text:
    TIGER WELL SERVICE, INC., Plaintiff-Appellee, v. KIMBALL PRODUCTION COMPANY, Defendant-Appellant.
    No. 5820.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      Scofield, Bergstedt & Gerard, Lake Charles (Benjamin W. Mount, Lake Charles, of counsel), for plaintiff-appellee.
    Woodley, Fenet & Ranier, Drew A. Rani-er, Lake Charles, for defendant-appellant.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

This is a suit on open account wherein plaintiff, an oilfield workover rig service company hereinafter referred to as “Tiger”, seeks to recover the amount of services and materials furnished by it to Kimball Production Company, hereafter referred to as “Kimball”, under an oral contract whereby Tiger was to workover an oil well owned by Kimball in Calcasieu Parish. Kimball denied any indebtedness to Tiger and by way of answer and reconventional demand asserts that as a result of Tiger’s negligent, unworkmanlike performance and use of faulty and improper materials in the performance of such contract, Kimball sustained damage in the amount of $7871.86 for which they should be granted judgment.

This matter was consolidated with two other suits for trial, one a jury case and the other a non-jury case. We are this day rendering separate decrees in each of these cases, i. e., Trahan v. Highlands Insurance Company et al., 343 So.2d 1163 (La.App. 3rd Cir. 1977) and Tiger Well Service Inc. v. Travelers Insurance Company et al., 343 So.2d 1158 (La.App. 3rd Cir. 1977).

The facts essential to a resolution of the issues presented in each of these cases are common and were succinctly, clearly and accurately set forth by the trial judge in his reasons for judgment. We take the liberty of quoting from the trial judge’s reasons for an accurate account of the facts which give rise to the claims set forth in the three cases and in order to set forth the trial court’s conclusions and resolution of the issues presented. The trial court stated:

“These are three consolidated suits arising out of an industrial accident wherein a production rig'overturned, causing a death of the derrick man and property damage and other losses.

The Trahan case was an action by the surviving widow and a minor child for the death of the husband and father against Arthur Tidwell, an executive- officer of Tiger Well Service, and his insurer, Highlands Insurance Company; Travelers Insurance Company, as the insurer of Carl McClelland, an alleged executive officer of Tiger Well Service; Permian Engineering and Manufacturing Company, Inc., and its insurer, Travelers Insurance Company; and Fred E. Cooper, Inc.

The Trahan case was a jury case which was tried and interrogatories were answered by the jury. Arthur Tidwell and his insurer, Highlands Insurance Company and Permian Engineering & Manufacturing Company, Inc., along with its insurer, Travelers Insurance Company, were found negligent, which negligence was a proximate cause of the accident causing the death of Norman Tra-han, the husband of the plaintiff, Joan Tra-han, and father of Belinda, the minor. The jury also found that the equipment manufactured by Permian was defective and such defect was a proximate cause of the accident. The evidence in that suit was introduced for the purpose of deciding the remaining two cases which are non jury and will be decided by the court.

The evidence presented to the jury reflects that Tiger Well Service, Inc. is essentially operated by one person, Arthur Tidwell. Tidwell testified that in 1971 he attended an oil show in Lafayette, Louisiana where he had an opportunity to look at the production rig on exhibit by Fred E. Cooper, Inc. As a result of the inspection of the rig, Tidwell decided to purchase the rig from Cooper. He specified that the mast or derrick must be a Pemco derrick manufactured by Permian Manufacturing & Engineering Company, Inc. The rig was later delivered to Tiger Well Service, Inc. and it was put into operation upon receipt of same. When we say “rig” in this opinion, we are referring to a production unit which is a portable unit; that is, one which is mounted upon and can be transported on a large conveyance, which forms a part of the unit itself. This rig is designed and used as a production unit and not a drilling rig. It does not handle the heavy pipe and working operations that a drilling rig handles and is not designed for such. It is a smaller unit and performs lighter work operations than does a drilling rig. This rig was used continuously up until 1973. During the year 1973 the rig was on location and during the night, when no one was around, due to weather conditions, the derrick being in an upright position and having pipe in same, was blown over. This accident caused damage to the derrick and its appurtenances and specially the racking board. The racking board is a device which is located approximately 50 feet from the ground and its principal purpose is to afford a place for the derrick man to work and to place the pipe as it is removed from the hold (sic) into the rack in rows.

After the 1973 fall, the derrick was removed from the site and returned to Permian Engineering & Manufacturing Company, Inc. for repairs. A 5 foot section of the 3x/2 inch square tubular material was removed from the racking board and replaced due to damage. Other portions of the racking board were straightened and after further repairs were completed the derrick was returned to Tiger Well Service, Inc. for further operation.

The equipment was put back into service and on January 3, 1975, pipe was being removed from a well owned by Kimball Production Company. Carl McClelland was the driller and the deceased, Norman Tra-han, was the derrick man. Two other men worked on the floor with the driller. As the pipe is removed, it is done so two joints at a time, which is approximately 60 feet of pipe and these are called “stands”. As the “stands” are unscrewed and the (sic) set on the platform below, the derrick man opens the elevators that have brought the pipe up and places the top portion of the “stand” between fingers in the racking board. The procedure for racking this pipe, as it is removed, is to place one row on the derrick man’s right and then the next row will be to his left. He will alternate the rows as they accumulate for the purpose of equalizing the forces that the pipe exerts against the derrick.

