author: CUTRER, Judge.

text:
    Mrs. Wanda Kidder HEBERT, Individually, et al. v. MISSOURI PACIFIC RAILROAD COMPANY et al.
    No. 6720.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearings Denied Jan. 31, 1979.
    Writs Refused March 23, 1979.

      Dubuisson, Brinkhaus & Dauzat, James G. Dubuisson, Opelousas, for defendant-appellant, Missouri Pac.
    William J. Doran, Jr., Baton Rouge, for defendant-appellant, Highways.
    Morrow & Morrow, Patrick C. Morrow, Opelousas, for plaintiffs-appellees, Mrs. Hebert.
    Dean Lomenick, & Seemann, G. Frederick Seemann, Opelousas, for plaintiff-appellee.
    John A. Jeansonne, Jr., Lafayette, for defendant-appellees.
    Bóagni & Genovese, James T. Genovese, Opelousas, for plaintiff-appellant-appellee.
    Domengeaux & Wright, William P. Rutledge, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is a companion case to the cases of Guidry, Sr., et al. v. Missouri Pacific Railroad Company et al., 366 So.2d 617; Stelly, Ind., et al. v. Missouri Pacific Railroad Company et al., 366 So.2d 617; Guidry v. Missouri Pacific Railroad Company et al., 366 So.2d 618; and Lalonde et al. v. Missouri Pacific Railroad Company et al., 366 So.2d 619. We render separate decisions in each case this date.

These five suits arise out of an accident occurring when a pickup truck and a freight train collided at a railroad crossing on the edge of the Town of Arnaudville, Louisiana.

On December 6, 1974 at approximately 3:00 P.M., Phillip Guidry was operating a pickup truck, owned by his father, Charles A. Guidry, Sr., along Louisiana Highway 686. As the pickup crossed an intersection of the highway and the Missouri Pacific Railroad, it was struck by Missouri Pacific’s freight train. The defendant’s railroad runs in a north-south direction along the east edge of the Town of Arnaudville. Louisiana Highway 686 runs east-west. The train was traveling north and the pickup was traveling west. The train hit the truck on the driver’s side. The pickup was occupied by three passengers, Wilfred Charles Hebert, Voorhies Lee Stelly, Jr., and Keith Guidry. Voorhies Stelly, Jr., was killed and the remainder of the occupants of the pickup received injuries of varying degrees. At the time of the accident it was raining.

The crossing is approximately level with only a slight rise as the highway goes over the railway. There were no automatic signal devices to warn the public of an approaching train. The crossing had standard “cross-buck” signs in the right of way and Highway Department warning signs some distance from the crossing. There was no “Louisiana Law Stop” sign at the crossing.

Mrs. Wanda Kidder Hebert, a widow, brought suit individually and on behalf of her minor son, Wilfred Hebert, for damages against Missouri Pacific Railroad Company, Department of Highways of the State of Louisiana, and Charles A. Guidry, Sr., and his liability insurer Hartford Accident & Indemnity Company. Wilfred Hebert became a major during the proceedings and he was made a party plaintiff along with Wanda Hebert. Keith Guidry brought suit for damages against Missouri Pacific Railroad Company, Department of Highways of the State of Louisiana, and Charles A. Gui-dry, Sr., and his insurer Hartford. Voo-rhies Lee Stelly and Mrs. Clara Mae Lal-onde, divorced parents of Voorhies Lee Stelly, Jr., brought suit for the death of their son against Missouri Pacific Railroad Company, Department of Highways of the State of Louisiana, and Charles A. Guidry, Sr., and his insurer Hartford. Charles A. Gui-dry, Sr., brought suit individually and on behalf of his minor son, Phillip, against Missouri Pacific Railroad Company and Department of Highways, State of Louisiana.

The trial court rendered judgment in favor of all plaintiffs against all defendants except in the case of Guidry, Sr., et al. v. Missouri Pacific Railroad Company et al., 366 So.2d 617; this suit was dismissed, the court finding that Phillip Guidry, driver of the pickup, was contributorily negligent. Motions for a new trial were filed and denied. Appeals were taken and subsequently the trial court, having lost jurisdiction, improperly rendered an amended judgment dismissing the judgments against Charles A. Guidry, Sr. and his insurer Hartford on the ground that Guidry was the employer of the passengers in the truck; thus no recovery could be had in tort against Guidry but plaintiffs were limited to workmen’s compensation claims. This court ordered the suits remanded for the purpose of allowing the trial court an opportunity to correct the error and render new judgments. This was done and appeals were again duly taken by the Department of Highways of the State of Louisiana (hereinafter referred to as Highway Department), Missouri Pacific Railroad Company (hereinafter referred to as Missouri Pacific), and Merle Browning in each suit. Charles A. Guidry, Sr., also appeals the dismissal of the suit in which he was plaintiff. Wanda Hebert and Wilfred Hebert answered the appeals in this case seeking an increase in damages.

The issues presented by these appeals are as follows:

(1) Whether Missouri Pacific and its engineer, Merle Browning, were negligent and, if so, whether such negligence was a proximate cause of the accident;
(2) Whether the Highway Department was negligent and, if so, whether such negligence was a proximate cause of the accident;
(3) Whether the driver of the pickup truck was negligent and, if so, whether such negligence was a proximate cause of the accident;
(4) What legal relationship existed between the owner, driver and passengers in the pickup? (Employee-employer; joint venture; or other relationship.)
(5) Whether the trial judge erred in the awards of damages to the various parties.

I.

The first issue is whether Missouri Pacific and its engineer, Merle Browning, were negligent and, if so, whether such negligence was a proximate cause of the accident. The trial court rendered lengthy reasons for judgment and found these defendants negligent in “one or more of the following particulars:

“(1) In knowing of a hazard and doing nothing to ameliorate it in the form of warning to the motorist, or in the form of change of operating procedures to minimize risk. .
“(2) Speed, not commensurate with the conditions in existence.
“(3) Warning by bell or whistle.”

The record contains voluminous evidence concerning the nature of the crossing, including principally sight distances and view obstruction. The photographs and plats reveal that as the Guidry pickup truck approached the crossing, the driver’s view of the track to his left was obstructed by houses, other buildings, trees and other growth. Located immediately adjacent to the railroad right of way, on the driver’s left (the direction from which the train approached), are a house and a utility building. The house is situated on a lot that has trees across the rear and along the east side. Until a motorist clears these structures and trees, his visibility down the track is obstructed. The house is located approximately 50 feet from the track. The “sight distance” was discussed by experts from both sides who concluded that due to the obstructions this crossing only had approximately half of the clear “sight distance” required by the Bureau of Public Roads.

As early as 1969, the dangerous nature of this crossing was brought to the attention of the Highway Department and Missouri Pacific. Due to accidents occurring at the crossing, the St. Landry Parish Police Jury passed a resolution asking the parties concerned, the Highway Department and Missouri Pacific, to take steps to protect the public from the hazard.

Lawrence Harry, ¿n engineer for the Highway Department, made a survey of the crossing in 1969 and found that the sight distances were less than minimum requirements. He calculated the hazard rating as 2.32, meaning that he projected that number of accidents to occur over a five-year period. He recommended that the crossing be equipped with flashing lights, warning bell and advance warning signs. Mr. Harry made another survey in 1973 with the same result.

Mr. Harry submitted his findings to Turner Lux, Jr., agreement engineer with the Highway Department. Lux sent the report and recommendations to Missouri Pacific in 1970. Missouri Pacific responded 2 years later, 1972, offering to install the signal equipment if the Highway Department would pay 90% of the costs. There was an exchange of communications between the Highway Department and Missouri Pacific, and finally in 1974 the Highway Department agreed to the 90%-10% cost contribution proposed, with the Highway Department paying 90%. The agreement between the Highway Department and Missouri Pacific was consummated in June, 1974. The installation took place in 1975, after the accident in question.

The railroad had knowledge of the need for automatic signals at this crossing for over 5 years before it installed same. This need was shown, not only by the surveys of the engineers but by the fact that William McClendon, claims man of Missouri Pacific, stated that 5 accidents occurred at this crossing between 1959 and 1974.

Automatic signals serve the same purpose as a whistle or bell on an approaching train. These devices all warn the motorist that impending danger exists as a train is approaching the crossing and is in the immediate vicinity of same. Under the unusual circumstances presented herein, the unreasonable delay in the railroad’s installation of the safety devices was negligent and such negligence was a proximate cause of the accident. We find no manifest error in the trial court’s conclusion in this regard.

The trial court heard several witnesses who testified as to whether the engineer blew the whistle for the required distance of 300 yards before the accident. The train crew and some area witnesses testified that the whistle was blown before the accident as required. The occupants of the truck, witnesses to the accident and other parties near the scene testified that the whistle was not blown until the collision occurred or afterward. The trial court concluded that the whistle was not blown before the collision. The issue is factual and depends largely on the credibility of the witnesses. Under the rules of appellate review stated in Canter v. Koehring Co., 283 So.2d 716 (La.1973), we find no manifest error in the decision of the trial judge. The failure of the engineer, Merle Browning, in this regard was negligence and was a proximate cause of the accident. Bertrand v. Missouri Pacific Railroad Company, 160 So.2d 19 (La.App. 3rd Cir. 1964), writ refused 245 La. 1075, 162 So.2d 571 (1964). We do not feel that it is necessary to discuss in detail the speed of the train, having come to the above conclusions.

II.

We next examine the issue of whether the trial court erred in holding that the Highway Department was negligent which negligence was a proximate cause of the accident.

The duty of the Department of Highways to the traveling public is set forth in the case of Barnes v. Liberty Mutual Insurance Company, 350 So.2d 288 (La.App. 3rd Cir. 1977), writ refused 352 So.2d 239 (1977), wherein this court held as follows:

The law is settled that the Highway Department is not responsible for every accident which may occur on the state highways, nor is it a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from obstructions or defects in such highways. Standard Brands, Inc. v. Department of Highways, State of Louisiana, et al., 339 So.2d 780 (La.1976); Wilkinson v. American Insurance Company, 311 So.2d 584 (La.App. 3rd Cir. 1975); Doucet v. State, Department of Highways, 309 So.2d 382 (La.App. 3rd Cir. 1975), writs refused; Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3rd Cir. 1974), writ refused 303 So.2d 182 (La.1974).
As the Supreme Court stated in Standard Brands, Inc., supra:
“In order to hold the Department of Highways liable for an accident caused by an unsafe or hazardous condition it must be shown that the Highway Department had prior notice, either actual or constructive, of the dangerous condition and had sufficient opportunity to remedy same or at least to alert and warn motorists of its presence and failed to do so. Coleman v. Houp, 319 So.2d 831 (La.App. 3rd Cir. 1975).”
[3] The test for deciding whether there was an unsafe or hazardous condition is whether or not the highway was maintained in a reasonably safe condition for persons exercising ordinary care and prudence. Jones v. Louisiana Department of Highways, 338 So.2d 338 (La.App. 3rd Cir. 1976); Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975); Wilkinson v. American Insurance Company of Newark, N. J., 311 So.2d 584 (La. App. 3rd Cir. 1975).

In connection with the 'liability of the railroad, we have discussed the sequence of events that led up to the installation of the automatic signaling devices which were installed after the accident. As early as August 1973 the Highway Department agreement man had authority to accept Missouri Pacific’s prior offer of 90%-10% participation in costs. The acceptance wasn’t communicated to Missouri Pacific until January 1974. The agreement wasn’t prepared and entered into until June 1974. The explanation given for the unusual delays was that the agreement office personnel were busy with other work. We have examined the testimony of the Highway Department personnel and conclude that in view of the risk to the public that was involved, the cost of the installation (approximately $25,000.00), and the knowledge by the Highway Department of this dangerous condition, the delay was unjustified.

We conclude that under the particular and unusual circumstances presented, the trial court was correct in its conclusion that the Highway Department had violated its duty to the public and such was negligence that was a proximate cause of the accident.

III.

We next turn to the issue of whether the driver of the pickup was negligent and if so whether such negligence was a proximate cause of the accident.

The trial court concluded that the driver was contributorily negligent and the suit on his behalf was dismissed. A large portion of this voluminous record concerned sight distances, that is, the view that a motorist may have down the track as he approaches same. We have previously discussed the obstructions of view which existed at the time of this accident. We have determined that this was an unusually dangerous crossing but was not a dangerous “trap” such as would exonerate the driver under the circumstances presented. The “dangerous trap” doctrine was discussed by this court in the case of Bertrand v. Missouri Pacific Railroad Company, supra, wherein this court held as follows:

[1] The first issue which we will consider is whether this case falls within the “dangerous trap” doctrine as set forth in Renz v. Texas & Pacific Railway Company, La.App., 138 So.2d 114 (3rd Cir. App. 1962), Simon v. Texas & New Orleans Railroad Company, 124 So.2d 646 (3rd Cir. App. 1960) and McFarland v. Illinois Central Railroad Company, La.App., 122 So.2d 845 (1st Cir. App. 1960). In the recent case of Glisson v. Missouri Pacific Railroad Company, La.App., 158 So.2d 875 (3rd Cir. App. 1963) this court summarized the dangerous trap doctrine as follows:
“Succinctly stated, these cases, and the authorities cited therein, hold that if a crossing is unusually dangerous because the view of the motorist is so obstructed as to require that he place himself in a position of peril dangerously near the tracks, before he has a view of the oncoming train, the railroad company will be held liable, unless it can show that it took unusual precautions, such as reducing the speed of the train, or increasing its warnings or providing signaling devices, etc. The theory of this doctrine is that the railroad may not rely upon the duty of the motorist to stop and look, if the physical circumstances are such that stopping and looking will do the motorist no good.”
In the Glisson case, which involved a rural crossing, we held the dangerous trap doctrine did not apply where the motorist, from a position at the stop sign 48 feet from the railroad track, had an unobstructed view of the tracks for a distance of 380 feet and a partially obstructed view for a distance of at least 600 feet.

In the present case, the driver of the pickup, from a distance of approximately 45 to 50 feet from the track, had a view of approximately 300 feet down the track. At approximately 20 to 25 feet from the track he had a clear view down the track. Having concluded that the “dangerous trap” doctrine of Glisson is not applicable to the driver, Phillip Guidry, it is readily apparent that Phillip was guilty of contributory negligence.

The evidence reflects that he was driving the truck at a speed of approximately 25 miles per hour as he entered the crossing. He did not slow for the tracks. He proceeded directly into the path of the oncoming train. In Bertrand, supra, this court set forth the duties of a motorist approaching a railroad crossing as follows:

“. . . In Glisson v. Missouri Pacific Railroad Company, supra, we stated the following as regards the duty of a motorist approaching a railroad crossing:
‘The general rule of law is that a motorist approaching a railroad crossing must use his senses of sight and hearing for possible oncoming trains, before traversing the crossing. Tucker v. Illinois Central Railroad Company, 141 La. 1096, 76 So. 212; Rachal v. Texas & Pacific Railway Company, La.App., 61 So.2d 525; Matthews v. New Orleans Terminal Company, La.App., 45 So.2d 547. A motorist negotiating a railroad crossing is burdened with the responsibility of seeing and hearing that which he could have seen and heard, and he is presumed in law to have seen and heard what he could have seen and heard. Jackson v. Cook, 189 La. 860, 181 So. 195. If the motorist’s view of the right of way is obstructed, he must exercise a higher degree of caution. See Renz v. Texas & Pacific Railway Company [La.App.], 138 So.2d 114, and the authorities cited therein.
‘As regards the statutory requirement that a motorist must bring his vehicle to a complete stop at a railroad crossing (LSA-R.S. 23:243) this court has held in Simon v. Texas & New Orleans Railroad Company, supra, as follows:
‘ “A motorist need not come to a complete stop before crossing a railroad provided the motorist has his automobile under such control as to be able to stop immediately and has exercised due care in looking and listening for an approaching train. See Robertson v. Missouri Pacific Railroad Co., La.App. 1936, 165 So. 527.” ’ ”

If Guidry had had his truck under proper control, as is required by the law above, and had he been keeping a proper lookout, he could have avoided the accident. Phillip was well acquainted with the crossing. He passed there several times a day as he lived in the area. We find no manifest error in the trial court’s finding that the driver was guilty of contributory negligence.

IV.

We next turn to the issue of what legal relationship, if any, existed between the owner of the truck, Charles A. Guidry, Sr., his son Phillip (the driver) and the passengers at the time of the accident. This issue comes into focus because the Highway Department pleads that the persons in the truck were on a joint venture and the driver’s negligence would be imputed to the passengers, barring recovery.

The trial judge held that the passengers were employees of Charles A. Guidry, Sr., Kevin Guidry, and Phillip Guidry. Having come to this conclusion, the trial court dismissed all suits against Charles A. Guidry, Sr., and Hartford on the ground that as employees, neither the passengers nor survivors could recover in tort, but would be relegated to workmen’s compensation claims.

The undisputed facts show that Charles A. Guidry, Sr., and his sons, Kevin and Phillip, had a small business arrangement wherein they would buy produce to be sold from house to house. To sell the produce, Phillip would get his friends, the passengers in this accident, to sell the produce from house to house in area towns. The boys who sold for the Guidrys would be paid 10 cents for each dollar’s worth of produce sold. The passengers would not share in the profits or losses, nor exercise any control in the operation other than selling from house to house. The four boys were together at the time of the accident for the purpose of peddling the produce for the Gui-drys. We find no manifest error in the trial judge’s finding that this was an employee relationship and the suits were properly dismissed as to Charles A. Guidry, Sr., and his liability insurer Hartford.

The Highway Department further contends that even though the passengers were barred from recovery against Charles A. Guidry, Sr. as a result of the employee relationship, that the Department's third party demand against Guidry and Hartford for contribution should be recognized, citing the case of Smith v. Southern Farm Bureau Casualty Insurance Company, 247 La. 695, 174 So.2d 122 (1965). That case held that although the wife had no right of action against her husband, who was a joint tort feasor, the statutory bar against her proceeding against her husband did not bar the insurer of a joint tort feasor from obtaining contribution from the husband. The court stated that the wife had no right of action against the husband but a cause of action by the insurer of the joint tort feasor existed against the husband for contribution.

In this case LSA-R.S. 23:1166 provides that when an employee receives an injury in the course and scope of his employment, his exclusive remedy is for workmen’s compensation. The cause of action in tort extinguished by this statute cannot be revived by a third party action demanding contribution from the employer. The third party demand of the Highway Department was correctly dismissed.

V.

The last issue is the amount of damages awarded in each case. Missouri Pacific contends that the awards are excessive and should be reduced. We will now consider the awards made to Wilfred Charles Hebert.

The trial court awarded $250,000.00 for physical and mental injuries suffered by this 17-year old plaintiff. The trial court divided this into $100,000.00 for physical injuries and $150,000.00 for mental injuries. Missouri Pacific acknowledges the serious injuries but contends that these items should be reduced to $100,000.00.

The evidence reflects that prior to the accident Hebert led the normal life of a 17-year old teenager. Dr. Blackburn described this boy’s condition prior to the accident as follows:

“He was basically easy going. He didn’t have the high level of irritability, tantrums, spells, etc. He was not particularly bright. He was relatively in a slow learner group in school and was (not) that enthused about school other than the fact that he liked the sports and participated in some, had a lot of friends, played in a little band, very much into music, handled his father’s death better than most of his other siblings in the sense that his degree of overt emotion at the time was less but he was upset but he handled it better. He was not presenting behavioral or management problems. He wasn’t requiring medication for nerves, tension, depression, etc. He was essentially a normal boy with a low normal IQ who worked hard and was pretty — very well involved in some instances in his physical ability as compensation for I am sure not being as bright as a lot of his peers.”

Following the accident this young man received extensive medical treatment for multiple injuries and was seen and treated by seven physicians, incurring $47,199.67 medical expenses up to the time of trial. The medical testimony is voluminous, so we will summarize same as it would not serve a useful purpose to detail same in a protracted dissertation.

Following the accident, Hebert was hospitalized in a state of shock with extreme pain and serious injuries which consisted principally of various internal injuries, fracture of the left femur, S-l joint separation, head injury, and fractured rib.

An operation was performed repairing the internal injuries and the fractures. He was immobilized by being placed in traction. He remained in traction until January 23rd at which time he was placed in a spica cast. He was allowed to go home on January 25, 1975. His pain was intense. He developed nausea and vomiting and he was hospitalized again on February 13, 1975, with weakness to the right arm and leg. This was due to pelvic injury. He developed psychiatric problems while in the hospital and was seen by a psychiatrist who found that his emotional problem stemmed from his prolonged process of treatment, immobilization and intense pain. Hebert was discharged from the hospital on April 3,1975. The cast was later removed and he was placed on crutches.

Hebert started school in September of 1975 while on crutches. On September 9, 1975, he had severe head pain and pain in the left side of the body. He had a sudden seizure which consisted of spasm of the muscles on the left side of the body. He was taken to the hospital where he remained until October 30, 1975. This problem was diagnosed as brain injury by a neurosurgeon who felt that the brain injury was permanent and the seizures would continue in the future. This brain injury also caused an impairment to Hebert’s hand, in that his coordination therein was reduced.

The psychiatrist continued to see Hebert and, as the physician suggested, Hebert tried to return to work for Guidry in the latter part of 1975. He was unable to perform the work due to the back, leg and arm problems. Hebert developed hepatitis on September 4, 1976, due to multiple blood transfusions. He was hospitalized until September 23, 1976, when he was referred back to the psychiatrist.

Hebert was admitted to the psychiatric unit of the hospital on October 25, 1976 for post-traumatic neurosis, depression and anxiety. He remained hospitalized until December 23,1976. He was again placed in the psychiatric unit for the period of January 14, 1977, until February 5, 1977. He was again hospitalized on February 21, 1977, for an overdose of drugs. He was diagnosed as depressed with suicidal tendencies. He remained hospitalized on this occasion for three days.

The treating physician felt that at the time of his deposition for trial Hebert’s prognosis was poor or guarded at least. The psychiatrist stated that Hebert would need continuing psychiatric treatment and probably hospitalization.

Hebert has suffered extensively from the day of the accident up until the day of trial and will continue to do so for an indefinite time in the future. He has serious permanent residuals as a result of the injuries received in the accident. Under these circumstances we find no abuse of discretion by the trial court and this award will be affirmed. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977),

The trial court also awarded $87,-200.00 for loss of wages. The trial court’s reasons showed that this represents loss of future wages and loss of earning capacity.

The plaintiff called a job analysis expert, George L. Cranford, who testified that he had examined the medical reports and plaintiff’s work history and concluded that Hebert was limited as to what work he could perform due to the injuries he received and the seizures he would be subjected to in the future. He also felt that due to the psychological problems Hebert faced, he would have a problem selling himself to an employer. He felt that Hebert’s potential for employment in the manual labor field was reduced to 15% or 20%. He concluded that it would be extremely difficult for Hebert to get a job in the job market.

Also, Dr. W. P. Culbertson, Sr., an expert in economics, calculated actuarially the loss of earning capacity sustained by Hebert. He calculated the loss considering the annual wage of a carpenter’s helper at $13,-000.00; Using 7V2% increase of wages, 6% discount rate, and 45-year life expectancy, the value of the salary was placed at $821,-696.59. Also he likewise figured the value of a salary of a mechanic based on an annual salary of $5,904.00 and its value would be $373,176.66. The court awarded $87,200.00.

We realize that this type of loss cannot be computed with mathematical certainty. The actuarial expert’s testimony, however, merits substantial consideration, to be weighed by the trial court along with all other circumstances which exist. A review of the extensive record leads us to the conclusion that the trial court was reasonable in this award and has committed no manifest error.

The trial court awarded $18,000.00 to Hebert for future medical. We find that the prognosis of plaintiffs problems will require further medication, treatment and probably hospitalization. The award is reasonable under the circumstances. We find no manifest error by the trial court.

The plaintiff Wanda Hebert appealed from the trial court’s denial of her claim for time lost from her job as supervisor for the Department of Welfare.

We have examined the record in this regard and find that the record amply supports the trial court in its conclusion.

For the reasons set forth herein, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      . LSA-R.S. 23:1166 provides as follows:
      “When an insurance company issues a policy of insurance to an employer covering claims for injuries to employees that may arise within the scope of the employer’s business, the insurance company shall be estopped to deny liability on the grounds that the employment was not hazardous and during the period such insurance is in effect, claims for injuries occurring during such period by such employees against the employer or the insurance company shall be exclusively under the workmen’s compensation act.”


source: Caselaw Access Project

license: Public Domain

text:
    Charles A. GUIDRY Sr., v. MISSOURI PACIFIC RAILROAD COMPANY, et al.
    No. 6721.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearing Denied Jan. 31, 1979.
    Writ Refused March 23, 1979.
    Dubuisson, Brinkhaus & Dauzat, James G. Dubuisson, Opelousas, for defendant-appellant.
    Boagni & Genovese, James T. Genovese, Opelousas, for plaintiff-appellee-appellant.
    William J. Doran, Jr., Baton Rouge, for defendant-appellant.
    John A. Jeansonne, Jr., Lafayette, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CUTRER, Judge.

This is a companion case to the cases of Hebert v. Missouri Pacific Railroad Company., 366 So.2d 608; Stelly v. Missouri Pacific Railroad Company, 366 So.2d 617; Guidry v. Missouri Pacific Railroad Company, 366 So.2d 618; and Lalonde v. Missouri Pacific Railroad Company, 366 So.2d 619. Separate decisions in these cases are being rendered by us this date.

For the reasons assigned in Hebert v. Missouri Pacific Railroad Company, 366 So.2d 608, the judgment of the trial court dismissing plaintiff’s suit is affirmed. The costs of this appeal to be paid by plaintiff.

AFFIRMED.


text:
    Voorhies STELLY, Individually, et al., v. MISSOURI PACIFIC RAILROAD COMPANY et al.
    No. 6722.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearing Denied Jan. 31, 1979.
    Writ Refused March 23, 1979.

      Dubuisson, Brinkhaus & Dauzat, James G. Dubuisson, Opelousas, for defendant-appellant.
    Domengeaux & Wright by William P. Rutledge, Lafayette, for plaintiff-appellee.
    Robert J. Jones, Baton Rouge, Young & Burson, I. J. Burson, Jr., Eunice, for defendant-appellant.
    John A. Jeansonne, Jr., Lafayette, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CUTRER, Judge.

Defendants, Missouri Pacific Railroad Company and the Department of Highways of the State of Louisiana, appeal from a judgment awarding Voorhies Stelly, Sr., $45,000.00 for the death of his son plus $10,000.00 awarded to the plaintiff for his share of the $20,000 awarded for the pain and suffering of the son between the time of the accident and the time of death.

This case was consolidated with the case of Hebert v. Missouri Pacific Railroad Company et al., 366 So.2d 608, For the reasons assigned therein, the trial court judgment is affirmed as to liability of the defendants.

Defendants contend that the awards should be reduced to $25,000.00 and $5,000.00, respectively.

The father was disabled for several years before trial. His principal income was social security. Some of the children became self-sustaining and would take care of the other children. Voorhies Stelly, Jr., lived with his father in Arnaudville after the mother left, and for a while before his death he lived with a sister. The relationship between the father and son was a close one. It remained so until the death of the son.

The $45,000.00 award to Voorhies Stelly, Sr., for the loss of his son is on the high side but we do not find that the trial court committed manifest error in the award. Ogaard v. Wiley, 325 So.2d 642 (La.App. 3rd Cir. 1975).

For the reasons assigned in the consolidated case of Lalonde v. Missouri Pacific Railroad Company et al., 366 So.2d 619, we conclude that the $10,000.00 awarded to Mr. Stelly as his portion of the $20,000.00 award for pain and suffering of the deceased son is not excessive.

For the reasons set forth herein, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


text:
    Keith GUIDRY v. MISSOURI PACIFIC RAILROAD COMPANY, et al.
    No. 6723.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearing Denied Jan. 31, 1979.
    Writs Refused March 23, 1979.

      Dubuisson, Brinkhaus & Dauzat, by James G. Dubuisson, Opelousas, Robert J. Jones, Baton Rouge, for defendant-appellant.
    Young & Burson, by I. J. Burson, Jr.,' Eunice, John A. Jeansonne, Jr., Lafayette, for defendant-appellee.
    Morrow & Morrow, Patrick C. Morrow, Opelousas, for plaintiff.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CUTRER, Judge.

Defendants, Missouri Pacific Railroad Company and the Department of Highways of the State of Louisiana appeal from a judgment awarding Keith Guidry $12,500.00 as damages for the loss of four teeth and for pain and suffering.

This case was consolidated for trial and appeal with Hebert v. Missouri Pacific Railroad Company, 366 So.2d 608. For reasons assigned therein the court judgment is affirmed as to liability of the defendants.

Defendants contend the award should be reduced to $5,000.00.

Dr. Louis Weinstein’s report reflects that when he saw Keith immediately after the accident he found Keith had incurred multiple bruises, contusions, lacerations of the mouth, and had four front teeth missing. He sutured Keith’s upper right lip with eight sutures.

The dentist, Dr. Joseph Lalonde, first saw Keith on December 12, 1974, six days after the accident. He found the four upper front teeth missing and the bone fragmented at the point where these teeth had been knocked out. Keith’s mouth was still inflamed. This dentist was able to take an impression and fit Keith with a partial denture on February 24, 1975. The dentist stated it takes approximately three months for this type of bone damage to completely heal.

We conclude that the award of $12,500.00 is neither excessive nor inadequate. Rutledge v. Sentry Insurance Company, 280 So.2d 619 (La.App. 3rd Cir. 1973).

For thése reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.


text:
    Clara Mae LALONDE, Individually and as natural mother of the Deceased, Voorhies Lee Stelly, Jr. v. MISSOURI PACIFIC RAILROAD COMPANY et al.
    No. 6724.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearing Denied Jan. 31, 1979.
    Writs Refused March 23, 1979.

      Dubuisson, Brinkhaus & Dauzat by James G. Dubuisson, Opelousas, William J. Doran, Jr., Baton Rouge, for defendant-appellant.
    Dean & Lomenick, Otis E. Lomenick, Jr., Opelousas, for plaintiff-appellee.
    John A. Jeansonne, Jr., Lafayette, for defendant-appellee.
    Before CULPEPPER, FORET and CUTRER, JJ.
   CUTRER, Judge.

Defendants, Missouri Pacific Railroad Company and the Department of Highways of the State of Louisiana, appeal a judgment awarding Mrs. Clara Mae Lalonde, the mother of Voorhies Stelly, Jr., $45,-000.00 for the death of her son plus $10,-000.00 for her one-half of the $20,000.00 award for the conscious pain and suffering of the son between the time of the accident and the time of death. The deceased son was a guest passenger in the pickup truck.

Mrs. Lalonde divorced Voorhies Stelly, Sr., in 1971; thus she brought this separate suit.

This case was consolidated for trial and appeal with Hebert v. Missouri Pacific Railroad Company et aL, 366 So.2d 608. For the reasons therein assigned, the trial court judgment is affirmed as to liability of the defendants.

Defendants contend the awards are excessive and should be reduced to $15,000.00 for the death of the son and $5,000.00 for the mother’s share of the son’s pain and suffering.

Awards made to parents for the death of a child depends on the loss of love, affection and companionship involved in each case. Such awards may differ where, due to divorce or other factors, the ties between the child and one parent are stronger or closer than those between the child and the other parent. Weathersby v. Kersbergen, 356 So.2d 498 (La.App. 1st Cir. 1977); Ogaard v. Wiley, 325 So.2d 642 (La.App. 3rd Cir. 1975).

Mr. Stelly and Mrs. Lalonde were married and lived together until 1971. Of this union, 11 children were born. They were divorced in 1971. Mr. Stelly was given custody of the children in the divorce proceedings. Mrs. Lalonde testified that she had a “nervous breakdown” in 1970 and was hospitalized for one month. When she was discharged from the hospital she moved from Arnaudville to the State of New York. Mrs. Lalonde stated that she left Arnaud-ville and the family and went to New York to seek a better way of life. She continued living in New York up until the time of her son’s death.

Mrs. Lalonde did not remarry and went to work as a baby sitter and at the time of trial was earning $135.00 per week. She testified that she would occasionally talk with her children by phone and would go to Arnaudville to visit with them during her annual vacations. She stated that she sent some money to the deceased son to help him along. This was the extent of her contact with the children. We find that the relationship between the mother and son was not a strong relationship due to the several years of voluntary separation of the mother from the son. We conclude that the award of $45,000.00 for damages to Mrs. Lalonde for the death of her son was excessive and should be reduced to $25,000.00. Meaux v. Wiley, 325 So.2d 655 (La.App. 3rd Cir. 1975).

The next issue is the trial court’s award of $20,000.00 for pain and suffering by Voorhies Stelly, Jr., before death, $10,-000.00 of which was awarded to Mrs. La-londe.

The evidence reflects that Stelly received very severe internal injuries to the liver, spleen, diaphragm, bronchus, and bladder, and fractures of the pelvis and ribs. He complained to the physician of his pain. His sister testified that he also expressed his love for his father prior to being taken to the operating room. There is evidence that Stelly recognized his critical condition. The accident occurred at 3:30 P.M. and he died at approximately 7:30 P.M.

In the case of Temple v. Liberty Mutual Insurance Company, 336 So.2d 299 (La.App. 1st Cir. 1976), the court awarded $10,000 for conscious pain where the evidence reflected signs of life at the scene of the accident but the accident victim was dead on arrival at the hospital. In view of this, we do not find that the trial court committed any manifest error in its award of $20,000.00 in this case.

For these reasons, the judgment appealed from is therefore amended so as to reduce the award for the death of plaintiff’s son from $45,000.00 to $25,000.00. In all other respects the judgment of the trial court is affirmed. Costs of this appeal are to be borne one-half by plaintiff and one-half by defendants.

AMENDED AND AFFIRMED.


author: WATSON, Judge. GUIDRY, Judge,

text:
    Effie LANCLOS et al., Plaintiffs-Appellees, v. HARTFORD ACCIDENT & INDEMNITY COMPANY et al., Defendants-Appellants.
    No. 6738.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.

      Lewis & Lewis, John M. Shaw, Opelousas, for defendants-appellants.
    J. Wendel Fusilier, Ville Platte, for plaintiffs-appellees.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

In the afternoon of December 15,1975, on one of the principal streets of Ville Platte, Effie Landos and her mother, Lois Bellard, were standing between the rear of a parked Ford truck and the front of a Buick automobile when a Chevrolet truck struck the rear of the Buick causing the lower extremities of the two ladies to be crushed between the two parked vehicles. As a result of the accident, Effie Landos, and her husband, Robert Landos, as well as Lois Bel-lard, and her husband, Noah Bellard, filed suit against the defendants: Tate Oil Products and/or Tate Oil Products, Inc., the owner of the Chevrolet truck; Dudley Guil-lory, the driver of the Chevrolet truck; Hartford Accident & Indemnity Company, the primary liability insurer of the defendants; and Ranger Insurance Company, the excess liability insurance carrier.

Hartford had limits of $100,000, while the Ranger policy, described as an “umbrella excess liability policy” was written in favor of “Renee A. Tate, d/b/a Tate Oil Products; Tate Oil Products, Inc.” in the amount of $1,000,000.

Following trial by jury, verdicts were returned against Hartford and Ranger and in favor of the plaintiffs in the following amounts.

Effie Landos:
Past physical pain and mental suffering $235,000
Future pain and suffering $116,000
Los-, wages from 12/15/75 $ 23,400
Future loss of wages $108,000
Permanent disability $135,000
Robert Landos:
Medical expenses to date of trial $ 20,322
Future medical expenses $ 33,750
Lois Bellard:
Past physical pain and mental suffering $142,000
Future pain and suffering $ 27,000
Permanent partial disability and limitation of activities $ 50,000
Noah Bellard:
Medical expenses to date of trial $ 16,894.05
Future medical expenses $ 5,500

A judgment was signed in the stated amounts except that the awards to Robert Landos and Noah Bellard for their wives’ medical expenses were reduced without objection to $42,075.62 and $15,702.95, respectively, the lesser amounts prayed for in their petition.

After the judgment was signed, Hartford paid the amounts for which it had been cast; that is, the sum of $100,000 to the Bellards and $100,000 to the Landos, plus interest and appropriate court costs.

Ranger, the excess insurer, has appealed from the judgment.

While some argument has been presented on the issue of liability, no manifest error is reflected by the record and it is not necessary to detail that issue.

Another incidental issue is presented relative to certain photographs (Kodachrome color transparencies, P-34 in globo) which were made by Dr. Bordelon in the operating room just prior to surgery, and which were admitted over objection into evidence. The trial judge ruled that their probative value out-weighed any inflammatory effect and we find no error. State v. Redwine, 337 So.2d 1041 (La.1976).

The serious issue presented by the appeal is whether the damage awards are within the range of the “much discretion” accorded to the trier of fact under Civil Code Article 1934. Ranger argues very strenuously and very persuasively that the amounts awarded exceed the highest possible damages which could have been allowed by the jury. Ranger attacks both the general awards to Effie Landos and Lois Bellard and the special awards, the latter in particular as to calculation of Effie Landos’ future medical and loss of wages, both past and future.

Applicable Principles of Law

Before considering the various items of damages, we will recognize the appropriate standards of appellate review of quantum. These are cataloged in detail by Justice Calogero in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977). We will quote at length from Coco, which reviews the jurisprudential interpretation of LSA-C.C. art. 1934, and states:

. principles announced in Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v. National Indemnity Company of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967); and restated in a number of cases since, including these: Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974); Bitoun v. Landry, 302 So.2d 278 (La.1974); Revon v. American Guarantee & Liability Ins. Co., 296 So.2d 257 (La.1974); Spillers v. Montgomery Ward & Co., 294 So.2d 803 (La.1974); Boutte v. Hargrove, 290 So.2d 319 (La.1974); Fox v. State Farm Mutual Automobile Ins. Co., 288 So.2d 42 (La.1973); Walker v. Champion, 288 So.2d 44 (La.1973); and Miller v. Thomas, 258 La. 285, 246 So.2d 16 (1971).
In the foregoing cases we have repeatedly referred to the Article 1934(3) assertion that in the assessment of damages in cases of offenses, quasi offenses and quasi contracts, “much discretion must be left to the judge or jury.”
And we have asserted, initially in Miller v. Thomas, supra at p. 19 that
“From these decisions, two principles emerge: (1) To modify the amount of an award for general damages, an appellate court must find that the trial judge or jury has abused the ‘much discretion’ accorded by the codal provision; (2) The awards in other cases serve only as an aid in determining whether there has been an abuse of discretion and rivet no steel frame of uniformity.”
Recitation of the principles governing the legal issue presents no problem for our appellate courts. It is the application of those principles to particular cases which has proved difficult on occasion. Two questions are especially troublesome. What, in a given case, constitutes an acceptable quantum judgment in the sense of its being neither excessive nor inadequate within the framework of the legally-directed “much discretion” accorded judge or jury? When do awards in other possibly similar, reported cases properly aid (or erroneously mislead) an appellate court in determining whether there has been an abuse of discretion by a given judge or jury?
The appellate court is aided in answering these questions by such later expressions of this Court as these:
“Unless the record demonstrates that the trial court abused the ‘much discretion’ provided for in fixing damages (C.C.1934), the appellate court should not disturb the award. . . . The question is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it. That such evidence might also support a greater (or smaller) award will not justify a change in the amount by the appellate court.” Bitoun v. Landry, supra at 279. “A reviewing court might well disagree with the amount of the award fixed by the jury, but it is not entitled to substitute its opinion for that of the trier of fact.” Spillers v. Montgomery Ward & Company, Inc., supra at 809.
“The reduction [must be] supported by the record.” Walker v. Champion, supra at 46.
“The awards made in other cases provide no scale of uniformity; their use is limited to serving as an aid to determine, if the present award is greatly disproportionate to similar awards (if truly similar), whether an issue of abuse of discretion may exist in the present case. In any event, an abuse of trial-court discretion must be clearly demonstrated by the record before an appellate court will tamper with an award of general damages.” Anderson v. Welding Testing Laboratory, Inc., supra at 352.
“Adequacy or inadequacy of an award should be determined by the facts and circumstances peculiar to the case under consideration.” Boutte v. Hargrove, supra at 321-22.
* # * * # *

We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Anderson v. Welding Testing Laboratory, Inc., supra; Bitoun v. Landry, supra; Fox v. State Farm Mutual Automobile Ins. Co., supra; Walker v. Champion, supra. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Bitoun v. Landry, supra; Spiders v. Montgomery Ward & Company, Inc., supra. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.

Further we believe that, heretofore, courts of appeal have placed too much emphasis on their review of other reported decisions. Certainly no two cases are ever fully alike. And whether two cases are so similar as to produce like quantum judgments is hardly discernible by gleaning the facts of the comparable decision from simply a written opinion of an appellate tribunal. Of course, another factor bearing on this matter is that significant change has been, and is taking place in our society not the least of which are changes in economic conditions (particularly rampant inflation), fluctuating job categories, employment opportunities,, and even lifestyles.

341 So.2d 334-336.

Effie Landos

To review the awards it is necessary to categorize the separate amounts awarded by the jury for various items as reflected in the special verdicts. (TR. 1708). These are as follows for Ms. Landos:

Pain, suffering and disability $486,000
Loss of wages from 12/15/75 to trial $ 23,400
Future loss of wages $108,000

Ms. Landos, who was a 55 year old insurance debit sales person at the time of the accident, suffered extensive injuries to her legs for which she was hospitalized from December 5 until February 16, 1976. (She later experienced additional hospitalization). As described by Dr. R. Luke Bor-delon, the orthopedic surgeon of Opelousas who was principally responsible for Ms. Landos’ care, and as confirmed by Dr. Glynn Granger, a general surgeon who assisted, Ms. Landos suffered a crushing of both of her legs with an accompanying skinning of the legs “like ... a satsuma”. (TR. 2164). The right leg was described as crushed with the skin rolled loose on it; the right foot was torn open; the tendons were gone and bone was sticking out where the skin had been. Both of the bones of the right leg were broken about the middle of the calf. The left leg sustained a large cut through and through the medial and lateral aspects of the lower half of the leg; the ligaments of the left knee were torn and the inside ligaments were ripped loose. Dr. Bordelon described the right foot as being crushed across the middle with all the small bones crushed or broken, as well as the metatarsal bone. In his opinion, at the time of initial treatment, there was a strong possibility that Ms. Landos would lose one or both legs. (TR. 2171).

Dr. Bordelon described, in detail, his treatment of Ms. Landos including fixation of the bones, debridement (or clipping away) of dead skin on about twelve occasions, performance of a skin graft, and various other procedures. During her first hospital stay, Ms. Landos developed a severe skin rash and later, in the course of treatment, she developed a problem of spitting up blood.

Dr. Bordelon assigned Ms. Landos a permanent disability of the body as a whole of thirty-nine percent (39%). He added that she could perform no work which required her to be on her feet or to walk and he expressed his opinion that she was permanently disabled from working. Apparently, Ms. Landos was able to ambulate with the assistance of crutches but further surgical procedures were not possible due to her development of certain vascular difficulties described below.

Dr. Richard Tate, a physician specializing in internal medicine, saw Effie Landos in May of 1977. At that time she was somewhat overweight, she had swelling in her legs and her right calf was tender to palpation. She was hospitalized for tests and a lung scan was found to be positive; that is, it revealed a filling defect in the upper section of the right lung. Thus, Dr. Tate diagnosed Ms. Landos as being subject to pulmonary emboli, which he attributed to her accident. (TR. 2348). He would not recommend surgery, which might slightly decrease the disability in her legs or foot, because it would endanger her life. Ms. Landos was put on a regime of blood thinning medication and ordered to report to Dr. Tate on a monthly basis for regular testing.

While the quantum fixed by the jury as general damages (pain, suffering, and disability) for Ms. Landos is very large, the award of substantial sums by judge or jury is not unknown in this circuit. See Faulk v. Power Rig Drilling Co., 348 So.2d 219 (La.App. 3 Cir. 1977) and Gordon v. General Motors Corporation, 323 So.2d 496 (La.App. 3 Cir. 1975).

The injuries sustained by plaintiff in the Gordon case, for example, are not unlike those of Ms. Landos, although injuries in similar cases always involve some differences, as recognized by the rule that awards in other cases serve only as an aid to determine if the award under consideration is greatly disproportionate to those truly similar. See Coco, quoted supra. Gordon suffered a laceration over the right eye, a compound comminuted fracture of the wrist, a compound comminuted fracture of the upper tibia and fibula, a massive fracture of the left hip and gross fractures involving six teeth; he was unable to walk without crutches. An award to Gordon of $467,000, reduced by remittitur from $867,000, was affirmed by this court.

Certainly, there are differences between Gordon’s injuries and Ms. Landos’. We refer to Gordon, not as authority for affirming the general damages award to Ms. Landos, but to assist us in determining whether the Landos award is so greatly disproportionate as to be clearly excessive. Considering Ms. Landos’ injuries, her treatment, her hospitalization, the development of the pulmonary emboli, her residual disability, her inability to walk unassisted, and the mental trauma caused by the threat of the potentially fatal emboli, we conclude that the award of general damages is not so clearly excessive as to require reduction. It will be affirmed.

Effie Landos’ Loss of Wages

The jury awarded $23,400 for loss of wages from December 15,1975 to February, 1978, a period of approximately 26 months. Ms. Landos was employed as an insurance debit route sales person. According to the testimony of her supervisor, one Patrick David, she had been an excellent worker and had enjoyed a steady increase in earnings since March, 1974 when she began work under him. Her highest complete month of earnings was November, 1975, the month before the accident, when she earned $837.74. (P-24, TR. 1078).

While it is quite possible that Ms. Landos would have attained further increases, it is also possible that she would have suffered reverses as she did in March and April, 1975, when her commissions were much lower than other months (TR. 2278). The witness David estimated that Ms. Landos could attain $1,200 per month and that she could work until age seventy. Two of David’s twenty-five agents were working past age sixty-five. (TR. 2276).

An award for past loss of earnings and for future loss of wages must be based on past performance and established facts. The possible increases in earnings and the possible work past age 65 must be regarded as speculation.

Viewing the evidence in the most favorable manner to Ms. Landos, since the issue involves reduction of an award, we find established a monthly wage of $838. However, she had automobile expenses of $330 per month, according to her 1975 tax return. (TR. 1639). Her net monthly loss would be $508 for 26 months giving her a net past loss of wages of $13,208. The judgment will be amended accordingly.

The allowance for future loss of wages, based on the figures above, would be $508 per month or $6,096 annually for eight years, the period from trial until Ms. Láñe-los reaches age 65.

The present value of $6,096 for eight years with a 6% discount rate (LSA-R.S. 47:2405) is calculated by multiplying by a factor of 6.210, which is the present worth of $1 per year payable annually for eight years. (See Am.Jur.2d Desk Book, Doc. No. 133). The resulting total is $37,876.16. Giving ample weight to the jury’s discretion in fixing damages and also to the many variables which the jury may have considered, we hold that the largest possible award for loss of future wages is $50,000. The judgment will be amended accordingly.

Robert Landos for Efñe Landos’ Medical Expenses

The net award for future medical expenses of Effie Landos was $21,753.62. The record does not contain evidence to support this amount. Dr. Tate testified that Ms. Landos is precluded from future surgery because of the danger of blood clots, a factor considered above in affirming the large award for general damages. The future medical expenses established at trial include only a $12 monthly office visit to Dr. Tate (TR. 2350) and a $10 monthly blood test. Ms. Landos’ life expectancy at the time of trial was 15.39. (LSA-R.S. 47:2405). An allowance of $5,000 for future medical is the largest that can be supported by the record; the judgment will be reduced to that amount.

Lois Bellard

Lois Bellard’s total award by the jury was $219,000 for pain, suffering and disability. This lady, who was 77 at the time of the accident, suffered a “degloving” injury to her left leg and the fibula was broken in two places. “Degloving” means that the skin of the leg was peeled loose. It was necessary to do a skin graft and it was feared that amputation might be necessary. Ms. Bellard was hospitalized from December 15 until the following February 26. She is now ambulatory but cannot drive as well as before the accident and cannot kneel in church. (TR. 2325). Undoubtedly, she suffered greatly at the time of the accident and subsequently. Dr. Bordelon, who treated her also, gave an estimate of 30% residual disability of the left leg.

We have found no cases and have been cited to none which involve injuries similar to Ms. Bellard’s and which award an amount remotely approaching $219,000 for general damages. The jury clearly abused its discretion. Therefore, we are required to reduce this award to the highest point which is reasonably within the discretion of the jury. Essentially, Ms. Bellard suffered a badly broken leg with the skin peeled loose. She required lengthy hospitalization but experienced a good recovery considering her age. The 30% disability is significant but, according to her doctors, it does not have great impact on her activities.

We believe the highest possible award is $150,000, and accordingly, the award to Ms. Bellard will be reduced to that amount.

Noah Bellard for Lois Bellard’s Medical Expenses

Mr. Bellard received $15,702.95 (reduced from the jury award of $22,394.05, by the trial court) for his wife’s past medical expenses. This amount is supported by the evidence and will be affirmed.

For the reasons assigned, the judgment of the trial court in these proceedings is affirmed, except that it is amended as follows:

(a) The judgment in favor of Effie R. Landos is reduced to the sum of $549,208.

(b) The judgment in favor of Robert Landos is reduced to $25,322.

(c) The judgment in favor of Lois Bellard is reduced to $150,000.

All judgments to bear legal interest from date of judicial demand until paid.

■ Costs of appeal are taxed half against plaintiff-appellees and half against Ranger Insurance Company.

AMENDED AND AFFIRMED.

GUIDRY, J., concurs and assigns written reasons.

GUIDRY, Judge,

concurring.

I fully concur with my brethren in the reductions made in the awards for special damages and reluctantly concur in affirmation of the general damage award to Mrs. Landos and in the reduction of the general damage award of Mrs. Bellard to the sum of $150,000.00. Although I consider both awards for general damages, including that of Mrs. Bellard reduced to the sum of $150,-000.00, to be inappropriate, on the basis of the evidence and in comparison with awards in other cases, I am unable to conclude that the awards made exceed the highest award which is within the discretion afforded the trier of fact as is required by Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

Taking a given set of facts, I can conclude, albeit with some difficulty, what in my judgment constitutes a fair and just award. Likewise, taking a given set of facts, I can reach a decision as to whether or not, in my judgment, the quantum of an award is appropriate or inappropriate. However, I find it almost impossible, except in rare cases, to decide when an award is of such magnitude or so desperately low, that it exceeds the much discretion of the trier of fact to assess. The word “discretion” is defined in Webster’s dictionary, unabridged, second edition, as the “liberty or power of deciding or acting without other control than one’s own judgment”. How is one to decide what, in a given case, should be the trier of fact's “own judgment” as to the highest or lowest amount awardable? Yet, the courts of appeal, under the principles announced in Coco, are required to make this determination and reach a conclusion as to whether or not the award can be reasonably supported by the evidence.

The assessment of damages is a judgment call and rarely will any two or more judges, given the same facts, in the exercise of their “own judgment”, reach total agreement on the amount awardable. To go further and require agreement by a panel of appellate judges on an appropriate range of damages, i. e., the lowest to highest amount which is reasonably awardable on the basis of the evidence, I respectfully suggest is asking the impossible. This is perhaps best exemplified by Coco where on rehearing before the court of appeal, of the five judges, three fixed quantum at $140,-000.00; one felt the quantum award should be $200,000.00; and the fifth considered $350,000.00 to be within the discretion of the trier of fact. On review by the Supreme Court, of the seven justices, four were in favor of reinstating the award to $350,000.00; one felt a liberal appraisal of plaintiff’s claim supported an award of $200,000.00; and the remaining two agreed with the court of appeal. This indicates that under the facts in Coco, after conscientious inquiry by no less than thirteen judges, the “high” ranged between $140,-000.00 and $350,000.00, a difference of $210,000.00. Since in Coco the issue before the court was whether or not the award exceeded the outer limits of the trial court’s discretion one can only speculate as to what might have been a legally acceptable award in the so called “low range”.

I readily concede that under R.C.C. Article 1934, in the assessment of damages, “much discretion must be left to the judge or jury”, and this is as it should be. However, I respectfully suggest that to require, before such an award can be amended, an appellate court must find, in addition to inappropriateness of the award, that either such award exceeds the highest or is less than the lowest possible award which should be made on the basis of the evidence, precludes effective and meaningful review of quantum awards by the courts of appeal and ultimately often results in the affirmation of inappropriate awards which do not afford substantial justice to the parties litigant. A striking example of the inequitable results which follow when the principles announced in Coco are followed is seen when one compares the result reached by this court in the instant case with that reached by this same court, albeit by a different panel, in the case of Hebert v. Missouri Pacific Railroad Company et al., 366 So.2d 608. In my view the general damage awards made in the two cases cannot possibly be reconciled although each was decided applying the principles of Coco.

In the instant case we affirm a $486,-000.00 general damage award to a 55 year old lady, who although suffering a 30% disability of the body as a whole, will manage pretty well for the rest of her life. We also fix as the highest award possible, and accordingly grant Mrs. Bellard, 77 years of age, general damages in the sum of $150,-000.00. In the Hebert case, we affirm, as perhaps low but within the trial court’s discretion, a general damage award of $250,000.00 to a young man 17 years old, who suffered much more serious injuries and who although normal before the accident has severe brain damage and as a result he will remain in a depressed state, with suicidal tendencies, under constant psychiatric care for the rest of his life. Since we conclude that both awards are within the trial court’s “much discretion” under Coco we must affirm, however, the question remains whether substantial justice has been done.

For the above and foregoing reasons I respectfully concur in the opinion and judgment of this court.

      . The Tate companies and Guillory were dismissed as defendants at the beginning of trial.

      . We have viewed the slides, and, while they are unpleasant, we do not find them gruesome or inflammatory.

      . Remittitur was not urged in the present case.

      . There are other ways to calculate loss of future wages (See XXIV La. Bar Journal 119) but we choose the uncomplicated method of discounting at the statutory rate and we omit such considerations as inflation, income tax, and the like.

      . $42,075.62 less past expenses of $20,322.

      . Her birthdate is March 17, 1920. (TR. 2431).


author: DOMENGEAUX, Judge.

text:
    William RUE et al., Plaintiffs-Appellants, v. CONTINENTAL INSURANCE COMPANY, Defendant-Appellee.
    No. 6749.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 20, 1978.
    Rehearing Denied Jan. 31, 1979.
    Writ Refused March 23, 1979.

      Watson, Murchison, Crews & Arthur, William P. Crews, Jr., Natchitoches, for plaintiff s-appellants.

      Brittain & Williams, Jack O. Brittain, Natchitoches, for defendant-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   DOMENGEAUX, Judge.

This case involves the recovery for damages arising out of a boating accident.

On June 1, 1974, plaintiff, William Rue, and his two sons, Louis and Joe, were boating on the Cane River in Natchitoches Parish, Louisiana. On the same day, Brad Cohen, son of the defendant’s insured, Morris Cohen, was also boating on the Cane River in his father’s boat accompanied by some friends. The Cohen and Rue boats collided, and it is this collision which forms the basis of the suit.

At the time of the accident, both groups were engaged in water skiing maneuvers. The Rue boat was proceeding in a southerly direction in the southbound lane, or east half, of the river. Mr. Rue was driving, Louis was a passenger, and Joe was water skiing in the rear. The Cohen boat was proceeding in a northerly direction; however, it was in the southbound lane of the river, the same lane as the Rue boat. Mr. Richard Whittington was driving, other passengers were riding in the boat, and Brad Cohen was water skiing in the rear. The Cohen boat had just taken off. It should be noted that the Cane River gently curves in the area of the accident.

There is some dispute as to exactly how the accident occurred. Mr. Rue maintains that when he saw the Cohen boat heading towards him, he turned his boat to the right, or toward the west bank of the river, in order to avoid the collision. He states that the Cohen boat also turned to the west in an effort to avoid the collision, and that he thereon went further to the right. Defendant’s driver, Whittington, maintains that when he saw the Rue boat, he turned to his right, or to the east, in order to reach the east bank. However, he maintains that the Rue boat also turned towards the east bank, whereupon he states that he turned towards his left, or towards the west bank. However, he further maintains that the Rue boat changed its direction and began steering towards the west bank. Nevertheless, the boats ultimately collided when the front of the Rue boat ran into the right side of the Cohen boat near the west bank of the river.

Mr. Rue filed this suit on May 14, 1975, against the Cohen insurer, Continental Insurance Company, on his own behalf and on behalf of his minor son, Louis seeking to recover for his and his son’s personal injuries. After trial, the district judge found that both drivers were negligent in the operation of their respective boats, and he, therefore, found that William Rue could not prevail on his own claim because of contributory negligence. With regard to Louis, the trial judge entered judgment for $1,000.00 in favor of the minor and against Continental Insurance Company. With regard to Continental’s third party demand against Mr. Rue for contribution, the trial judge condemned Mr. Rue to pay $500.00 to Continental for one-half of the sum due Louis. All costs, including expert witness fees, were assessed against the defendant. After the denial of a motion for a new trial, plaintiff perfected this devolutive appeal. Defendant has answered the appeal contending that the trial court should have cast Mr. Rue for half of the court costs.

There are six issues presented in this appeal:

(1) Whether general maritime law or Louisiana tort law applies;
(2) Whether there are sufficient facts in the record to support the finding of contributory negligence on the part of William Rue;
(3) Whether special damages on behalf of the minor, Louis Rue, were properly denied;
(4) Whether the amount of damages awarded the minor was an abuse of discretion;
(5) Whether the judgment is consistent with the written reasons; and
(6) Whether defendant was properly cast for all costs of the proceedings.

With regard to the first issue, plaintiff maintains that the Cane River is a navigable body of water and that, since this accident occurred on a navigable body of water, maritime law controls. It is crucial to observe, however, that, although plaintiff’s original petition alleged the application of maritime law primarily, and alleged state tort law only in the alternative, at the opening of trial, plaintiff’s counsel made clear that he was pursuing his case in tort. No evidence of the navigability of the Cane River was ever introduced at trial. It is well established that in the absence of proof of the navigability of a waterway, the court cannot presume navigability. In the absence of navigability, state tort law applies. Robichaux v. Theriot, 242 So.2d 644 (La.App. 1st Cir. 1970).

The second issue concerns the contributory negligence of William Rue.. There are two possible grounds for finding contributory negligence presented in this case. One would be the failure to maintain a proper lookout, and the other would be the failure to reduce speed once Mr. Rue saw the Cohen boat heading towards him.

Both of these propositions are supported in the record. Mr. Rue’s son, Joe, was behind the boat on skis. He testified that when he first saw the Cohen boat, it appeared to be motionless in the water and that he observed it starting up in order to pull the skier out of the water. When this is contrasted with Mr. Rue’s testimony to the effect that when he first saw the Cohen boat, they were already under way, it is apparent that the skier, Joe, saw the Cohen boat before the driver, Mr. Rue. Furthermore, Mr. Rue testified that immediately before the accident, he wanted to turn around by the curve in the river. However, this could not be done because there was a girl on a float in the river, and, after she passed, there was another boat pulling two skiers. It was only when he was coming out of the curve in the river that he saw the Cohen boat.

We feel that this testimony could lead to the conclusion that Mr. Rue was preoccupied with other traffic, and, therefore, was not keeping a proper lookout. Furthermore, it is significant to note that Mr. Rue admitted on cross-examination that his wife refused to ride with him in the boat because he had a propensity to look too much to the rear at the skiers.

The second proposition is also supported by the record. Brad Cohen, the skier behind the Cohen boat, testified that when both drivers began their tactics to avoid a collision, had the gasoline source been cut from the motors, the accident could have been avoided. Whittington, the Cohen driver, testified that as soon as it became apparent that both he and Mr. Rue were heading towards the same bank of the river, he immediately cut his throttle. He also stated that at the time of impact, his boat was still or nearly still. On the other hand, Mr. Rue testified that he thought he could outrun the Cohen boat to the bank of the river. Furthermore, it is clear that after the impact, the Cohen boat was motionless in the water and the Rue boat was going around in circles.

Under the circumstances presented in this case, we find that the trial judge was not manifestly erroneous in his conclusions that Mr. Rue’s negligence contributed to the accident. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The next issue raised by plaintiff concerns whether it was erroneous to deny special damages on behalf of the minor, Louis Rue, when an award of general damages had been made. This issue has clearly been disposed of in previous cases. The rule is that a parent cannot recover special damages incurred on behalf of a minor child, where that parent is found to have been contributorily negligent. Romero v. General Accident Fire and Life Assurance Corporation, 199 So.2d 607 (La.App. 3rd Cir. 1967); Thibodeaux v. Jack’s Cookie Corporation, 169 So.2d 918 (La.App. 3rd Cir. 1964), writ refused 247 La. 365, 171 So.2d 479 (1965). The trial judge, therefore, was not in error by denying special damages.

The next issue concerns plaintiff’s contention that the amount of general damages awarded on behalf of the minor were. inadequate. Plaintiff attempted to prove at trial that Louis’ injuries were of a serious character and that he had undergone emotional difficulty as a result of the accident. The trial judge, however, found that the child’s emotional problems were unrelated to the accident.

We have carefully reviewed the battery of medical and psychological data introduced into the record in this regard. We note several interesting points. Louis was tested both before and after the accident by the Department of Special Education at Northwestern State University in Natchi-toches. A before and after comparison of the test results reveals no significant difference in the child’s mental abilities.

Louis was also seen by two psychiatrists, Dr. Edward H. Leatherman and Dr. Erie Harris, both of whom testified by way of depositions. Doctor Leatherman’s conclusion was that the child’s emotional problems were unrelated to the boating accident. Doctor Harris, however, felt that the emotional problems were related to the accident. However, he qualified his testimony by indicating that had he known of the test given before the date of the accident, as well as further case history, his conclusion might have been different.

Under these circumstances, we cannot say that the trial judge was erroneous in his conclusions that the child’s emotional problems were unrelated to the accident. Canter v. Koehring, Co., supra.

The $1,000.00 awarded by the trial judge was obviously for the boy’s physical suffering. Doctor Joseph A. Thomas treated Louis’ physical injuries. In his deposition, Doctor Thomas stated that Louis suffered from myositis, a contusion, and muscle spasms as a result of the incident. He also stated that Louis should have recovered from these injuries in approximately one to two weeks following the collision. Under these facts, we conclude that there was no abuse of discretion on the part of the trial judge. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

The next issue involves plaintiff’s contention that the judgment rendered is inconsistent with and contrary to the trial judge’s written reasons.

The trial judge’s written reasons state in part:

“The Court awards Louis Rue the sum of $1,000.00 for his injuries; to be paid jointly, in solido, by William Rue and Continental Insurance Companies; with legal interest from date of judicial demand until paid; Continental Insurance Companies to pay all costs.”
The judgment states, in part:
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Louis Rue, against Continental Insurance Companies, in the full sum of $1,000.00 plus legal interest from date of judicial demand until paid, plus all cost of these proceedings.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Continental Insurance Companies and against William Rue for one-half of the sum of Louis Rue, which is $500.00 plus legal interest from date of judicial demand until paid, but all cost to be paid by Continental Insurance Companies.”

Obviously, the . trial judge indicated an intent in his written reasons to award Louis Rue $1,000.00 in a manner such that one-half of the judgment would be borne ultimately by Continental and one-half by William Rue. Although the trial judge did not use identical language in his written reasons and judgment, the end result is the same in this case. Clearly, the written reasons and final judgment are not inconsistent with and contrary to each other. We thus find no merit to plaintiff’s contention.

The final issue in this case comes by way of defendant’s answer to the appeal. Defendant maintains that plaintiff should be cast for one-half of the costs of these proceedings. Under the circumstances presented in this case, we do not feel that the trial judge abused his discretion in assessing all costs against the insurer. Code of Civil Procedure Article 1920.

For the above reasons the judgment of the District Court is affirmed. Costs on appeal are assessed one-half against the plaintiff, William Rue, and one-half against the defendant, Continental Insurance Company.

AFFIRMED.

WATSON, J., concurs in the result.

      . We also find it significant to note that the failure to apply maritime law was not raised in plaintiff’s motion for a new trial.

      . We note that this testimony was contradicted by Mr. Rue, who stated that the Cohen boat was not slowing down before impact.

      . Defendant does not seek a decrease in the award.