text:
    STATE of Louisiana v. Johnnie E. KENT.
    No. 57942.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: Johnnie E. Kent applying for Writ of Certiorari.

Writ denied. No error in the ruling of the trial judge.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. Emmitt HILL v. The Hon. Perry M. JOHNSON, Jr., Clerk of Court, Parish of East Baton Rouge, Louisiana.
    No. 57861.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: Emmitt Hill applying for Writ of Habeas Corpus.

Granted. Petitioner is granted an evi-dentiary hearing to determine whether a motion to appeal his conviction was filed, whether he was advised of his right to appeal, whether he waived the right to appeal, etc. Counsel should be appointed to represent applicant at this hearing upon satisfactory showing that he is indigent.


text:
    Frances Cabrini Warino MAUFFRAY v. John Philip MAUFFRAY, Jr.
    No. 57962.
    Supreme Court of Louisiana.
    May 11, 1976.
   In re: John Philip Mauffray, Jr. applying for Remedial Writs.

Writ denied. The showing made is insufficient to warrant the exercise of our supervisory jurisdiction.


text:
    STATE of Louisiana v. Oswald O. GUNTER.
    No. 57986.
    Supreme Court of Louisiana.
    May 13, 1976.
   In re: Oswald O. Gunter applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ granted. Evidentiary hearing is ordered as to reasons why the defendant was not brought to trial within the prescriptive period, and the prosecution is stayed pending finality of the determination.


text:
    STATE of Louisiana v. Herman ADDISON.
    No. 58032.
    Supreme Court of Louisiana.
    May 14, 1976.
   In re: Herman Addison applying for Writs of Certiorari, Prohibition, and Mandamus.

Application denied. There is an adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. Michael W. WILLIAMS. STATE of Louisiana v. Tracy JETT and John P. Bennett.
    No. 58047.
    Supreme Court of Louisiana.
    May 18, 1976.
   In re: Michael W. Williams, Tracy Jett and John P. Bennett applying for remedial writs of certiorari, prohibition, mandamus and stay order.

Application denied. The showing made does not warrant the exercise of our jurisdiction.


text:
    STATE of Louisiana v. William K. STANLEY.
    No. 57911.
    Supreme Court of Louisiana.
    May 26, 1976.
   In re: William K. Stanley applying for Writs of Certiorari, Prohibition, Mandamus and Habeas Corpus.

Writ granted. It is ordered that the trial judge conduct a preliminary examination at which the defendant may produce witnesses in accordance with article 294 of the Code of Criminal Procedure.


text:
    Ernestine ATKINS and Mr. and Mrs. Raymond Hall v. Louella HUDSON and John Doe Insurance Company.
    No. 57888.
    Supreme Court of Louisiana.
    May 26, 1976.
   In re: Louella Hudson, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 327 So.2d 603.

Writ denied. The judgment of the Court of Appeal is correct.


text:
    R. C. BURSE v. BOH BROTHERS CONSTRUCTION COMPANY, INC. and Collins Thibodeaux.
    No. 57914.
    Supreme Court of Louisiana.
    May 26, 1976.
   In re: Collins Thibodeaux applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 328 So.2d 897.

Writ denied. The judgment of the court of appeal is correct.


text:
    STATE of Louisiana v. Mack Charles GAY and Michael O’Shea Cook.
    No. 57921.
    Supreme Court of Louisiana.
    May 26, 1976.
   In re: Michael O’Shea Cook applying for Writ of Certiorari, Prohibition and Mandamus.

Writ denied. The ruling of the trial judge is correct.


text:
    Richard P. GUIDRY v. Charles William ROBERTS et al.
    No. 58044.
    Supreme Court of Louisiana.
    May 27, 1976.
   In re: Charles William Roberts, David R. Poynter, DeVan D. Daggett and J. H. Burris, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of East Baton Rouge. 331 So.2d 44.

It is ordered that the writ of review issue ; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Mrs. Levy HANKS v. DRS. RANSON, SWAN & BURCH, LTD. and Dr. U. J. Arretteig, et al.
    No. 57945.
    Supreme Court of Louisiana.
    May 27, 1976.
   In re: Mrs. Levy Hanks applying for Writs of Certiorari, Mandamus and Prohibition.

Writ granted. (See Order.)

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Allen M. Babineaux, Judge of the Fifteenth Judicial District Court, for the Parish of Lafayette, to transmit to the Supreme Court of Louisiana, as quickly as possible, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein/ to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 28th day of June, 1976, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


author: GLADNEY, Judge. HALL, Judge. BOLIN, Judge

text:
    Fayella Amrine KEEN et al., Plaintiffs-Appellants, v. PEL STATE OIL CO., INC., et al., Defendants-Appellees, and Melton Truck Lines, Inc., Intervenor-Appellant.
    No. 12784.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.
    On Rehearing April 19, 1976.
    Writ Denied June 11, 1976.

      Hargrove, Guyton, Ramey & Barlow by Thomas J. Wyatt, Shreveport, for plaintiffs-appellants.
    Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Jr., Shréveport, for intervenor-appellant, Melton Truck Lines, Inc.
    Wilkinson, Carmody & Peatross by Arthur R. Carmody, Jr., Shreveport, for Southwestern Electric Power Co., defendant-appellee.
    Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for Pel State Oil Co., Inc. and United States Fidelity & Guaranty Co., defendants-appellees.
    Before BOLIN, HALL, and GLAD-NEY, JJ.
   GLADNEY, Judge.

This suit arises out of a collision which occurred on November 5, 1973 in Shreveport, Louisiana. The tractor-trailer which Kenneth K. Keen was operating was struck by a vehicle driven by defendant Rickey Fountain. Keen’s tractor struck an electric utility pole, causing the high voltage lines to fall on it. The truck caught fire and Keen died as a result of burns and/or electric shock.

This action was brought by Fayella Am-rine Keen, widow of Kenneth Keen, individually and as tutrix of a minor child of the marriage, three major daughters of that marriage, and Audubon Indemnity Company, subrogee to the extent of property damages paid by it. Named defendants in the original petition were Rickey Fountain; Pel State Oil Company, Inc., Fountain’s employer; and United States Fidelity & Guaranty Company, Pel State’s insurer. By supplemental and amended petition, Southwestern Electric Power Company was named as an additional defendant. Pel State, United States Fidelity & Guaranty Company and SWEPCO answered in the nature of a general denial. Melton Truck Lines, Inc. intervened to recover ¿mounts allegedly owed as reimbursement for payments made on behalf of the deceased’s employer under the Workmen’s Compensation Act.

Pel State and United States Fidelity & Guaranty moved for summary judgment contending that Fountain was not acting in the course and scope of his employment at the time of the accident and that, therefore, they were not vicariously liable for his negligence. The trial court granted judgment in favor of those defendants rejecting the demands of the plaintiffs and intervenor. A devolutive appeal was perfected to this court.

The motion for summary judgment was supported by two depositions, one of Sidney Crank, supervisor of Pel State at the time of the accident, and one of Fountain. Pel State and United States Fidelity & Guaranty contend that these depositions show conclusively that Rickey Fountain was not acting “within the course and scope of his employment” at the time of the accident and that they are not vicariously liable for the damage caused by him.

The doctrine of respondeat superior is set forth in LSA-C.C. arts. 176, 2317 and 2320, the latter of which states that:

“Masters and employers are answerable for the damages occasioned by their servants and overseers, in the exercise of functions in which they are employed.”

There is no precise rule or definition by which we can determine in every instance whether the employee driver of a motor vehicle is acting within the scope of his employment. Each case must be decided largely on its own facts, keeping in mind the basic idea that the use of the vehicle at the time must have been in the exercise of a function for his employer and for which he was employed. LSA-C.C. art. 2320; Leger v. Southern Farm Bureau Casualty Insurance Company, 251 So.2d 801 (La.App., 3d Cir. 1971); Babineaux v. Lavergne, 321 So.2d 401 (La.App., 3d Cir. 1975).

The depositions reveal that Fountain went to work for Pel State Oil Company, Inc. in September, 1973. After spending one week as a manager-trainee, he was assigned as one of two managers of one of Pel State’s retail outlets. Later he was assigned as the sole manager of the station at which he was working at the time of the accident. In the course of his managerial duties he was required to take inventory, keep daily records of gasoline sales and count the receipts. He was responsible for the money received at his outlet.

The depositions establish that it was customary for Crank to come by the station to pick up receipts in the morning and in the afternoon. The morning receipts consisted of the amount received at the station during the night as well as the receipts which had been taken home by Fountain the previous evening, the latter being what remained after Crank’s afternoon pickup in excess of that necessary for the night shift to make change. The depositions also indicate Fountain took the money home, possibly at the suggestion of his supervisors, in response to several robberies of the station before Fountain became manager.

The sworn statements establish that Fountain was on a monthly salary and that his hours were not recorded. His usual working hours were from 5 A.M. to 5 P.M. six days a week. He sometimes went to the station to perform his duties on his days off or stayed after his regular hours to complete his bookkeeping.

The accident occurred on Monday morning between 4:30 and 5:00 A.M. November 5, 1973. Fountain had been off on Sunday. He was carrying the receipts he had taken with him on Saturday evening for safekeeping. At the time of the accident he was driving to the station in a car which he was considering buying from one of his father’s co-workers. Pel State had no interest in the vehicle. He received no compensation for his time while traveling, nor any allowance for his mileage. The money which Fountain was carrying was not necessary to the continued operation of the station.

The evidence establishes conclusively that Fountain was not hired to transport the receipts from the service stations. The “functions in which he was employed” were the operation and maintenance of the retail outlet of which he was manager. The testimony clearly reveals that supervisor Crank, not Fountain, was charged with the duty of making bank deposits, of transporting the money about town, and delivering the records prepared by Fountain to the business office of Pel State. The use of an automobile by Fountain was not indispensable to the conduct of the employer’s business. It must be concluded that the depositions establish beyond all reasonable doubt that in this case there was no genuine issue of material fact.

A motion for summary judgment can only be sustained where “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. art. 966.