On the day in question the derrick contained approximately 10,000 feet, or 90,000 pounds of pipe. Suddenly, after Trahan had removed the elevators from a “stand”, the driller testified that he heard a noise and looked up and saw the racking board swinging around to the west, or to the derrick man’s left. As the racking board swung around the weight of the pipe, on the derrick man’s right (east side), shifted, causing the derrick to fall. When the derrick fell Trahan was in between the two stacks of pipe, which stacks weighed approximately 45,000 pounds each. He was killed instantly upon impact.

The expert testimony along with that of the drilling crew that were present on the rig at the time of the accident, was to the effect that the cause of the accident was that the main tubular steel frame of the racking board broke at the southeast corner, which explained the fact that the racking board swung around to the west, causing the pipe to shift, which in turn overturned the derrick.

Extensive testimony was produced pertaining to the method of installing guylines and anchors for the purpose of stabilizing the derrick while it was up and in operation. The substance of the testimony reveals that Permian Engineering & Manufacturing Co., Inc. published an instruction manual with a drawing reflecting that the derrick should have been equipped with four guylines from the crown, or the top of the derrick, out to four anchors. The derrick should further be equipped with two guylines, which extending from both corners of the racking board, crossing each other, and tied to two of the mast anchors. This would give the derrick six guylines with four anchors. The drawing that was sent to Mr. Tidwell was included in a large information book, compiled by and sent by Fred E. Cooper, Inc., to Tidwell for the operation of the rig. The instructions did not set out the number of anchors, but a review of the diagram re-fleets the six guyline setup. Tidwell testified that he installed two guylines from the crown and two from the racking board.

After the rig fell in 1973 and was repaired, Tidwell did not change this anchor setup. He continued to use the two guylines from the mast and two from the racking board. It is important to note that these guylines are labeled “wind lines”. The principal purpose of the guyline is to stabilize the rig in weather conditions and to keep down any swaying while it is in operation. They are not of the strength or the character that would hold a derrick upright when there is a sudden shift of pipe that is standing in the derrick, which shift would cause forces to be exerted beyond the capacity of these guylines.

The jury found Arthur Tidwell negligent, which negligence was a proximate cause of the accident. There is ample evidence upon which the jury could have concluded this. The expert testimony of Mr. Weaver, was that the existence of a proper anchor system would have delayed the toppling of the derrick for a matter of seconds. It was further shown that in a matter of seconds the derrick man could have removed his belt and possibly used a “geranamo” (sic) line for escape, if it had been available to him. No “geranamo” (sic) line was placed upon this derrick. The jury could have concluded that this lack of a “geranamo” (sic) line and the lack of proper anchoring was negligence, which was a proximate cause of the death of Norman Trahan. But, as to the fall of the derrick, the evidence clearly reflects that once the racking board broke, and the pipe shifted its weight, there is no guyline arrangement, including the one recommended that would keep the derrick upright. These extreme forces would have brought the derrick down, guy-lines or no guylines. The reason I am bringing this out is because, even though Arthur Tidwell may have been negligent in not having the derrick properly “guyed”, the lack of proper guylines was not a proximate cause of the derrick failing. It could have been a proximate cause of the death of the man when coupled with the lack of a “geranamo” (sic) line. Having come to this conclusion, then I conclude that any negligence of Arthur Tidwell was not a proximate cause of the accident. Tiger Well Service, Inc. would not be liable for the property damages incurred as a result of the fall.

As to Permian, the evidence reflects that the steel at the point of the break was defective. Mr. Weaver, a qualified expert in the metalurgy field, stated that his test revealed that the temperature of the weather, approximately 49 degrees, was such that the s teel (sic) at this point became brittle and actually broke. Permian presented an expert who did not run any test, but merely by observation, felt that the steel was not brittle, but was broke (sic) for some other reason. This court accepts the testimony of Mr. Weaver that the steel was defective at this point and broke. The break in the racking board was the beginning of a chain reaction, which brought the derrick down. The fall of the derrick was proximately caused by the negligence of Permian Engineering & Manufacturing Company, Inc.

It is on this basis that we will decide the two non-jury cases.

Tiger Well Service, Inc., in No. 108,471, sued Kimball Production Company for $5,935.79 as the amount due Tiger Well for services due up to the time of the fall of the derrick. Kimball reconvened for damages on the basis that Tiger Well Service, Inc. “negligently performed the contract with Kimball Production Company.” The sum for services was stipulated as being $5,935.79.

Having concluded that Tiger Well Service, Inc. was not negligent, or, if so, such negligence was not a proximate cause of any property loss, the reconventional demand of Kimball Production will be dismissed and judgment in the amount of $5,935.79 shall be awarded in favor of Tiger Well Service and against Kimball Production Company. Kimball is to pay costs in # 108,471.”

Kimball appealed from the trial court judgment and asserts that the trial judge erred in failing to find that Tiger was liable, as a matter of law, to Kimball on the basis of the contractual relationship between the parties. Appellant does not seriously question the trial court’s finding of Tiger’s delictual non-liability but asserts that the trial court erred in failing to award damages on the basis of breach of contract and specifically cites in support of its contention R.C.C. Articles 1930 and 2769.

The substantial issue for determination on this appeal is whether one who undertakes the performance of a contract for services and employs the use of defective equipment which causes harm to other property of the obligee but which does not otherwise affect his workmanlike performance of the contract is responsible in contract for the damage caused when it is established that the defect in the equipment was caused solely by the fault of a manufacturer, third party.

At the outset we observe that the amounts sued for by Tiger and Kimball are not in dispute. Tiger and Kimball stipulated that the amount due Tiger was $5935.79. Kimball does not appeal the trial court’s award to Tiger. The property damage sustained by Kimball when the rig collapsed was stipulated to be the sum of $7871.86.

