Statute. Although there was no trauma nor blow, nor could plaintiff remember that he strained his back while lifting any particular bale of hay, the evidence shows by a clear preponderance that he strained his back while loading the bales on that particular morning. Plaintiff testified that as he loaded the bales his back progressively became more painful, and that he finally had to quit work. He told a fellow employee, Herman Norris, on that occasion that his back hurt. Norris corroborated this.' Plaintiff also reported the incident that same day to his foreman and the foreman filed an accident report. Either that day or the next, plaintiff went to see Dr. King-sley who diagnosed a lumbo-sacral strain caused by lifting the hay. We find an accident was proved.

DISABILITY

As stated above, Dr. Kingsley saw plaintiff until February 19, 1975. He diagnosed a lumbo-sacral strain superimposed on the pre-existing spondyloysis and instituted conservative treatment. However, it was this physician’s opinion that by about February 19, 1975 plaintiff had recovered to his pre-accident status and could return to the same work which he was performing at the time of the injury.

Plaintiff then went to Dr. Weiss, also an orthopedic surgeon, who diagnosed mild residual symptoms of the lumbo-sacral strain superimposed on the spondylolysis. Dr. Weiss was of the opinion that plaintiff could not return to work.

Plaintiff then returned to Oklahoma where he saw Dr. Mayoza, also an orthopedic surgeon, who was of the firm opinion that plaintiff was still suffering from aggravation of the spondylolysis and was unable to work.

We think a clear preponderance of the expert medical testimony shows that plaintiff was still disabled at the time of trial. We do not find ourselves in conflict with the district judge on this issue, since he did not reach it.

PENALTIES AND ATTORNEY’S FEES

The final issue is whether plaintiff is entitled to penalties and attorney’s fees. Plaintiff argues strenuously that all three doctors who testified agreed that plaintiff suffered a job-related lumbo-sacral strain superimposed on a pre-existing spondylo-lysis. Plaintiff argues the defendant insurer was arbitrary in terminating workmen’s compensation on the basis of King-sley’s report alone. He questions whether Kingsley ever reported to the defendant insurer that plaintiff was able to return to work. However, Kingsley’s report mailed on February 19, 1975 clearly concludes: “There is no objective evidence of diability and he should go back to work.” On the basis of this report, the defendant insurer terminated compensation payments.

It is true that both Dr. Weiss and Dr. Mayoza found plaintiff disabled at dates after Dr. Kingsley’s last examination. However, the testimony of Dr. Weiss is not very strong. The testimony of Dr. Mayoza is stronger. Considering the evidence as a whole, we are unable to say that the defendant insurer was arbitrary or capricious in terminating payments. They had a positive report from Dr. Kingsley that plaintiff was able to return to work. They had a somewhat equivocal report from Dr. Weiss, and they had a stronger report from Dr. Mayoza. We think they were entitled to defend this case on the basis that there was a bona fide medical dispute as to whether plaintiff had recovered from any disability he suffered as a result of the accident. We reject plaintiff’s claim for penalties and attorney’s fees.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, David Conner, and against the defendants, The Travelers Insurance Company, and Jack Lacy, d/b/a Lacy Cattle Company, for workmen’s compensation at the rate of $65 per week beginning in accordance with law following the accident of January 14, 1975, and continuing for the duration of plaintiff’s disability, not to exceed 500 weeks, with interest at the rate of 7% per annum on each past due payment from its due date until paid, with defendants to be given credit for any amounts already paid. Additionally, plaintiff is awarded judgment against the defendants for all medical and incidental expenses up to the maximum sum provided by law with interest at the rate of 7% per annum from the date of judicial demand until paid, subject to credit for any such amounts which have already been paid by defendants. Plaintiff’s demand for penalties and attorney’s fees is rejected. All costs in the district court, including the fees of expert witnesses, and all costs of this appeal are assessed against the defendant.