The summary judgment remedy is not a substitute for a trial and may not be resorted to when there is a genuine issue of material fact which must be resolved. Wilts v. Dixie Auto Sales, Inc., 315 So.2d 811 (La.App., 2d Cir. 1975). In considering a motion for summary judgment, the court is not to determine the merits of any factual issues raised, it is to determine only whether there is a genuine issue of material fact. Wiltz, supra; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963). The mover bears the burden of convincingly showing the absence of a genuine issue of material fact, the burden being such that all reasonable doubt must be resolved in favor of trial on the merits. Wiltz, supra.

We find that defendants have successfully carried that burden in this case. Since there is no genuine issue of material fact, and upon finding defendants are entitled to judgment as a matter of law, the judgment of the lower court sustaining defendants’ motion for summary judgment is affirmed.

Before BOLIN, PRICE, HALL, MARVIN and SMITH, JJ.

ON REHEARING

HALL, Judge.

A rehearing was granted in this case upon the application of plaintiffs-appellants and intervenor-appellant to reconsider our original opinion affirming a summary judgment in favor of defendants-appellees, Pel State Oil Company, Inc., and United States Fidelity & Guaranty Company.

The rehearing was granted because of plaintiffs-appellants’ strong argument to the effect that there are genuine issues of material fact involved in this case which were resolved in favor of defendants by the court, which should not attempt to resolve disputed facts in considering a motion for summary judgment. Our careful reconsideration of the record and of our original opinion convinces us that the original opinion is correct, there is no genuine dispute as to material fact, and defendants are entitled to judgment as a matter of law.

Plaintiffs argue that the pleadings and depositions disclose there is a factual dispute as to whether Rickey Fountain was required as a part of the duties and functions of his employment as a station manager with Pel State to transport funds of his employer to and from his home after work hours for safekeeping. Plaintiffs argue that the depositions contain facts which would support a finding by the trier of fact that transportation' of the money was a part of the duties and functions of Fountain’s employment.

There may be some dispute as to whether Fountain was directly and specifically instructed by his supervisor to take the money home at night for safekeeping. Such factual dispute, however, is not material to a decision in this case. There is no dispute as to a material fact. Accepting the facts as presented and interpreted by plaintiffs, we nevertheless conclude that defendants are entitled to judgment as a matter of law. Assuming that Fountain was instructed to take the money home for safekeeping, we conclude Fountain’s employer is not vicariously liable for injuries caused by Fountain’s negligence in driving a vehicle from his home to his place of employment on the morning of the accident.

LSA-C.C. Art. 2320 provides the basis for holding a master vicariously liable for the acts of his servant. The article provides in part as follows:

“Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise' of the functions in which they are employed.”

The controlling phrase in the article is “. . . in the exercise of the functions in which they are employed.” Dudley v. Surles, et al., 11 So.2d 70 (La.App. 2d Cir. 1942). The nature of liability provided for by the statute causes courts to impose a strict construction upon it. Strawder v. Harrall, 251 So.2d 514 (La.App. 1st Cir. 1971). Liability should not be broadly or liberally imposed on a master or employer for the torts of his servant or employee where the master is not himself at fault. As a result masters are only held liable for physical acts of their servants over whom they have control, as opposed to agents over whose movements a principal has no right to control. Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968). Masters control the movements of their servants when they are performing duties for the master and it is only when this right to control exists that vicarious liability exists. When servants are performing functions of their employment it is as though the master acts through the servant. The master receives the benefits of those acts, and so he must also shoulder the liability for any wrongs committed during the performance of the acts. 33 La.L.Rev. 110, 115.

When a servant, or employee, is performing functions of his employment our jurisprudence terms him as within the course and scope of his employment. Wills v. Correge, 148 So.2d 822 (La.App. 4th Cir. 1963) cert. denied 244 La. 147, 150 So.2d 768. As a general rule an employee is not within the course and scope of his employment when he is traveling to and from work. Rollins v. New York Fire and Marine Underwriters, Inc., 225 So.2d 663 (La.App. 3d Cir. 1969); Wills v. Correge, supra, and cases cited therein; and Whittington, et al. v. Western Union Tel. Co., Inc., 1 So.2d 327 (La.App. 2d Cir. 1941) writ denied. This is true in any case where there are no distinguishing facts causing the employee’s trip to and from home to benefit or serve the business of his employer to such an extent as to bring him within the course and scope of his employment and as to give rise to vicarious liability. Rollins v. New York Fire and Marine Underwriters, Inc., supra and Wills v. Correge, supra.

Our courts have dealt on numerous occasions with particular facts regarding trips to and from work and decided whether a particular trip was within the course and scope of the servant’s employment. A decision on this issue cannot be reached by mechanically applying any rule. Each case contains particulars distinguishing it from all others, and these particulars must be explored and analyzed before a decision is reached. Leger v. Southern Farm Bureau Casualty Insurance Company, 251 So.2d 801 (La.App. 3d Cir. 1971).

The fact that an employee is wearing a uniform belonging to his employer on the way home does not bring the trip within the course and scope of his employment. Whittington, et al v. Western Union Tel. Co., Inc., supra. Just being in a company car or truck does not give rise to vicarious liability where the employee’s trip is personal. lohns v. Hunt Lumber Company, Inc., 250 So.2d 543 (La.App. 2d Cir. 1971). The fact that the vehicle is to be used in the employment does not necessarily bring the trip within the course and scope of employment where the employer does not control the means of transportation to and from a starting point. Romero v. Hogue et al., 77 So.2d 74 (La.App. 1st Cir. 1954) and Hardware Mutual Casualty Co. v. Standard Coffee Co., Inc., 2 So.2d 89 (La.App.Orl.1941) writ denied. The fact that an employee can make it to work faster in a car than by bus or some other means of transportation likewise does not bring the trip within the course and scope of employment. Laird v. Travelers Indemnity Company, 236 So.2d 561 (La.App. 4th Cir. 1970). In Graffagnini et al. v. George Engine Company, Inc., et al., 45 So.2d 412 (La.App.Orl.1950) an employee gave a sick co-employee a ride home and the court held this fact did not bring the employee within the course and scope of his employment during the trip so as to give rise to liability on the employer’s part.

On the other hand, some facts lead to a conclusion the trip is a part of the employment. Where an employee is paid for his time and travel or where he carried with him in his vehicle display equipment as a major and necessary part of his job, the trip and the operation of the vehicle have been determined to be within the course and scope of the employment. O’Brien v. Traders and General Insurance Company, 136 So.2d 852 (La.App. 1st Cir. 1961) cert. denied and Wright v. Romano, 279 So.2d 735 (La.App. 1st Cir. 1973) writs refused 281 So.2d 757. Where an employer directs the method of travel, liability is also imposed. McAllister v. Jackson Brewing Company et al., 6 So.2d 179 (La.App.Orl.1942). These cases are illustrative of instances wherein the trip is intimately connected to the performance of the job and the employee is within the course and scope thereof during the trip.

Fountain’s basic purpose and mission in driving the vehicle on the morning of the accident was to transport himself from home to work. He only incidentally had with him his employer’s money which he had taken home for safekeeping. He would have been making the trip from home to work regardless of whether he had his employer’s money with him. Possession of the money and transportation of it to and from the place of employment was a relatively minor and incidental function as related to his primary function of driving to and from work — a personal mission. Benefit to the employer was slight. The employer had no control or right of control over the employee’s movements in going to and from work. The employer did not specially or separately compensate the employee for his travel time or expenses. The employer did not own or have any other connection with the vehicle being driven by the employee. The driving of the vehicle to work was not a function of Fountain’s employment and his employer is not liable for the injuries caused by his negligent driving of the vehicle.

As stated in our original opinion and previously stated in this opinion on rehearing, no precise rule can be stated for determining whether an employee driving a vehicle is acting within the course and scope of his employment and each case must be decided on its own particular facts. The governing general rule is, however, that an employee traveling to and from work is not engaged in a function of his employment. Stated otherwise, an employee is not within the course and scope of his employment and an employer is not vicariously liable to a third person injured by reason of the employee’s negligence in driving a vehicle to and from work. This general rule is not altered by the fact that the employee may incidentally have in his possession for purposes of safekeeping some money or other property belonging to the employer.

For the reasons assigned in our original opinion and in this opinion on rehearing, the judgment of the district court sustaining defendant’s motion for summary judgment is affirmed and our original judgment to that effect is reinstated.

Affirmed and original judgment reinstated.

BOLIN, J., dissents and assigns written reasons.

BOLIN, Judge

(dissenting).

I am reluctant to dissent from such a well written and documented opinion.

The majority on rehearing has correctly stated the only issue is one of law. Having accepted the facts as presented and interpreted by plaintiffs, I think we must remand the case for a trial on the merits. The employee was ordered by his employer not just to safeguard the money, but to take it from the service station to his home and return it the next day. This instruction was for the benefit of the employer and was thus clearly one of the functions for which Fountain was employed (Civil Code Article 2320). The majority reaches the unwarranted conclusion that the duty of transporting the money to and from work was so trivial that it could not be construed as a function of his employment. This is a finding that should be made only after a trial on the merits.

Summary judgments should be rendered with extreme caution so as not to deprive a litigant of his full day in court. While I am aware of the monumental task plaintiffs have in making out their case on the merits, I think they are entitled to this right.

I respectfully dissent.


author: PONDER, Judge. COVINGTON, Judge

text:
    Hilton VERRETT, Sr. v. OFFSHORE CREWS, INC., et al.
    No. 10606.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Dissenting Opinion May 10, 1976.
    Rehearing Denied May 24, 1976.
    Writ Refused Sept. 8, 1976.

      Bertrand M. Cass, Jr., New Orleans, and Bernard E. Boudreaux, Jr., Franklin, and Leonard A. Radlauer, New Orleans, for Offshore Crews.
    Timothy J. McNamara, Lafayette, for Walker-Huthnance Offshore Co.
    Before LANDRY, BLANCHE, COV-INGTON, CHAISSON and PONDER, JJ.
   PONDER, Judge.

Plaintiff, Hilton A. Verrett, Sr., a seaman, filed suit to recover for injuries he sustained allegedly caused by the negligence of defendants in allowing spillage of industrial waste from an offshore oil platform to blow down onto the deck of a boat, the PATHFINDER, which was moored to a drilling platform, located in excess of fifty miles from the coast of Louisiana on the Outer Continental Shelf. He alleges the waste rendered the deck slippery to such an extent that it caused plaintiff, while working as Captain, to fall on July 17, 1971. Named as defendants are: Arthur Levy Boat Services, Inc. and Offshore Crews, Inc., the plaintiff’s employers and owners of the vessel; Shell Oil Company, the owner of the platform; and Walker-Huthnance Offshore Company, the entity doing maintenance work on the structure.