The articles of our civil code relied upon by Kimball to support its contention provide as follows:

R.C.C. Article 1930:
“The obligations of contract [contracts] extending to whatsoever is incident to such contracts, the party who violates them, is liable, as one of the incidents of his obligations, to the payment of the damages, which the other party has sustained by his default.”
R.C.C. Article 2769:
“If an undertaker fails to do the work he has contracted to do, or if he does not execute it in the manner and at the time he has agreed to do it, he shall be liable in damages for the losses that may ensue from' his non-compliance with his contract.”

It is generally held that under the cited articles every contract for work or services carries an implied obligation on the part of the contractor that he will perform in a good workmanlike manner in default of which he must respond in damages for the losses that may'ensue. In Hebert v. Pierrotti, 205 So.2d 888 (La.App. 3rd Cir. 1968) we stated:

“As a general rule, there is implied in every contract for work or services that the work will be performed in a skillful, careful, diligent and good workmanlike manner. LSA-C.C. arts. 1930 and 2769; Wolfe v. LeVasseur-Hinson Construction Company, 147 So.2d 747 (La.App. 2d Cir. 1962); Hunter v. Mayfield, 106 So.2d 330 (La.App. 2d Cir. 1958); Rotolo v. Stewart, 127 So.2d 24 (La.App. 1st Cir. 1961); Rathe v. Maher, 184 So.2d 256 (La.App. 1st Cir. 1966); 17A C.J.S. Contracts § 329, p. 292; 17 Am.Jur.2d, Contracts Sec. 371, p. 814.”

We acknowledge the force of this legal principle, however, the many cases in which this principle was applied indicates that before the contractor can be cast in damages for breach of this implied obligation it must be established that the damages suffered by the obligee arose as a result of faulty workmanship or from the use of defective materials or equipment which the undertaker knew or should have known were defective. In Hebert v. Pierrotti, supra, the house moving contractor was found liable upon proof that the house was damaged because he failed to exercise proper care in blocking or filling a ditch so that the truck and trailer could keep the house level while it was being moved. In Hunter v. Mayfield, 106 So.2d 330 (La.App. 2nd Cir. 1958) which involved damages caused as a result of defective plumbing, the court found the plumbing sub-contractor responsible because of defective materials, poor workmanship and inadequate inspections. In Rathe v. Maher, 184 So.2d 256 (La.App. 1st Cir. 1966), writ refused May 19, 1966, the contractor was held responsible in damages upon a showing that sagging floors, etc. were caused by poor workmanship.

In such cases it is essential for recovery that plaintiff establish that the damages were the result of poor workmanship or from the use of materials which the undertaker knew or should have known were defective. In short a contractor is liable under the cited articles only upon proof that the contract was not performed in a workmanlike manner. This proof necessarily includes some showing of want of skill, efficiency or knowledge, or some lack of ordinary care in the performance of the work or in the selection of suitable materials and equipment. There is no liability as a matter of law or strict liability under the cited articles as contended by appellant.

We have carefully considered the record in light of our understanding of the legal principle involved and determine that the trial court correctly rejected Kimball’s demand in contract. There is no evidence whatever which would indicate that Tiger failed to perform its contract with ordinary skill and care. Quite to the contrary the record reflects that Tiger did everything that a skilled workover operator would have done. Kimball does not dispute this and in fact readily admits its obligation to pay Tiger for the services rendered by the latter in the workover operation up to the time of the rig collapse. There is likewise no evidence in the record which would even suggest that Tiger knew or had any reason to suspect that a defect existed in the racking board on this rig. Tiger clearly did not violate any duty of skill or care under its contract with Kimball by using the work-over rig in question which unknown to Tiger contained a hidden defect.

As aforestated, in an action such as this, plaintiff bears the burden of establishing by a preponderance of the evidence that the damages suffered were occasioned by reason of unworkmanlike performance of the contract. In this case plaintiff has failed to carry that burden.

For the above and foregoing reasons the judgment of the trial court is affirmed, appellant to pay all costs of this appeal.

AFFIRMED

      . The proper name of this safety device is “geronimo” line.

      . Kimball does not discuss and the trial judge did not consider the effect of R.C.C. Article 2317 and the decision of our Supreme Court in Loescher v. Parr, 324 So.2d 441 (La.1975) in regard to the delictual responsibility of Tiger. However, in our recent decision in Panek v. Gulf Insurance Company, 341 So.2d 46 (La. App. 3rd Cir. 1976) we held that the owner-guardian of a defective thing which causes harm could exculpate itself from responsibility upon establishing that the defect and resultant harm was caused by the fault of a third person. In this case, although Tiger was owner-guardian of a defective thing which caused harm, Tiger is relieved of responsibility under R.C.C. Article 2317 having established that the collapse of the rig and resultant damage suffered by Kimball was caused solely by the fault of Permian Engineering and Manufacturing Company, Inc. See Panek v. Gulf Insurance Company, supra.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    TIGER WELL SERVICE, INC., Plaintiff-Appellee, v. TRAVELERS INSURANCE CO. et al., Defendants-Appellants.
    No. 5821.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      Camp, Carmouehe, Palmer, Carwile & Barsh, James E. Williams, Lake Charles, for defendants-appellants.
    Scofield, Bergstedt & Gerard, Benjamin W. Mount, Lake Charles, for plaintiff-ap-pellee.
    Stockwell, Sievert, Viccellio & Clements by Fred H. Sievert, Jr., Lake Charles, for defendant-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

This is a companion suit with two other suits, one a p'ury case and the other a non-jury case, in both of which suits we this day render separate decrees, i. e., Trahan v. Highlands Insurance Company et al., 343 So.2d 1163 (La.App. 3rd Cir. 1977) and Tiger Well Service Inc. v. Kimball Production Company, 343 So.2d 1153 (La.App. 3rd Cir. 1977).