Reversed and rendered.


author: WATSON, Judge.

text:
    GUARANTY BANK & TRUST COMPANY OF ALEXANDRIA, Trustee, Plaintiff-Appellant, v. NATIONAL LIFE INSURANCE COMPANY, Defendant-Appellee.
    No. 5264.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 24, 1975.
    Rehearing Denied Jan. 28, 1976.
    Writ Refused March 19, 1976.
    Polk, Foote, Randolph, Percy & Ledbet-ter by William H. Ledbetter, Jr., Alexandria, for plaintiff-appellant.
    Stafford, Pitts & Stafford by Grove Stafford, Jr., Alexandria, for defendant-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   WATSON, Judge.

Plaintiff, Guaranty Bank & Trust Company of Alexandria, trustee of the minor children of Dr. George Alton Creed, filed this suit against defendant, National Life Insurance Company, to recover $50,000 accidental death benefits on a policy insuring Dr. Creed. Dr. Creed died at age 33 because of “regurgitation and mild aspiration of gastric contents.” (Tr. 14)

The trial court found Dr. Creed’s death to be accidental but not by external means and therefore not covered by the policy. Judgment was given for the defendant insurance company. We reverse.

Plaintiff has appealed, contending that the trial court erred:

(1) in its evaluation of the medical and lay testimony on the cause of death;
(2) in failing to apply Schonberg v. New York Life Insurance Co., 235 La. 461, 104 So.2d 171 (1958), which rejected highly technical distinctions in interpreting such policies; and
(3) in misapplying Towner v. Prudential Insurance Company of America, 137 So.2d 449 (La.App. 3 Cir. 1962), certiorari denied, to decide that the death was not caused by external means in a different factual situation.

The pertinent policy provision states that double indemnity benefits are payable when death results:

“ . . . directly and independently of all other causes by violent, external and accidental means and evidenced by some mark or contusion visible on the exterior of the body or by internal injury visibly manifest on an autopsy;.”

The issue is whether Dr. Creed’s death is covered by this policy provision.

The certificate of death states that the nature of the injury is under investigation, and the autopsy protocol states that the death is unclassified.

John Michael Whaley, trust officer of the Guaranty Bank, testified that he applied to recover the benefits under the policy. Only the base amount of the policy, $50,000, was paid; the $50,000 accidental death benefit was not paid.

Mercedes Whitecloud, a biochemist and an acquaintance of Dr. and Mrs. Creed, testified that she went to the apartment where Dr. Creed’s body had been found on October 15 or a week and a half to two weeks after the death. At that time, the seals of the coroner’s office were intact and had to be broken. Dr. Creed had been in the process of moving into the apartment at the time of his death. Mrs. Creed was in the hospital for surgery. There were empty beer cans throughout the apartment and plates in the sink with partially rinsed off food. Dr. Creed’s body had been found in the bathroom and there was still a heavy odor there, so she did not enter the bathroom. Mrs. Whitecloud returned to the apartment on November 30 and examined the bathroom. The apartment was unchanged. There were remains of flesh, hair and blood in the bathroom. The only drugs present were a bottle of aspirin and a sample bottle of nasal spray. Mrs. Whitecloud said Dr. Creed liked beer but very much of it would make him sick; she had several times seen him regurgitate as a result of beer. On each occasion that Dr. Creed had three or four drinks he would get sick;, it was a joking matter among them. There were 60 or 70 empty beer cans in the apartment, all Falstaff.

Mrs. Micky Svebek Creed, a resident of Alexandria, Louisiana, testified that she and her late husband were legally separated at the time of his death after eleven years of marriage. They had three children, eleven and a half, ten and a half, and five years of age. Mrs. Creed last saw her husband on September 6, the day after her surgery. Her husband could not tolerate alcohol. After two or three drinks he would start throwing up and always tried to get to the bathroom to regurgitate. His favorite alcoholic beverage was beer.

Dr. Herbert Ichinose, stipulated to be an expert in the field of pathology, testified in deposition that he performed an autopsy on Dr. Creed on September 29, 1973. The autopsy showed advanced postmortem degeneration and indicated that death occurred from “regurgitation and mild aspiration of gastric contents.” Gastric contents were found in the air tubes, specifically the esophagus, the lingual bronchial system, and the trachea. Three hundred cc of gastric contents were found in the stomach, which, in Dr. Ichinose’s opinion, were taken from an external source into the stomach in the usual manner. There was no evidence of illness. Dr. Ichinose said Dr. Creed’s situation commonly results from ingesting drugs and alcohol and could also result from excessive consumption of alcohol. An illness such as flu would not ordinarily make one sick enough to lose the protective cough reflex which prevents aspiration. The combination of regurgitation and aspiration implies a certain degree of nervous system depression which could have been caused by drugs, chemicals, alcohol, or barbiturates. According to Dr. Ichinose, the surroundings of the body would be significant in deducing what caused the vomiting and aspiration. The death was not classified as a natural death or a murder and therefore was put into an unclassified grouping. There were no signs of external body trauma. There was also no evidence of internal body trauma in the sense of tears or contusions. There would have been injury to the brain and other organs from lack of oxygen and chemical injury to the trachea and bronchial area, but the decomposition had concealed them. The injury to the trachea was presumptively evident from the presence of the gastric contents in the trachea. Dr. Creed had been dead from three to five days when found on September 28.

Dr. James G. Hair, stipulated to be an expert in pathology, testified in deposition that he examined the autopsy protocol and read Dr. Ichinose’s testimony. According to Dr. Hair, the protocol does not show the cause of Dr. Creed’s death, and the decomposition would have made it impossible to tell what the cause of death was. According to Dr. Hair, there was no evidence that the death was caused by external means.

The trial court concluded on the basis of the above evidence that the death was unquestionably accidental but that the cause was internal rather than external, citing Towner, supra. However, there was no autopsy performed on the deceased in Towner and the evidence did not indicate:

“ . . . whether asphyxiation was brought about by the aspiration of food, which at some time prior thereto had been taken into the body, or by the aspiration of mucous, which we think could not be considered as having been taken into the body from external sources.” 137 So.2d 453.

The mucous referred to was caused by the decedent’s preexisting tonsillitis, a condition not present in the instant case. Here, there was no evidence of illness or disease.

This court in Towner further pointed out:

“Although we feel that the death in this case was not brought about by external means, a different result might be reached in a case where death results from regurgitation and aspiration of vomitus brought about by sudden trauma or by the consumption of noxious substances.” 137 So.2d 453.

That is, of course, the situation here where Dr. Creed consumed a quantity of alcohol, a substance noxious in excessive amounts.

While the trial court may have been correct in holding that Dr. Creed’s death did not occur from external means evidenced by some mark or contusion visible on the exterior of the body, it erred in failing to hold that Dr. Creed’s death occurred as the result of “ . . . internal injury visibly manifest on an autopsy,” and thus was within the policy provision. According to Mrs. Whitecloud, there were no indications of drugs and there is no evidence that Dr. Creed had been ill. According to Dr. Ichinose, an illness such as flu would ordinarily not have been sufficient to depress the protective cough reflex. The evidence indicates that Dr. Creed drank an excessive quantity of beer and started vomiting. Because the alcohol depressed his normal cough reflex, the gas-trie contents were forced into the air passages and caused his death. Dr. Creed was a young man in good health. Although the vomiting was not abnormal, the aspiration of the vomitus was. Dr. Ichinose testified that there was evidence of injury to the lingual bronchial system and to the trachea. The internal injury to the organs from the aspiration of the gastric contents of the stomach caused the death by creating laryngeal spasm and suffocation.

The direct evidence of Dr. Ichinose is of more probative value than Dr. Hair’s comments based solely on Dr. Ichinose’s findings. Dr. Hair himself, although he questioned Dr. Ichinose’s final conclusion that death resulted from the gastric contents in the larynx and tracheobronchial tree, said that Dr. Ichinose had a better basis for his judgment. . Although Dr. Hair said the evidence he examined secondhand was insufficient to sustain Dr. Ichinose’s conclusion as to cause of death, he admitted the probability of death occurring in that fashion.

Dr. Ichinose’s autopsy protocol notes in the second paragraph that: “No evidence of internal body trauma is observed.”, but his report goes on to describe the regurgitated gastric contents present in the esophagus, the lingual bronchial system and the trachea. He explained in deposition that he was not equating trauma with injury in the protocol but was using trauma to refer to such injuries as fractures and tearing of organs.

“Visible injuries or marks need not be bruises, contusions, lacerations, or broken limbs, but may be internal injuries the existence of which may be outwardly indicated or perceived through observation or examination of the insured.” 44 Am.Jur.2d § 1225.

Dr. Ichinose’s examination was hindered by the decomposition of the body, but he stated that there was injury to Dr. Creed’s organs because of anoxia or loss of oxygen, causing injury to the brain and other organs. Dr. Ichinose went on to describe chemical injury to the trachea. Dr. Ichi-nose concluded that:

“The presence of the material [gastric contents] there [the lingual bronchial system and the trachea] in my own mind documents the injury operative in that area.”

This testimony establishes internal injury visibly manifest on an autopsy.

In the case of Siracusa v. Prudential Ins. Co. of America, 211 La. 1066, 31 So.2d 213 (1947), there was a badly decomposed body, and the coroner issued a certificate similar to that herein, stating that the cause of death was undetermined and under investigation. There was no direct evidence as to the cause of the death but circumstantial evidence ruled out any possibility but that of foul play. As to the requirement of visible marks of injury, the Louisiana Supreme Court held that, where such marks and contusions have been obliterated by decomposition, this does not preclude recovery. The practical approach shown by the court in that case is applicable here and has been adopted in other jurisdictions. See 28 A.L.R.3d 413 § 5.

The evidence all indicates that Dr. Creed died when his consumption of alcohol resulted in vomiting and accidental aspiration of the vomitus because the alcohol depressed his cough reflex. There is no evidence of any other cause of death. The fact that decomposition obliterated signs of the resulting internal injuries is of no consequence in view of Dr. Ichinose’s testimony that these injuries were present. The purpose of provisions requiring visible evidence of injury is to protect insurers from sham claims and not to create an artificially high standard of proof. See 28 A.L.R.3d 413 § 3.

Plaintiff’s petition prays for 6% interest from October 24, 1973, pursuant to LSA-R.S. 22:656. Presumably October 24, 1973, is when the insurer received the proof of loss, although there is no evidence of the date in the record. However, the insurer’s reason for refusing payment is sufficient to constitute just cause under the statute, and this part of plaintiff’s claim is denied. Murphy v. Continental Casualty Company, 269 So.2d 507 (La. App. 1 Cir. 1972).

For the foregoing reasons, we find that the trial court erred as a matter of law in denying recovery. The judgment of the trial court herein is reversed, and

It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Guaranty Bank & Trust Company of Alexandria, Trustee, and against defendant, National Life Insurance Company, in the sum of Fifty Thousand and No/100 ($50,000.00) Dollars, together with legal interest from date of judicial demand until paid, and all costs.

Reversed and rendered.

      . See the analysis of Towner, supra, by Professor J. Denson Smith at 23 La.Law Review 355, and Sehonberg, supra, which indicate a contrary result. Professor Smith suggests that such a death should come “ . within the purview of the policy provi-vision [covering death by external, violent and accidental means] judged by the standard of the average man.” 23 La.Law Review 355. Compare Murphy v. Continental Casualty Company, 269 So.2d 507 (La.App. 1 Cir. 1972), where a vomiting death was declared accidental under this standard.