Offshore Crews and Arthur Levy filed a third party demand against Walker-Huthnance demanding indemnity or contribution based on the allegation that their fault was only passive and technical and that Walker-Huthnance was actively and primarily at fault in causing plaintiff’s injuries.

Shell Oil filed an exception to the state district court’s jurisdiction over the subject matter. Walker-Huthnance filed an exception to the state district court’s jurisdiction over the third party demands. The exceptions were 'based on the grounds that the claims of plaintiff and third party plaintiffs against them were governed by the Outer Continental Shelf Lands Act, 43 U.S.C.A. § 1331(b), which purportedly vests exclusive jurisdiction in federal court of all cases and controversies arising out of or in connection with any operations conducted on the Outer Continental Shelf.

The lower court rendered judgment sustaining the exception of lack of jurisdiction over the subject matter and dismissed plaintiff’s suit and the third party demands of Offshore Crews and Arthur Levy as to exceptors. Offshore Crews and Arthur Levy have timely appealed. Plaintiff, Ver-rett, however, after partial trial, settled his claim with Offshore Crews and Arthur Levy for $112,000 and has not appealed dismissal of his suit as to exceptors. Thus, the judgment of the lower court dismissing plaintiff’s suit as to Walker-Huthnance and Shell Oil is final.

The issue is whether the lower court had jurisdiction of the claim asserted in the third party petition of Offshore Crews and Arthur Levy against Walker-Huth-nance pursuant to the Saving to Suitors Clause, which vests concurrent jurisdiction over admiralty and general maritime matters in the courts of the various states, or whether, the lower court did not have jurisdiction because the third party claims arose out of or in connection with exploration on the Outer Continental Shelf, over which, under the Lands Act exclusive jurisdiction is in federal court. Stated otherwise, did Congress intend by enactment of the Lands Act to require that all matters in any degree connected with stationary platforms come under its jurisdictional umbrella, or did Congress intend to exclude those matters that, although having some physical causal connexity with stationary platforms, had connections with other matters with other jurisprudence and other jurisdictional mandates?

We hold that under the facts as presented, the Lands Act is inapplicable. Every occurrence arising out of operations conducted on fixed structures attached to the Outer Continental Shelf is not controlled by the Lands Act. The Lands Act does not usurp admiralty or general maritime jurisdiction that is clearly present, merely because the admiralty or general maritime claim technically or coincidentally is connected with offshore exploration. The very language of the Lands Act, its intended purpose, and the jurisprudence support this conclusion.

A brief resumé of the law generally applicable to offshore litigation is necessary to explain properly this position.

Article III, Section 2 of the United States Constitution extends the “judicial power of the United States” to “all cases of admiralty and maritime jurisdiction.” Congress in Section 9 of the Judiciary Act of 1789 implemented this constitutional grant: “ . . . the district courts . . . shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction . . . saving to suitors, in all cases the right of a common law remedy, where the common law is competent to give it . . . ”

Neither the Constitution nor Congress defined admiralty or maritime claims. The courts adopted and enforced the general maritime laws then in effect, adding modifications as necessary. If a seaman was injured in consequence of the unseaworthiness of the ship, or of failure to supply and keep in order the proper appliances appurtenant to the ship, he was entitled to indemnity for his injuries against the vessel and its owner. If a seaman became sick, or was injured, in the service of the ship, he was entitled to maintenance and cure against the vessel and its owner.

In The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), however, the Supreme Court held that no cause of action for wrongful death was provided by the general maritime law. In March, 1920, Congress enacted the Death on the High Seas Act which sought to remedy the maritime law’s deficiency on this subject. It provided a recovery for death caused by a wrongful act, neglect or default, that occurred on the high seas beyond a marine league from the shore of any state.

In June, 1920, Congress enacted the Jones Act, which incorporated the wrongful death provisions of the Federal Employers’ Liability Act. Only seamen are entitled to Jones Act rights and remedies. In Engel v. Davenport, 271 U.S. 33, 46 S.Ct. 410, 70 L.Ed. 813 (1926) the Supreme Court held that state and federal courts had concurrent jurisdiction of Jones Act claims.

In 1948, amid confusion created by judicial interpretation of water-based incidents culminating on shore, Congress enacted the Extension of Admiralty Act. Injuries caused by a vessel, even though culminated on land, were declared to be in admiralty.

In the early 1950’s, offshore exploration for minerals was rapidly gaining momentum. Congress recognized “that the full development of the estimated values in the shelf area” would “require the efforts and the physical presence of thousands of workers on fixed structures in the shelf area. Industrial accidents, accidental death, peace, and order” required a body of law for their solution. Rodrigue v. Aetna Casualty and Surety Company, 395 U.S. 352, at 358, 89 S.Ct. 1835, at 1838, 23 L.Ed.2d 360 (1969). To fill this void Congress enacted the Outer Continental Shelf Lands Act, 43 U.S.C.A. § 1331 et seq. Congress was mindful of “the close relationship between the workers on the island and the adjoining States.” Rodrigue, at 363, 89 S.Ct. at 363, 1841. Federal law was declared to be “exclusive in its regulation of shelf area.” However, “since federal law, because of its limited function in a federal system, might be inadequate to cope with the full range of potential legal problems, the Act supplemented gaps in the federal law with the state law through the ‘adoption of State law as the law of the United States.’ ” Rodrigue, at 357, 89 S.Ct. at 1838.

Third party defendant-appellee, Walker-Huthnance, argues that the very language of the Lands Act makes federal court the exclusive forum of third party plaintiffs’ claims. “After first providing that the Constitution and laws and civil and political jurisdiction of the United States extends to the Outer Continental Shelf to the same extent ‘as if the Outer Continental Shelf were an area of exclusive Federal Jurisdiction located within a State’ and thereafter in Paragraph 2 of Section 1333(a) providing that the Civil and Criminal Laws of each adjacent State as of August 7, 1953, were declared to be the law of the United States for that portion of the Outer Continental Shelf which would be within the area of that state if its boundaries were extended seaward to the outer margin of the shelf, the Congress then provided :

‘All of such applicable laws shall be administered and enforced by the appropriate officers and Courts of the United States.’ ”

Walker-Huthnance further argues, “To further quote from the Lands Act, 43 U.S.C. Section 1333, the Congress went even further and specified which of the many officers and Courts of the United States would be charged with the duty of administering and enforcing any given controversy by providing:

‘The United States District Courts shall have original jurisdiction of cases and controversies arising out of or in connection with any operations conducted on the Outer Continental Shelf for the purpose of exploring for, developing, removing or transporting by pipeline the natural resources, or involving rights to the natural resources of the subsoil and seabed of the Outer Continental Shelf, and proceedings with respect to any such case or controversy may be instituted in judicial district in which any defendant resides or may be found, or in the Judicial District of the adjacent State nearest the place where the cause of action arose.’ ”

Appellee continues that, “Nowhere in the Outer Continental Shelf Lands Act do we find any provision for concurrent jurisdiction by State Courts. Indeed, — the act expressly provides that the civil and political jurisdiction of the United States over the Outer Continental Shelf ‘shall be administered and enforced by appropriate officers and Courts of the United States.’ ”

This court is unwilling to adopt ap-pellee’s contentions. The Lands Act, when viewed as a whole, does not subject all controversies involving offshore drilling activities on the Outer Continental Shelf to exclusive Federal Court jurisdiction. Particularly, the Lands Act does not oust maritime remedies that are available independently from the location of the structures at sea.

The very purpose of the Lands Act indicates it was not intended to oust other Federal laws applicable by their own force; it was enacted to fill a substantive and jurisdictional void in our law. The platform workers and their families needed a body of law to protect them. As shown above, seamen and their employers were adequately covered by an extensive body of law. To hold that admiralty and general maritime jurisdiction are ousted by the Lands Act would thwart a long development and evolution of a system of laws designed to govern the peculiar needs of seamen and their employers.

Furthermore, the Lands Act itself, contrary to Walker-Huthnance’s assertions, indicates that admiralty and general maritime jurisdiction, and all other maritime based rights and remedies were not to be affected 'by passage of the act. Section 1333(a)(2) of the Lands Act states in part, that “To the extent that they are applicable and not inconsistent with . . . other Federal laws . . . the civil and criminal laws of each adjacent State are declared to be the law of the United States for . . . artificial islands and fixed structures erected thereon . All of such applicable laws [those not inconsistent with Federal laws then applicable, e. g., admiralty] shall he administered and enforced by the appropriate officers and courts of the United States.” (Emphasis and explanation added.) Thus, the Lands Act does not purport to usurp other federal laws applicable to the structures, such as Jones Act claims and an employer’s general maritime right to indemnity. Only claims based on “applicable laws,” those made applicable by the Lands Act and not inconsistent with other Federal laws, “shall be administered and enforced by the appropriate officers and courts of the United States.”

This legal conclusion was, in part, also reached in Kimble v. Noble Drilling Corporation, 5th Cir. 1969, 416 F.2d 847. In Kimble, a seaman was injured twice while working on two separate stationary drilling platforms at sea. He instituted suit in federal district court against his employer under the Jones Act and against the owner of the platforms under the general maritime law. The lower court found both defendants liable.

The Fifth Circuit in affirming stated:

“In a final attempt to avoid liability, appellants argue correctly that the drilling platforms on which Kimble was injured were not vessels but artificial islands. As such, appellants argue, the platforms are governed not by admiralty but by the law of the adjacent State of Louisiana, which is ‘borrowed’ as federal law on these structures by the Outer Continental Shelf Lands Act, 67 Stat. 462, 43 U.S.C. § 1331 et seq. (1964). This issue has in fact been decided exactly as appellants urge in Rodrigue v. Aetna Casualty & Surety Co., 1969, 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360, but that decision does not help their case. The Outer Continental Shelf Lands Act does not oust admiralty law having a basis of applicability independent from the location of the platforms at sea; indeed, it specifically provides that the general law of the upland state is made the applicable federal law only to the extent that it is ‘not inconsistent with * * * other Federal laws.’ In Rodrigue, the Supreme Court recognized this limitation. It simply reversed a holding that the Death on the High Seas Act applied to workmen on oil platforms at sea because ‘the Seas Act does not apply of its own force under admiralty principles’ to men working on land. The case at bar is distinguishable in that the Jones Act and the general maritime law do apply of their own force here; they would still apply, in fact, even if we assumed that Kimble received his injuries in the heart of the Louisiana mainland, so long as he was acting at the time as a seaman in the service of his ship . . . Here, Kimble’s status as a seaman depended not on the location of the platforms at sea but upon his assignment to, and responsibilities on, the tender, which was unquestionably a vessel.” (emphasis added)

The instant case is much stronger than Kimble. Verrett was injured not on the platform, but in the actual service and employ of his ship.

In Oppen v. Aetna Insurance Co., 9th Cir. 1973, 485 F.2d 252, the court was faced with the question of whether the Lands Act was applicable. Crude oil escaped from beneath a platform located on the Outer Continental Shelf and eventually permeated the waters of the Santa Barbara Channel and harbor. Several pleasure boats were damaged. Special masters determined that general maritime law was applicable to the boat owners’ claims and allowed recovery for physical damage to the vessels. However, the masters disallowed recovery for loss of use of the vessels because under general maritime law such loss was not recoverable.

The boat owners appealed arguing that California law, which allowed recovery for the claims, was applicable by virtue of the Lands Act and Rodrigue'. The Ninth Circuit affirmed noting that Rodrigue merely held that under admiralty principles the Death on the High Seas Act did not apply to the death of Rodrigue and Dore. The Court stated that “it is clear that the Court by its holding in Rodrigue did not intend to imply that every occurrence arising out of operations conducted on a fixed platform attached to the Outer Continental Shelf would necessarily be governed by state law rather than federal maritime law.” Oppen, at 25S. The “Outer Continental Shelf Lands Act, as interpreted in Rodrigue, does not preclude the application of maritime law to claims with a maritime nexus wholly apart from the location of the platform on the navigable waters.” Oppen, at 256.

In re Dearborn Marine Service, Inc., 499 F.2d 263 (5th Cir. 1974), a ship was moored to a platform located on the Outer Continental Shelf. An explosion occurred on the platform and a ball of fire descended onto the ship. The crew members, the Captain, and a platform worker on the ship at the time of the explosion were killed. Much of the lengthy opinion is concerned with the rights of the family of the platform worker. The Fifth Circuit determined that the Lands Act controlled as to the platform worker’s rights and remedies against the platform owner and operators. However, the court recognized that the Captain and crew members, clearly traditional seamen, maintained their traditional maritime rights under the Jones Act, Death on the High Seas Act and general maritime law.

Although Kimble, Oppen and Dearborn concerned litigation instituted in federal court and no jurisdictional issue was squarely presented, the courts nevertheless determined that the claims of their respective plaintiffs were under admiralty or general maritime law. This determination as to which laws are applicable has jurisdictional effect.

Walker-Huthnance, in spite of Kimble, Oppen and Dearborn, places great emphasis on the fact that the alleged negligent act emanated from the platform, and as such, arose out of operations being conducted on the Outer Continental Shelf. The third party defendant is giving great weight to the locality from where the alleged wrongful act emanated. The Supreme Court in Executive Jet Aviation, Inc., v. City of Cleveland, Ohio, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), de-emphasized locality when considering whether a claim was cognizant in admiralty. That Court stated that a case would not be cognizable in admiralty unless the wrong has a significant relationship to traditional maritime activities. Thus, the focal point of inquiry is whether the wrong bears a significant relationship to traditional maritime activities, not where the wrong occurred.

Kelly v. J. C. Smith, 5th Cir. 1973, 485 F.2d 520, illustrates the kind of inquiry necessitated by Executive Jet. Plaintiffs, a father and his three sons, went deer hunting on an island located in the Mississippi River. The island was under the control of a hunting club that had a license for exclusive hunting rights there. As plaintiffs were leaving via their boat, hunting club members fired on them. The father and one of the sons were hit in the ensuing gun battle.

An issue on appeal was whether admiralty jurisdiction was present. The defendants argued that the harm emanated from land. The Fifth Circuit, at page 525, stated that from Executive Jet it discerned “factors to be considered in the circumstances . . . : the functions and roles of the parties; the types of vehicles and instrumentalities involved; the causation and the type of injury; and traditional concepts of the role of admiralty law.” The court analyzed these considerations and held that there was admiralty jurisdiction.

Likewise this court finds that admiralty or general maritime laws are not inapplicable solely because the industrial waste, which allegedly caused Verrett’s injuries emanated from the platform. The rationale of Kimble, Oppen, Dearborn and Executive Jet support this conclusion.

The court below relied on three cases in holding that the exclusive jurisdiction of Verrett’s claim and the third party demands of Offshore Crews and Arthur Levy fell within the power of federal court: Gravois v. Travelers Indemnity Company, La.App., 173 So.2d 550 (1st Cir. 1965) [writ refused, 247 La. 1016, 175 So.2d 301], Rodrigue, supra, and Fluor Ocean Services, Inc. v. Rucker Company, 341 F.Supp. 757 (E.D.La.1972).

In Gravois, an oilfield worker, not a seaman, was killed while working on a sul-phur mine installation located on the Outer Continental Shelf. Plaintiff, like Verrett, instituted suit in both federal district court and state district court. Defendants were third parties other than decedent’s employer and their insurers. Plaintiff argued that the Lands Act, which incorporated the provisions of the Longshoremen’s and Harbor .Workers’ Act (LHWA), was applicable; that the LHWA reserved a right to institute suit against any third party (other than the employer). From this reasoning plaintiff contended that the action against the third party could be based on either the Death on the High Seas Act or under Article 2315 of the LSA-Civil Code.

This court, in Gravois, determined that the Death on the High Seas Act was inapplicable as the death did not occur over navigable water; Gravois’ claim was within the exclusive jurisdiction of federal court under the provisions of 43 U.S.C.A. § 1333. Gravois was not a case that determined the applicability vel non of the Lands Act. It involved an interpretation of whether the Lands Act made federal court the exclusive jurisdiction for a claim clearly based on the Lands Act, after the Lands Act was determined to be applicable.

In the instant case, we are not holding that a Lands Act claim can 'be brought in either state or federal court. Instead, we are holding that the Lands Act is inapplicable to the facts before us, that Offshore Crews’ and Arthur Levy’s right to indemnity is preserved under general maritime law by the very language of the Lands Act, and that Offshore Crews and Arthur Levy under the Saving to Suitors Clause, may pursue their claim in state court.

In Rodrigue two separate plaintiffs were involved. Dore, a platform worker was killed when a crane on which he was working collapsed and toppled over onto a barge he was unloading. Rodrigue, also a platform worker, was killed when he fell from a derrick rising above the platform and landed on the metal floor of the platform.

The Supreme Court reviewed the legislative history of the Lands Act and held that the Death on the High Seas Act did not apply to the two deaths of its own force under admiralty principles and that the Louisiana wrongful death statute applied as surrogate federal law; there was no applicable federal law inconsistent with our wrongful death statute.

In the instant case, there is applicable federal law, establishing admiralty and general maritime jurisdiction, which exists wholly apart from the location of the platform. The rights of third party plaintiffs to indemnity exist in the maritime law, which applies of its own force. Thus, not only did Rodrigue involve different factual situations from the case at bar, the legal issues presented were also significantly different.

The lower court also relied on Fluor Ocean Services, Inc. v. Rucker Company, 341 F.Supp. 757 (U.S.D.C.E.D.La.1972). Plaintiff had agreed to furnish certain barges, equipment and personnel to defendant in raising a drilling platform that had been sunk as a result of damage by Hurricane Camille. The District Court on a motion to remand after removal to Federal Court found it had jurisdiction under the Outer Continental Shelf Lands Act, pointing to the relevant points that the platform had been used for drilling prior to its damage, that it would be similarly used subsequently and that the lease required that the structures, machinery, equipment, tools and material not required for production be removed from the premises. We believe that the connexity in the instant case to be' more tenuous and find the cases of Kimble, Oppen, Rodrigue and Dearborn, supra, more applicable.

Accordingly for the foregoing reasons, we reverse and remand, at the costs of the third-party defendant-appellee.

REVERSED AND REMANDED.

COVINGTON, Judge

(dissenting):

I believe that the decision that state courts have jurisdiction concurrently with federal courts over matters of this nature is erroneous.

This litigation involves an action filed in the Sixteenth Judicial District Court for the Parish of St. Mary, State of Louisiana, by Hilton Verrett, Sr., the plaintiff, for injuries he allegedly sustained due to the negligence of the defendants in allowing spillage of industrial waste from an offshore platform to blow down onto the deck of the M/V PATHFINDER, rendering the deck slippery to such an extent that it caused the plaintiff, while working as captain aboard the vessel, to fall on the deck of the vessel. The accident sued upon arose out of operations conducted on the Outer Continental Shelf from a fixed and stationary platform located in the Gulf of Mexico for the purpose of exploring for oil and gas. Named as defendants were Offshore Crews, Inc., the owner of the vessel and the plaintiff’s employer; Walker-Huth-nance Offshore Company, the owner of the offshore structure.

Offshore Crews, Inc., the plaintiff’s employer, filed a third-party action against Walker-Huthnance only, demanding indemnity or contribution in the event of the plaintiff’s recovery on the main demand. The defendants, Walker-Huthnance and Shell Oil, filed answers and later filed exceptions to the jurisdiction of the court over the subject matter of the action, on the grounds that the claims as to them were governed by the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331, et seq., which vests exclusive jurisdiction of all controversies arising under the Lands Act in the United States District Courts.

The trial court rendered judgment sustaining the exception of lack of jurisdiction over the subject matter and dismissed both the plaintiff’s action and the third-party action of Offshore Crews. I would affirm.

Offshore Crews appealed the judgment, contending that the alleged tort occurred on a vessel engaged in maritime commerce over navigable water, and therefore, the trial court erred in ruling that the Lands Act was applicable; and also that the al-legad tort was maritime in nature so as to be subject to the jurisdiction of the courts of this state under the Saving to Suitors Clause, 28 U.S.C. § 1333(1), which vests concurrent jurisdiction over maritime matters in the courts of the various states.

It is my opinion that the trial judge’s reasons for judgment accurately state the facts, the issues and the applicable law, and I would adopt them as expressing the views of this Court, to-wit:

“At the time of the accident sued on, plaintiff was aboard the PATHFINDER, which was tied up to a stationary platform owned by Shell and located in Block 70, Southpass Area, Gulf of Mexico, in excess of 50 miles off the Coast of Louisiana, in the Outer Continental Shelf. Plaintiff alleges that oil drilling or related operations were being conducted on the platform by Shell and Walker-Huthnance and that exceptors permitted industrial waste to descend from the platform onto the deck of the PATHFINDER. The waste allegedly made the deck of the PATHFINDER slippery and caused plaintiff to fall on the deck of the vessel and sustain the injuries sued on. Offshore Crews filed a third party petition against Walker-Huthnance seeking indemnity from Walker-Huthnance in the event Walker-Huthnance’s active negligence in conducting oilfield operations on the platform should cause technical or constructive liability to be visited on Offshore Crews.

“Exceptors’ position that jurisdiction of the claims against them lies exclusively in the province of the Federal Court is premised on the following language contained in the Lands Act, 43 USC § 1333 :

‘(b) The United States district courts shall have original jurisdiction of cases and controversies arising out of or in connection with any operations conducted on the outer Continental Shelf for the purpose of exploring for, developing, removing or transporting by pipeline the natural resources, or involving rights to the natural resources of the subsoil and seabed of the outer Continental Shelf, and proceedings with respect to any such ■case or controversy may be instituted in the judicial district in which any defendant resides or may be found, or in the judicial district of the adjacent State nearest the place where the cause of action arose.’

“The resolution of these jurisdictional exceptions, in my view, requires that two questions be answered, to-wit:

1) Do the cause of actions asserted against exceptors ‘arise out of or in connection: with any operations conducted on the Outer Continental Shelf for the purpose of exploring for, developing . . . the natural resources of the subsoil and seabed of the Outer Continental Shelf . . and

2) If the answer to the first question is in the affirmative, does the exclusive jurisdiction for this class of lawsuit fall within the power of the Federal District Court to the exclusion of this court.

“Addressing ourselves to the second question, it is my view that the First Circuit decision of Gravois v. Travelers Indemnity Company, 173 So.2d 550 ([La.App.] 1st Cir. 1965) (writ refused [247 La. 1016], 175 So.2d 301), provides the answer.

“In Gravois, an oilfield worker was injured on a stationary platform on the Outer Continental Shelf. Suit was instituted in 17th Judicial District Court against an alleged tortfeasor also conducting operations on the platform. Exceptions to the jurisdiction were filed in the district court, which exceptions were overruled. The Court of Appeals reversed the trial court and held that the court was without jurisdiction because of the language of the Outer Continental Shelf Lands Act.

“The court stated at page 556:

‘The clear intent of the act (Lands Act) was to vest all civil and political jurisdiction in matters involving the offshore drilling activities on the Outer Continental Shelf in the exclusive federal court jurisdiction. Had Congress intended to grant concurrent jurisdiction to the state courts it would have so specified in this act as they did in the Jones Act. Failure to do so shows their intention to retain jurisdiction in the United States Courts.’

“Now passing to a consideration of the first question posed above, i. e., whether the causes of action asserted herein against exceptors fall within the scope of the Lands Act.

“The activity complained of as basis for the causes of action asserted by plaintiff and third party plaintiff against exceptors is with respect to operations being conducted on the stationary platform while in the process of exploring for or developing oil and gas. The court is urged, however, that there are two distinctions between the instant case and Gravois which demand a different result, to-wit:

1) The plaintiff in this case was a member of the crew of a vessel; and 2) the injury occurred on a vessel on navigable water rather than on a stationary platform.

“If plaintiff were asserting a claim against exceptors under the Jones Act, 46 USC 688, an additional question would be presented. The Jones Act, by incorporating portions of the FELA, provides concurrent jurisdiction in both state and federal court. Since the Jones Act is only applicable to the seaman’s claim against his employer, the Jones Act does not play any part in these exceptions. In my view, the seaman status of the plaintiff, as it relates to these ex-ceptors, presents no meaningful distinction between this case and Gravois.

“The second distinction urged upon us by counsel is likewise without merit. We fail to see why the result of Gravois should be changed just because this injury occurred on a vessel rather than on a stationary, platform. The Lands Act certainly does not draw this distinction. Counsel urges that under the ‘savings to suitors’ clause, (28 USC 1333) that plaintiff’s option to bring this action in state court has been preserved. This argument was also made in the First Circuit in Gravois and that argument was rejected by the following language:

‘In regard to the “savings to suitors” clause of the admiralty jurisdiction law, 28 USCA 1333, we believe this clause has no application to matters involved on the Outer Continental Shelf under the provisions of said Section 1333, 43 USCA, supra.’

“The savings to suitors clause is contained in an Act of Congress. The Lands Act is also an Act of Congress. If there is any conflict between the two Acts of Congress, the judiciary act, as modified, which contains the savings to suitors clause, is general in application and must yield to the specific Outer Continental Shelf Lands Act. There are at least two instances in which Congress has legislated exclusive jurisdiction to the federal courts for maritime causes of action : Suit to foreclose on a preferred ship mortgage, 46 USC 951; suit for wrongful death under Death on High Seas Act, 46 USC 761, Higa v. Transocean Airlines, 230 F.2d 780 (9th Cir. 1955).

“Additionally, the decision of the U. S. Supreme Court in Rodrigue v. Aetna Casualty & Surety Company, 395 U.S. 352, [89 S.Ct. 1835, 23 L.Ed.2d 360] (1969), indicates that this interpretation is correct. In that case, decedent Dore was operating a crane positioned on a stationary platform and was in the process of unloading a barge tied up alongside the platform. The crane failed and the crane toppled from the platform onto the barge. Dore was in the cab of the crane and sustained injuries which ultimately led to his death when the crane struck the barge below. The negligent act complained of occurred on the platform; the injury and ultimate death occurred on the barge. The Supreme Court, nevertheless, held that the Outer Continental Shelf Lands Act applied. Since the Rodrigue and Dore cases originated in the federal judicial system, no jurisdictional question was presented. If those cases had been instituted in state court, however, it is apparent that this court would have had no jurisdiction.

“This leaves for consideration only the exception as it relates to the third party petition of Offshore Crews against Walker-Huthnance.

“As we interpret the pleading, Offshore Crews is claiming tort indemnity based upon wrongful act of Walker-Huthnance committed on the stationary platform. The court is of the opinion that this cause of action also falls within the scope of the Lands Act and for the reasons previously stated, feels that that exception is also well taken. In Flour [Fluor] Ocean Services, Inc., v. Rucker Company, 341 F.Supp. 757 (E.D.La.1972), a suit arising out of a contract to furnish barges, equipment and personnel for use in raising a drilling platform which had been used in oil and gas exploration on the Outer Continental Shelf was held within the scope of the Lands Act.”

I agree with the trial court that the effect of the Lands Act is that the United States District Courts have exclusive original jurisdiction over all cases and controversies arising out of operations conducted on the Outer Continental Shelf for the purpose of exploring for natural resources. See Sar-tain, Offshore Oil Platforms and Admiralty Law: Rodrigue in Retrospect (Comment) 49 Tul.L.Rev. 658 (1975).

I also agree with the trial court that the seaman status of Verrett as it relates to these exceptors, who are not employers of Verrett, does not make this case different from the Gravois case. In any event Ver-rett, having fully settled all his claims, is no longer before the courts and can in no way be affected by the decision of this court. In my opinion, the judgment of the trial court should be affirmed.

      . 28 U.S.C.A. § 1333, the Saving to Suitors Clause presently applicable, contains virtually the same language and reads as follows:
      “The district courts shall have original jurisdiction, exclusive of the courts of the States of:
      “(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are entitled.”

      . 46 U.S.C.A. §§ 761 et seq.

      . 46 U.S.C.A. § 688.

      . In 1970 the Supreme Court held that a remedy for wrongful death was provided by the general maritime law. Moragne v. States Marine Lines, Inc., 398 U.S. 376, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). Thus, since 1970 the main significance of the Jones Act is that it preserves a right to a jury trial.

      . 46 U.S.C.A. § 740.

      . See also, Gypsum Carrier, Inc. v. Union Camp Corporation, 489 F.2d 152, 5th Cir. (1974), for another example of proper application of the rationale of Bwecutive Jet.

      . See Tri-State Oil Tool Industries v. Delta Marine Drilling Company, 410 F.2d 178, (5th Cir. 1969) wherein an employer was sued under the Jones Act by a “seaman” who was injured while working on a submersible barge. The employer third-partied the party who was allegedly “active or primarily” negligent seeking indemnity. Judge Ainsworth found that maritime law provides for tort indemnity where there is no negligence or only passive negligence attributed to the indemnitee. Third party plaintiffs have alleged they were merely passively or vicariously at fault and that Walker-Huthnance was actively or primarily at fault.

      .See Smith v. Service Contracting, Inc., La.App., 199 So.2d 36 (4th Cir. 1967), [writ refused, 250 La. 979, 200 So.2d 666 (1967), and judgment vacated 390 U.S. 143, 88 S.Ct. 841, 19 L.Ed.2d 970, for other reasons,] for an analysis of a seaman’s remedy when injured on a fixed platform.

      . Arthur Levy Boat Service, Inc. was also sued, but it was admittedly not a proper defendant since it did not own the vessel or employ the plaintiff or have anything to do with the offshore structure.


author: GULOTTA, Judge.

text:
    Carolyn Ann ROBINSON and Frank J. Tornabene v. Robert GRAVES, Jr. and New Orleans Public Service, Inc.
    No. 7406.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    Rehearing Denied June 9, 1976.
    Writ Granted Sept. 24, 1976.

      Leydecker, Bates & Hand, Gerald J. Ley-decker, New Orleans, for plaintiff-appellee, Carolyn Ann Robinson.
    C. B. Ogden, II, New Orleans, for defendants-appellants.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   GULOTTA, Judge.

We are confronted with the sole issue of quantum. Defendants complain that an award in the sum of $159,532.00 in favor of Carolyn Ann Robinson Brown is excessive. We amend the award to $110,172.-18.

It is defendants’ contention that in an October 16, 1971 automobile accident, plaintiff (hereinafter referred to as Mrs. Robinson), a guest passenger in a taxicab rearended by a streetcar, suffered a fractured transverse process at the fourth lumbar vertebra which admittedly was slow to heal. According to defendants, approximately nine months after the accident, Mrs. Robinson was discharged by her treating physician as cured.

Defendants contend that the award for general damages, loss of past earnings and loss of future earnings is excessive and based primarily upon the diagnosis and testimony of Dr. Salvador Henry LaRocca, an orthopedist, who testified that plaintiff suffered degenerative intervertebral disc disease, requiring fusion of L-4, L-5 and S-l in February, 1973, and a disc excision at L-5, S-l in April, 1974, resulting in a 35% disability of the body which prevented plaintiff from resuming her preinjury employment. According to defendants, the testimony of Dr. LaRocca was disputed by the overwhelming medical expert evidence of Drs. Joseph Dugas and William Pusateri, plaintiff’s treating physicians, as well as that of Dr. Richard Levy, a neurosurgeon, and Dr. Ray J. Haddad, an orthopedic surgeon. Defendants claim the treating physician did not find degenerative disc disease. They point out also that Drs. Levy and Haddad testified that the February, 1973 operative notes of Dr. LaRocca did not indicate any signs of degenerative disc disease. Furthermore, according to defendants, the positive testimony of Drs. Levy and Haddad refutes any connection between the accident of October, 1971, and the finding of a ruptured or incompetent disc in April 1974.

It is clear from the written reasons assigned by the trial judge, in which the damages were itemized, that the trial judge rejected defendants’ contentions. The record supports the court’s conclusion.

Plaintiff was seen by Dr. Dugas on October 18, 1971, with complaints of chest, lower back pain and hip pain, radiating into the left lower extremity. Examination indicated tenderness and spasm of the left paravertebral musculature, indicative of a sprain of the lower spine. X-rays revealed a fracture of the right transverse process of L-4, without significant displacement of the fragments. Muscle relaxants, analgesics and diathermy were prescribed. Between October 22, 1971 and November 13, 1972, Mrs. Robinson was either seen by Dr. Dugas or administered physiotherapy on 27 occasions. During this time, plaintiff complained of persistent back pain and of not being able to do any housework. On November 13, 1972, plaintiff was advised by Dr. Dugas to seek orthopedic consultation. It was Dr. Dugas’s opinion that the degenerative disc disease, noted by Dr. La-Rocca, could have been caused by the trauma sustained from the accident.

As early as October 25, 1971, plaintiff was seen by Dr. William M. Pusateri. Dr. Pusateri confirmed Dr. Dugas’s diagnosis of a fracture of the right transverse proc-cess of the fourth lumbar vertebra. Bed rest and a lumbar corset were prescribed. Because of intermittent pain, plaintiff visited Dr. Pusateri on six occasions between November 8, 1971 and May 26, 1972. According to Dr. Pusateri, the continued complaint of pain in the back, left hip and left leg were consistent with a strain of the lumbar musculature. Dr. Pusateri further explained that complaint of inability to sit for long periods of time was consistent with disc pathology in the lumbar spine. It was the doctor’s opinion that the intermittent pain suffered by plaintiff was compatible with a protruding disc, but not necessarily with a ruptured disc. However, Dr. Pusateri indicated that plaintiff had completely recovered, in his opinion, and would have no disability referrable to the injury. According to the doctor, the LaRocca operative report of February 15 indicated that a loose piece of cartilage which had been separated from the main mass had been removed, but that the operative report did not confirm the presence of intervertebral disc degeneration at L-4, L-5.

Dr. Salvador LaRocca initially saw plaintiff on January 9, 1973. Because of continued symptoms from the time of the accident, plaintiff was admitted to Touro Infirmary for examination and tests on February 12, 1973. A myelogram was normal, but a discogram caused plaintiff pain and, according to Dr. LaRocca, the discogram was abnormal. Surgical removal of a loose fragmented body (osteochondral consisting of bone and cartilage) at L-4, L-5 and fusion of L-4, L-5 and S-l was performed on February 15, 1973. Dr. LaRocca found degenerative disc disease at L-4, L-5 and L-5, S-l. Mrs. Robinson was discharged from the hospital on February 28, 1973. Following the operation, plaintiff’s activities were restricted and a brace was used. Medication was prescribed. Plaintiff was seen postoperatively by Dr. LaRocca on two occasions in July, 1973. A return visit in October, 1973, indicated soreness in the area of the pelvis from which a bone graft was taken. Plaintiff was again seen on December 4, 1973 and on January 31, 1974. •On March 25, 1974, plaintiff was readmitted to the hospital with complaints of substantial back pain and pain radiating into the right lower extremity. An operation on April 11 revealed a bulge of the interverte-bral disc at the fifth segment, requiring removal at L-5, S-l. On April 25, 1974, Mrs. Robinson was discharged from the hospital. She was seen postoperatively by Dr. LaRocca on eight occasions between May 22, 1974 and January, 1975.

According to Dr. LaRocca, it will be necessary that plaintiff modify her lifestyle in order to accommodate her back condition. The doctor indicated that a year to a year-and-a-half would be required for full recovery. Work requiring bending or lifting and activities involving prolonged sitting or prolonged riding in an automobile were prohibited. According to Dn La-Rocca, only approximately 50% of cases similar to that of Mrs. Robinson’s have resulted in a complete remission of symptoms. The doctor assessed a disability of 35% impairment of the body as a “whole”. According to Dr. LaRocca, this assessment is .subject to revision based on hopeful improvement, however, plaintiff would continue to have some measure of permanent disability. It was the doctor’s opinion that the fracture of the right transverse process, the fragmented loose body, operatively removed, the degenerative disc disease, requiring fusion, and ultimate disc removal, as well as the resultant disability suffered by plaintiff was caused by and was attributable to the accident.

According to Dr. Richard Levy, a neurosurgeon, examination of reports of Drs. Dugas and Pusateri did not indicate any degenerative disc disease or impairment. Dr. Levy further pointed out that the April 5, 1973 postoperative report of Dr. LaRocca was inconsistent with the February, 1973 operative report. According to Dr. Levy, the April report indicated that exploration confirmed the presence of intervertebral disc degeneration at L-4, L-5 and L-5, S-l, while the February report merely indicated that only the L-5, S-l interspace had been inspected and did not indicate any disc degeneration or disease. Dr. Levy further testified that the operative report indicated to him that L-5, S-l was normal. The doctor further explained that the hospital report did not indicate that Dr. La-Rocca inspected L-4, L-5.

It was Dr. Levy’s opinion that the October, 1971 accident could not have caused the disc protrusion in March, 1974. Dr. Levy, however, acknowledged that he did not examine plaintiff and, therefore, could not definitely state that the ruptured disc was not precipitated by the October, 1971 accident. Dr. Ray J. Haddad, an orthopedic surgeon, substantially corroborated the testimony of Dr. Levy. Dr. Haddad also did not examine plaintiff, but testified from information obtained from reports of the treating physicians and Dr. LaRocca.

We are not in agreement with defendants’ contention that Drs. Levy, Had-dad, Dugas and Pusateri contradicted the testimony of Dr. LaRocca. Drs. Levy and Haddad did not state that plaintiff did not suffer from a degenerative intervertebral disc disease. Dr. Levy’s testimony was to the effect that the postoperative notes of the February fusion operation by Dr. LaRocca did not indicate a degenerative interverte-bral disc disease. He did indicate that the postoperative notes of April 5, 1974 indi-cated the presence of disc disease. So much for the medical testimony.

Carolyn Robinson testified that prior to the accident, she had not suffered any back trouble. Her postaccident symptoms and treatment substantially corroborated the testimony of Drs. Dugas, Pusateri and LaRocca. On January 15, 1972, Mrs. Robinson returned to her preaccident employment at Barnett’s Furniture Company, where she had been employed as an assistant credit manager. She stated that when she returned to work, she was not without pain, but was required to work in order to support herself and her two minor children. In January, 1972, her earnings were $425.-00 per month. Her pay was increased to $500.00 per month in May, 1972. In February, 1973, she discontinued her employment. Mrs. Brown stated that for approximately 10 months after her first operation, she was in constant pain, unable to sit without experiencing pain, unable to put shoes on by herself or to get out of bed “normally”. According to plaintiff, she attempted to do part-time work in June, 1973, and again in November, 1973. She worked as a waitress from November, 1973, until February or March, 1974. This employment was discontinued because of intense pain suffered by her,

Peter Bondy, an actuary, computed plaintiff’s loss of earnings between October 16, 1971 and January 1, 1972, based on earnings of $475.81 per month, at $1,189.53. From March 1, 1973 through December 11, 1974, plaintiff’s loss of earnings, computed at $500.00 per month, totalled $10,750.00. Based on the likelihood that plaintiff could not return to work before June 11, 1975, and using an income figure of $600.00 per month, the actuary computed a $3,600.00 loss of income from December 1, 1974 to June 11, 1975. According to the actuary, a 6% interest adjustment reduces this figure to $3,556.69. In connection with future loss of earnings, plaintiff testified that since the second operation (April, 1974), she has been unable to return to any type of gainful employment. Mrs. Robinson stated further that she was unable to do housework of any kind. As previously indicated, Dr. LaRocca assessed plaintiff’s disability at 35% impairment of the body as a “whole”, some measure of which would be permanent. Sara Nunez, president of an employment service, stated that plaintiff would not pass the physical examination of any company and that the only type of position where plaintiff could be placed offered an average earning of approximately $2.00 per hour.

The actuary based his computations for future loss of earnings on the assumption that if plaintiff had not sustained the injuries, she would have returned to her prein-jury employment at Barnett’s with monthly earnings in the sum of $700.00. Because of her inability to resume her occupation, he computed her postaccident earning capacity at $2.10 per hour. Based on this hourly rate, the actuary computed plaintiff’s future monthly earning potential at $362.72. The difference between the $700.00 figure and the $362.72 monthly earning potential figure amounted to a monthly future loss in the sum of $336.28. According to the actuary, Mrs. Robinson, 30 years of age at the time of trial, had a work-life expectancy of 32.66 years. After taking into consideration a 6% interest discount rate and a 3% inflation rate, the actuary computed a total loss of future earnings in the sum of $82,220.36.

The actuary’s calculation as to plaintiff’s future loss of earnings was partially based on the fact that plaintiff would have returned to her preinjury employment at Barnett’s at a salary of $700.00 per month. However, the record contains no evidence that plaintiff would have returned at the $700.00 salary level. Although the credit manager at Barnett’s testified that plaintiff was being trained for the position of credit manager with a monthly salary of $800.00, plaintiff did not assume this position. Loss of earnings testimony based on the possibility that plaintiff would become credit manager at some time in the future at $700.00 or $800.00 per month is speculative. However, Bondy, the actuary, did testify that if the $500.00 per month salary figure was used, with a 6% discount and a 3% inflation rate, plaintiff’s total loss of future earnings would amount to $33,240.18. This figure is more realistic.

Accordingly, the trial court award of $82,000.00 for loss of future earnings must be reduced to the sum of $33,240.18.

In addition, since Bondy erroneously used a $600.00, rather than $500.00, per month salary figure in computing plaintiff’s past loss of earnings between December 11, 1975 and June 11, 1975, it is necessary that Bondy’s computations be reduced to the extent of $100.00 per month for a six-month period. Therefore, plaintiff’s award for past loss of earnings during this period must be reduced to $2,956.69.

It is clear from the record that in deciding for plaintiff, the trial judge placed more reliance on the testimony of Dr. LaRocca than on Drs. Levy and Had-dad. The rule is well settled that when the record contains evidence which furnishes a reasonable factual basis for the trial court’s finding, on review, the appellate court will not disturb those factual findings in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). We cannot say the trial judge erred in the instant case. Accordingly, we conclude the general damage award in the sum of $50,000.00, under the circumstances, is not excessive. However, because part of loss of past earnings and loss of future earnings were based on an erroneous contemplated pay scale, the trial court’s award for loss of earnings from December 1, 1974 to January 11, 1975 is reduced from $3,556.-69 to $2,956.69. The future loss of earnings award is reduced from $82,000.00 to $33,-240.18. Accordingly, the judgment of the trial court is reduced from $159,532.00 to $110,172.18. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . “Plaintiff Carolyn Brown’s proven damages are itemized as follows:
      Dr. Wm. Pusateri 63.00
      Roslyn Lacombe (maid service) 2143.00
      Dr. Joseph Dugas 425.00
      Dr. Hunt et al, x-rays (3 times) 115.00
      Dr. S. H. LaRocca ($1565 & 975.00) 2540.00
      Dr. Whitecloud 340.00 '
      Dr. C. M. Nice (x-rays) 89.00
      Drug bills $ 425.00
      Hospital bills ($2621.25 & 3016.00) 5637.25
      Back corset (Dr. Pusateri) 48.78
      Back brace (Dr. LaRocca) 99.75
      Dr. Martin 80.00
      Ambulance 30.00
      Loss of wages 10/16/71-12/11/74 11939.53
      Loss of wages 12/11/74-6/11/75 3556.69
      Loss future wages (discounted) 82000.00
      Pain, suffering, worry, inconvenience, etc., two major operations with removal of ruptured discs and fusion of spine 50000.00
      TOTAL $159,532.00

      . Dr. LaRocca testified that the hospital records are not complete and do not set forth in every respect what transpired during the operation. According to Dr. LaRocca, his postoperative office notes supplemented the operative report.

      . This figure is subject to a further reduction of $600.00 and is covered later in the opinion.

      . In Morgan v. Liberty Mutual Insurance Company, 323 So.2d 855 (La.App.4th Cir. 1975), this court accepted a 3.8% inflation rate and a 4.8% investment yield in computing plaintiff’s loss of future wages. However, the 6% discount rate and the 3% inflation rate used in the instant case are the only rates established by the evidence in this record.

      . The amount of the reduction is computed by adding the difference between $3,556.69 and $2,956.69, i. e., $600.00, and the difference between $82,000.00 and $33,240.18, i. e., $48,759.82. The total amount of the reduction is $49,359.82, which we subtracted from $159,532.00.


author: BOLIN, Judge. PER CURIAM.

text:
    STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Robert L. SALTER, Sr., et ux., Defendants-Appellees.
    No. 12871.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 1976.
    En Banc. Rehearing May 24, 1976.
    Writ Refused July 1, 1976.

      D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Robert L. LeDoux, Jeannette M. Faust, Johnie E. Branch, Jr., Baton Rouge, by Jack C. Frugé, Sr., Ville Platte, for plaintiff-appellant.
    Baker, Culpepper & Brunson by Herman A. Castete and William H. Baker, Jones-boro, for defendants-appellees.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

This is one of a series of expropriation cases arising out of the widening of U.S. Highway 167 in the Jonesboro-Hodge area. The property expropriated is adjacent to the Oil Mark tract involved in the recent decision of this court in State, Department of Highways v. Oil Mark Corporation, reported in 324 So.2d 606 (1975).

The district court awarded the landowners $6,805.61 for the land and improvements, $16,787.50 for severance damages, and awarded an additional $9,562.28 as expert witness fees. The Department appeals, contending there was no severance damage and that the other awards were excessive. Defendants answer the appeal asking for an increase in the award for the part taken and affirmation of the remainder of the judgment. Further, defendants seek $5,000 as attorney fees against plaintiff for prosecution of this allegedly frivolous appeal. We amend the judgment by reducing the award to defendants to $9,305.61 and reducing the expert witness fees to a total of $2,650.00.

In the instant case defendants’ property measures 405.09 feet along U.S. Highway 167, with a depth of 174.27 feet on the north line of Harrison Street, and is located in the northeast quadrant of the intersection of Harrison Street and Highway 167. Rose Oil Corporation, lessee, operates a service station on the south part of the property and a drive-in restaurant is located on the north part. Neither lessee is a party to this suit, although plaintiff paid to Rose Oil $7,400 for relocating the pump islands, canopy and signs necessitated by the taking.

It is undisputed defendants’ tract contained a total of 2.201 acres, of which the Department has expropriated .058 acres, or 2,526 square feet. The front portion of the property had been filled to make it suitable for commercial purposes. Although there is some controversy regarding the depth of this filled part of the property, it is at grade with the highway for a depth of approximately 75 feet at the south end with a greater depth at the north end. The expropriation took a triangular shaped portion from the front of the property commencing with a flare at the south end at the intersection of Harrison and Highway 167. The triangle. narrows at the north end with the greater portion being taken from the south part in front of the service station. The parties agree the expropriation did not destroy the character or utility of the service station site as commercial property.

VALUE OF PROPERTY TAKEN

The Department’s appraisers, L. J. Roy and Dan Carlock, used some or all of the same comparables they used in Oil Mark, supra, and concluded that, at the time of taking on September 5, 1974, the subject tract had a market value of $1.20 a square foot or $3,031 for the 2,526 square feet expropriated. Utilizing some of the same comparables but applying different adjustments for passage of time, the following square-foot value was assigned to this part by defendants’ appraisers: Darrel V. Willet, $2.13; H. L. Bass, $2.50; O. L. Jordan, $2.25; and Hab Monsur, $2.06.

The trial judge considered the above appraisals and concluded the only portion of the property affected by the taking was the front use part utilized as a service station; that the highest and best use of this part was for commercial purposes, having a market value of $2.10 per square foot. He also found the concrete and asphalt paving on the part taken had a value of $1,500 which he added to the value of the land and awarded defendants $6,805.61 for the property taken. From our reading of the cold record this award appears to be slightly high. However, we do not choose to substitute our opinion for that of the trial judge on this portion of the judgment.

SEVERANCE DAMAGES

The most controversial issue is the question of severance damage to the remainder. The trial judge determined the rear use portion of the tract, which was residential in nature, was unaffected by the taking. He found the front use portion of the tract contained 25,520.67 square feet to which he assigned a square-foot value of $2.10, indicating a total value of $53,593.41 not including the improvements. To this he added the depreciated value of the service station building, the canopy, paving, etc., which he estimated at $25,000, making a total value of $78,593.41 before the taking. From this he deducted $6,805.61, the amount he had previously determined to be the value of the part expropriated, leaving $71,787.80. He concluded that after the taking the front use tract had a value of $55,000, or a depreciation of about 30%, indicating a diminution in value of the remainder of $16,787.80.

The district judge did not discuss in detail his reasons for finding severance damages. However, he did state he believed these damages were caused by the barrier curb erected along Harrison Street, the catch basins to be located along the front of this property and adjacent to Highway 167, and the future limited access to the service station.

The service station site had been under lease to Rose Oil Company (Rose Old Timers of Mississippi, Inc.) from the previous owners since June 1, 1959. The original lease was for an initial five year period with options to renew at the end of each period, and these options were exercised periodically. The original lease stipulated a consideration of $125 per month with each renewal increasing the rental $25 per month. The fourth and final renewal of the lease commenced June 1, 1974 at a monthly rental of $200. Thus, at the time of the taking this lease had nearly five years to run.

The lease, a copy of which is in the record, granted the lessee the right to make any and all desired changes, alterations, additions, reductions and improvements to the building on the premises. Further, it was agreed between the parties that all movable equipment placed on the premises by the lessee, including tanks, pumps, etc., would remain the property of the lessee and could be removed by the lessee upon termination of the lease.

Exhibits in the record establish the highway department negotiated with Rose Old Timers to pay to the lessee $7,400 as the cost to cure the damage occasioned by the expropriation. This settlement represented the reimbursement to the lessee for the cost to relocate a pump island, relocate existing signs, move and relocate a canopy, reset island fixtures, repair concrete, and relocate water and air lines.

From the foregoing evidence we find defendants have little cause to complain about the limited access afforded the service station, at least for four and one-half years from the date of trial which is the controlling date in fixing severance damages in a quick-taking by the highway department. (La.R.S. 48:453). This conclusion holds true with regard to the barrier curb to be constructed at the “flare” as well as the catch basins to be located along the front of the property. Since the lessee apparently is satisfied with the settlement for any damage, loss of business or inconvenience occasioned by the taking and intends to continue paying the agreed rent and to exercise all the rights and privileges accorded under the lease, it seems clear there is no present diminution in commercial value of the leasehold interest presently being utilized as a service station.

However, the acceptance by the lessee of the settlement tendered by the highway department prior to trial will not preclude the recovery of severance damages if we find sufficient proof the barrier curbs and limited access driveways have diminished the market value of the remainder. While the estimates of severance damages by defendants’ appraisers were, in our opinion, grossly excessive, we find defendants are entitled to nominal severance damages of $2500.

EXPERT WITNESS FEES

The trial judge fixed fees of the expert witnesses used by the defendants as follows:

Hab Monsur $ 1,925.00
Darrel Willet 2,175.00
H. Loren Willet 450.00
H. L. Bass 1,950.00
O. L. Jordan 2,175.00
A. Ray Bond 450.00
Lavelle Nunn 437.28
Total $ 9,562.28

Although H. Loren Willet was accepted as an expert he did not submit an appraiser’s report nor did he testify concerning the value of the part taken or the severance damages to the remainder. His testimony, which consumed no more than one day, was devoted almost entirely to the effect the proposed widening of the highway will have on the truck business of the service station. His fee is fixed at $150.

We find the fees of O. L. Jordan and Hab Monsur excessive. These experts filed their written appraisals in the record. They were also present and testified during the trial. Their testimony was limited to explaining the manner in which they arrived at the amounts charged defendants for the reports. Their fees are therefore reduced to $500 each.

A. Ray Bond testified only as to the reproduction cost of the service station building, which was not taken in the expropriation. His testimony, including questions relative to his qualification, findings and charges for his estimate of reproduction costs and court appearance, consumed eight pages of the record. The fee for this witness is fixed at $100.

From our careful review of this record and for the rationale expressed in State of Louisiana, Department of Highways v. Warner, 329 So.2d 913 (La.App. 2d Cir. 1976) and cases therein cited, we disallow the fee for the photographer, Lavelle Nunn, and fix the remaining fees as follows :

Darrel V. Willet $ 700.00
H. L. Bass 700.00
O. J. Jordan 500.00
Hab Monsur 500.00
H. Loren Willet 150.00
A. Ray Bond 100.00
Total $2,650.00

For the reasons assigned the judgment of the district court is amended to reduce the amount awarded defendants from $23,593.41 to $9,305.61, subject to a credit of $3,193.00 previously deposited by the State of Louisiana through the Department of Highways .and withdrawn by the defendants, R. L. Salter, Sr., and Bess Frey Salter. The judgment is further amended by reducing the total expert witness fees from $9,562.28 to $2,650.00 as reflected herein.

As amended the judgment is affirmed.

Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.

ON APPLICATION FOR REHEARING

PER CURIAM.

It has been pointed out to the court, in application for rehearing, that in reducing the award for severance damage we indicated that we were reducing the award because any diminution in value of the property occupied by the lessee-filling station operator would not be suffered by lessor for the duration of the lease.

Our opinion was perhaps couched in misleading language. What we intended to say was that the diminution in the size of the tract and the reduced access did not destroy the value of the tract as commercial property. We concluded the limited access would cause only a slight diminution in market value as of the date of trial.

Rehearing denied.


author: PENROSE C. ST. AMANT, Judge Pro Tem.

text:
    Robert William DURAY v. The CONTINENTAL INSURANCE COMPANY.
    No. 7490.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 1976.
    J. Walter Ward, Jr., Christovich & Kearney, New Orleans, for Continental Ins. Co., defendant-appellant.
    Nathan Greenberg, Greenberg & Daliam, Gretna, for Robert William Duray, plaintiff-appellee.
    Before GULOTTA and SCHOTT, JJ., and ST. AMANT, J. Pro Tern.
   PENROSE C. ST. AMANT, Judge Pro Tem.

This is a suit for workmen’s compensation benefits for alleged total and permanent disability. The sole issue on appeal is the extent of plaintiff’s disability.

Plaintiff, who was employed as a welder, initially sued the executive officers of his employer in tort. A jury trial resulted in a judgment adverse to the plaintiff which was affirmed on appeal, Duray v. Continental Insurance Company, 311 So.2d 491 (La.App. 4th Cir. 1975).

By stipulation of counsel this suit for compensation benefits was submitted on the basis of the entire record in the tort suit. The trial court, after reviewing the record, found the plaintiff to be totally and permanently disabled. Defendant has appealed and we affirm.

The trial court in well considered written reasons for judgment made appropriate findings of fact and correctly applied the applicable law. We take the liberty of adopting said reasons for judgment as follows:

“On June 12, 1968, a steel I beam fell on plaintiff’s right foot causing multiple fractures of the right great toe, second, third and fourth toes. It was further stipulated that this injury was incurred during the course and in the scope of plaintiff’s employment.

“Dr. Ettinger performed two surgeries on plaintiff, in June and September of 1968. Dr. Ettinger then referred plaintiff to Dr. George R. Cary, a New Orleans Orthopedic Surgeon. Dr. Cary performed a Keller surgical operation on April 21, 1969, which is the removal of the proximal end of the proximal phalanx of the great toe — i. e., part of the bone of the great toe was removed. Dr. Cary also prescribed an orthopedic corrective shoe and arch support.

“Plaintiff moved to Ohio after being discharged by Dr. Cary in 1969. Plaintiff worked for his father in Ohio in a machine shop. Plaintiff then sought further medical attention for his injury. Plaintiff first saw Dr. Ruppert Clark who referred plaintiff to Dr. Hassler, an orthopedic surgeon. Dr. Hassler then referred plaintiff to Dr. Malcolm Brahms, an orthopedic surgeon. Dr. Brahms performed surgery on plaintiff on October 6, 1972, in which two small sesa-moid bones were removed and a silastic implant was inserted into the great toe to attempt to restore normal length of the great toe. Also, the proper digital nerve of the great toe was resected and the toe extensor tendon was lengthened. Orthopedic shoes and arch supports (Keel bar) were also prescribed.

“This Court has carefully reviewed the detailed testimony of the plaintiff, Dr. Cary and Dr. Brahms with regard to the events chronologically listed hereinabove. This court is highly impressed by the background and extensive qualifications of Dr. Brahms, especially his background as a podiatrist and the fact that he serves as an instructor at the American Academy of Orthopedic Surgeons concerning surgery of the foot.

“After careful consideration of the entire testimony as a whole, this court concludes that plaintiff, Robert William Du-ray, is totally and permanently disabled within the meaning, purpose and intendment of the La. Workmen’s Compensation Act.

“Both Dr. Cary and Dr. Brahms testified that plaintiff could not return to work as a welder without pain, particularly with long periods of standing, squatting and walking. Dr. Cary recommended that plaintiff return to his former activity provided that climbing would be avoided. Plaintiff’s balance was impaired due to the foot injury. Dr. Cary stated that the pain would be in the nature of minor discomfort. However, Dr. Brahms stated that plaintiff could resume his job as a welder with proper motivation, but that this would only help him plod through a long day. Proper shoes and arch support would help improve a bad situation, but would not relieve the pain. In view of the entire medical testimony and plaintiff’s subjective complaints about the pain which he experienced this court finds the pain involved to be that substantial and appreciable pain which the law contemplates for a finding of total and permanent disability.

“Medical opinion varied as to the degree of disability. Dr. Cary testified as to 10% partial permanent disability of the right foot and Dr. Brahms as to 25% disability of the body as a whole. However, the percentage of disability or impairment of function is not the only factor to be considered by the courts in determining whether an employee is totally and permanently disabled. Futrell v. Hartford Accident & Indemnity Co., 276 So.2d 271, La.Sup.Ct.1973. In Futrell, the La. Supreme Court set forth guidelines for the legal determination of disability.

“ ‘The law fixes disability in terms of loss of earning capacity, which includes the extent of the physiological impairment as only one factor. The function of the judge is much broader than that of the medical man, for loss of earning capacity, which is the eventual touchstone of all legal definitions of disability, can be determined only by reference to the state of the labor market, hiring practices, the humanity of obliging a man to work in pain, and other broad policy considerations which the physician is not equipped nor authorized to evaluate.’

“In Futrell, the plaintiff incurred- a knee injury causing 10% impairment of function to the right leg. Plaintiff was an automobile mechanic. The La. Supreme Court stated further,

“ ‘The degree of Futrell’s disability must not, however, be judged by placing him in ideal working conditions. The test must be whether the injury has substantially decreased Futrell’s ability to compete with ablebodied mechanics in the general labor market.’ ”

“In Futrell, Dr. Banks, the orthopedic surgeon, was of the opinion that the plaintiff could return to work as a mechanic, but with a restriction on squatting, lifting heavy items and climbing. Three other orthopedic surgeons agreed. The La. Supreme Court held that plaintiff was totally and permanently disabled because, since he would have to limit what he could do, he would not have the bargaining power of an able-bodied mechanic in the general labor market.

“In Jones v. Shreveport Lumber Products Co., 299 So.2d 438 (La.App. 2nd Cir. 1974), the facts presented were very similar to the instant case. There, plaintiff suffered accidental loss of the great toe of the left foot during the course of employment. The court appointed an orthopedic surgeon to make an independent examination of plaintiff. The surgeon concluded that plaintiff had no more than 25% partial permanent disability in the left foot and that he could return to work without any significant pain. This diagnosis was made after orthopedic devices were prescribed and after surgery similar to that of the plaintiff in the instant case. The Court concluded as follows:

“ ‘From our review of the medical evidence, together with plaintiff’s testimony as to pain, which is borne out by the history of four operations within less than two years and the finding of the tender callous by Dr. Fox, we are convinced plaintiff would be unable to obtain or hold a job necessitating him to walk up and down stairs, stand on his feet for an eight-hour day, to climb a ladder, or do many of the myriad jobs involving constant use of his feet, required of most manual laborers. We find his disability is of such character as to render Jones substantially handicapped in competing with able-bodied workers in the common labor market, and that he is entitled to workmen’s compensation benefits for total and permanent disability.’ ”

“In the instant case the plaintiff is similarly handicapped in competing with other able-bodied welders in the general labor market because of his incapacity to climb and also because of the pain which would result due to the general standing, stooping and walking requirements of the normal welder.

“Thus, this Court finds the plaintiff, Robert William Duray, to be totally and permanently disabled based on the totality of the testimony and recent jurisprudence concerning the factors of pain, degree of functional disability, and the ability to compete in the common labor market.”

For the foregoing reasons the decision appealed from is affirmed at appellant’s cost.

AFFIRMED.