The three suits arise out of an industrial accident which occurred when a workover rig own’ed by Tiger Well Service Inc. (hereafter referred to as “Tiger”) collapsed and fell. The instant suit is one for property damage and other losses allegedly sustained by Tiger as a result of the rig collapse. Permian Engineering and Manufacturing Company, Inc. (hereafter referred to as “Pemco”), manufacturer of the derrick, and its insurer, Travelers Insurance Company and Fred E. Cooper Inc., seller of the rig, were made defendants. Pemco and its insurer filed answer denying any responsibility for the accident and pleaded contributory negligence on the part of Tiger. In a supplemental answer Travelers Insurance Company denied coverage to Pemco under an exclusionary clause contained in its policy. By third party demand Pemco and Travelers sought indemnity and/or contribution from Arthur Tidwell and Calvin Carl McClelland, executive officers of Tiger. Fred E. Cooper Inc. filed answer denying liability and likewise pled contributory negligence on the part of Tiger. By third party demand Fred E. Cooper Inc. sought indemnity over against Pemco and Travelers. Although consolidated with the jury case of Trahan et al. v. Highlands Insurance Company, supra, the parties stipulated that the issues presented in this matter would be decided by the trial judge. At the conclusion of the trial this matter was taken under advisement and subsequently, for written reasons assigned, the trial court rendered judgment in favor of Tiger and against Pemco for the principal sum of $32,-611.60; dismissing plaintiff’s claim against Fred E. Cooper Inc. and Travelers Insurance Company; dismissing the third party demand of Fred E. Cooper Inc. against Pemco and Travelers; and, dismissing the third party demand of Pemco and Travelers against Tidwell and McClelland. Pemco appealed. None of the othér'parties have appealed or answered the appeal of Pemco.

We made reference to Tiger Well Service Inc. v. Kimball Production Company, supra, decided this day, wherein we quoted from the trial judge’s reasons for an accurate account of the facts giving rise to the claims in the three cases and in order to set forth the trial court’s conclusions and resolution of the issues presented.

In this appeal Pemco asserts that the trial judge erred in two particulars:

(1) in failing to find that the negligence of the agents, officers and/or employees of Tiger was a proximate cause of the accident which finding is allegedly inconsistent with the jury’s decision in the companion case of Trahan et al. v. Highlands Insurance Company, supra; and,

(2) in awarding damages which are alleged to be speculative and not supported by sufficient proof.

We first consider appellant’s contention that the trial court erred in its conclusion that the negligence of Tiger's officers and employees was not a proximate cause of the accident.

The trial judge concluded that, although Tiger’s officers and employees were negligent in failing to properly guy and anchor the drilling rig and provide a “geronimo” line, the sole proximate cause of the rig collapse and resulting damages sustained by Tiger was the manufacturing defect in the racking board. The trial judge determined that “. . . once the racking board broke, and the pipe shifted its weight, there is no guyline arrangement, including the one recommended that would keep the derrick upright. These extreme forces would have brought the derrick down, guylines or no guylines”.

In an action ex delicto the first inquiry is always whether any causal relationship exists between the harm and the alleged negligent conduct. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). In this case the trial court concluded that Tiger’s negligent conduct, i. e., failure to properly guy and anchor the drilling rig and provide a “geronimo” line, had no causal relationship whatever with the collapse of the rig and resultant harm. We have carefully examined the record in this case and find a reasonable factual basis for this conclusion. This being so, in the absence of manifest error, the trial court’s conclusion should not be disturbed. In Canter v. Koehring Company, 283 So.2d 716 (La.1973) our Supreme Court succinctly set forth the scope of appellate review as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

Appellant asserts that the trial judge’s conclusion (that no causal connexity exists between the negligent conduct of Tiger and the collapse of the rig) is manifestly erroneous because it is totally inconsistent with the finding of fact in this regard made by the jury in the companion case of Trahan v. Highlands Insurance Company et al., supra. Appellant suggests that the jury’s finding of fact in the companion case is controlling and that the trial judge’s conclusion in this regard should be consistent in the absence of manifest error.

We do not agree that there is total inconsistency between the findings of the jury in Trahan, supra, and the trial judge in this case. It is true that in Trahan the jury found Arthur Tidwell guilty of negligence which it determined to be causally connected with the death of plaintiff’s decedent. The jury of course did not assign reasons for its finding. However, the trial court found a rational basis for the jury’s conclusion which was consistent with its own finding of no causal connexity in the instant case. In this regard the trial court stated:

“The jury found Arthur Tidwell negligent, which negligence was a proximate cause of the accident. There is ample evidence upon which the jury could have concluded this. The expert testimony of Mr. Weaver, was that the existence of a proper anchor system would have delayed the toppling of the derrick for a matter of seconds. It was further shown that in a matter of seconds the derrick man could have removed his belt and possibly used a ‘geranamo’ (sic) line for escape, if it had been available to him. No ‘geranamo’ (sic) line was placed upon his derrick. The jury could have concluded that this lack of a ‘geranamo’ (sic) line and the lack of proper anchoring was negligence, which was a proximate cause of the death of Norman Trahan. But, as to the fall of the derrick, the evidence clearly reflects that once the racking board broke, and the pipe shifted its weight, there is no guyline arrangement, including the one recommended that would keep the derrick upright. These extreme forces would have brought the derrick down, guylines or no guylines. The reason I am bringing this out is because, even though Arthur Tidwell may have been negligent in not having the derrick properly ‘guyed’, the lack of proper guylines was not a proximate cause of the derrick falling. It could have been a proximate cause of the death of the man when coupled with the lack of a ‘geranamo’ (sic) line. Having come to this conclusion, then I conclude that any negligence of Arthur Tidwell was not' a proximate cause of the accident. Tiger Well Service, Inc. would not be liable for the property damages incurred as a result of the fall.”

Nor do we agree that had there been total inconsistency in the respective findings of the trial judge and jury that the latter’s findings would take precedence over that of the trial judge. Quite to the contrary, the trial judge has the power to set aside a jury decision with which he is not in accord, C.C.P. Articles 1812, 1813; and, appellate courts have the right to review findings of fact of both judge and jury. La. Const. of 1974, Article 5 Section 10. See Champagne v. American Southern Insurance Company, 295 So.2d 437 (La.1974).

For the above reasons we discern no error in the trial court’s conclusion that no causal connexity exists between the negligence of Tiger and the harm suffered by it.

We finally consider Pemco’s contention that the trial court awarded damages which are speculative and not supported by sufficient proof.

As aforesaid the trial judge awarded plaintiff damages in the principal sum of $32,611.60. This amount is broken down in his reasons for judgment as follows:

"The evidence pn.eponden.atei that the loaei oi Ttge.iL Well Service, Ina. an.e ai iollouiü
(7) Veductlble on phyilcal damage Imutiance $ 5,000.00
(2) Jncn.eaie oi Imutiance ptie-mlumi [mínimum tno.tie.aie. ai teitliled to by Vouglai Fotieman, agent ion. tniutiance catinlen. ion. Tlgen. Well Service, Xnc, $ 12,000.00
(3) Loa oi Income $ 72,906,00
(4) Mliaellaneoui expemei $ 2, 705. 60 $ 32,611.60"

The only item of damage allowed by the trial court which appellant questions is the amount of $12,000.00 awarded to compensate Tiger for an increase in insurance premiums. As to this item appellant contends that it is speculative and not supported by sufficient proof. We agree with appellant that the amount awarded to plaintiff for this item of damage is excessive and should be reduced.

The only evidence presented relative to this claim was the testimony of Doug Foreman, the insurance broker for Tiger. Mr. Foreman testified that, although highly speculative, in his judgment, as a result of the accident, Tiger’s insurance cost would increase approximately $20,000.00 two-thirds of which would be attributable to the accident, the other one-third being attributable to normal rate increases. The trial court allowed Tiger this approximate two-thirds or the sum of $12,000.00.

A fair reading of Mr. Foreman’s testimony indicates that the bulk of the anticipated increases will occur with regard to Tiger’s overall insurance program, including workmen’s compensation insurance, general liability, etc. all of which are increased not necessarily by reason of the property damage claim involved in this litigation but rather as a result of the death claim involved in the companion case of Trahan v. Highlands Insurance Company et al., supra. In the latter case Arthur Tidwell, President of Tiger, because of independent acts of negligence, was held solidarily liable with Pemco. It is axiomatic that Tiger cannot recover damages which are occasioned as a result of its own fault. Rather, Pemco is only responsible for the damages suffered by Tiger as a result of the fault of Pemco. In this latter connection Mr. Foreman testified with positivity that the physical damage policy covering the rig itself was renewed following the accident at an increased cost of $3000.00. This is the only item of increased cost of insurance which is attributable to the fault of Pemco. All of the other items of increased insurance costs are attributable, at least in part, to the fault of Tiger and should have been disallowed. Accordingly, we will amend the trial court judgment decreasing the damages allowed for increased insurance premiums from the sum of $12,000.00 to $3,000.00, and as amended the award will be affirmed.

For the above and foregoing reasons the judgment of the trial court is amended so as to reduce the amount awarded from the principal sum of $32,611.60 to the principal sum of $23,611.60, and except as amended same is affirmed. The costs of this appeal are to be borne equally by appellant and appellee.

AMENDED AND AFFIRMED.

      . We observe that neither counsel discusses and the trial court, in holding Pemco liable, did not find “strict liability” on the part of Pemco as the manufacturer of a defective article fore-seeably causing injury to others. Weber v. Fidelity and Casualty Insurance Company, 259 La. 599, 250 So.2d 754 (1971). Also there is no discussion of the interesting question of whether in such cases contributory negligence on the part of the party injured will bar recovery. See Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971). Since we affirm the trial court’s finding that Tiger was not guilty of any negligence which proximately caused the rig collapse any discussion by us of the doctrines espoused in the cited cases would be dictum.


text:
    Mrs. Joan TRAHAN, Individually and for and on behalf of the minor, Belinda Sue Trahan, Plaintiff-Appellee, v. HIGHLANDS INSURANCE COMPANY et al., Defendants-Appellants.
    No. 5822.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Rehearing Denied April 5, 1977.
    Writ Refused June 1, 1977.
    Plauche, Smith & Hebert, Allen L. Smith, Jr., Lake Charles, for third party plaintiffs-appellants.
    Peter A. Ciambotti, Baggett, McClain & Morgan, William B. Baggett, Scofield, Bergstedt & Gerard, Benjamin W. Mount, Lake Charles, for plaintiff-appellee.
    Camp, Carmouche, Palmer, Carwile & Barsh, James E. Williams, Lake Charles, Stockwell, Sievert, Viccellio & Clements by Fred H. Sievert, Jr., Woodley, Fenet & Ra-nier by Edmund E. Woodley, Lake Charles, for defendant-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

In this action Mrs. Joan Trahan filed suit individually and on behalf of her minor child, seeking damages for the death of her husband, Norman Trahan. Norman Trahan was employed by Tiger Well Service, Inc., as a derrickman, and was fatally injured when an oil rig derrick on which he was working collapsed and fell. The accident occurred on January 3, 1975. Defendants at the trial were certain alleged executive officers of Tiger Well Service, Inc., Arthur Tidwell, President, and Carl McClelland, a driller, and their insurer Highlands Insurance Company; Fred E. Cooper Inc., manufacturer of the carrier unit on which the derrick was mounted: and, Permian Engineering and Manufacturing Company, manufacturer of the derrick and its insurer, Travelers Insurance Company (hereafter collectively referred to as “Pemco”). Various third party demands were instituted by the defendants against one another including a third party demand filed by Arthur Tidwell and Highlands Insurance Company seeking indemnification from Pemco for the amount of any judgment rendered against Tidwell. The principal demand was tried by jury, however, the incidental demands were, pursuant to stipulation of counsel, tried by the judge.

Two non-jury cases were consolidated with the instant matter for trial purposes. We are this day rendering separate decrees in each of these cases, i.e., Tiger Well Service Inc. v. Kimball Production Company, 343 So.2d 1153 (La.App. 3rd Cir. 1977), and Tiger Well Service, Inc. v. Travelers Insurance Company et als., 343 So.2d 1158 (La. App. 3rd Cir. 1977).

After trial, the jury rendered a verdict on special interrogatories finding that the accident occurred as a result of the joint and concurrent negligence of Arthur Tidwell and Pemco and rendered judgment awarding Mrs. Trahan, individually and as tutrix of her minor child, the principal amount of $200,000.00. - The remaining defendants were exonerated from fault and accordingly the claims asserted by plaintiff and third party plaintiffs against them were ordered dismissed. The third party demand of Arthur Tidwell and Highlands against Pemco for indemnification was also ordered dismissed for written reasons assigned by the trial court.

Neither plaintiffs nor defendants have appealed from the judgment rendered on the main demand and such judgment is now final. In fact, the judgment in favor of Mrs. Trahan was paid by Travelers and Highlands with credit to the latter for workman’s compensation benefits paid.

Tidwell and Highlands timely appealed from the judgment of the trial court which rejected their demand for indemnification from Pemco and in this case the only issue for determination is the correctness of that judgment.

Tidwell and Highlands (hereafter referred to as “Tidwell”) contend that the trial court erred as a matter of law in failing to award indemnity against Pemco. Tidwell argues on the basis of Weber v. Fidelity & Casualty Insurance Company of New York, 259 La. 599, 250 So.2d 754 (1971) and Langlois v. Allied Chemical Corporation et al., 258 La. 1067, 249 So.2d 133 (1971), that considering the trial jury’s specific finding that the drilling rig manufactured by Pemco was defective and that such defect was a proximate cause of the accident, Pemco is strictly liable to Tidwell for indemnification irrespective of the latters actual negligence. In other words, Tidwell argues that in view of the referred to factual finding, under the cited cases, Pemco is “strictly liable”; that negligence of Pemco is not a necessary ingredient of fault under such circumstances; and, therefore, contributory negligence on the part of Tidwell cannot bar recovery.

We acknowledge the ingeniousness of Tidwell’s argument, however, we cannot agree that the legal propositions, alleged by able counsel for Tidwell to have been espoused in the cited cases, are applicable under the circumstances of this case. Nor do we find that plaintiffs are entitled to the relief sought in their third party demand.

We do not necessarily conclude from a careful reading of Weber that Louisiana has totally adopted the doctrine of “strict liability” in the field of products liability (See Section 402A of the Restatement of Torts, Second, adopted by the American Law Institute in 1965) nor do we conclude that in matters of that kind because of the legal propositions espoused in Langlois contributory negligence would not be an available defense. An in-depth discussion of the holdings of the cited cases would be purely academic and sheer dictum for under the factual findings of this case, the correctness of which neither party disputes, Tidwell is clearly not entitled to the relief sought even if it be conceded for sake of argument that Louisiana has totally embraced the theory of “strict liability” in the field of products liability and that contributory negligence is not an available defense in such cases.

It is axiomatic that in matters involving defective products, whether the theory of “strict liability” be applicable or not, in order to recover the claimant must establish by a preponderance of the evidence that the damages suffered were caused by the defect. Section 402A of the Restatement of Torts, Second, adopted by the American Law Institute in 1965, reads in part as follows:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if . . . ”
(Emphasis ours)

In Weber, supra, Justice Tate speaking for the majority stated:

“Both previous courts correctly found applicable the following legal principles:
A manufacturer of a product which involves a risk of injury to the user is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a de-feet in the design, composition, or manufacture of the article, if the injury might reasonably have been anticipated. However, the plaintiff claiming injury has the burden of proving that the product was defective, i.e., unreasonably dangerous to normal use, and that the plaintiff’s injuries were caused by reason of the defect. See: Penn v. Inferno Manufacturing Co., 199 So.2d 210 (La.App. 1st Cir. 1967), cert. denied, 251 La. 27, 202 So.2d 649 (1967); Arnold v. United States Rubber Co., 199 So.2d 210 (La.App. 1st Cir. 1967), cert. denied, 251 La. 739, 206 So.2d 91 (1968); Meche v. Farmers Drier & Storage Co., 193 So.2d 807 (La.App. 3d Cir. 1967), cert. denied, 250 La. 369, 195 So.2d 644 (1967); Samaha v. Southern Rambler Sales, Inc., 146 So.2d 29 (La.App. 4th Cir. 1962); Percy, Products Liability, 40 Tul.L.Rev. 715 (1967); Note, 26 La.L.Rev. 447 (1966). See also: Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897, 13 A.L.R.3d 1049 (1963), Noted 23 La.L.Rev. 810 (1963); Henning-sen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69 (1960); Annotation, Products Liability, 13 A.L.R.3d 1957 (1967).” (Emphasis ours)

It is true that the jury specifically found that the rig was defective and that the defect was a proximate cause of the accident which resulted in Trahan’s death, however, the jury likewise found that Arthur Tidwell was guilty of independent acts of negligence which also proximately caused the death of plaintiff’s decedent. In this latter connection, the trial judge in his written reasons for judgment in the consolidated cases stated as follows:

“The jury found Arthur Tidwell negligent, which negligence was a proximate cause of the accident. There is ample evidence upon which the jury could have concluded this. The expert testimony of Mr. Weaver, was that the existence of a proper anchor system would have delayed the toppling of the derrick for a matter of seconds. It was further shown that in a matter of seconds the derrick man could have removed his belt and possibly used a ‘geranamo’ (sic) line for escape, if it had been available tó him. No ‘geranamo’ (sic) line was placed upon this derrick. The jury could have concluded that this lack of a ‘geranamo’ (sic) line and the lack of proper anchoring was negligence, which was a proximate cause of the death of Norman Trahan. . . .”

We agree with these conclusions of the trial court.

Tidwell and Highlands, were found responsible in damages to the Trahans, not by reason of the manufacturing defect of Pern-eo, but rather because of the independent acts of negligence on the part of Tidwell. Tidwell could not have been found responsible in damages to the Trahans because of this defect. This being so it necessarily follows that the damages which Tidwell seeks to recover by way of indemnification from Perneo did not arise as a result of the defect and Weber and Langlois are clearly inapplicable.

Considering the factual findings of the trial jury and trial judge, the correctness of which none of the parties assail, the court properly determined that Tidwell and Pern-eo were solidarily liable to the Trahans and that Tidwell is not entitled to indemnification over against Perneo. R.C.C. Article 2103.

For the above and foregoing reasons the judgment appealed from is affirmed appellants to be cast for all costs of this appeal.

AFFIRMED.

      . Other parties originally named as defendants were dismissed before submission of the matter to the jury.

      . The facts giving rise to this suit are detailed in the opinion we render this day in Tiger Well Service Inc. v. Kimbail Production Company, 343 So.2d 1153 (La.App. 3rd Cir. 1977).

      . The proper name of this safety device is “geronimo” line.


author: FORET, Judge.

text:
    LOUISIANA INTRASTATE GAS CORPORATION, Plaintiff-Appellant, v. Roger C. EDWARDS et al., Defendants-Appellees.
    No. 5835.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Rehearing Denied April 5, 1977.
    Writ Refused May 26, 1977.

      Broussard, Broussard & Moresi by Marcus A. Broussard, Jr., Abbeville, Ellison, Gary & Field by David M. Ellison, Jr., Baton Rouge, for plaintiff-appellant.
    Roger C. Edwards and Roger E. Boynton, Abbeville, for defendants-appellees.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

Plaintiff, Louisiana Intrastate Gas Corporation, filed suit against defendants, Roger C. Edwards, et al., seeking to expropriate a pipeline right-of-way, and a valve station site on several tracts of land belonging to the defendants in Vermilion Parish. Plaintiff also filed suit against Randall Watkins Green, et als. in connection with the same pipeline right-of-way involving property in the same locale. The matters were consolidated for trial purposes, and we are considering them as consolidated for appellate purposes.

Prior to trial, plaintiff and defendants stipulated that plaintiff was entitled to the servitude and valve station site which it sought, and a judgment was accordingly prepared and signed resolving that issue. Trial of the matter was limited to the issues of the value of the land taken for the pipeline, the amount of payment due to defendants for the land use for the temporary work period during which the line was being laid, and the value of the valve station site, along with other damages, etc.

The trial court handed down written reasons for judgment finding that the highest and best use of the properties involved was for a pipeline servitude, and awarded $5,000 per acre for the permanent rights-of-way and $1,000 per acre for the temporary right-of-way based upon that property’s highest and best use as being rural farmland.

It also allowed the following damages:

(1) Trespass-$1,500

(2) Crop losses- 1,250

(3) Land leveling-1,591

(4) Pasture damage- 450

(5) Loss of valve site acre-3,000

(6) Pumping-1,050

As to these items of damages, there is no dispute by plaintiff-appellant except for Item No. 5, loss of the valve site acre. Plaintiff-appellant claims this award to be excessive.

Defendants have also appealed, contending that the trial court should have awarded $9,500 to $10,000 per acre for the pipeline servitude, and argue that additionally the trial court erred in placing a fixed amount for the taking of the valve station site on the basis of $5,000 per acre whereas defendants contend that the trial court should have fixed remuneration for the taking of the valve station site on a rental income basis which, of course, would have resulted in a much larger award for the property taken for the valve station. Plaintiff does not dispute that the defendants are entitled to severance damage to property surrounding the valve station site, but disagree on the valuation therefor awarded by the trial court.

The sole issues for this Court to decide are:

(1) the value of the land taken for the pipeline servitude
(2) value of the land used for the temporary work period, and compensation for such usage, and
(3) value of the valve station site and severance damage connected therewith (plaintiff has no objection to severance damage based on the value of $1,000 per acre).

All parties agree that if the highest and. best use of the properly taken is for agricultural purposes, then the property has a value of approximately $1,000 per acre. A review of the record shows that the testimony of all four expert witnesses, two for plaintiff and two for defendant, is to the effect that the value of the property in question would average approximately $1,000 per acre for rural agricultural purposes. However defendants’ experts, Stanley Tiger and Preston Babineaux, testified that the best and highest use of this property was for pipeline servitudes and therefore the value of this property ranges from $9,500 per acre to $10,000 per acre. Defendants’ experts base their opinion on the fact that the properties involved in this expropriation are presently traversed by seven existing pipelines, and valve station sites are also presently located on the properties. They conclude therefore that there is a ready market for pipeline servitudes and those operations appurtenant thereto, and this fact removes the property involved from the realm of agriculture, and places the property in an entirely different classification. Plaintiff, of course, vigorously opposes this contention and the holding of the trial court which, in effect, adopted defendants’ contention, but yet allowed only one-half of the value set on the property by defendants’ expert witnesses.

COMPENSATION FOR PROPERTY TAKEN IN PERMANENT RIGHTS-OF-WAY

The trial court erred in its determination that the highest and best use of the property taken was for pipeline rights-of-way purposes. The jurisprudence of this State is to the contrary. This Court had the identical question presented to it in Michigan-Wisconsin Pipeline Co. v. Fruge, 227 So.2d 606 (La.App. 3 Cir., 1969), writ refused, 255 La. 149, 229 So.2d 732 (1970). Coincidentally Stanley Tiger was an expert witness for the defendant, as he was in this case. He based his valuation of the property taken on comparable sales of similar servitudes to expropriating authorities. In that case the defendants cited Gulf States Utilities Co. v. Norman, La.App.3 Cir., 183 So.2d 421, writs denied, 249 La. 118, 185 So.2d 529, as authority for the use of such comparables. Michigan-Wisconsin distinguished the Gulf States Utilities case, and we do the same. Ample comparable sales were available in the case at bar to show the fair market value of the property taken to be $1,000 per acre.

Counsel for defendants makes an innovative and ingenious argument that the highest and best use of the property involved is for pipeline rights-of-way purposes. As we did in Michigan-Wisconsin Pipeline Co. v. Fruge, supra, we reject that argument as being contrary to the jurisprudence of this State. Because of the foregoing, we need not indulge in the citation and quotation of various inapplicable formulae mentioned in prior jurisprudence, all of which attempt to spell out what is and what is not “just compensation” for property taken in expropriation proceedings in particular fact situations.

COMPENSATION FOR TEMPORARY LAND USE

The trial court awarded to the defendants $1,000 per acre for the areas used by plaintiff for temporary work space. Obviously, to affirm such an award would not be consistent with our finding that the fair market value of the property taken was $1,000 per acre. In Michigan-Wisconsin, we accepted the testimony of two expert witnesses that ten percent of the fee value of the property was a fair rental, and we find such a holding to be equitable in the case at bar. Therefore we will award the amount of $100 per acre to the defendants as rental for the temporary work space.

COMPENSATION FOR VALVE STATION SITE AND FOR SEVERANCE DAMAGE INCIDENTAL THERETO

Plaintiff expropriated .143 of an acre for the installation of a valve station. The trial court awarded the amount of $2,833.49 to the defendants for the taking of the site. In accordance with our findings herein, we reduce that award to $143.00 based on the fair market value of $1,000 per acre. The defendants argue that valuation of the valve station site should be treated differently from the pipeline servitude as they lost complete use of the property, and the property involved is withdrawn from the production of rice and other agricultural purposes for as long as the pipeline shall exist. Having determined that the fair market value of the property is $1,000 per acre, we are of the opinion that the defendants are entitled to an award based on such valuation, and no more, regardless of the use to which they put the property expropriated. Defendants are relegated to severance damages, only, in this connection.

With reference to severance damage arising out of the valve station site, plaintiff concedes that defendants are entitled to some severance damage but not on the basis of $5,000 per acre. The trial court awarded the amount of $3,000 as severance damage. No explanation was given in the reasons for judgment as to how the trial court arrived at the figure of $3,000. It is obvious that the valve station will cause inconvenience to the defendants in their farming operations. The valve station site cannot be plowed or otherwise used for agricultural purposes, and its presence will cause inconvenience to the defendants in its plowing operations on property adjacent thereto. To that extent the property surrounding the valve station site has a diminished value for agricultural purposes.

Plaintiff’s appraiser Angers gives the severance damage as $2,294. (Tr. 581) Angers gave the land a value of $675 an acre and found severance damages of $550 an acre to 4.17 acres as the result of the valve station (Parcel 3-18). This is a diminution in value of 81%. Applying the 81% figure and giving the land a value of $1,000 an acre results in severance damages to the 4.17 acres of $3,377.70 or slightly more than the $3,000 awarded. This figure is not manifestly erroneous since it has a reasonable evidentiary basis.

In accordance with and supplemental to the above amendments, we further amend the judgment of the trial court as follows:

(a) Tract 315^ - Permanent Permanent Temporary
W.P.Edwards
1.233 acres at $1000per acre $1,233.00
Temporary
1.872 acres at $100 per acre $187.20
(b) Tract 316 - Permanent
2nd Island Trust
0.500 acre at $1000 per acre 500.00
Temporary
0.65 acre at $100 per acre 65.00
(c)Tract 316-A - