author: CULPEPPER, Judge. WATSON, Judge

text:
    Shirley Jordan MITCHELL, Individually and as natural tutrix of her children, Plaintiff and Appellee, v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY OF WISCONSIN et al., Defendants and Appellants.
    No. 5732.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Rehearing Denied Jan. 26, 1977.
    Writ Refused March 18, 1977.

      Jack O. Brittain, Natchitoches, for defendants and appellants.
    G. F. Thomas, Jr., Natchitoches, for plaintiff and appellee.
    Gahagan & Gahagan by H. C. Gahagan, Jr., Natchitoches, for third-party defendant-appellee.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   CULPEPPER, Judge.

This is a suit for death benefits under the Workmen’s Compensation Act. Plaintiffs are the widow and minor children of Sam Mitchell, who worked as supervisor of a chicken catching crew for the defendant, J&M Poultry, Inc. One night Mitchell was sitting in his pickup truck with a Mrs. Durr about one-fourth of a mile from the chicken house where his crew was working. Mrs. Durr’s husband shot and killed Mitchell and fatally wounded her. The district judge found Mitchell’s death arose out of and in the course of his employment. From a judgment awarding benefits but denying penalties and attorney’s fees, defendants appealed. Plaintiff answered the appeal, seeking penalties and attorney’s fees.

The decisive issue is whether Mitchell’s death resulted from an accident “arising out of and in the course of his employment”, within the meaning of the Workmen’s Compensation Act.

Defendant J&M Poultry, Inc. is in the chicken processing business. Employees of J&M gather chickens from various chicken farms for live shipment by truck to the company’s processing plant in Alexandria, Louisiana. The chicken gathering or “catching” is accomplished by crews of 8 to 10 persons who go into large chicken houses located on farms of contract growers and physically catch the chickens and load them into shipping crates. These chicken catching crews work only at night because chickens are easier to catch in the dark. Depending upon the number of chickens at each farm, a crew might work at as many as three chicken farms in one night.

All catching, crating and trucking operations at the chicken farms are directed and controlled by an employee entitled “crew supervisor”. Crew supervisors do not catch chickens, nor does J&M require that they maintain a constant vigil over the actual chicken catching operation. Instead, each crew supervisor is “his own boss” at the jobsite and is .given considerable latitude in the method he employs to satisfy the objective of seeing that all of the chickens are caught, crated and trucked away. Often, crew supervisors are required to leave the jobsite in order to secure machine parts or to perform other tasks necessary for the completion of the job. In addition, J&M allows its crew supervisors to leave the jobsite to perform business of a personal nature unrelated to the job.

Sammy Mitchell was a crew supervisor for J&M. The record shows that he and his crew of chicken catchers were working at a chicken farm in a rural area of Sabine Parish on the evening and night of September 10, 1975. Mr. Mitchell left the jobsite on at least two occasions after the catching operations commenced. Early in the evening he left the site in his own pickup truck to tell Johnny Carline, a J&M truck driver, how to get his truck to the chicken houses. This first absence occurred at about 6:00 p. m. and lasted for about 15 minutes. Later, Mr. Mitchell again drove away from the jobsite in his pickup truck. He apparently drove down the dirt road leading from the chicken house where his crew was working and turned onto Louisiana Highway 175. After turning onto the highway, he encountered fellow-employee, Dennis McFerrin, who was driving a J&M chicken truck. Mr. Mitchell and Mr. McFerrin stopped their vehicles on the side of the highway near its intersection with the dirt road and began a conversation. A second pickup truck driven by Janet Moran approached the two men. Riding with Janet Moran were her two year old son and Martha Durr, the wife of Chester T. Durr. Upon seeing the Moran vehicle, Mitchell ended his conversation with McFerrin and drove a short distance down the highway where he parked at a small store. Janet Moran followed Mitchell to the store, which was closed, and parked her truck beside Mitchell’s truck. Mr. Mitchell told Janet Moran to follow him in her truck. Mr. Mitchell then led the way as the two trucks traveled back down the highway and onto the dirt road leading to the chicken houses where his crew was 1 working. Mitchell drove approximately 200 yards down the dirt road and parked at a cleared area adjacent to the road. Janet Moran parked her truck next to Mitchell’s truck. This secluded parking spot was surrounded by woods and could not be seen from the chicken house where the crew was working about one-fourth of a mile away.

Janet Moran related the following sequence of events leading to the death of Mr. Mitchell and the fatal wounding of Mrs. Durr. First, Janet Moran, Mr. Mitchell and Mrs. Durr listened to a tape playing in one of the trucks. Mitchell then announced that he was going to the jobsite to tell a truck driver, Johnny Carline, to drive his loaded chicken truck back to the shop. He then left in his pickup truck and returned about 15 minutes later. (Johnny Carline testified that he saw Mitchell only once on the night of September 10, at about 6:00 or 6:30 p. m.) Upon Mitchell’s return, the two women got in his truck, Mrs. Durr next to Mitchell and Mrs. Moran on the right. Mitchell drank coffee while he and his two female companions conversed. After Mitchell had been back for about 20 minutes, Chester T. Durr, husband of Mrs. Durr, arrived at the parking spot in his pickup truck. A brief conversation between Mr. and Mrs. Durr ensued. Mr. Durr asked his wife if she was coming home, to which she replied “No”. Immediately after hearing his wife’s negative response, Mr. Durr shot both Mr. Mitchell and his wife with a small caliber pistol. Mitchell died almost immediately. Mrs. Durr died later of complications from her wounds. Mrs. Moran was not injured. The shooting occurred at about 9:00 p. m.

Mitchell’s wife testified she knew that Mr. Durr had accused her husband of “having an affair” with Mrs. Durr. Janet Moran testified that on several previous occasions she had taken Mrs. Durr to meet Sammy Mitchell at the farms where his crew was working. She also testified that she knew that Mrs. Durr went with her on the night of the killing in order to meet Mr. Mitchell. A truck driver, Johnny Carline, testified that Mitchell and Mrs. Durr met at jobsites five or six times during one and one-half to two months immediately preceding the killing, and each time they met they drove away together in Mitchell’s truck and did not return until one and one-half or two hours later.

Mr. and Mrs. Durr had separated three days prior to the killing, and Mrs. Durr was living in the house trailer of her friend, Mrs. Moran.

Mr. Durr was also employed by J&M at the time of the shooting. He was a truck driver for a crew other than the one supervised by Mitchell, and was off duty at the time of the killing. His wife, Martha Durr, was previously employed as a chicken catcher in Mitchell’s crew, but she was not an employee of J&M on the night of Mitchell’s death. Janet Moran was a friend of William Mitchell, Sammy Mitchell’s brother. William Mitchell was a member of his brother’s chicken catching crew on the night of the killing.

The employer conspicuously posted a written rule forbidding its employees from having visitors at the farms where they worked. This rule was in effect at the time of Mitchell’s death, and in all probability, he knew of its existence.

The above review of the facts is substantially the same as the finding of facts stated in the trial court’s written reasons for judgment.

Section 23:1031 of the Workmen’s Compensation Act provides that the employer shall pay compensation to the employee who “receives personal injury by accident arising out of and in the course of his employment.” Our appellate courts have often turned to Professor Malone’s Treatise on Workmen’s Compensation (Malone, La. Workmen’s Compensation Law (1951) hereinafter cited simply as Malone), for guidance in interpreting these two requirements. In the recent case of Lisonbee v. Chicago Mill & Lumber Company, La., 278 So.2d 5 (1973), involving an assault on an employee by a gunman during work hours', Justice Summers stated his synopsis of applicable sections of Professor Malone’s Treatise:

“The terms arising out of and in the course of are not synonymous. The former suggests an inquiry into the character or origin of the risk, while the latter brings into focus the time and place relationship between the risk and the employment. The two requirements cannot, however, be considered in isolation from each other. A strong showing by the claimant with reference to the arise-out-of requirement may compensate for a relatively weak showing on the during-course-of requirement, or vice versa. As a corollary it follows that whenever the showing with respect to both requirements is relatively weak a denial of compensation is indicated.” Malone, Sections 162 and 192.

Speaking specifically of assault cases, Professor Malone suggests this formula “ * * * [T]he risk of assault should be administered like the risk of lightning or tornado, through the time-place rule of the Kern decision. [Kern v. Southport Mill, Limited, 174 La. 432, 141 So. 19 (1932)]. If the employee was actively engaged in the performance of duties, * * * or even if he was taking a short permissible rest from his labor, he should be protected against assault without reference to the nature of the difficulty that prompted the attack or the identity of his assailant. If, however, at the time of the aggression the victim was only barely within the course of his employment, it may be necessary and proper to determine whether the circumstances under which he worked enhanced the danger of assault.” [See Myers v. Louisiana Railway & Navigation Company, 140 La. 937, 74 So. 256 (1917)], Malone, Sec. 194. (Emphasis supplied)

Professor Malone’s analysis harmonizes the seemingly conflicting rules of the Myers case (increased risk doctrine) and the Kerns case (time, place, circumstance doctrine) into a workable formula for solving problems presented by assault cases. We have applied the formula to the present ease and we conclude that the trial court erred in awarding compensation. Mitchell was not within the course of his employment at the time of his death, and clearly the circumstances under which he worked did not enhance the danger of the assault which resulted in his death. Having stated in broad terms the law applicable to this case and our conclusions, we move now to a more detailed analysis of the in-course-of and arise-out-of requirements.

IN THE COURSE OF EMPLOYMENT

The phrase “in the course of” suggests an inquiry into the time and place relationship between the risk and the employment. Malone, Section 162. “An accident occurs during the course of the employment when it occurs during the time of the employment and at a place contemplated by the employment.” Lisonbee v. Chicago Mill & Lumber Company, supra. There is no question that Mr. Mitchell suffered his fatal gunshot wound during the hours or time of his employment. There is, however, a serious question as to whether Mitchell was at a place contemplated by his employment when he died.

What was Mr. Mitchell’s place of employment? There is no simple answer to this question. Mitchell was a supervisory employee who had no clearly defined place of work. In order to perform his job he often was required to leave the site where his crew was catching chickens to relay messages to other employees or to get parts necessary to keep the loading machines and other equipment in operating condition. In addition, the employer tolerated absences from the jobsite occasioned by the crew supervisor’s performance of business of a personal nature.

As a general rule, an accident that happens while an employee is actively engaged in the performance of his duties during working hours will be regarded as having occurred in the course of his employment. Kern v. Southport Mill, supra, Malone, Section 163. Mitchell would be at a place of employment and within the course of his employment at any location where performance of his duties reasonably required him to be. Thus, Mitchell would be within the course of his employment when he was actively supervising his crew or when he was necessarily engaged about his employer’s business at places other than the chicken farms where his crew was working. In addition, Mitchell would be within the course of his employment while traveling between places where his employment required his presence. See Malone, Section 174 and cases discussed therein.

“As a general proposition, the employee who abandons his work, with or without permission, for the purpose of attending to his personal business is not acting within the course and scope of his employment . . . [Tjhis generalization does not apply to permitted rest periods when the employee is attending to his bodily comforts or convenience or is engaged in recreation . . .. But the employee who leaves his work for his own affairs has separated himself from his employment for the time being and is not entitled to compensation if he is injured . . Even if the employer would tolerate the departure, the period may be outside the course of the employment, if the time consumed by the rest is greater than is ordinarily allowed for rest periods, or if the purpose of the departure is not the expectable convenience or comfort for which such periods are provided.” Malone, Sec. 167. (Emphasis supplied)

We conclude that Mitchell was pursuing his own personal business or pleasure when he absented himself from his place of employment during his unreasonably lengthy meeting with the wife of his assailant. There is no evidence indicating that Mitchell’s employment necessitated the meeting, nor is there any evidence indicating that the meeting furthered in any way the interest of the employer. The meeting may have been a minor deviation from the work place in terms of distance, but it was not incidental to Mitchell’s employment.

Plaintiff argues the meeting between Mr. Mitchell and Mrs. Durr was a “coffee break” of the type permitted by the employer. It would be manifestly unreasonable to hold that Mitchell was on a “coffee break” contemplated by his employment when he drove to a secluded place in the company of another man’s wife and remained there for about 45 minutes, including the brief interval when Mitchell said he was returning to the jobsite.

Also relevant, though not decisive of the question of course of employment, is the fact that the employer had a rule prohibiting its employees from having visitors on the chicken farms. Technically, Mitchell was not violating the rule at the time of his death, because he received his visitors at a location which was not a part of the chicken farm. The rule does show, however, that the employer would not tolerate or condone meetings of the type Mitchell was engaged in at the time he was shot.

Before moving from the analysis of course and scope of employment, we wish to make additional comments regarding Lisonbee v. Chicago Mill & Lumber Company, supra. Lisonbee was employed as a uniformed, armed guard at a mill. He left his guard post in violation of a company rule and crossed the street to a store where he bought a snack and began talking to the store proprietor. While Lisonbee was talking in the store, a gunman entered and shot the salesclerk. Lisonbee drew his pistol and exchanged shots with the gunman. In the exchange, Lisonbee suffered a fatal wound. Our Supreme Court concluded that the accident did not befall Lisonbee in the course of his employment. His absence from the place of employment in direct violation of a company rule took him outside the course of his employment. The court concluded that Lisonbee had abandoned his post and duties, because he was engaged in “conversation and activities that diverted his attention from [his] work.” Lisonbee’s presence at the store was, in the view of the court, purely a matter of personal convenience.

The Lisonbee case is in some respects remarkably similar to the present case. In both cases, an employee was shot during work hours. In both cases, the employee abandoned his duties to pursue a matter of personal convenience or pleasure. In both cases, the activity the employee was involved in at the time of the injury was not at the direction or in the interest of the employer. Distinguishing features of the nature of employment, however, prevent us from citing Lisonbee as our sole authority. Unlike Lisonbee, Mitchell had no clearly defined place of employment. He was allowed to leave the site where his chicken crew was working and indeed was sometimes required to leave. Mitchell, unlike Lisonbee, did not violate a rule when he left the site where his crew was working. Considering the general principles which underly the Lisonbee holding, however, it is clear that Mitchell was not within the course of his employment when he was shot.

ARISING OUT OF EMPLOYMENT

In Lisonbee the court stated:

“To ‘arise out of’ the employment, the accident must be the result of some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed. Time, place and circumstance must determine this. Kern v. Southport Mill, supra. Add to this a consideration of the character of the risk, which means ‘The accident must be the result of some risk to which the employee is subjected in the course of his employment and to which he would not have been subjected had he not been so employed.” Further explaining the quoted rule, Mr. Justice Provosty, as organ of the court, in Myers v. Louisiana Ry. & Nav. Co., 140 La. 937, 74 So. 256 (1917), said: ‘It ought to be sufficient that the nature of the employment was such that the risk from which the injury resulted was greater for the workman than for a person not engaged in the employment.’ ”

Essentially, the court in Lisonbee employed the formula suggested by Professor Malone when it applied both the increased risk doctrine of the Myers case and the time, place and circumstance test of the Kern case. Applying the Kern test to the present ease, Mitchell’s employment did not require him to be at the place of the accident when it occurred. Furthermore, Mitchell was not engaged in his employer’s business, but instead was pursuing his own business or pleasure.

Having concluded that the accident did not arise out of the employment under the liberal rule laid down in the Kern case, there is some question as to whether it is necessary that we also apply the “increased risk” test of the Myers case. We do so, however, because the Supreme Court applied both the Myers and Kern tests in Lisonbee. An analysis of the court’s reasoning in application of the “increased risk” test in Lisonbee will facilitate our application of the test to the facts of the present case.

In Lisonbee, the court was impressed by the fact that all others at the scene of the shooting, including the salesclerk and the store proprietor, were subjected to risk of injuries from gun shots. The court concluded that the risk of injury at the hands of the gunman was no greater for Lisonbee than it was for the store employees. Justice Summers stated that Lisonbee would have been subjected to the risk of gun shot whether he was employed or not. Considering these factors, the accident was held not to be one arising out of Lisonbee’s employment.

If we apply the same reasoning to the present case, we must conclude that the risk of death to Mitchell was no greater than the risk to Mrs. Durr or Janet Moran. Mitchell would have been subjected to the risk of Mr. Durr’s gun whether he was employed or not, just as Mrs. Durr and Janet Moran were.

In this case, as in the Lisonbee case, only the time element of the various factors considered necessary to satisfy the arising out of and in the course of the employment requirement of the Workmen’s Compensation Act have been satisfied. “This alone is not a proper basis for an award of compensation,” Lisonbee, supra.

Plaintiff argues that the cases of Rogers v. Aetna Insurance Company, 173 So.2d 231 (La.App. 3rd Cir. 1965), writs refused, and Gorings v. Edwards, 222 So.2d 530 (La.App. 4th Cir. 1969), are authority for awarding compensation benefits in the present case. We disagree. The two cited cases are readily distinguishable from the present case. In both cases, the assault on the employee occurred on the employer’s premises during work hours while the employees were engaged about the business of their employers. In neither case was the employee pursuing his own personal pleasure at a location separated from his work place. In the present case, of course, Mitchell was not on the premises of his employer, nor was he engaged about his employer’s business at the time of his death. The present case is therefore distinguishable from the two cited by plaintiff and from the following cases in which compensation was awarded to employees who were assaulted while clearly within the course and scope of their employment: Ferguson v. Cady-McFarland Gravel Co., 156 La. 871, 101 So. 248 (1924); Livingston v. Henry & Hall, 59 So.2d 892 (La.App.2d Cir. 1952); Williams v. United States Casualty Co., 145 So.2d 592 (La.App. 4th Cir. 1952); O’Connor v. American Mutual Liability Insurance Co., 87 So.2d 16 (La.App.Orl., 1956). See also Malone, Sec. 194.

As Justice Summers explained in Lison-bee, although the terms “arising out of” and “in the course of” are not synonymous, they should not be considered in isolation from each other. A strong showing for one may compensate for a weak showing in the other. In the present case, the showing for each is, at best, weak.

STATUTORY PENALTIES AND ATTORNEY’S FEES

Having concluded benefits must be denied, penalties and attorney’s fees are also denied.

For the reasons assigned, the judgment appealed is reversed and set aside. Judgment is now rendered in favor of defendants, rejecting plaintiffs’ demands at their costs.

REVERSED AND RENDERED.

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

WATSON, Judge

(concurring):

I concur in the well-written opinion adopted by the majority. Since this type of case is quite difficult and I recently authored the opinion in Turner v. United States Fidelity & Guaranty Company, 339 So.2d 917 (La.App. 3 Cir. 1976), which involved the same legal principles but a different result, I wish to delineate the distinguishing features of the two cases.

In Turner there was no question that the plaintiff was in the course of his employment, since the accident happened during working hours and Turner was physically on the employer’s premises. There was a strong showing of “course of” employment in Turner. In Mitchell, the present case, the deceased was not on the premises and there was no showing that he was engaged in the employer’s business at the time of the accident. In Turner, there was at least a moderate showing of “arising out of” the employment in that the gun had been brought on the premises by a fellow employee, had been there some time, had been cleaned on the premises, and the presence of the gun was tolerated by the employer. In Mitchell, the only connection with employment is that Mr. Durr was a fellow employee, although off-duty at the time of the shooting, and Mrs. Durr was a former employee. Mitchell is weak in both features: “arising out of” and “course of” employment. Thus, Turner met the requirements of “course of” and “arising out of” employment, while Mitchell does not.

For these additional reasons, I concur.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Succession of Earl H. HINES, Sr. CALCASIEU-MARINE NATIONAL BANK OF LAKE CHARLES, Appellee, v. Juanita Slocum HINES, Appellant-Appellee, Wilburn Ray Hines et al., Appellants-Appellees.
    No. 5734.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Rehearing Denied Jan. 26, 1977.

      Moise W. Dennery of McCloskey, Den-nery & Page, New Orleans, for respondents-appellants.
    Collings & Codings by Robert L. Codings, Lake Charles, for respondent-appellee-ap-pellant.
    Stockwell, Sievert, Viccellio & Clements by Scott Pias, Lakes Charles, for executor-appellee.
    King & Ricketts by C. A. King, II, Lake Charles, for respondent-appellee.
    Before HOOD, DOMENGEAUX, and HUMPHRIES, JJ.
   DOMENGEAUX, Judge.

Several parties appeal from a declaratory judgment interpreting certain provisions of the Last Will and Testament of Earl H. Hines. The testator herein died on December 12, 1973, leaving a complicated and detailed Will which, among other things, bequeathed a large portion of stock to the Calcasieu-Marine National Bank of Lake Charles, as trustee, to be administered for the benefit of Juanita Slocum Hines, the surviving spouse, as beneficiary. The Will also named the Calcasieu-Marine National Bank as executor.

The aforementioned stock held in trust by the bank earned considerable cash dividends between the date of testator’s death and the time at which demand for said income was made upon the bank by Mrs. Hines, the beneficiary. The bank requested the court to determine the ownership of said dividends. Mrs. Hines and the bank maintained that the former is entitled to the dividends while the forced heirs contend that said income belongs to them as residuary legatees.

The bank further petitioned the court for a judicial interpretation of Article One of the testament which reads as follows:

“Should there be any Inheritance, Estate or other taxes due because of the inclusion of the proceeds of any life insurance policy in my estate, then I wish the named beneficiary of such policy or policies, if any, to pay the proportionate share of such tax caused by inclusion of such insurance proceeds in the computation of that tax. I desire that the burden of all other debts, costs of administration and any Federal Estate or Transfer Taxes owing or payable by my estate or succession and all Louisiana Inheritance or Estate Taxes shall be paid out of the residue of my estate. Therefore, the bequests set forth in Articles 2 through 5 hereof shall be free from the burden of any such obligations.”

Mrs. Hines contends that the testator’s intent, as evidenced by Article One, was that all debts of the community existing between herself and the testator should be paid from the latter’s estate. The testator’s children and residuary legatees herein, Wilburn Ray Hines, William H. Hines, and John D. Hines, argue that the testator’s estate should be charged only with his portion of the community debts.

The learned trial judge found that the testator did not intend that the entire debt of the community be paid out of his estate and further ruled that the income from the stock dividends belonged to Mrs. Hines. We affirm.

THE TRUST AND THE STOCK DIVIDENDS

The residuary legatees’ primary argument is based upon the provisions of LSA-C.C. Articles 1626 and 1630, which provide:

“Art. 1626. Rights of particular legatee, demand for delivery
Art. 1626. Every legacy under a particular title gives to the legatee, from the day of the testator’s death, a right to the thing bequeathed, which right may be transmitted to his heirs or assigns; and this takes place as well in testamentary dispositions, universal or under a universal title, as in those made under a particular title.
Nevertheless, the particular legatee can take possession of the thing bequeathed, or claim the proceeds or interest thereof, only from the day the demand of delivery was formed, according to the order here-inbefore established, or from the day on which that delivery was voluntarily granted to him.
Art. 1630. Demand for delivery, persons upon whom made
Art. 1630. The delivery of legacies under a particular title must be demanded of the testamentary executor, who has the seizin of the succession. If the testamentary executor has not the seizin, or if his functions have expired, the legatees must apply to the heirs.”

The trustee and beneficiary contend that the situation presented herein is controlled by LSA-C.C. Article 1628:

“Art. 1628. Executor as legatee, demand for delivery unnecessary; restitution for payment of debts
Art. 1628. Neither is the testamentary executor, who has the seizin of the effects of the succession, and who is at the same time a legatee, bound to demand the delivery of his legacy; he can retain it in his possession subject to the same restitution.”

The scheme of the above cited codal provisions can be simply stated as follows: The particular legatee may claim the income or proceeds from his legacy only from the date on which demand for delivery of the legacy is made upon the testamentary executor or the heirs who have seizin thereof, unless the testamentary executor and legatee are the same person, in which case demand is unnecessary.

The bank and Mrs. Hines maintain that the former is both the testamentary executor and legatee of the property in trust while the residuary legatees argue that Mrs. Hines is the particular legatee of same. Thus, a finding of exactly who is the particular legatee is crucial to a determination of the necessity of demand for the legacy and a subsequent right to income therefrom.

LSA-R.S. 9:1731 defines a trust as follows:

“§ 1731. Trust defined
A trust, as the term is used in this Code, is the relationship resulting from the transfer of title to property to a person to be administered by him as a fiduciary for the benefit of another.” (Emphasis added)

The definition of a trustee is provided in LSA-R.S. 9:1781:

“§ 1781. Trustee defined
A trustee is a person to whom title to the trust property is transferred to be administered by him as a fiduciary.” (Emphasis added)

Additionally, LSA-C.C.P. Articles 699 and 742 provide, respectively, that the trustee is the proper plaintiff and defendant in any action to enforce a right or obligation in behalf of or against a trust estate.

The above quoted statutory provisions (particularly the Trust Code articles) clearly indicate that actual title to the property in trust is transferred from the settlor to the trustee, not to the beneficiary. See also the case of St. Charles Land Trust, Achille Guibet v. St. Amant, 253 La. 243, 217 So.2d 385 (1969). In fact, under the Code of Civil Procedure, the beneficiary lacks even a right of action to enforce rights of the trust estate, save certain remedies against the trustee for breach of its fiduciary obligation.

Thus, we must conclude that the particular legatee herein of the stock held in trust is the trustee itself and not the beneficiary. For that reason it was unnecessary for the bank (as particular legatee) to make demand upon itself (as testamentary executor) for delivery of the stock in trust, and consequently, the dividends therefrom belong ultimately to the beneficiary, Mrs. Hines. See LSA-C.C. 1628, Succession of Ames, 33 La.Ann. 1317 (1881), and Succession of Brunies, 209 La. 629, 25 So.2d 287 (1946).

The residuary legatees argue that the case of Succession of Stewart, 301 So.2d 872 (La.1974) holds that the beneficiary and particular legatee of a testamentary trust are one and the same person. The Stewart case is factually distinguishable from the instant litigation, and the statement therein relied upon by the residuary legatees is arguably dictum.

Thus, the interpretation of Stewart propounded by the residuary legatees is not controlling in the case at hand and has no bearing herein.

Assuming arguendo that Mrs. Hines was actually the particular legatee of the stock in trust, we find, for an additional reason, that her demand for delivery of same was not required in this case. LSA-C.C. Article 1631 provides as follows:

“Art. 1631. Interest or proceeds of thing bequeathed, rights of legatee
Art. 1631. The interest or proceeds of the thing bequeathed shall accrue to the benefit of the legatee, from the day of the decease, without his having brought suit for the same:
1. When the testator has expressly declared in his will to that effect;
2. When an annuity or pension has been bequeathed by way of maintenance.”

Our Supreme Court has held this Article applicable to cash dividends paid on a legacy of shares of stock. See Succession of Quintero, 209 La. 279, 24 So.2d 589 (La.1946).

Therefore, under any circumstances, we find that demand by the beneficiary herein for delivery of the stock (dividends) was unnecessary.

INTERPRETATION OF ARTICLE ONE OF THE TESTAMENT

In interpreting the previously quoted Article One of the testament the trial judge stated:

“There is nothing in this Article to indicate that the decedent intended that his widow retain her one-half interest in any other property belonging to the community without being subject to payment of the community debts. Had he so intended, certainly this elaborate will would have contained such a provision.”

We are compelled to agree with the trial judge’s conclusion on the issue. In our opinion, the testator merely intended that the disposition provided for in Articles Two through Five of the Will be free from the responsibility of payment for any:

“debts, costs of administration and any federal estate or transfer taxes owing or payable by my estate or succession and all Louisiana inheritance or estate taxes

Articles Two through Five of the Will provide, respectively: A grant of the usu-fruct of the family home to Mrs. Hines, the naked ownership thereof to the Methodist Home for Unmarried Girls in New Orleans, the family automobiles to Mrs. Hines, and the aforementioned stock in trust to Calca-sieu-Marine National Bank. Had the testator desired that all community debts be paid by his estate, a simple statement to that effect would have required little effort on his part. Rather, the testator speaks of “all . . . debts, . . . owing or payable by my estate or succession ..” (Emphasis added). The careful wording of such a meticulously prepared document cannot be easily disregarded, and we find no basis therein for the interpretation proposed by Mrs. Hines. Accordingly, we affirm the trial judge on this issue and hold that Mrs. Hines’ portion of the community debts must be paid by her.

For the above and foregoing reasons the judgment of the district court is affirmed in all respects. Costs at trial and on appeal of this declaratory judgment action are assessed one-half against the beneficiary-particular legatee, Mrs. Juanita Slocum Hines, and one-half against the residuary legatees, Wilburn Ray Hines, William G. Hines, and John D. Hines.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Anthony PANEK, Jr., et ux., Plaintiffs-Appellees-Appellants, v. GULF INSURANCE COMPANY et al., Defendants-Appellants.
    No. 5745.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Rehearing Denied Jan. 26, 1977.

      Gist, Methvin & Trimble by James T. Trimble, Jr., Alexandria, for defendant-appellant-appellee.
    Bernard Kramer, Alexandria, for plaintiff-appellee.
    Grove Stafford of Stafford, Randow, O’Neal & Scott, Alexandria, Hall, Coltharp & Lestage by David Lestage, DeRidder, for defendant-appellee.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   GUIDRY, Judge.

Anthony Panek Jr. and Linda Bowen Pa-nek, husband and wife, instituted this suit seeking to recover special and general damages incurred as a result of injuries sustained in a motor vehicle accident which occurred July 31, 1974 on Louisiana Highway 1.

The facts surrounding the accident which gives rise to this litigation are not disputed and are accurately set forth in the trial judge’s reasons for judgment as follows:

“On July 31, 1974, Linda Panek was driving a 1971 Volkswagen van in a southerly direction on Louisiana Highway 1 immediately adjacent to the Rapides Golf and Country Club. Her husband, Anthony Panek, Jr., was a passenger in the van. As the van approached a northbound truck and trailer owned by Bodcaw Company and being driven by one of its employees, the left front dual tandem of the trailer came off of the axle, crossed the centerline, and slammed into the front of the van. The trailer from which the wheel became detached was originally manufactured by Pullman, Inc., under the trade name Trailmobile, Inc., in 1965. It came into the ownership of the defendant, Fruehauf Corporation, on February 5, 1974. Subsequently, Fruehauf sold the trailer to Bodcaw after making certain modifications and repairs. These modifications and repairs consisted of the cutting of six vents in the side and front of the trailer, installing corrugated steel in the roof and a top swinging door. All of the brake shoes were relined and the oil seals and some brake shoe parts were replaced.”

The following parties were joined as defendants: Marshall E. Robbins, driver of the truck; Bodcaw Company and its insurer, Gulf Insurance Company (hereafter sometimes collectively referred to as “Bod-caw-Gulf”); Fruehauf Corporation and its insurer, Continental Casualty Company (hereafter sometimes collectively referred to as “Fruehauf-Continental”); and, Pullman, Inc. Marshall E. Robbins, Bodcaw Company and Gulf Insurance Company filed a third party demand seeking indemnity and/or contribution from Fruehauf Corporation, Continental Casualty Company and Pullman, Inc. Fruehauf Corporation and Continental Casualty Company filed a third party demand seeking indemnity and/or contribution from Pullman, Inc.

The contentions of the several defendants-third party plaintiffs are succinctly set forth in the trial court’s reasons as follows:

“The defendants agree that the Paneks are entitled to recover for the injuries which they received in this accident. However, they understandably disagree as to which of them is liable. Bodcaw argues that it purchased the truck from Fruehauf and that the wheel came off through no fault of its own. It argues that the accident was caused because Fruehauf failed to tighten the jam nut when it replaced the wheels after relining the brakes and/or that the assembly intended to hold the wheel on the axle was defectively designed by Pullman and/or Fruehauf. Fruehauf denies that there is sufficient evidence to establish that it failed to tighten the jam nut and blames the accident on Pullman’s defective design and/or Bodcaw’s failure to properly maintain and inspect the trailer. Pullman defends the design and contends the sole reason for the wheel coming off was someone’s failure to properly tighten the jam nut. Pullman also argues that even if the design is defective, Fruehauf re-manufactured the trailer prior to selling it to Bodcaw and that Fruehauf’s failure to correct any defect is an intervening cause which would relieve Pullman from liability.”

After trial on the merits the district court, for written reasons assigned, found Fruehauf’s negligence to be the sole proximate cause of the accident but determined that Bodcaw-Gulf were solidarily liable with Fruehauf-Continental under R.C.C. Article 2317. Accordingly, the trial court rendered judgment as follows:

(a) in favor of Anthony Panek Jr., against Bodcaw Company, Gulf Insurance Company, Fruehauf Corporation and Continental Casualty Company, in solido, for the principal sum of $15,051.52;
(b) in favor of Linda Bowen Panek against Bodcaw Company, Gulf Insurance Company, Fruehauf Corporation and Continental Casualty Company in solido, for the principal sum of $80,000.00;
(c) in favor of Marshall E. Robbins and Pullman, Inc., against plaintiffs dismissing the latter’s demand against these defendants;
(d) in favor of Pullman, Inc., and against Marshall E. Robbins, Bodcaw Company, Gulf Insurance Company, Fruehauf Corporation and Continental Casualty Company, dismissing the third party demands of the latter against the former; and,
(e) in favor of Bodcaw Company and Gulf Insurance Company against Frue-hauf Corporation and Continental Casualty Company, in solido, indemnifying Bod-caw and Gulf for all amounts for which they were cast, including court cost. Bodcaw-Gulf have appealed and urge

that: (1) the trial court erred in finding strict liability of Bodcaw Company and its insurer under R.C.C. Article 2317; (2) in the alternative, in the event this court should find that Bodcaw is liable and not entitled to indemnity from Fruehauf Corporation and its insurer, in relieving Pullman, Inc., of negligence; and, (3) in awarding excessive general damages to Linda Bowen Pa-nek.

Fruehauf Corporation and Continental Casualty Company have appealed and urge that the trial court erred: (1) in finding Fruehauf Corporation negligent; (2) in not finding Bodcaw Company and its insurer liable under the doctrine of res ipsa loqui-tur; (3) in allowing Bodcaw-Gulf indemnity over against Fruehauf-Continental; (4) in finding strict liability of Bodcaw Company and its insurer under R.C.C. Article 2317; (5) in failing to hold Pullman, Inc. negligent; and, (6) in awarding excessive general damages to Linda Bowen Panek.

Plaintiffs also appeal, however, not because they felt aggrieved by the trial court judgment but rather as a precautionary measure in the event this court should amend the trial court judgment so as to cast Pullman, Inc.

The trial court in a comprehensive and well reasoned opinion correctly disposed of all the issues presented in this case, except the issue as to the liability of Bodcaw-Gulf under R.C.C. Article 2317. We adopt the opinion of the learned trial judge as our own in disposing of all issues presented by this appeal excepting the latter issue.

“BODCAW’S LIABILITY

The driver of the tractor-trailer involved in the accident was Marshall Robbins, a Bodcaw employee. The tractor was owned by Bodcaw. As stated earlier, Bod-caw purchased the trailer from Fruehauf on February 5, 1974. Fruehauf had reconditioned the trailer and modified it so that it could be used for hauling wood chips from a forest area to the Pineville Kraft Paper Mill. The trailer had been used for this purpose and had been driven some 10,000 miles by Bodcaw employees. The testimony of several Bodcaw employees was to the effect that the wheel in question had not been removed since the trailer was purchased from Fruehauf. They testified that irregular but fairly frequent visual inspections were made of the trailer and that occasionally the wheels were jacked up and shaken manually to check for looseness. This shaking was primarily intended to check the condition of the bearings. The oil level in the axle was checked either by visual inspection through a transparent portion of the hub or by removing a rubber plug in the center of the hub. The jam nut was never inspected. However, there is no evidence that the manufacturer’s recommended inspection and maintenance procedures required such an inspection nor is there any testimony that such inspections are customarily performed in the trucking industry. Therefore, the Court is unable to find that Bodcaw was negligent in failing to remove the hubcap and tighten the jam nut.

It is also contended that there would have been sufficient noise and vibration to warn the Bodcaw driver that the wheel was loose and about to come off and that he was negligent in failing to discover and remedy the situation. The wheel in question was on two sets of bearings. The bearings were held in place by a positioning nut. A perforated lock washer was then installed against the positioning nut. Finally, a jam nut was installed to hold the perforated lock washer in position. The jam nut must maintain the perforated lock washer against the positioning nut in order to prevent the positioning nut from loosening. It is conceded that the jam nut on the wheel in question came off thereby permitting the lock washer to disengage itself from the positioning nut which allowed the positioning nut and wheel to come off. It is not contended that any of the parts just discussed contained manufacturing defects. On the contrary, all of the experts agreed that these parts were in good condition and could be reused. It appears that the jam put in question came off and remained in the hubcap for a period of time prior to the accident. This is indicated by the scarring on the interior of the hubcap. However, the degree of damage to the interior of the hubcap indicated that the jam nut came off a relatively short time prior to the accident. The experts could not predict with certainty how long the trailer could be operated without the jam nut before the perforated lock washer would disengage from the positioning nut. They generally agreed that very little vibration or shock would be required to disengage the lock washer. It was also generally conceded that once the lack washer was disengaged the positioning nut would unscrew fairly quickly and allow the wheel to come off.

There are two things which could have warned the driver of the truck that the wheel was about to come off. As soon as the positioning nut began to loosen, thus permitting the wheel to move outward, an interior oil seal was broken and the oil in the axle was permitted to escape. As the wheel moved outward on the axle it could have wobbled causing vibrations which the driver might have detected. The testimony indicates that the wheel would have a tendency to continue to rotate normally until just before it came off the axle. The driver testified that he observed the wheel in question while making a turn when he was leaving the Pineville Kraft Plant. He stated that he noticed nothing unusual about the wheel at that time. He also testified that nothing occurred that would warn him that the wheel would come off during the return trip to the chipper location and that he was unaware that it had come off until he was informed of that fact at the end of the return trip. Considering the normal bounce of the empty trailer, the rattle of the metal shield on the interior roof of the trailer and the other noises and vibrations normally associated with the operation of a tractor-trailer of this sort, the Court is of the opinion that the driver cannot be held to have noticed any wobble of the wheel as it came off. This is especially true since there is no evidence concerning the severity of the wobble, its duration or whether it could have been discovered in time to avoid the accident.

For the above reasons, the Court is of the opinion that Bodcaw was not guilty of any negligence which contributed to this accident. Bodcaw’s liability under the provisions of Civil Code Article 2317 will be discussed hereinafter.

PULLMAN’S LIABILITY

Stated very simply, the wheel came off because the jam nut came off. The reason for the jam nut coming off will be more fully discussed in the portion of this opinion dealing with Fruehauf’s liability. Plaintiffs Bodcaw and Fruehauf, argued that the design of what shall be referred to as the wheel retaining package was defective because it did not contain a positive locking device such as a spider washer or cotter key. Pullman admits that it manufactured the trailer in question in 1965 and that it is the legal manufacturer of the entire trailer, including the wheel retaining package in question, although it did not actually design the axle or the retaining package. The legal principles which must be applied in deciding this issue are discussed in Gauthier v. Sperry Rand, Inc. [La.App.], 252 So.2d 129 cert. denied [259 La. 940] 253 So.2d 382 (Third Cir. 1971) wherein the Court said:

‘We agree that there were some dangerous features in the machine involved here, and that anyone who used it subjected himself to some risk of injury. But that is true of many other products, including automobiles, bicycles, farm implements, guns and even some kitchen appliances. The law does not require that the manufacturer make the product “fool proof” or “accident proof”. As stated in Dean vs. General Motors Corporation, supra:
‘The criterion by which liability is tested is “failure to exercise reasonable care in the adoption of a safe plan or design.” The design must measure up to what the community is entitled to expect of those who persuade the public to buy their products — sometimes, as in the case of GM, by dint of tremendous advertising campaigns. The standard “reasonable care” is deliberately flexible; it permits the trier of fact to exercise judgment in determining what measure of care is appropriate. But there is no “defect” in the design if reasonable care is taken in adopting it, even though the design is not perfect. For the plan need not be foolproof, nor sure against all contingencies. Whether there was reasonable care depends upon the facts known at the time it was adopted.’”

See also Leathem v. Moore, 265 So.2d 270 (La.App., 1st Cir., 1972) wherein the Court said:

“The . . . rule requires the manufacturer to exercise reasonable care in the design of its products which are of such nature that, if not carefully made, can cause foreseeable injury to persons using the products for purposes which the manufacturer may reasonably expect they will be employed, and also to those whom the manufacturer may reasonably expect to be endangered by such probable use .
“By its very nature, the criteria of reasonable care, applicable in instances of this nature, must be flexible inasmuch as it depends on the peculiar facts and circumstances of each case. Even though design may not be perfect or foolproof, it is still not defective provided reasonable care is taken in its adoption . . .”

From the foregoing it is clear that Pullman owed a duty to use reasonable care in the adoption of the wheel retainer package design found on this trailer and that this standard of reasonable care is to be measured by the facts known at the time of the adoption and at the time of its use on this vehicle. It is also clear that Pullman is not charged with the obligation to produce a perfect, foolproof or accident proof design, nor one sure against all contingencies. It was conceded by most of the experts that the jam nut on the wheel in question was insufficiently tightened. It is claimed that if a spider washer or cotter key had been incorporated into the design that the wheel would not have come off despite the jam nut having been properly (sic) tightened. To counter this, Pullman admits that an improperly tightened jam nut would permit a wheel to come off and that a positive locking device could prevent this. However, Pullman points out that even the spider washer or cotter key had its drawbacks as they are deformable, one-use items which would be replaced each time the wheel is taken off. Should one of these deformable positive locking devices by reused a portion of it could break off and fall into the bearings causing them to fail which could result in the wheel coming off.

Most of the experts agreed that the retaining package used here served the intended purpose extremely well if the person installing it properly tightened the jam nut in accordance with the manufacturer’s specifications. The defect then, if there be one, is that an unqualified person might be called upon to install a wheel and in so doing fail to properly tighten the jam nut. However, this same person might reuse a spider washer or cotter key. In either case, there would be a danger that the wheel could come off. It seems clear then that the addition of the spider washer or cotter key would not remove the human element from the proper reassembly of the wheel. It should also be remembered that the basic design utilized in this retaining assembly is at least 62 years old. Engineering drawings reflecting the same three component parts, i. e., positioning nut, perforated lock washer and outer jam nut, dated 1914, were introduced by an employee of Rockwell International, the manufacturer of the axle and retaining assembly. Rockwell was in 1965 and is today the largest axle manufacturer in the world. A large percentage of the trucks operating on highways of this country are equipped with the retaining package used here. This has been true for many years. It is interesting to note that there is no evidence of any similar accident having occurred. Several Rockwell employees testified that they had never heard of such an accident. The prolonged marketing and úse of this design and its general acceptance by the trucking industry for many years indicates its adequacy for the intended purpose.

The testimony of the various experts will not be recited herein. Careful consideration of that expert testimony along with the history of this retaining package and the major role that it has served in the trucking industry for many years, the lack of evidence of any similar accidents and the failure of the evidence to establish that the inclusion of a positive locking device such as cotter key or spider washer would lessen the chances of a wheel coming off, the Court feels that the evidence fails to establish that the design of this wheel retaining package was defective.

In view of the above findings, it is unnecessary to discuss the contentions that Frue-hauf manufactured or re-manufactured the trailer and that this re-manufacturing is an intervening cause which relieves Pullman of any liability.

FRUEHAUF’S LIABILITY

As stated earlier, the jam nut came off and permitted the wheel in question to come off. One expert, Professor Barnwell, provided the opinion that the jam nut was loosened by a severe blow to the wheel at a particular angle. He stated that such a blow would loosen a properly tightened jam nut. Some of the other experts admitted the possibility that such a blow could loosen the nut but stated that it would probably damage other portions of the wheel or axle also. Most of the experts felt that the jam nut was not properly tightened the last time the wheel was installed. This would permit a much less severe blow or a period of normal road vibrations to loosen the nut. The Court accepts the latter explanation as it is supported by the bulk of expert testimony. It is also supported by the lay testimony of the Bodcaw employees and particularly that testimony concerning the low speeds at which the truck was operated on unimproved roads. It is also supported by the fact that none of the parts of the axle, wheel or wheel retaining package were damaged. Professor Barnwell’s explanation is certainly possible, but it is not the most probable.

The truck in question has been in the exclusive control of Bodcaw since it was purchased from Fruehauf. Fruehauf admitted removing the wheel and replacing it prior to the sale to Bodcaw. Bodcaw called most if not all of the people that had anything to do with the operation and maintenance of the trailer in question during its period of ownership and they all testified that they had no knowledge of the wheel ever having been removed since it was purchased from Fruehauf. Therefore, the Court must conclude that Fruehauf employees were the last persons to install the wheel.

Considering all of the above, it is the opinion of the Court that the sole proximate cause of this wheel coming off and the resulting accident is the negligence of Frue-hauf’s employees in failing to properly tighten the jam nut when they reinstalled the wheel.

In view of the above findings, it is clear that Bodcaw is not liable even though the doctrine of res ipsa loquitur is applicable.”

The trial court determined that Bod-caw-Gulf were liable, in solido, to plaintiffs under R.C.C. Article 2317, citing in support thereof Loescher v. Parr, 324 So.2d 441 (La.1975). The trial court determined further, that since Bodcaw-Gulf were only vicariously liable they were entitled to indemnity over against Fruehauf-Continental. The trial court reasoned that although Bod-caw-Gulf clearly established that the defect in the wheel assembly was caused by the negligence of Fruehauf they were yet liable to plaintiffs since they were unable to exculpate themselves from responsibility by establishing that the fault of a third person and not the defect caused the accident. In other words, the trial court concluded that an owner-guardian of a defective thing can exculpate himself from liability only if the defective thing caused harm, not because of its defect, but rather because of the fault of some third person, the fault of the person injured or an irresistible force. Since the harm was caused by the defect the trial court concluded that Bodcaw-Gulf are liable under R.C.C. Article 2317.

We do not believe that the legal proposition espoused in Loescher v. Parr, supra, extends that far. In Loescher, supra, the majority clearly set forth the circumstances under which the owner-guardian of a defective thing which causes harm could escape liability, such circumstances being, page 447, . . if he shows the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.” In Loescher, Justice Tate was careful to point out that the defendant in failing to exculpate himself from liability failed to establish that, page 449, “. the fault . . of any third person contributed to (i. e., was a substantial factor in) the fall of the tree.” In the instant case the defendants, Bodcaw-Gulf, established to the satisfaction of the trial court on the basis of substantial evidence that the tandem assembly was thrown from the Bodcaw van by reason of the negligence of Frue-hauf’s employees in failing to properly torque the jam nut. Under such finding, with which we agree, Bodcaw-Gulf are not responsible to plaintiffs under the provisions of R.C.C. Article 2317 having shown that, although owner-guardian of a defective thing, the damage was caused by the fault of a third person, i. e., Fruehauf Corporation. Accordingly, we will reverse that part of the trial court judgment which finds Bodcaw-Gulf liable in solido with Fruehauf-Continental to the plaintiffs and that portion of the judgment which grants Bodcaw-Gulf indemnity over against Fruehauf-Con-tinental.

As previously set forth the trial court rendered judgment in favor of plaintiff, Anthony Panek, Jr., for the principal sum of $15,051.52 and in favor of Linda Bowen Panek for the principal sum of $80,000.00. Appellants have no complaint with regard to the amount awarded Mr. Panek but assert that the general damage award to Mrs. Panek is excessive. In fixing quantum in this case the trial court stated:

“QUANTUM
Anthony Panek, Jr., received generalized bodily contusions and abrasions, and a laceration of his chin. This scar is not seriously disfiguring. Mr. Panek’s general damages are set at $2,500.00. Linda Panek, age 27, received more serious injuries. In addition to generalized bodily contusions and abrasions she received serious injuries to her left leg which are enumerated as follows:
1. laceration of her anterior thigh;
2. comminuted (segmented) fracture of the left femur (femur broken into six separate pieces at this fracture approximately six inches below the thigh);
3. a simple non-displaced fracture of the femur at the femoral condyle;
4. fracture, non-comminuted, of the left tibia immediately below the knee;
5. compound comminuted fractures at the distal one-third of the tibia and fibula;
As a result of Mrs. Panek’s injury she was confined under the care of Dr. Cayer of the Rapides General Hospital for a period of eleven days where her left leg was set in a cast. Thereafter, she was transferred to the East Jefferson General Hospital on August 12, 1974, where she was treated by Dr. Santo LoCoco, an orthopedist. She remained in East Jefferson General Hospital from August 12, 1974, through October 12, 1974. She was in traction during this period and her lower leg was in a cast and metal pins were surgically inserted into the fractured femur. She developed a vaginal infection in connection with her hospitalization and was generally in extreme pain and discomfort. On October 12,1974, she was fitted with a spica cast which extended from the nipple area down her left leg to the ankle and down to the knee on the right leg. There was a bar connecting the right and left leg. She remained in this cast and confined to her home until November 25, 1974. On that date she was returned to East Jefferson Hospital where the cast was removed. Her left tibia had not healed properly and she was placed in a long leg cast extending from her hip to her foot. She received treatment until December 19, 1974. At that time she was discharged but still wore a leg brace. She was confined to a wheel chair for two or three weeks and to crutches through April 21, 1975. At that time she was able to discard one of the crutches but was required to use her crutch until June 21, 1975. She has a permanent scar on her left ankle and still suffers some swelling in her ankle and foot. She has a slight permanent limp and one-half inch shortening of the left leg. Dr. Banks testified that at the time of the trial she was suffering from a 65% restriction of motion in the left knee, restriction of motion in the left ankle and an overall 50% disability of the left leg. He felt that the disability of the left leg would improve to a 30% permanent disability or 12% of the body as a whole. Dr. LoCoco felt that there was a 50% permanent disability of the left leg. A clawing condition is developing in the left toes which will also create some problems for Mrs. Panek in the future. Mrs. Panek’s previous life style and the limitation of activities which this accident has caused are fully explained in the record. It suffices to say here that she was extremely active and athletic prior to the accident and that many of her previous activities will now be restricted or prohibited. Considering the above, Mrs. Panek’s general damages are set at $80,000.00. Her special damages amounted to $12,551.52.”

The rule of appellate review as it applies to awards of general damages was rather recently set forth in the case of Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974) as follows:

“The appellate review of awards for general damages is limited to determining whether the trial court abused its great discretion. The adequacy or inadequacy of an award should be determined on the basis of the facts and circumstances peculiar to the case under review, having in regard also that the trier of fact has the advantage of seeing the witnesses and evaluating their testimony, including that of residual pain. 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 ease. 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.”

We have considered the award made in this case in light of this well established rule and fail to find any abuse of the much discretion vested in the trier of fact. R.C.C. Article 1934; Bitoun v. Landry et al., 302 So.2d 278 (La.1974); McDonald v. Fidelity & Casualty Company of New York, 317 So.2d 267 (La.App. 3rd Cir. 1975).

For the above and foregoing reasons we reverse that part of the trial court judgment in favor of plaintiffs and against Bod-caw Company and Gulf Insurance Company and that portion of the judgment which grants such defendants indemnity over against Fruehauf Corporation and Continental Casualty Company and now order that plaintiff’s demands against Bodcaw Company and Gulf Insurance Company be dismissed with prejudice. It is further ordered that the third party demand of Bod-caw Company and Gulf Insurance Company against Fruehauf Corporation and Continental Casualty Company be dismissed with prejudice. We further amend the trial court judgment so as to cast Fruehauf Corporation and Continental Casualty Company for all costs of these proceedings both in the trial court and on appeal. In all other respects the judgment appealed from is affirmed.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.


author: WATSON, Judge.

text:
    Jo Ann McGOWEN, Plaintiff-Appellant, v. C. A. PRENTICE, Jr., Defendant-Appellee.
    No. 5747.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.
    Rehearing Denied Jan. 26, 1977.

      L. H. Olivier, Lafayette, for plaintiff-appellant.
    Armentor & Wattigny by Minos H. Ar-mentor, New Iberia, for defendant-appellee.
    Before CULPEPPER, WATSON and GUIDRY, JJ.
   WATSON, Judge.

This is an appeal from a judgment holding that the defendant-principal did not defame the plaintiff-teacher by recommending to the school board that the plaintiff-teacher not be re-hired, or by referring to her and another teacher as “both nuts”. Plaintiff is Jo Ann McGowen, a non-tenured teacher at Jeanerette Senior High School and defendant is C. A. Prentice, Jr., the principal of that school.

Ms. McGowen’s petition of July, 1974, claimed damages for defamation in the sum of $250,000. She alleged that, as a result of the misrepresentations and defamation of defendant Prentice: her reputation in the community had been damaged; she had been subjected to mental and emotional distress; and she had lost her employment as a teacher at Jeanerette High School in Iberia Parish, Louisiana. The alleged defamation consisted of:

“. . . statements concerning plaintiff’s abilities and competence as a teacher, at a time when he knew or should have known that these statements were false and incorrect; and ■
“. . . representation to thé superintendent of the school and/or the school board of the parish of Iberia, which he knew or should have known to be incorrect and of a defamatory nature.” (TR. 4)

Mr. Prentice answered: that, as principal of Jeanerette High School, he evaluated plaintiff in the performance of her duties; that he did recommend in May of 1974 that plaintiff not be re-hired for the 1974-1975 term; that such recommendation was made in good faith, without malice, in the performance of his duty to the Iberia Parish School Board, which had a lawful interest in the report; and that his recommendation enjoyed a qualified or conditional privilege.

A motion for summary judgment by defendant Prentice was denied; the case was tried on the merits; and the trial court decided in favor of Mr. Prentice, dismissing Ms. McGowen’s suit.

Plaintiff contends on appeal that the trial court erred:

“1. In failing to find that the plaintiff had been defamed and damaged when defendant-appellee referred to her as ‘nuts’.
“2. In failing to find that plaintiff-appellant had been defamed in the recommendation that she not be re-hired at a time when he knew, or should have known, that his recommendations concerning her performances was untruthful.”

The decisive issue on appeal is whether Mr. Prentice defamed Ms. McGowen by: (a) recommending that she not be re-hired; or (b) referring to her as “nuts”.

The record is voluminous concerning Ms. McGowen’s teaching, her relationship with the students, the situation at Jeanerette High School, the evaluation of her capabilities and similar matters. Much of the evidence is not material to the issue of defamation but concerns whether Mr. Prentice was right in his recommendation.

The trial court held that the vast preponderance of the evidence supported the recommendation of Mr. Prentice, and, while we have serious doubts that it was necessary for the trial court to make such a determination or for us to decide that point, it appears that there is more than an ample evidentiary basis for the trial court’s conclusion.

Defamation is a statement which exposes a person to contempt, hatred, ridicule or obloquy. Brown v. News-World Publishing Corp., 245 So.2d 430 (La.App. 2 Cir. 1971); Moresi v. Teche Publishing Company, Inc., 298 So.2d 901 (La.App. 3 Cir. 1974), writ refused, 302 So.2d 309 (La.).

The actual recommendation in this case was in a letter addressed to George Crowson, assistant superintendent of the Iberia Parish school system, which reads in its entirety as follows:

“This is in response to your letter of April 23, 1974 regarding Jo Ann P. McGowen. “In view of the circumstances and facts relating to this teacher I reluctantly but firmly recommend that, in the interest of Jeanerette High School, she not be rehired for the 1974-1975 school year.” (P-1, TR. 32)

The letter was signed by defendant Prentice; it is on his stationery which indicates that he is principal of Jeanerette Senior High School. This letter is not defamatory. The major thrust of plaintiff’s evidence is that Prentice was wrong in recommending against her re-hiring, but that question is for the school board and the school officials, not for the courts. Therefore, we conclude, as did the trial court, that the defendant did not defame the plaintiff in recommending that she not be rehired.

In addition to finding that the recommendation by the principal not to re-hire the teacher did not constitute defamation, we note that, even if there had been a defamatory communication from the principal to the school board, the plea of privilege would have been available as a defense. A good faith communication (there was no showing of bad faith on the part of Prentice) between parties sharing an interest or duty (here providing good teachers in the public schools) enjoys a privilege against suit for defamation in Louisiana. Madison v. Bolton, 234 La. 997, 102 So.2d 433 (1958); Carter v. Catfish Cabin, 316 So.2d 517 (La. App. 2 Cir. 1975). The school officials and school board had a lawful interest along with the principal in the subject matter on which the principal reported, that is, the qualifications of Ms. McGowen. Even if Prentice had defamed Ms.McGowen in making his report to the school board, on the present record he could have claimed the defense of privilege.

Next, plaintiff contends that defendant defamed her by a remark made in the teacher’s lounge of the high school. No specific reference was made to this remark in the pleadings, but the evidence was admitted without objection. The incident occurred when Ms. McGowen entered the lounge while Mr. Prentice was speaking about one Sue Cox, a teacher at another school. The incident was described by plaintiff as follows:

“A. Sue teaches speech at Senior High in New Iberia, and I guess I felt kind of prone to — he was saying that she was a strange bird; that she did things in a strange way; that she didn’t fit in with the people around here, and so forth.
“Q. Let me be sure I understand you. At that time we’re talking about she was teaching in New Iberia High School?
“A. She does.
“Q. And you were teaching in Jeaner-ette?
“A. Jeanerette.
“Q. I see.
“A. I guess the reason that I felt inclined to defend Sue, was that she — that first year that I had to teach that speech, she was very helpful to me in setting up a program of study for the year, and if it hadn’t been for that, I would have really been lost. And so I just — I wasn’t rude with Mr. Prentice or anything. I just said, well, you know, Sue isn’t from here. She’s from — she’s a Texan, and sometimes she doesn’t understand the way we cooneys do things, you know, and I said, while she does do strange things, she’s a very talented school teacher, and he held his coffee cup up, and looked at me, and he said, that’s why you understand her so well, because you all are both nuts.” (TR. 590-591)

A witness to this incident was Sheryl Mouhot, another teacher at the Jeanerette School. Ms. Mouhot recalled the conversation much as plaintiff described it but testified that the principal could have meant the remark as a joke.

The trial court held, considering the circumstances of the remark, that it did not constitute a defamatory statement. The trial court noted that casual remarks made in informal conversation, even if they include unflattering words, do not constitute actionable defamation. We agree with the analysis of the trial court.

For the reasons assigned, the judgment of the trial court is affirmed. Plaintiff-appellant is cast to pay all costs.

AFFIRMED.


author: HOOD, Judge.

text:
    UNITED CREDIT PLAN OF JENA, INC., Plaintiff-Appellee, v. Sammie HAILEY, Defendant and Third-Party-Plaintiff-Appellant, v. AETNA CASUALTY & SURETY COMPANY, Third-Party-Defendant-Appellee.
    No. 5651.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 21, 1976.

      William Henry Sanders and J. P. Mauf-fray, Jr., Jena, for third-party-plaintiff-appellant.
    Gold, Hall, Hammill & Little by James D. Davis, Alexandria, for defendant-appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   HOOD, Judge.

The original plaintiff, United Credit Plan of Jena, Inc., instituted this suit against Sammie Hailey to recover the amount due on a promissory note. Hailey answered and filed a third party demand against David M. Deville and Aetna Casualty & Surety Company, claiming damages resulting from a motor vehicle accident. Judgment was rendered by the trial court on October 29, 1974, in favor of United Credit Plan and against Hailey on the principal demand, that is, plaintiff’s claim for judgment on the promissory note. No appeal was taken from that judgment.

A settlement was entered into between Hailey and Deville, and Hailey thereupon voluntarily dismissed his third party action against Deville on May 7, 1974, leaving Aetna as the sole remaining third party defendant. The third party action then was tried, and judgment was rendered by the trial court on June 28,1976, in favor of Hailey and against Aetna, for the sum of $1,379.24. Hailey appealed.

This suit and a companion suit were before us on a prior occasion, at which time we reversed summary judgments which purported to dismiss both actions as to Aet-na. See United Credit Plan of Jena, Inc. v. Hailey, 311 So.2d 539 (La.App. 3 Cir. 1975), and Hailey v. Aetna Casualty & Surety Company, 311 So.2d 542 (La.App. 3 Cir. 1975).

The principal issue presented on this appeal is whether Aetna was obligated at the time of the accident to provide Hailey with uninsured motorist coverage with limits up to $20,000/$40,000, instead of $10,000/$20,-000.

The accident which gave rise to Hailey’s third party demand occurred on October 31, 1973, in Rapides Parish. Hailey was driving his automobile west on Louisiana Highway 28. He brought his car to a stop behind an unidentified west-bound vehicle which had stopped on the highway preparatory to making a left turn. While he was stopped in that position, another unidentified car approached from the rear, but it veered to its right and traveled along the north shoulder of the road, passing on the right side of the Hailey car. A fourth vehicle being driven by Deville then approached from the east and struck Hailey’s automobile in the rear. The blow caused Hailey’s car to strike the unidentified automobile ahead of it slightly. The Hailey car did not come in contact at any time with the other unidentified vehicle which veered to its right onto the north shoulder of the road. Hailey and his wife sustained serious injuries as a result of the accident.

At the time the accident occurred there was in effect an automobile liability policy issued by State Farm Mutual Automobile Insurance Company to Deville, insuring the latter against liability, with limits of $10,-000/$20,000. As already noted, a settlement was entered into between Hailey and Deville, and a receipt and release was given to Deville and State Farm, his insurer.

There also was in effect at the time of the collision an automobile liability policy issued by Aetna to Sammie Hailey covering two automobiles, one of which was the vehicle which was involved in the above accident. That policy provided liability coverage of $10,000/$20,000 for each of the two covered vehicles, and it also provided uninsured motorist coverage of $5,000/$10,000 for each of those vehicles.

Plaintiff Hailey had borrowed a sum of money from United Credit Plan to purchase the automobile involved in the above accident, and as evidence of that indebtedness he executed and delivered to United Credit Plan a promissory note, dated August 7, 1973, for $4,981.68, made payable in monthly installments. He failed to make the monthly payments as they became due, and United Credit Plan thereupon instituted this suit against Hailey to recover the amount due on that note. Hailey then filed a third, party action against Deville and against Aetna, seeking to recover the damages which he sustained as a result of the accident. He alleges that Aetna is liable to him under the uninsured motorist coverage provided in the policy which it had issued to Hailey.

The case was tried by jury and the jury made several special findings, including findings (1) that Hailey was free from negligence, (2) that the unidentified motorist who stopped on the highway in front of Hailey was not negligent, (3) that there was no physical contact between the Hailey car and the other unidentified vehicle which drove on the north shoulder of the road, and (4) that Deville was negligent. The trial judge, accepting those findings, held that Hailey was entitled to stack his uninsured motorist coverage for both of the insured vehicles, and that the policy which Aetna issued to Hailey thus provided him with uninsured motorist coverage of $10,000 for bodily injury sustained by one person and $20,000 for each occurrence. Since that coverage was equal to the primary liability coverage carried by Deville, the trial court concluded that Deville was not an “under-insured motorist,” that the uninsured motorist coverage in the Hailey policy did not come into play, and that Hailey was not entitled to recover from Aetna under the uninsured motorist provisions of that policy. The trial judge thus rejected that part of Hailey’s demands against Aetna which were based on the uninsured motorist provisions, but he rendered judgment in favor of Hailey and against Aetna for $1,379.24 under the medical payments and collision provisions of the policy.

Hailey contends on this appeal that the drivers of both of the unidentified vehicles involved in the accident were negligent. We agree with the jury and the trial judge that the drivers of those two vehicles were not negligent. We also note that the unidentified vehicle which veered to its right on the shoulder of the highway could not be held to be covered as an “uninsured automobile” or a “hit and run automobile,” since there was no “physical contact” between that vehicle and the Hailey car.

The third party plaintiff takes the position, however, that prior to the accident Aetna, through its agent, had obligated itself to provide him with uninsured motorist coverage in the aggregate sum of $20,-000/$40,000, that Deville thus was an “under-insured motorist,” and that Hailey and his wife are each entitled to recover up to $10,000 from Aetna under the uninsured motorist provisions of the policy.

Mr. and Mrs. Hailey had obtained their automobile insurance for years through the Bradford Insurance Agency, and their policies during that time were issued by Aetna. The policy which was in effect at the time of the accident covered the period from May 9, 1973, to May 9, 1974. As already noted, it provided liability coverage of $10,-000/$20,000 and uninsured motorist coverage of $5,000/$10,000.

Mrs. Hailey testified that during the latter part of 1972, or the first part of 1973, she visited the Bradford Insurance Agency and requested “full coverage” increase in her automobile insurance policy. She explained that she was interested in bidding on a contract to deliver mail, and that if the contract was awarded to her it required her to use her own car and to carry liability insurance with minimum limits of $10,-000/$20,000. She stated that she specifically requested as much uninsured motorist coverage as she could get, and that when she left the agency she felt that all of her insurance coverage would be doubled.

Mr. Hailey takes the position that the Bradford Agency agreed to provide the additional uninsured motorist coverage requested, and that when it agreed to do so the contract of insurance became effective, even though a policy containing the agreed coverage was never issued. Bradford Insurance Agency is not a party to the suit, and Hailey does not seek to recover from that agency. He contends, however, that the Bradford Agency was the agent of Aet-na, and that Aetna was bound by the agreement made by its agent.

No one in the Bradford Agency remembered Mrs. Hailey’s visit to that office. The only document produced which indicates that such a visit was made is a copy of a letter dated December 10, 1971, written by Sue Ray, an employee of the agency, to Mr. James P. Jordan, who was responsible for taking bids for rural mail delivery routes. The letter advises that if Mrs. Hailey’s bid for the rural star route is accepted, the Bradford Agency will obtain the liability insurance on her car up to the required $10,000/$20,000 limits. There is nothing in the letter, however, which refers to uninsured motorist coverage. The policy which was issued more than one year later provided for liability limits of $10,000/$20,000, and uninsured motorist coverage of $5,000/$10,000, and there is nothing in the record to show that Mr. or Mrs. Hailey objected to the provisions of that policy.

The evidence does not convince us that Mrs. Hailey ever made it clear to the Bradford Agency that she wanted uninsured motorist coverage of $10,000/$20,000, or that the Bradford Agency ever agreed to provide that particular coverage for her or her husband.

Assuming, however, that the Bradford Agency agreed to provide the Haileys with uninsured motorist coverage at the increased limits, the question is presented as to whether Aetna is bound by that agreement. To answer that question, it is necessary to determine whether the Bradford Agency acted as an insurance broker, or as an agent for Aetna, in dealing with Mrs. Hailey.

In Karam v. St. Paul Fire & Marine Insurance Co., 265 So.2d 821 (La.App. 3 Cir. 1972), affirmed 281 So.2d 728 (La.1973), we quoted with approval the following statement in Appleman, Insurance Law and Practice, Sec. 8725:

“A person delegated to solicit insurance for a particular company, and to refrain from soliciting insurance for any other company, is an agent, and not a broker. The fundamental distinction in the legal result is that the acts of one procuring insurance as the agent of the insurer are imputable to it, while those of one acting as the agent of the insured, or as a broker, are not; the broker representing the insured for the purpose of procuring the policy, and the insurer only in order to receive and transmit the premium.”

The evidence in the instant suit shows that the Bradford Agency was a general insurance agency, representing several different companies. It had not been delegated by Aetna to solicit insurance for that particular company and to refrain from soliciting insurance for any other company. The agency had the right to “bind” Aetna for insurance coverage, but the latter could reject or terminate that binder later despite the agreement of Bradford. In this instance, the letter written by an employee of Bradford on December 10,1971, indicates that that agency may place the additional primary liability coverage requested in some company other than Aetna.

Our conclusion is that the Bradford Agency was an insurance “broker” and that it was acting as agent for the insured when it negotiated with Mrs. Hailey for additional coverage. The request made by Mrs. Hailey, or any commitment which may have been made to her by Bradford, was not binding on Aetna, and apparently Aetna has never accepted any such commitment. We find, as did the trial court, that Aetna did not agree, through the Bradford Agency or through any other authorized representative, to provide uninsured motorist coverage to the Haileys in excess of that provided in the above policy.

Hailey contends, finally, that Aetna was required by LSA-R.S. 22:1406 D (1), as amended by Act 154 of 1974, to provide uninsured motorist coverage of “not less than the limits of bodily injury liability provided by the policy,” that is limits of $10,000/$20,000.

Act 154 of 1974 requires automobile liability insurance policies to include uninsured or under-insured motorists coverage “in not less than the limits of bodily injury liability provided by the policy,” unless that coverage is rejected by the insured. That act, however, had not been enacted when the above policy was issued by Aetna. The law which was in effect at that time had no such requirement.

Hailey argues that the 1974 act was remedial or curative in nature, and that it thus should be applied retrospectively. He bases that argument on language used in the title of the act, to the effect that the statute is to “clarify the definition of an uninsured motor vehicle and the scope of coverage relative thereto.”

We believe that Act 154 of 1974 makes a substantive change in the law, that it was not intended as remedial or curative legislation, and that it should not be given retroactive effect.

In our opinion, there is no error in the judgment of the trial court which rejects Hailey’s demands against Aetna under the uninsured motorist provision of the policy.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to third party plaintiff-appellant, Sammie Hailey.

AFFIRMED.