author: GUIDRY, Judge.

text:
    Percy A. CHAMPAGNE, Jr., Plaintiff-Appellant, v. Dorothy G. McDONALD, and Fireman’s Insurance Company, State Farm Mutual Auto. Ins. Co., Intervenor, Defendants-Appellees.
    No. 6267.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.

      Domengeaux & Wright by Terry E. Ther-iot, Lafayette, for plaintiff-appellant Percy A. Champagne.
    McBride & Brewster by Norman P. For-et, Lafayette, for intervenor State Farm Mutual.
    Bean & Rush by Ernest L. Parker, Lafayette, for defendant-appellee Dorothy G. McDonald.
    Allen, Gooch & Bourgeois, Ltd. by Randal K. Theunissen, Lafayette, for defendant-ap-pellee Fireman’s Ins.
    Before GUIDRY, FORET, and JOHNSON, JJ.
   GUIDRY, Judge.

The above numbered and entitled matter was consolidated for trial in the district court with Dorothy G. McDonald v. Percy A. Champagne, Jr., and State Farm Mutual Automobile Insurance Company, 355 So.2d 1345 (La.App. 3rd Cir. 1978), our docket number 6268. These cases remain consolidated on appeal and we decide both of these cases today. The facts and law are common to each case.

These suits have their common source in an intersectional collision between two vehicles in the City of Lafayette, Louisiana. The instant litigation is between the drivers of the vehicles and their insurers.

In suit number 6267, Percy A. Champagne, Jr. seeks to recover damages for personal injuries, medical expenses, lost wages and the $100.00 deductible under the terms of his insurance policy from Dorothy G. McDonald and her insurer, Fireman’s Insurance Company, sustained as a result of the alleged negligence of Ms. McDonald. Percy Champagne’s insurer, State Farm Mutual Automobile Insurance Company (State Farm), intervened in the suit seeking recovery of $2,201.78, said sum representing the amount paid to Champagne under the collision and medical payments provisions of its policy of insurance issued to him.

Suit number 6268 was brought by Dorothy McDonald in which she seeks recovery against Champagne and State Farm for personal injuries, medical expenses, loss of income and the amount of property damage to her automobile, unpaid by her insurer, sustained in the aforementioned collision as a result of the alleged negligence of Champagne.

After trial of these consolidated cases, the trial court found negligence on the part of each driver, said negligence constituting a proximate cause of the accident. Accordingly, judgment was rendered in each suit dismissing plaintiffs’ petitions along with all incidental actions.

Both Champagne and McDonald have perfected appeals from the adverse judgments of the trial court and State Farm has answered these appeals, seeking recognition of its intervention.

The principal issues presented on appeal are:

(1) Was McDonald guilty of negligence which was a proximate cause of the accident?

(2) Was Champagne guilty of negligence which was a proximate cause of the accident?

The record in this case establishes the following facts:

The collision occurred at approximately 3:54 A.M. on the morning of October 10, 1974 at the intersection of Southwest Evangeline Thru way and Jefferson Street in the City of Lafayette, Louisiana. The vehicles involved in the accident were a 1974 Ford automobile being operated in a southerly direction on the Evangeline Thruway by McDonald, and a 1972 Chevrolet pickup truck being operated in an easterly direction on Jefferson Street by Champagne. At the intersection, Evangeline Thruway is a multi-lane highway, consisting of three lanes of travel in a southerly direction. Jefferson Street is a four-lane highway running generally east and west, with two lanes of travel in each direction. At the time of the accident, traffic traversing the above intersection was controlled by a semaphoric traffic signal suspended above the center of the intersection. Posted speed limits at the time of the accident were 40 mph for the Thruway and 30 mph for Jefferson Street. Weather conditions were described as clear and dry. The intersection received illumination from street lights and other sources. The record reveals no visual obstructions which would seriously interfere with traffic attempting to negotiate the intersection.

In order to fully comprehend the sequence of events leading up to the accident, it is necessary to describe the intersections encountered by McDonald immediately pri- or to the accident. A driver traveling south on Southwest Evangeline Thruway will encounter the intersections of Mudd, Simcoe and Third Streets immediately before reaching the Jefferson Street intersection. These intersections are all controlled by semaphoric traffic signals. The normal operating sequence of these signals was “green-caution-red-green.”

At the time of the accident, McDonald was employed at Lafayette General Hospital as a respiratory technician. In the early morning hours of October 10, 1974, she was summoned by an emergency call to attend to an infant who was being brought to the hospital with a respiratory difficulty. She left her home and proceeded to the hospital, traveling south along the Southwest Evangeline Thruway.

While on patrol that morning, Officer Kenneth Holleman of the Lafayette City Police Department observed the McDonald vehicle heading south on the Evangeline Thruway at an excessive rate of speed. He clocked her speed at between sixty and seventy mph. After observing her vehicle run the red light at Mudd Street intersection, he stopped her just prior to the Simcoe Street intersection which was approximately three blocks from the accident. She got out of her car and had a conversation with Officer Holloman in which he learned that she was on an emergency call to Lafayette General Hospital. Officer Holleman observed that the emergency flashers on her vehicle were in operation at this time. He gave her a verbal warning and allowed her to proceed. They both reentered their automobiles whereupon McDonald approached the Simcoe Street intersection, looked both ways, and proceeded through said intersection in violation of a red traffic light then facing her lane of travel. Officer Holleman observed the traffic signal at the next intersection (Third Street) turn red as she approached that intersection. He observed her brake lights come on momentarily and then go off again. At this point, he turned off Southwest Evangeline Thruway and lost sight of the McDonald vehicle.

The evidence then indicates that the McDonald automobile converged on the Jefferson Street intersection traveling in the far right lane of the Thruway at approximately the same time as the truck being driven in an easterly direction on Jefferson Street by Champagne.

Champagne is employed as a Deputy Sheriff for St. Martin Parish. On the afternoon prior to the accident, he had attended a fish fry at the Evangeline State Park in St. Martinville, Louisiana, being given by the St. Martin Parish Sheriff’s Department as a celebration for those persons passing a refresher course. He arrived at this function at 7:30 or 8:00 P.M. that evening and stayed until around a quarter to twelve. Champagne testified that he did not consume any alcoholic beverages while at the celebration.

He left the Park alone and drove to the Shangri-La Lounge on La. 94 where he consumed one 10 ounce can of beer. He then proceeded to Fontenot’s Lounge in Lafayette where he was to meet some friends. He played pool most of the time there and consumed a- total of three cans of beer. His friends never did arrive, so he left Fonten-ot’s Lounge and headed back towards his home in Breaux Bridge. He denied stopping at any other establishments. After leaving Fontenot’s, Champagne traveled along a route which took him to Jefferson Street. He entered Jefferson Street and turned toward the Evangeline Thruway intersection, traveling in the inner (left) lane of the highway.

The record does not clearly establish which vehicle entered the intersection first, although it is clear from the evidence that the vehicles entered the intersection almost simultaneously. The McDonald vehicle swerved to the left as she attempted to take evasive action to avoid the collision. The front of the Champagne vehicle struck the right (passenger) side of her automobile, with the point of impact occurring in the far left lane of the Thruway at a point approximately in the center of the outer (right) lane of Jefferson Street.

McDonald testified that after the initial impact, the wheels on her vehicle became locked and the accelerator either became stuck or depressed, causing her vehicle to continue in a large curving path to the right striking a building, a billboard and some gas pumps. The McDonald vehicle traveled a total distance of 320' ten inches from the point of impact to its final resting place. Her car ended up on the west side of the Thruway, facing northeast. Champagne was thrown from his vehicle, which came to rest on Jefferson Street between the two Thruways, facing the Southwest Thruway.

Officer Robert Johnson of the Lafayette Police Department drove upon the accident moments after it occurred and assumed command as the investigating officer. He was aided in his investigation by Officer Holleman who responded to his radio call for assistance.

While at the scene of the accident, Officer Johnson detected a moderate odor of alcohol coming from Champagne. Approximately one hour after the accident, while at Lafayette General Hospital, Champagne consented to have a blood sample taken from him. An analysis of this blood sample later indicated a blood alcohol content of .13.

There were no witnesses to the accident other than the two drivers.

The trial judge, in written reasons, concluded that McDonald was driving with her emergency flashers on and was traveling at a high rate of speed and proceeded through the intersection under a red light in an attempt to beat Champagne across the intersection. The trial judge also found that Champagne was driving under the influence of intoxicants and was negligent in not seeing McDonald with her emergency blinkers on. Accordingly, both suits were dismissed with prejudice, along with the intervention of State Farm.

NEGLIGENCE OF MCDONALD

At the outset, we note that at the trial of this case testimony pertaining to the manner in which McDonald was operating her automobile immediately prior to the accident was received in evidence over the objection of McDonald’s counsel. In his brief to this Court, her counsel contends that the trial court committed error in receiving this evidence, urging that assuming her conduct to be traffic violations, evidence of prior criminal acts (other than convictions) is not admissible. He contends that testimony concerning her driving conduct immediately prior to the accident should have been excluded.

We find no merit in this contention, as we conclude that evidence of McDonald’s prior acts of driving was relevant and competent and thus properly admissible. While negligence may not be established by proof of an act of prior negligence, Sullins v. City of Shreveport, 229 So.2d 390 (La.App. 2nd Cir. 1969), we feel that McDonald’s prior conduct is so closely related both in time and place to her alleged negligent conduct (traveling at a high rate of speed and running the red light at the Jefferson Street intersection) as to constitute a part of a continuous sequence of events which culminated in the accident. In 65A C.J.S. Negligence § 226, we find the following pertinent language:

“Evidence tending to show the actions and conduct of the person charged immediately prior to, and at the time of, the alleged negligent act is competent and admissible, provided it was part of the same transaction as that which resulted in the accident or injury complained of; but proof of prior misconduct, unrelated to the accident in issue, is inadmissible. In other words, evidence of conduct prior to an accident is usually admissible if it is not too remote in point of time and space, and is of such a nature that an inference may reasonably be drawn that it continued until the point of the accident, or is of such a nature as to explain or characterize the conduct of a party as shown by the evidence.”

At trial, an issue arose as to who had the green light upon entering the intersection. McDonald’s testimony that she was favored by the green light was directly contradicted by Champagne’s testimony and is inconsistent with statements allegedly made by her at the scene of the accident to the effect that she entered the intersection under a caution light in an attempt to beat Champagne across. The trial judge resolved this factual issue in favor of Champagne. We find no manifest error in his conclusion that McDonald proceeded through the intersection in violation of a red light and that such conduct was a proximate cause of the collision which ensued.

The depositions of Officers Holleman and Johnson were introduced at trial in lieu of their actual testimony. Officer Holleman’s testimony that he observed the light at the Third Street intersection turn red as McDonald approached said intersection was corroborated by McDonald’s own testimony that the light was red for her when she got to Third Street. He saw her brake lights come on momentarily, but does not know whether she stopped for the intersection or not, as he lost sight of her vehicle. McDonald testified that she did stop at the Third Street intersection, although she doesn’t know the color of the light when she proceeded from the intersection.

Officer Johnson testified that he timed the traffic lights on the Thruway four times that night for his report, and found that the lights were synchronized in such a manner that the light at Jefferson Street will turn red four seconds after the light at Third Street turns red.

Officer Holleman had patrolled that area for almost two years. He testified that if McDonald went through the light when it was red at Third Street, and proceeded at a normal rate of speed, the light would be definitely red at Jefferson when she arrived there.

The record indicates that McDonald had run at least two red lights prior to the accident and that she had been disregarding speed and traffic regulations in her haste to reach the hospital as soon as possible. Apparently the trial judge concluded that she continued operating her vehicle in such a manner as she left the Third Street intersection and passed from Officer Holleman’s field of vision. This being considered, along with testimony regarding the synchronization of the traffic signals and the four second delay in the light change sequence from Third Street to Jefferson Street, it logically follows that McDonald encountered a red light as she approached the Jefferson Street intersection. Considering her conduct at the previous intersections and her motives for driving in such manner, we will not disturb the trial judge’s findings that she proceeded into the Jefferson Street intersection under a red signal. Reasonable factual conclusions of the trial court should not be disturbed in the absence of manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973).

Having found negligence on the part McDonald, we next consider the contention of her counsel that she should be exonerated from negligence because of her status as a “rescuer”. of

We need not determine whether McDonald enjoyed the status of a rescuer as she rushed to the hospital, as we conclude that her conduct under the circumstances would not be excused even if we found the “rescue doctrine” applicable to the instant situation.

While rescuers are favored by our law, Lynch v. Fisher, 41 So.2d 692 (La.App. 2nd Cir. 1949); Gambino v. Lubel, 190 So.2d 152 (La.App. 4th Cir. 1966, writs refused); Chastain v. Allstate Insurance Company, 212 So.2d 243 (La.App. 2nd Cir. 1968), the law also establishes limits beyond which even a rescuer’s substandard conduct will no longer be tolerated. In Hebert v. Perkins, 260 So.2d 15 (La.App. 4th Cir. 1972), defendant, sounding his horn and displaying a white handkerchief, was involved in a collision when he ran a red light at thirty mph while rushing an apparent heart attack victim to the hospital. The court found liability on the part of defendant, stating:

“But there are limits to beyond-the-law acts of a rescuer which may be justified on the theory that the legislature does not intend to hinder the rescue of a person in danger.
# * tit * * *
We view the ultimate test to be that of the reasonable man, and, in our context, the test is that of the reasonable rescuer under the prevailing circumstance. We cannot accept running a red light at 30 mph as the act of a reasonable rescuer.”

While we realize the urgency of the situation which faced McDonald and can appreciate her desire to get to the hospital as soon as possible, we cannot accept her conduct in entering an intersection at a high rate of speed under a red light without first ascertaining that favored traffic was aware of the situation and would yield the right of way as that of a reasonable rescuer under the circumstances. Her conduct simply goes beyond that which the law will permit in its desire to favor those persons who render aid to a helpless victim.

We likewise reject the contention that the provisions of LSA-R.S. 32:24 should be extended to this situation so as to relieve McDonald of “a technical violation of the red light stop law”. This statute allows an authorized emergency vehicle to proceed past a red light after slowing down or stopping as may be necessary for safe operation. Although admittedly she was not driving an authorized emergency vehicle, it is argued that the provisions of R.S. 32:24 should apply in this situation, as she was en route to Lafayette General Hospital on an emergency call with her emergency lights flashing.

Even if we were to sanction such a judicial extension as suggested by counsel, we find that the provisions of R.S. 32:24, would not relieve McDonald of her negligence. By its own terms, the statute imposes a duty on the driver of such vehicle to drive with due regard for the safety of all persons. A breach of this duty will result in a finding of negligence on the part of the driver. Fleming v. State Department of Hospitals, 308 So.2d 366 (La.App. 1st Cir. 1975, writ refused); Carpenter v. Hartford Accident & Indemnity Co., 333 So.2d 296 (La.App. 1st Cir. 1976); Weber v. State Farm Mutual Automobile Insurance Company, 347 So.2d 336 (La.App. 4th Cir. 1977); Bergeron v. Port Allen Mortuary, Inc., 178 So.2d 442 (La.App. 1st Cir. 1965, writ refused).

Thus, even if we apply the provisions of R.S. 32:24 to McDonald, she still owes at least the standard of care required of emergency vehicles equipped with flashing lights and sirens. Hebert v. Perkins, supra. In Fleming v. State Department of Hospitals, supra, an ambulance driver with emergency lights and siren in operation attempted to negotiate an intersection in the face of a red light by slowing almost to a stop before proceeding to cross. He was found to have been negligent in failing to see an oncoming vehicle which struck his ambulance.

For all of the above reasons we find that the trial court correctly concluded that McDonald was negligent and such negligence was a proximate cause of the accident.

NEGLIGENCE OF CHAMPAGNE

Before addressing the issue concerning Champagne’s contributory negligence, we deem it appropriate to first consider an evidentiary ruling made by the trial court which is alleged by McDonald to be erroneous.

At trial, McDonald offered to prove that a blood test taken from Champagne approximately one hour following the accident and analysis thereof showed a blood alcohol content of .13. She also offered to prove through the testimony of expert witnesses the effect of such a blood alcohol content on the ability of one to drive. The trial court disallowed any evidence in regard to the results of the aforesaid blood test and the testimony concerning the effect of such a blood alcohol content on one’s ability to drive on the grounds that the admissibility of the above in civil proceedings is prohibited by the provisions of LSA-R.S. 32:662.

We conclude that the trial court erred in its refusal to allow the admission of such evidence. R.S. 32:662 only proscribes the use of the “presumptions” contained therein in civil proceedings and in no way prejudices the right of a civil litigant to

introduce evidence of a person’s blood alcohol content and to have competent expert witnesses interpret the effects of such on a person’s ability to operate a motor vehicle. Brown v. Collins, 223 So.2d 453 (La.App. 3rd Cir. 1969). See also Bradley v. Allstate Insurance Co., 307 So.2d 132 (La.App. 1st Cir. 1974, writ refused); and Prestenbach v. Sentry Insurance Company, 340 So.2d 1331 (La.1976).

Although we conclude that the district court erred in refusing to admit such evidence, our careful examination of the record convinces us that this error was harmless, in that it is not shown that the intoxication of Champagne to the extent reflected by McDonald’s offer of proof was a proximate cause of the accident.

We next consider whether Champagne was guilty of any other negligence, independent of his intoxication, which was a proximate cause of the accident. According to his version, as Jefferson Street approaches the Evangeline Thruway intersection, it dips down to form an underpass and then rises to again become level with surrounding streets. Champagne observed his speedometer upon exiting from the underpass and noted a speed of approximately twenty-five mph. He first saw the signal light at the intersection as he was coming from underneath the underpass to level ground, and observed that it was green. His testimony was to the effect that the light remained green from the time he came out from under the underpass to the time that he entered the intersection. He did not see the McDonald vehicle until it was approximately ten feet to his left, as his attention was directed at the traffic signal. Champagne candidly admitted that he did not check for traffic approaching the intersection on the Thruway. He had the green light and wasn’t expecting to encounter another vehicle crossing the intersection from his side in violation of a red signal.

Able counsel for McDonald and Fireman’s Insurance Company contends that the fact, standing alone, that Champagne did proceed on a green light is not sufficient to exonerate him from liability, relying on Denton v. Fontenot, 216 So.2d 310 (La.App. 3rd Cir. 1968). While we consider the decision in Denton, supra, to be based on sound legal principles, we find that case inapplicable' to the case at bar because of certain distinguishing factual characteristics. In Denton, supra, a driver favored by a green light proceeded through an intersection, colliding with the fifth or sixth vehicle in a funeral procession. This Court concluded that the driver on the favored street was negligent in failing to maintain a proper lookout, finding that the fact that he had observed one car go through the red light, with another vehicle closely following should have caused him to suspect that a funeral procession was traversing the intersection.

However, in the instant case, Champagne was not aware of the presence of the McDonald vehicle until it became impossible for him to avoid the accident. Thus, any negligence on his part must be predicated on his failure to maintain a proper lookout as he proceeded through the intersection.

As aforesaid, the trial judge in written reasons, found Champagne’s negligence to consist of his failure to see McDonald with her emergency flashers on. In making a determination as to whether or not his conduct under the circumstances constituted negligence, we must first define the degree of care required of Champagne as he entered the intersection favored by the green light.

A motorist approaching an intersection controlled by semaphore signals, who is favored by a green light, is entitled to assume that traffic approaching the intersection from either side on a red light will comply with the red light and respect his right-of-way. Bourgeois v. Francois, 245 La. 875, 161 So.2d 750 (La.1964); Carter v. New Orleans Public Service, Inc., 305 So.2d 481 (La.1974). The favored motorist is not obligated to look to his left or right before entering the intersection, Correge v. Webb, 284 So.2d 355 (La.App. 4th Cir. 1973, writ refused); Bradley v. Allstate Insurance Co., supra; Keyser v. Triplett, 322 So.2d 294 (La.App. 1st Cir. 1975, writ refused); Welton v. Falcon, 341 So.2d 564 (La. App. 4th Cir. 1976, writs refused), and will be held accountable only if he could have avoided the accident with the exercise of the slightest degree of care and fails to do so. Bradley v. Allstate Insurance Co., supra; Bourgeois v. Francois, supra. All that is required is that the favored motorist maintain a general observation of the controlled intersection. Jordan v. Great American Insurance Company, 248 So.2d 363 (La. App. 4th Cir. 1971); Modica v. Manchester Insurance & Indemnity Co., 284 So.2d 791 (La.App. 4th Cir. 1973).

We thus conclude that as Champagne proceeded under the green light, he had a duty to maintain a general observation of the intersection, and to observe other traffic approaching him from his front, but not to be alert to the possibility of vehicles violating the red light from either side.

The record in the instant case is barren of any evidence with which we could conclude that Champagne should have seen the McDonald vehicle prior to its entry into the intersection, and we find no evidence indicating that he was not exercising the degree of care required of him as he proceeded through the intersection. Accordingly, we find manifest error in the trial court’s conclusion that Champagne was negligent in failing to see the emergency blinkers on the McDonald vehicle.

Considering the foregoing, we find without merit the contention of McDonald that Champagne had the last clear chance to avoid the collision. The doctrine of last clear chance is only applicable when both parties have been found to be guilty of negligence which was a proximate cause of the accident. Mitchell v. Sigrest, 345 So.2d 141 (La.App. 1st Cir. 1977).

QUANTUM

We must next determine the amount of damages to which Champagne is entitled.

As a result of the accident, Champagne was hospitalized at Lafayette General Hospital with multiple contusions and abrasions on his body. X-rays revealed no evidence of fractures, and he was released the following day. These injuries seemed to have been relatively minor, as they resolved themselves in three to four weeks, with the exception of chest pains which continued for about five months.

He was subsequently treated by Dr. Ernest Yongue for complaints of chest pain consisting of subjective complaints of pain and tenderness in the area around the sternum. His condition was diagnosed by Dr. Yongue as a contusion of the chest with possible fracture of the left fifth and sixth costochondral cartilages, along with a depressive reaction. His treatment consisted of mild sedatives and use of heat treatments. He was later placed on an antidepressant drug.

Champagne continued to receive his regular salary after the accident and is thus not entitled to any recovery for lost wages.

Considering the above, we conclude that the sum of $3500.00 in general damages will adequately compensate Champagne for his personal injuries sustained in the accident. He is also entitled to recover the amount of his property damage which consists of the $100.00 deductible amount under his insurance policy. By virtue of the subrogation receipt filed in evidence, Intervenor, State Farm, is entitled to recover the sum of $2,201.78 representing payments made to Champagne under its policy of insurance.

For the above and foregoing reasons, the judgment of the district court dismissing Champagne’s suit against McDonald and Fireman’s Insurance Company is reversed. Accordingly, it is ordered, adjudged and decreed that there be judgment in favor of Percy A. Champagne, Jr. in the sum of $3600.00 against Dorothy G. McDonald and Fireman’s Insurance Company in solido, with legal interest from date of judicial demand. It is also ordered, adjudged and decreed that there be judgment in favor of State Farm in the sum of $2,201.78 against Dorothy G. McDonald and Fireman’s Insurance Company in solido, with legal interest from date of judicial demand.

Costs both at the trial level and on appeal are to be borne by defendants.

REVERSED AND RENDERED.

      . LSA-R.S. 32:24 provides as follows:
      “A. The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to, but not upon returning from, a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
      B.The driver of an authorized emergency vehicle may:
      (1) Park or stand, irrespective of the provisions of this Chapter;
      (2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
      (3) Exceed the maximum speed limits so long as he does not endanger life or property;
      (4)Disregard regulations governing the direction of movement or turning in specified directions.
      C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible and visual signals sufficient to warn motorists of their approach, except that a police vehicle need not be equipped with or display a red light visible from in front of the vehicle.
      D. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.”

      . LSA-R.S. 32:662 provides as follows:
      “A. The chemical test or tests as provided for by this Part shall be subject to the following rulés and shall be administered as provided for hereafter:
      1. Upon the trial of any criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of alcoholic beverages the amount of alcohol in the person’s blood at the time alleged as shown by chemical analysis of the person’s blood, urine, breath or other bodily substance shall give rise to the following presumptions:
      a. If there was at that time 0.05 per cent or less by weight of alcohol in the person’s blood, it shall be presumed that the person was not under the influence of alcoholic beverages.
      b. If there was at that time in excess of 0.05 per cent but less than 0.10 per cent by weight of alcohol in the person’s blood, such fact shall not give rise to any presumption that the person was or was not under the influence of alcoholic beverages, but such fact may be considered with other competent evidence in determining whether the person was under the influence of alcoholic beverages.
      c.If there was at that time 0.10 per cent or more by weight of alcohol in the person’s blood, it shall be presumed that the person was under the influence of alcoholic beverages.
      B. Percent by weight of alcohol in the blood shall be based upon grams of alcohol per one hundred cubic centimeters of blood.
      C. The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under the influence of alcoholic beverages.
      This section has no application to a civil action or proceeding.”


source: Caselaw Access Project

license: Public Domain

text:
    Dorothy G. McDONALD, Plaintiff-Appellant, v. Percy A. CHAMPAGNE, Jr., and State Farm Mutual Automobile Insurance Company, Defendants-Appellees.
    No. 6268.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.
    Domengeaux & Wright by Terry E. Ther-iot, Lafayette, for plaintiff-appellant Percy A. Champagne.
    McBride & Brewster by Norman P. For-et, Lafayette, for intervenor State Farm Mutual.
    Bean & Rush by Ernest L. Parker, Lafayette, for defendant-appellee Dorothy G. McDonald.
    Allen, Gooch & Bourgeois, Ltd. by Randal K. Theunissen, Lafayette, for defendant-ap-pellee Fireman’s Ins.
    Before GUIDRY, FORET and JOHNSON, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case of Percy A. Champagne, Jr. v. Dorothy G. McDonald, and Fireman’s Insurance Company, 355 So.2d 1335 (La.App. 3rd Cir. 1978), we conclude that the accident giving rise to this litigation was caused solely and proximately by the negligence of Dorothy G. McDonald. Accordingly, we affirm the trial court’s judgment dismissing plaintiff’s suit. Costs both on the trial level and on appeal are to be borne by plaintiff.

AFFIRMED.


author: FORET, Judge.

text:
    John Edward BILLEDEAUX, Plaintiff-Appellant, v. O. J. ADAMS, Defendant-Appellee.
    No. 6288.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearings Denied March 29, 1978.
    Writ Granted May 12, 1978.
    Writ Refused May 12, 1978.

      Baggett, McCall, Singleton and Ranier by Homer C. Singleton, Jr., Lake Charles, for plaintiff-appellant.
    Woodley & Fenet by Robert W. Fenet, Lake Charles, for defendant-appellee.
    Don L. Broussard, Lafayette, for interve-nor-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   FORET, Judge.

This is a suit for damages instituted by John Edward Billedeaux, plaintiff-appellant herein, against O. J. Adams, officer and manager of Marks Automotive Discount Center, Inc., and Charter Oaks Fire Insurance Company, liability insurer of Adams. The subject of the suit is for personal injuries, etc. sustained as a result of an alleged accident occurring on or about April 10, 1976.

Travelers Insurance Company, the workmen’s compensation insurer of Marks Automotive Discount Center, Inc., intervened in the suit for workmen’s compensation benefits paid to Billedeaux.

The trial court found the defendant negligent, but found the plaintiff to be contrib-utorily negligent, and therefore dismissed plaintiff’s suit. However, no disposition of Travelers’ intervention was made by the trial court judgment. Travelers has not joined plaintiff in this appeal.

On appeal, O. J. Adams and Charter Oaks Fire Insurance Company filed a peremptory exception of no cause or right of action, asserting that Act No. 147 of 1976, amending the Louisiana Workmen’s Compensation Act, to provide that an employee cannot maintain suit for damages against his employer, or any principal officer, etc., is remedial legislation which should be given retroactive effect. We find no merit in this contention of defendants. They rely on the case of Barr v. Preskitt, M.D.Ala., E.D., 389 F.Supp. 496 (1975), which was cited by the 24th Judicial District Court, State of Louisiana, in a case entitled Green v. Liberty Mutual Insurance Company, et a Is., to extend retroactive effect to Act 147. However, the Fourth Circuit Court of Appeal, in reviewing the Green ease decided by the Twenty-Fourth Judicial District Court, reversed the holding of the district court, refusing to follow Barr v. Preskitt, supra, and held that Act 147 was not remedial or procedural, and did not have retroactive effect, but in fact was applicable only from the effective date of the act, and subsequent thereto. Green v. Liberty Mutual Insurance Company et ah, 352 So.2d 366 (La.App. 4 Cir. 1977) (Docket Number 9025 of the Fourth Circuit). We fully agree with the Fourth Circuit holding in Green, for the reasons stated therein.

The trial court found the defendant, O. J. Adams, to be negligent in maintaining a dangerous place for plaintiff to work in, but found that the plaintiff was eontributorily negligent. Neither plaintiff-appellant nor defendant-appellees contest the factual findings of the trial court. We agree with these findings of the trial court, and quote therefrom:

“On April 10, 1976, the plaintiff was employed by Marks Automotive Discount Center, Inc., of which Mr. Adams was the president and principal stockholder, to repair and replace exhaust systems on cars and trucks. He has alleged that while coming out of a pit designed for that purpose “a step on the stairs . had broken or come loose and slipped, thereby causing petitioner to fall.” Although there is a serious dispute as to whether a board on the step moved, it is clear from the evidence that on that day the plaintiff suffered an injury to his left knee while leaving the pit.
“None of the plaintiff’s fellow employees [who] went up and down the steps on the day of his injury noticed any of the boards which made up the steps or treads being loose or moving. However, the stairs were old and crudely constructed, and it was common knowledge among the employees that the nails in the treads worked loose simply through use. Thus, it became necessary to re-nail and replace boards on the stairs from time to time. Generally, this was done by Douglas Day, an old employee who made most of the repairs that were needed on the premises. However, boards were also re-nailed and replaced by other employees [who] worked in the pit, except possibly the plaintiff.
“Gary J. Gaudin was the manager in charge of the muffler replacements and automotive parts shop, including the pit, while O. J. Adams spent most of his time in connection with the trailer sales. This was not a very large business establishment and Mr. Adams also went into the pit on occasion, sometimes several times a week. Both Gaudin and Adams testified that if they became aware of anything being wrong with the steps they would see that it was repaired by Day or another employee. The materials and tools necessary for this purpose were generally kept on the premises.
“Although the matter is not entirely free of doubt, the court concludes the plaintiff has established by a preponderance of the evidence that he twisted his knee because of a loose board on the top wooden step as he was coming out of the pit on April 10, 1976.
“The court further concludes that the responsibility for furnishing the plaintiff a safe place to work rested on O. J. Adams under the circumstances presented, and that he and his insurer are liable to the plaintiff for his damages unless the latter is barred from recovery by reason of his contributory negligence.
“As stated above, it was common knowledge that the boards on the stairs became loose from time to time and certainly the plaintiff was aware of this. The court is also convinced that the boards on the treads did not become detached suddenly. Instead, they loosened gradually over a period of time as the employees stepped on them in going in and out of the pit many times each day. It is therefore clear that if the plaintiffs knee injury was caused by the movement of a loose board on the top step, as the court has so concluded, the board was loose and moving each time the plaintiff went up and down the stairs that morning and probably before. Thus, the danger was open and obvious and one of which the plaintiff was or should have been aware.”

We agree with the trial court that the steps descending from the main floor of the shop into the pit were dangerous, being old, dilapidated, and without benefit of hand railings to assist persons ascending or descending thereon.

The other issue remaining is whether or not plaintiff-appellant was con-tributorily negligent and/or assumed the risk of the harm which ultimately resulted in his injury.

We disagree with the trial court in its holding that plaintiff-appellant was contrib-utorily negligent.

For an employee to be held contributorily negligent and/or to have assumed the risk of the harm which ultimately resulted in his injury, the defendant must prove, by a preponderance of the evidence, that the plaintiff voluntarily and knowingly exposed himself to the danger which resulted in his injury. That determination requires a dual finding of (1) a known and obvious danger and (2) a readily available reasonable alternative. Coon v. Blaney, 353 So.2d 744 (No. 6210, La.App. 3 Cir. 1977); Pearson v. Hartford Acc. and Indem. Co., 345 So.2d 123 (La.App. 1 Cir. 1977), writ refused 347 So.2d 255, 256; Coco v. Winston Industries, Inc., 330 So.2d 649 (La.App. 3 Cir. 1976), reversed on other grounds, 341 So.2d 332, and cases cited therein.

Coco v. Winston Industries, Inc., supra, stated at page 662, ending on 663:

“The law is well settled that a workman is not to be held contributorily negligent because he does work assigned to him under dangerous conditions for which his employer is responsible and at which assignment he must work or suffer dismissal.

In O’Keefe v. Warner, 288 So.2d 911 (La.App., 1st Ct. 1974) it was said:

“We conclude, as apparently did the jury, that the appellants failed to prove contributory negligence or assumption of the risk on the part of O’Keefe. The duties of his work required him to be where he was, and he was doing his best to discharge those duties.
We agree with the observation by Judge Redmann of the 4th Circuit in a somewhat similar situation:
‘. . .a workman’s superior cannot create or permit danger and send the workman into it with a warning and escape liability on a theory that the workman was contributorily negligent merely by going into the danger. The workman’s only other alternatives are to try to tell his superior how to run the job, or to quit.’ Chaney v. Brupbacher, 242 So.2d 627, at 631 (La.App. 4 Cir. 1970).” (Citations omitted.)

The trial court herein made a finding that the risk of harm from ascending, or descending from, the steps located in the muffler pits were known and obvious to plaintiff Billedeaux. The plaintiff himself testified that the steps were loose and wobbly, and at times, moved. With that ruling we do not disagree. However, it also made a finding that a reasonable alternative existed, stating:

“. . . The testimony in this regard contains no indication that the plaintiff would have lost his job had he re-nailed the loose board himself, or requested that it be done.” (Tr., pg. 203)

With that finding as to a “reasonable alternative”, we cannot agree.

We believe that by the term “a readily available reasonable alternative” is meant that another option was open to the employee: he could have worked elsewhere, at a place which was both safe and free of any risk of harm. As regards an alternate means of access to the muffler pits, none existed or was furnished. There was no other means of ingress into and egress from, the muffler pits other than the steps upon which plaintiff Billedeaux fell.

The employer must inspect and maintain the working premises in a safe and workman-like condition. Coon v. Blaney, supra; Pearson v. Hartford Acc. & Indem. Co., supra; Coco v. Winston Industries, Inc., supra; Galloway v. Employers Mutual of Wausau, 286 So.2d 676 (La.App. 4 Cir. 1973), writ refused 290 So.2d 333; Hall v. Hartford Acc. & Indem. Co., 278 So.2d 795 (La.App. 4 Cir. 1973), writ refused 281 So.2d 753; cases too numerous to cite. The employees, whose very jobs place them at those places in which they work, are not required to undertake that responsibility. That responsibility may be delegated to executive officers and personnel in charge of, and who oversee, the work of the non-executive employees. It cannot, however, be imposed upon those employees to whom that very same responsibility (duty) is owed by the employer.

For the above reasons, we reverse.

QUANTUM

In his petition, Billedeaux claimed damages for past and future medical expenses. No evidence was introduced as to future medical expenses, and therefore no award can be made therefor.

It was stipulated at trial that Travelers Insurance Company, intervenor, had paid past medical expenses totalling $3,471.52.

However, the trial court judgment dismissing plaintiffs suit made no mention of the intervention by Travelers. Therefore, the intervention is still viable. An intervention does not fall with the main demand. C.C.P. Art. 1039, Wright v. Mark C. Smith & Sons, 283 So.2d 85 (La.1973). The implication of Wright is that a separate or consolidated judgment must be rendered disposing of the intervention.

We have allowed plaintiffs in tort suits to recover medical expenses, even though these expenses have been paid by a workmen’s compensation insurance carrier. However, we have done so only where there was no claim for reimbursement made by the payer of such expenses, by way of intervention or otherwise. Richoux v. Grain Dealers Mutual Insurance Co., 175 So.2d 883 (La.App. 3 Cir. 1965) and cases cited therein at page 892.

Inasmuch as Travelers has intervened for compensation benefits paid, including medical expenses, and that intervention is still viable in the trial court, we cannot grant judgment to Billedeaux for these medical expenses.

Mr. Billedeaux’s injury was diagnosed as a tear of the medial meniscus of the left knee which was surgically repaired on April 28, 1976. He had the usual postoperative convalescence, and on June 15, 1976, the doctor recommended that he try to return to work. On July 29, 1976, Dr. Drez, who had operated on plaintiff’s knee, found the knee to be stable. Although he felt plaintiff would have some non-disabling pain, Dr. Drez was of the opinion that plaintiff could resume his normal work. Plaintiff returned to Dr. Drez’s office on December 30, complaining of the leg, but the doctor found no reason therefor. He did assign a 5% permanent partial disability of the leg, which would not prevent the plaintiff from resuming his normal activities, even though some discomfort might be experienced on weather changes or extreme exertion. Dr. Edmond C. Campbell examined plaintiff on October 26,1976, and while concluding that plaintiff was able to'resume his previous work at that time, the doctor felt that plaintiff had a permanent partial impairment of approximately 15% of the left lower extremity as a result of his injury and the surgery.

We are of the opinion that plaintiff is entitled to an award of Seven Thousand Five Hundred ($7,500) Dollars for the general damages which he suffered as a result of this accident.

In accordance with the above, the judgment of the trial court is hereby reversed, and judgment is rendered in favor of the plaintiff, John Edward Billedeaux and against defendants, O. J. Adams and Charter Oaks Fire Insurance Company, jointly, severally, and in solido, in the amount of SEVEN THOUSAND FIVE HUNDRED ($7,500.00) DOLLARS, with legal interest thereon from date of judicial demand, and for all costs of these proceedings in both the trial court and this Court.

REVERSED AND RENDERED.


author: WATSON, Judge.

text:
    Kenneth R. RIDDLE et al., Plaintiffs-Appellants, v. Robert MENARD et al., Defendants-Appellees.
    No. 6294.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearings Denied March 29, 1978.

      C. Kenneth Deshotel, Opelousas, for plaintiffs-appellants.
    Davidson, Meaux, Sonnier & Roy, L. Lane Roy, Lafayette, Louis B. Viviano, Opelou-sas, Lewis & Lewis by John M. Shaw, Opel-ousas, Voorhies Labbé by Richard D. Chap-puis, Jr., Lafayette, for defendants-appel-lees.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Plaintiffs, Kenneth R. Riddle, and his wife, Anna Soileau Riddle, filed this suit to recover damages resulting from an automobile accident which occurred around 1:00 p. m. on June 12, 1975, in Opelousas, Louisiana. There was a collision at the intersection of Court and Franklin Streets between a Camaro automobile driven by Sandra Jou-bert Menard and a Pontiac station wagon driven by Mrs. Riddle. Mrs. Riddle was alone in the Pontiac while Mrs. Menard and her young sister, Cynthia Joubert, were in the Camaro.

Sandra Menard and her husband, Robert, were named as defendants by the Riddles; and they reconvened for damages. At trial, the Menards admitted the only damage sustained was to their automobile, stipulated to have a value of $950. Since the Menards were uninsured, the Riddles’ liability insurer, American Insurance Company, was named as defendant on their uninsured motorists’ coverage. American Insurance Company filed a third party demand against the Menards, as well as Employers Commercial Union Insurance Company of America, insurer of the city of Opelousas, and against the owners of the property at the intersection where the accident occurred, Dorothy Edwards and Gladys Edwards, and their insurer, Audubon Insurance Company, on the theory that either the City or the property owners were responsible for obstructing the view at the intersection.

Mrs. Riddle’s claim is for her personal injuries sustained in the collision and for her lost wages; Mr. Riddle’s claim is for her medical expenses and the damage to the station wagon.

The jury specifically found that: Anna Riddle was negligent; her negligence was a proximate cause of the accident; Sandra Menard was also guilty of negligence which was a proximate cause of the accident; neither the property owners nor the city of Opelousas were negligent; Anna Riddle had the last clear chance to avoid the accident. The trial court asked the jury to fix damages for the appellate record. Kenneth Riddle’s damages were fixed by the jury at $1,000 and those of Anna Riddle, Sandra Menard and Robert Menard as “none” (TR. 120). The jury voted 10-2 that Anna Riddle was negligent; and 11-1 that Anna Riddle had the last clear chance to avoid the accident.

The Riddles moved for a new trial. In denying a motion for new trial, the trial judge expressed his opinion that the jury verdict was unjust; that plaintiff Anna Riddle should have recovered since she was not guilty of any negligence and did not have the last clear chance to avoid the accident. The judge believed her to be a “helpless victim” (TR. 137). The trial judge also stated that Anna Riddle had proved damages and there was no evidence to the contrary. The trial judge indicated that perhaps the jury found Anna Riddle’s personality abrasive or the jury was offended because she exaggerated her caution. In effect, the trial judge concluded that the jury verdict was contrary to the law and the evidence under LSA-C.C.P. art. 1972 and did not give impartial justice as required by LSA-C.C.P. art. 1814. However, since all available evidence had been presented, the trial judge decided that, in the interest of economy, the problem should be resolved on the appellate level. The trial court also stated his idea concerning quantum of damages.

The trial court should have granted a new trial in view of his strong feelings that the judgment is contrary to the law and the evidence. However, in Matthews v. New Orleans Terminal Co., 45 So.2d 547 (La.App.Orl.1950); Sumrall v. Trosdair, 270 So.2d 921 (La.App. 4 Cir. 1972); and Burt v. Shreveport Ry. Co., 142 La. 308, 76 So. 723 (1917), it has been held under similar circumstances that, where the record is complete, the appellate court should decide the case; the question of a new trial being moot at that point. We will decide the case, agreeing with the statement in Matthews, supra, as follows:

It is the duty of a trial court to see that justice is done between the litigants, and if, in a case tried before a jury, the judge believes that the verdict is unauthorized and unjust, he should grant a new trial, and the fact that such course may involve time and additional expense is an insufficient reason for his making a verdict, which in his opinion is not supported by the law and the evidence and will operate an injustice, the judgment of his court.
“However, in a case where the trial court believes that the verdict of the jury is contrary to the law and the evidence, but refuses a new trial, rather than remand the case, it is the duty of the appellate court to pass a definitive judgment on the record before it, irrespective of whether the district judge was or was not correct in his refusal to grant the new trial.” 45 So.2d 549, 550.

Following the denial of a new trial, the Riddles have appealed. The issues to be decided are:

(1) whether the jury erred manifestly in finding Anna Riddle negligent and finding that she had the last clear chance to avoid the accident; and
(2) if the Riddles are entitled to an award, the quantum of damages.

LIABILITY

The evidence was as follows:

Sandra Menard testified that she was driving west on Franklin Street enroute to South City Park, accompanied by her sister, Cynthia Joubert. There was a stop sign on Franklin Street at its intersection with Court Street. Mrs. Menard claimed that she stopped at the stop sign but could not see because of hedges on the righthand side and azaleas on the left. Then she said she edged into the intersection, looking; both ways, and was looking to the right'when she was hit on the left side. However, she said she did not see the Riddle vehicle until after the accident.

Mrs. Menard was not injured but her young sister had a cut on the eyebrow.

Mrs. Riddle, now 56 and a social worker with the St. Landry parish office of family services, testified that she was driving between 15 and 20 m. p. h. in a northerly direction on Court Street but that she stopped at the intersection because she had observed many children in the area during the past. She said she saw no approaching traffic and started into the intersection when she saw the Menard car. Her testimony at this point is a matter of considerable argument among counsel because she stated in Opelousas City Court that she saw the Menard vehicle about a third of a block away'and did not think it could stop. In the District Court she gave somewhat similar testimony. A fair reading of Mrs. Riddle’s testimony is to the effect that she saw the other car when it was some distance away (TR. 139-140) but that she was already entering the intersection when she saw the other vehicle.

Her statements simply do not support a reasonable inference as urged by some counsel that she saw the Menard vehicle, realized that it could not or would not stop, and that she had time to avoid the accident. This is the only arguable basis of last clear chance, and it overlooks the fact that there is no negligence attributable to Mrs. Riddle in the first instance.

There is no evidence that Mrs. Riddle was exceeding the speed limit; there is no evidence that she failed to keep a proper lookout; there is some indication that she may have exaggerated her caution (at various points in district court and city court she said that she stopped at the intersection or she said that she may not have stopped but that she slowed down). It is also true the damage to the vehicles indicated that she was going faster than she testified, although there is no indication that she was speeding.

According to Mrs. Riddle, when she saw the Menard car she turned her wheel to the left to avoid the collision.

It is clear that the left front of the Cáma-ro was struck by the front or right fender of the Pontiac station wagon, although the exact angle of striking is a matter of dispute. While disputed, the exact angle of striking or the exact points on the two vehicles which collided, are not decisive of the case. The fact is that the cars ran together and then the sides of the cars toward the back struck each other and the Riddle car glanced into a utility pole.

Basically and simply, the accident was an ordinary intersectional collision where one driver (Mrs. Menard) failed to yield the right-of-way to the driver (Mrs. Riddle) on the favored street. This is the only negligence in the record.

The investigating officer, Alexander Peck of the Opelousas Police Department, confirmed the manner in which the accident happened. He testified that Franklin Street has a stop sign and that Court is a through street. He verified that the Riddle vehicle was traveling north on Court and that it was lodged against a utility pole following the accident. He testified that Mrs. Riddle appeared to be injured and that he forced open the door in order to remove her from the station wagon.

Two experts testified for the opposing parties as to how in their opinion the accident occurred. Both estimated the speed of the Pontiac at approximately 20 m. p. h. and indicated that it was the faster moving vehicle. One expert thought the cars collided at a 90-degree angle and the other at a 45-degree angle.

On the basis of these facts, it is clear that Sandra Menard failed to yield the right-of-way as required by law. LSA-R.S. 32:123 B. The record reflects that she was found guilty in city court on a charge of failing to yield. There is no reasonable evidentiary basis for the jury’s finding that Mrs. Riddle was negligent or that she had the last clear chance to avoid the accident. While the appellate courts are required to give much weight to the findings of the trier of fact, likewise a finding which has no reasonable evidentiary basis must be reversed. The judgment of the trial court dismissing the claims of Kenneth R. Riddle and Anna Soi-leau Riddle will be reversed.

DAMAGES

This court is not bound by the finding of the jury that Mrs. Riddle suffered no damages or by the observation by the trial court that in his opinion Mrs. Riddle sustained $50,000 in general damages. A review of the record reveals the following essential facts relative to Mrs. Riddle’s injuries:

She was treated by Dr. N. C. Lafl-eur, a general practitioner who is Mrs. Riddle’s family doctor and who gave the only medical testimony. Immediately after the accident she was found to have a sore neck, a bruised elbow, and a cut on the knee, and in addition, she was extremely upset. X-rays revealed no fractures but reflected substantial arthritic changes in Mrs. Riddle’s neck. Dr. Lafleur stated that in his opinion she also suffered a brain concussion in the accident. Mrs. Riddle stayed in the hospital for approximately four days. She missed a total of 10 days from work immediately after the accident, although only seven of these were actual working days. From time to time after the accident she missed an additional 10 days because of her injuries. She continued to suffer pain and soreness in the neck from the time of the accident until the time of trial, but fortunately she was able to return to her duties as a social worker. Dr. Lafleur stated that in his opinion, Mrs. Riddle suffered from degenerative arthritis and the trauma of the accident caused it to flare up, causing a condition sometimes called osteoarthritis, which resulted in her neck pain. Dr. Lafl-eur stated that the prognosis was for continued pain. In his opinion Mrs. Riddle could not look forward to much improvement. He described her pain as moderate to severe. Dr. Lafleur gave a detailed account of the many times over a period of perhaps a year-and-a-half that he treated Mrs. Riddle.

It is difficult to measure the amount of pain suffered by a person who sustained an injury such as Mrs. Riddle’s. However, on the basis of her stay in the hospital, the number of days she missed from work and the description of her condition by her attending physician, it appears that the sum of $7,500 would be a fair and reasonable award for her general damages.

As to special damages, Mrs. Riddle is entitled to payment for the 17 days that she missed work at the rate of $44.32, or $760.24. Additionally, Kenneth R. Riddle is entitled to recover the following damages:

Nursing (Helen Johnson) $ 90.00
Damages to automobile 440.00
St. Landry Clinic 335.30
Dr. Lafleur (hospital treatment) 90.00
Dr. Lafleur (subsequent treatment) 194.00

The parties stipulated that in the event that American Insurance Company was found to owe special damages, it would be given credit in the amount of $515.30 paid for medical and for $255.20 paid in wages.

For the reasons assigned, the judgment of the trial court is reversed insofar as it rejects the demands of Anna Soileau Riddle and Kenneth R. Riddle. It is ordered, adjudged and decreed that there be judgment in favor of Anna Soileau Riddle and against the Riddle’s uninsured motorists’ insurer, American Insurance Company, in the full sum of $7,500 as general damages and for $760.24, as loss of wages, subject to a credit of $255.20 for loss of wages paid, together with legal interest from date of judicial demand until paid; and that there be judgment in favor of Kenneth R. Riddle and against American Insurance Company in the full sum of $1,149.30, subject to a credit of $515.30 for medical expenses paid, together with legal interest from date of judicial demand until paid.

As to the jury’s dismissal of the claims against the City of Opelousas and the property owners adjoining the intersection, we find no error and the judgment of the trial court as to these parties is affirmed.

All costs, both at trial and on appeal are taxed against American Insurance Company-

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

      .LSA-C.C.P. art. 1972:
      “A new trial shall be granted, upon contradictory motion of any party, in the following cases:
      (1) Where the judgment appears clearly contrary to the law and the evidence;
      . (2) Where the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; or
      (3) In jury cases, as provided in Article 1814.”

      . LSA-C.C.P. art. 1814:
      “A new trial shall be granted if it be proved that the jury was bribed or has behaved improperly so that impartial justice has not been done.”

      . Sandra Menard admitted that she was found guilty in Opelousas City Court of failing to yield the right-of-way at the intersection. An exhibit shows that she was fined $42.50.


author:
DOMENGEAUX, Judge.
      CULPEPPER, Judge, WATSON, Judge,

text:
    Alton RACHAL, Plaintiff-Appellee, v. HIGHLANDS INSURANCE COMPANY et al., Defendants-Appellants.
    No. 6330.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 6, 1978.
    Rehearing Denied March 29, 1978.

      Stafford, Randow, O’Neal & Smith, Hodge O’Neal, III, Alexandria, for defendants-appellants.
    Thomas & Dunahoe by G. F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and WATSON, JJ.
   DOMENGEAUX, Judge.

This is a workmen’s compensation case arising under the new provisions of La.R.S. 23:1221, as amended by Act 583 of 1975, relative to disabilities.

Plaintiff, Alton Rachal, was injured while working on a farm owned by his brother, Donald Rachal. This job was apparently used to supplement his income as a policeman for the City of Natchitoches. It was agreed between the brothers that plaintiff would receive non-monetary benefits for wages in lieu of monetary remuneration. These benefits included a pickup truck, titled to plaintiff but paid for by his brother; and also insurance, oil, gasoline, tires, and repairs for the truck.

The accident occurred on May 22, 1976, while plaintiff was attempting to adjust a cultivator on a tractor. The cultivator fell while plaintiff was trying to hold it and his back was given a sudden jerk. He experienced severe pain and was subsequently admitted to a hospital for diagnosis and treatment.

As a result of the pain plaintiff did not return to work at the farm or on the police force for approximately five months. Weekly compensation benefits of $61.33 were paid by the brother’s compensation insurer, Highlands Insurance Company, from the time of the accident until October 22, 1976, the date Alton returned to the police force on a light duty basis. Plaintiff never returned to work at the farm.

Suit to resume the payment of compensation benefits was filed on February 4, 1977, against the employer and Highlands alleging that plaintiff was totally and permanently disabled as a result of the accident on the farm. At trial the treating physician, Doctor Charles Cook, testified that plaintiff was suffering from an extruded lumbar disc which was related to the accident on the farm. Doctor Cook also confirmed plaintiff’s complaints of pain. In addition, the report of Doctor Edwin Si-monton, Jr., an orthopedist, stated that plaintiff had a degenerative joint disease at two levels in the lumbar spine. With regard to pain, Doctor Simonton concluded that plaintiff could expect exacerbation of the symptoms, including pain, in the future. However, he also stated that there could be some intermittent remission of the symptoms.

The trial court found plaintiff to be totally and permanently disabled and awarded weekly compensation benefits of $66.66, medical expenses and penalties and attorney’s fees. Defendants perfected a suspen-sive appeal. Plaintiff answered the appeal requesting an increase in attorney’s fees.

Defendants contend on appeal that the trial court erred in four respects:

1. In concluding that plaintiff is totally and permanently disabled;

2. In fixing the value of non-monetary remuneration received at the time of the accident at $100.00 per week;

3. In assessing statutory penalties and attorney’s fees; and

4. In assessing legal interest from the date of judicial demand on weekly compensation benefits.

I. TOTAL DISABILITY

The evidence adduced at trial clearly indicated that although plaintiff was working as a police officer he was doing so in substantial pain. Apparently the trial court applied the well established jurisprudential rule that an employee who returns to work can still be considered totally disabled if he is working in substantial pain.

Appellants contend, however, that the 1975 amendments to the workmen’s compensation act dealing with total and partial disabilities legislatively overrule this jurisprudence. They argue that an employee cannot be considered totally disabled if he engages in any gainful employment, regardless of whether the employee is working in pain.

We reject appellants’ contention for the following reasons. Prior to the 1975 amendment an employee would be considered totally disabled if an injury prohibited him from doing “work of any reasonable character.” La.R.S. 23:1221(1) and (2). “Work of any reasonable character” was construed to mean work of the same or similar nature that was being performed at the time of the accident. Thus a skilled laborer was considered totally disabled if he was unable to perform his special skill as a result of the injury. An unskilled laborer was considered totally disabled if he was unable to compete on the open market with able-bodied men for unskilled jobs. Lawless v. Steel Erectors, Inc., 254 La. 37, 222 So.2d 849 (1969); Olivier v. Liberty Mutual Insurance Company, 241 La. 745, 131 So.2d 50 (1961); Hughes v. Enloe, 214 La. 538, 38 So.2d 225 (1948); Ranatza v. Higgins Industries, Inc., 208 La. 198, 23 So.2d 45 (1945); Thompson v. Natchitoches Parish Hospital Service District, 335 So.2d 81 (La.App. 3rd Cir. 1976), application denied 338 So.2d 298 (La.1976); Lathers v. Schuylkill Products Company, 111 So.2d 530 (La.App. 1st Cir. 1959); Comment, 1975 Amendments to the Louisiana Workmen’s Compensation Act, 36 La.L.Rev. 1018 (1976).

Act 583 of the 1975 legislative session changed Section 1221 of the Workmen’s Compensation Act to read in part:

“SUB-PART B. DISABILITY BENEFITS
§ 1221. Temporary, permanent, or partial disability; schedule of payments
Compensation shall be paid under this Chapter in accordance with the following schedule of payments:
(1) For injury producing temporary total disability of an employee to engage in any gainful occupation for wages whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.
(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.
(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience, sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, during the period of disability, but not beyond a maximum of four hundred weeks for such partial disability resulting from injury occurring on and after September 1, 1975, and on or before August 31, 1976; . ..”

Thus it would appear that what was previously considered by the court as total disability has been legislatively converted to partial disability. Under the clear wording of the amended statute, if an employee is prevented from returning to his former employment but is not prevented from engaging in gainful activity at some job he is considered partially disabled. An employee is totally disabled only when he cannot engage in any gainful employment.

Under the previous statute there developed the jurisprudential rule, apparently applied in this case, that an injured employee could be considered totally disabled if he could work only in substantial pain. We think it significant that the legislature did not expressly modify this well established rule with the new amendments to the statute. We recently discussed this absence in Phillips v. Dresser Engineering Company, 351 So.2d 304 (La.App. 3rd Cir. 1977), a case coming before this court under the new disability provisions. The Supreme Court denied writs in this case on January 13, 1978, 353 So.2d 1048 (La.1978).

Phillips involved a welder who injured his back while he was employed as a welder’s helper. The employee experienced severe pain but was forced to return to gainful employment as a welder because of economic difficulties. The employee was making more upon return to work as a welder than he was making at the time of the accident as a welder’s helper. This court affirmed the trial court’s determination that the employee was totally and permanently disabled. We adopted with approval the language of the trial court which found that severe pain, in and of itself, could be disabling:

“[A] literal interpretation of the amended act would seem to indicate that if plaintiff is working, he is not permanently disabled but only partially disabled. I cannot believe that it was the intent of the legislature to require an injured workman who has never fully recovered from his injury, to go out and find employment and to work in substantial pain. Such a workman would be a hazard to himself and all fellow workers. In my judgment, I feel that it was the intention of the legislature to say in effect, if a workman has recovered from his injury to such an extent that he may do some income producing work, but not the same work as before injury, then he may not recover benefits under the act as a totally and permanently injured workman. [However] I do not interpret the amended act to mean a workman who is in substantial pain while doing any work must still return to some gainful employment. To hold otherwise would mean that only a paraplegic would be considered totally and permanently disabled under the present workmen’s compensation act.”

We also added our own comments in a footnote, which stated that:

“Act No. 583 of the 1975 Regular Session of the Louisiana Legislature, amending LSA-R.S. 23:1221, as to permanent and total disability makes no reference whatsoever to a situation where an injured employee recovers to such an extent that he can do some work post-injury, but does so under great or substantial pain and physical distress.
Prior to Act 583 of 1975, it was axiomatic, in Louisiana jurisprudence, that a worker who recovered sufficiently to return to gainful employment, but could only do so in great or substantial pain, was generally considered to be totally and permanently disabled. The rationale of this rule was that the workmen’s compensation act should be considered in the light of its philosophically humane overtones. Consequently, such a worker who returned to gainful employment presumably because of economic distress considerations should not be penalized therefor by denying him workmen’s compensation benefits for total and permanent disability. (The cases so holding are too numerous to mention herein.)
We would make reference, however, to the expressions contained in the text of LOUISIANA WORKMEN’S COMPENSATION, LAW AND PRACTICE, by Professor Wex Malone, Sections 274 and 278. While this venerable treatise was published 24 years prior to Act 583, and the myriad of cases applying the great or substantial pain factor, antedated Act 583, nonetheless we are of the opinion that the rationale and philosophy advocated and relied upon prior to Act 583, retained their validity after Act 583. The Legislature, in adopting the said Act, could very well, if it intended to affect the jurisprudence on this issue, have included language therein to legislatively alter or overrule the said jurisprudence. We construe its failure to do so as an intent to leave such jurisprudence undisturbed.”

We find the Phillips case virtually indistinguishable from the instant case and follow our previous holding. However, to the extent necessary we clarify our previous comments. Our interpretation of the amended statute is that an injured employee is totally disabled if he is unable to pursue any gainful employment without experiencing substantial pain. We feel that this interpretation reconciles the jurisprudential rule with the express terms of the amended statute.

The evidence in this case makes it apparent that the employee’s pain is such that it will be experienced in all types of reasonable employment. Plaintiff testified that he could not sit in one position for extended periods of time without his back hurting and that, consequently, he could not ride in an automobile for any period longer than an hour. He also testified that he could not stand up for longer than an hour without experiencing pain. Plaintiff further stated that he frequently cannot sleep at night because of the pain and that he often has to spend his nights sitting in a reclining chair with a heating pad. This was substantiated by plaintiff’s wife, who testified at trial. Moreover, plaintiff had to sometimes miss work on the police force because of pain, even though he was on light duty.

Plaintiff’s complaints of pain were also verified by the testimony of Doctor Cook, who stated that plaintiff frequently complained of severe back pain after he returned to police work. The doctor stated that plaintiff was a very stoic person and would not complain unless he actually had trouble. Furthermore, Doctor Simonton stated that plaintiff could expect exacerbation of pain in the future, although he could have intermittent remissions.

We thus hold that this employee, who suffers substantial pain when engaging in gainful employment, is totally disabled. The trial judge did not err in so finding.

II. AMOUNT OF COMPENSATION

Appellant contends that the trial judge erred in finding that the value of plaintiff’s non-monetary salary was $100.00 per week. We have reviewed the record and find that the evidence was insufficient to establish the value of the goods and services received by plaintiff as remuneration for his labor on the farm to the extent claimed. At the time of trial plaintiff was receiving $61.33 in weekly compensation benefits from the insurer. Plaintiff has not shown that he was entitled to greater weekly benefits. We therefore amend the judgment of the trial court awarding weekly benefits of $66.66 to provide for weekly benefits of $61.33. See Spears v. Glasscock Drilling, Inc., 324 So.2d 912 (La.App. 3rd Cir. 1975).

III. PENALTIES AND ATTORNEY’S FEES

Appellants’ contention that the trial court erred in awarding statutory penalties and attorney’s fees is unavailing. Compensation payments were paid from the time of the accident, May 22,1976, until October 22, 1976. The testimony of David Knott, an adjuster for the defendant insurance company revealed that the payments were ceased because of a telephone conversation with someone at Doctor Cook’s office on October 28, 1977, who stated that plaintiff would be given a return to work slip. In addition Knott stated that he had seen plaintiff around town working as a police officer. When a written report was finally received from the doctor’s office, it stated that plaintiff could only return to work for light duties on a trial basis, and that plaintiff would still experience substantial pain. The insurer made no attempt to contact the plaintiff, his employer, his fellow employees at the farm or on the police force, or any family member.

We feel that in order to stop compensation payments under the facts of this case, it became incumbent upon the insurer to make a further investigation to determine on what basis plaintiff was returning to work. Since no investigation was made, the trial judge did not err in imposing penalties and attorney’s fees. E. g., Norris v. Southern Casualty Insurance Company, 342 So.2d 874 (La.App. 3rd Cir. 1977), writs denied 344 So.2d 670 (La.1977); Horn v. Vancouver Plywood Company, 322 So.2d 816 (La.App. 3rd Cir. 1975); Chavis v. Maryland Casualty Company, 307 So.2d 663 (La.App. 3rd Cir. 1975), writ denied 310 So.2d 854 (La.1975); Dobbins v. Liberty Mutual Insurance Company, 280 So.2d 582 (La.App. 3rd Cir. 1973).

IV. INTEREST ON WEEKLY BENEFITS FROM DATE OF JUDICIAL DEMAND

Appellants’ final contention is that the trial court erred in awarding interest on weekly compensation benefits from the date of judicial demand rather than from the date due. We find this contention without merit because the judgment of the court provides interest from the date due and not from the date of judicial demand. Although the court’s written reasons could possibly be construed to provide for interest from date of judicial demand, the actual judgment is clear and provides:

“[It is] ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Alton Rachal, and against the defendants, Highlands Insurance Company and Donald Rachal, in solido, decreeing the plaintiff to be totally and permanently disabled within the intendment of the Louisiana Workmen’s Compensation Statute and awarding him judgment for workmen’s compensation benefits, against the defendants, in solido, for the sum of $66.66 per week for each weekly period, beginning May 22,1976, together with legal interest thereon from due date until paid and so long as plaintiff’s disability continues; the defendants to be allowed credit for all previous compensation paid.”

Interest was awarded properly from the date due; consequently there was no error.

V. INCREASE IN ATTORNEY’S FEES

Appellee has answered the appeal requesting an increase in attorney’s fees from $3,000.00 as awarded by the trial court to $4,000.00 to cover services rendered by his attorney on appeal to this court. Looking to the record in this case and considering the fact that the judgment has been amended on appeal, we do not feel an increase in attorney’s fees is warranted.

For the above reasons the judgment of the District Court is amended so as to reduce the amount of weekly compensation benefits from $66.66 to $61.33. In all other respects the judgment is affirmed. Costs on appeal are to be assessed on the basis of three-fourths to the appellant, and one-fourth to the appellee.

AFFIRMED AS AMENDED.

CULPEPPER, J., concurs and assigns reasons.

WATSON, J., concurs and assigns brief written reasons.

CULPEPPER, Judge,

concurring.

I concur because on January 13,1978, 353 So.2d 1048, our Supreme Court denied writs in Phillips v. Dresser Engineering Company, 351 So.2d 304 (La.App. 3rd Cir. 1977). The Phillips case cannot be distinguished from the present matter on the issue of whether plaintiff, although earning wages, is permanently disabled by pain under Act 583 of 1975, which amended our Workmen’s Compensation Law. I was not on the panel of this Court in Phillips, so I was not called upon to express a view on the issue in that case.

Although I concur, I find it difficult to reconcile the Phillips case and the decision in the present case with the decision in LeBlanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La.App. 1st Cir. 1977), in which our Supreme Court also denied writs on November 4, 1977, 351 So.2d 174. In LeBlanc, the Court of Appeal, First Circuit held:

[6-9] It appears that the amendment to 1221, above, was intended to relieve the effect of prior jurisprudence which held that an injured employee was entitled to benefits when he could not perform the same or similar work in which he was engaged when injured but could, nevertheless, earn wages at some other occupation. We so find, because Section 1221(3), as amended in 1975, fixes compensation for partial disability at “ . . . sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation . . ..” (Emphasis by the court.) We interpret this language to mean that a partially disabled employee who remains unemployed during the continuance of partial disability is entitled to receive the compensation presently provided in Section 1221(3), above, for the period of such disability, not exceeding 400 weeks. If, however, such an employee secures other employment at wages less than those earned at the time of injury, he is entitled to compensation at the rate of sixty-six and two-thirds per cent of the difference between the wages earned at time of injury and wages actually earned thereafter in any other work. If such an employee earns wages equal to or greater than those earned at time of injury, he is entitled to no compensation during the period such equal or greater wages are earned. It is elementary that the right to any compensation whatsoever ceases upon cessation of partial disability. That there might be inherent inequity in the present definition of partial disability and the benefits provided therefor, is a matter which addresses itself to ■the legislature. Our function is to interpret the statute as written. We find that the statute as amended intends that a partially disabled employee shall be paid compensation for such period of disability during which he earns no wages in any gainful occupation.

I respectfully recommend that our Supreme Court review these cases to determine whether it should grant a writ and clarify these holdings.

WATSON, Judge,

concurring:

This is another pain case under the Workmen’s Compensation Act as amended in 1975. The plaintiff here suffers severe and substantial pain of a nature to prevent him from carrying out all of his duties as a policeman, although he has been assigned only light work. He was injured, of course, while working on his brother’s farm.

In Phillips v. Dresser Engineering Company, 351 So.2d 304 (La.App. 3 Cir. 1977), writ denied 353 So.2d 1048 (La.1978), I dissented because I did not think the plaintiff proved that he suffered pain which would disable him within the contemplation of the Act as amended. The Supreme Court, despite what I considered an extremely weak factual situation, declined to grant writs. The instant case is much stronger than Phillips, and presents a situation where plaintiff is suffering real and substantial pain which disables him from engaging in any gainful occupation for wages.

Therefore, I concur in affirming the trial court’s conclusion that plaintiff is totally and permanently disabled, and in the other results of the principal opinion.

      . Compensation benefits were resumed prior to trial but after the filing of suit on April 26, 1977, with a check covering all past due amounts.

      . To date, we are aware of two other appellate cases interpreting the new disability provisions of the Workmen’s Compensation Act, both being from the First Circuit: Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1st Cir. 1977), and LeBlanc v. Commercial Union Assurance Co., 349 So.2d 1283 (La.App. 1st Cir. 1977). Taken in the abstract, the interpretation there may appear to conflict with our interpretation. Neither of those cases dealt with the situation where an employee was earning wages, but only because of working in substantial pain. We, therefore, do not feel that our interpretation of the amended statute is necessarily in conflict with that of our brothers on the First Circuit.


author: LOTTINGER, Judge. PONDER, Judge.

text:
    Brooklyn Bailey HAYDEN and Mrs. Mayme Belle Sanders Hayden v. Peter TORRENCE and Cumis Insurance Society, Inc.
    No. 11793.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Rehearing Denied March 20, 1978.
    Writ Refused May 5, 1978.

      Paul H. Dué, Baton Rouge, Joseph H. Simpson, Amite, for Brooklyn B. Hayden, plaintiff-appellee.
    Joseph A. Sims, Jr., Hammond, for Peter Torrence, defendant.
    Frank M. Coates, Jr., Baton Rouge, for Cumis Ins. Society, defendant-appellant.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto filed by Brooklyn Bailey Hayden and his wife, Mrs. Mayme Belle Sanders Hayden against Peter Torrence and Cumis Insurance Society, Inc. (Cumis), insurer of plaintiffs under the uninsured motorist (UM) portion of their policy. Cumis filed a third party demand against Torrence. From a judgment in favor of plaintiffs against both defendants on the merits, in favor of Cumis against Tor-rence on the third party demand, and in favor of plaintiffs against Cumis awarding penalties and attorney’s fees, Cumis has appealed.

This suit arises out of a truck-motorcycle accident on January 6, 1976. The truck owned and operated by Torrence made a left turn into the path of a motorcycle owned and operated by Richard Luther Hayden, the 21 year old unmarried son of plaintiffs. Richard Hayden was killed as a result of this accident. Liability is not an issue on appeal.

In appealing, Cumis argues the Trial Court erred:

(1) in finding coverage because coverage was specifically excluded under the terms of the policy and LSA-R.S. 22:1406D does not apply,
(2) in imposing penalties and attorney’s fees,
(3) in that the amount of the attorney’s fees assessed was unreasonable under the circumstances, and
(4) in that the mathematical computation of attorney’s fees and penalties was in error.

ERROR NO. 1

The decedent was killed while riding a motorcycle owned by him, but not listed as an insured vehicle under the policy in question. The policy was issued to Brooklyn B. Hayden as the named insured with- a pickup truck and two automobiles listed as “owned automobiles” on the policy. Whether the decedent was or was not an insured under the policy is not contested.

The policy in part provides:

“Exclusions: This policy does not apply:
“Under the Uninsured Motorist Coverage,
“(p) to bodily injury to an insured while occupying a highway vehicle (other than an insured automobile) owned by the name insured or by any person resident in the same household who is related to the name insured by blood, marriage or adoption, or through being struck by such a vehicle; * *

In Thomas v. Nelson, 295 So.2d 847 (La. App. 1st Cir. 1974), writ refused 299 So.2d 791 (La.1974), this Court held such a clause in an insurance contract null and void.

Defendant-appellant argues that Act 154 of 1974, Regular Session, amended LSA-R.S. 22:1406D, thus Thomas v. Nelson, supra, is no longer controlling, and such a clause is not in derogation of the statute.

As amended by Act 154 of 1974, LSA-R.S. 22:1406D(1) reads as follows:

“No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits.”

It is argued that since “the coverage required * * * shall not be applicable where any insured * * * selects lower limits”, as done here, this exclusionary clause is permissible. It is further argued by appellant that under LSA-R.S. 22:1406D as amended by Act 494 of 1975, Regular Session, it is obvious that the word “coverage” was intended to include all risks covered by the policy as well as the limits of liability in dollars. We note, however, that Act 494 of 1975 had an effective date subsequent to the effective date of the insurance policy, thus Act 494 is not controlling.

The function of the Court in interpreting a statute is to ascertain the intention of the legislature and to give effect to the true legislative intent; regardless of how broad and comprehensive may be the language employed. Bonnette v. Karst, 261 La. 850, 261 So.2d 589 (1972); In re Hibernia Bank & Trust Co., 185 La. 448, 169 So. 464 (1936); Anderson v. West, 354 So.2d 636 (La.App. 1st Cir. 1977).

In Anderson v. West, supra, we traced the historical development of LSA-R.S. 22:1406D(1) from its original enactment as Act 187 of 1962, Regular Session. Originally coverage had to be provided in not less than the limits described in the Motor Vehicle Safety Responsibility Law of Louisiana, with rejection possible by the insured. In 1972 the legislature amended this section to allow the insured to actively increase the dollar amount of the UM coverage to not more than his liability coverage. Then in 1974, without the need for the insured to do anything, UM coverage was mandated to be written at the liability level. It is obvious that not all insureds would want this much UM coverage; therefore, the legislature provided that the insured could actively select a lower limit. We can read nothing more into LSA-R.S. 22:1406D(1) as amended in 1974 than an encouragement by the legislature that insureds obtain UM coverage in a greater dollar amount than the Motor Vehicle Safety Responsibility Law of Louisiana. The conclusion, as suggested by Appellant, cannot be reached since we find that in allowing a selection of lower limits of coverage, the legislature did not intend to include “all risks” covered by the policy within the terminology “lower limits”, but only the “dollar limit”.

Though defendant-appellant has not raised the issue of stacking in this appeal, we note in the record that the issue was raised, and merely note that this Court has recently interpreted Act 154 of 1974 as not prohibiting stacking. See Anderson v. West, supra.

ERROR NO. 2

In determining that penalties and attorney’s fees were due and owing, the Trial Judge in his ■written reasons for judgment said:

“The Court further finds and holds that defendant Cumis must be taxed with penalties and attorneys fees for its arbitrary failure and refusal to tender at any time at least the Ten Thousand ($10,000) Dollars of uninsured motorist coverage which it clearly owed to plaintiffs. Any cursory examination and investigation into this accident would show that this was clearly a case of liability on the part of the uninsured motorist (and hence also on the uninsured motorist carrier, defendant Cu-mis) and that the quantum clearly greatly exceeded the Ten Thousand ($10,000) Dollars of uninsured motorist coverage which at a minimum had to be owed by said defendant. Defendant had no justifiable basis whatsoever for feeling that it would not legally be held liable for at least Ten Thousand ($10,000) Dollars of uninsured motorist coverage, and yet at no time did defendant tender such sum to plaintiffs.

Plaintiff-appellee contends that defendant-appellant had no justification for relying on its “exclusion of coverage argument” in view of the clear precedent established by this Court expressly to the contrary in Thomas v. Nelson, supra.

We disagree. Thomas v. Nelson, supra, was rendered prior to the enactment by the legislature of Act 154 of 1974, Regular Session, and thus since this Act amending LSA-R.S. 22:1406D had never been judicially interpreted by an appellate court of this state, a serious dispute existed as to its final interpretation. Therefore, we find that the Trial Judge was in error in awarding penalties and attorney’s fees.

Since we have determined that penalties and attorney’s fees are not due, there is no need to discuss assignments of errors numbers 3 and 4.

Therefore, for the above and foregoing reasons the judgment of the Trial Court insofar as it awarded penalties and attorney’s fees is reversed, and in all other respects the judgment of the Trial Court is affirmed. All costs of this appeal to be paid by defendant-appellant.

REVERSED IN PART AND AFFIRMED IN PART.

PONDER, J., dissented in part and concurred in part and assigned written reasons and dissents from the refusal of rehearing.

PONDER, Judge.

I dissent in part and concur in part.

I differ with my brothers in the effect to be given to the clause of the statute:

. . provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits.”

The majority opinion reaches the conclusion that the insured may select a lower limit and still have applied all the requirements of the statute. This is done by looking to what they believe the intent of the legislature was.

We are under the necessity of applying the letter of the law if it be clear and free from all ambiguity. I do not find the ambiguity that would allow us to pursue the spirit. It is possible that the legislature intended only to allow an increased amount of coverage and to allow the insured to elect less than that amount but the wording the legislature employed means to me that the requirements of LSA-R.S. 22:1406D do not apply when the insured does so elect.

As I attempted to point out in my concurring opinion in Anderson v. West, supra, I believe that the “stacking” of uninsured motorist insurance has been required by the terms of LSA-R.S. 22:1406D. In a like manner Thomas v. Nelson, supra, was grounded on the conclusion that an allowance of the exclusionary clause would be a violation of the statute.

As I read the statute, when the insured chose a lower limit than that set by the statute,, as he had a right to do, there existed no prohibition against the exclusion here involved or against the provision that would prevent “stacking”.

In the absence of a statutory prohibition or a clear finding of being contra bonos mores the courts should apply the terms of the policy.

I would therefore find valid these provisions of the policy.

Since I would not allow recovery I certainly agree that there should be no penalties or attorney’s fees.

      . The policy period was from July 29, 1975 to January 29, 1976.

      . LSA-C.C. Art. 13
      “When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.”

      . In Seaton v. Kelly, La., 339 So.2d 731, the Supreme Court found unoffending a limitation of coverage.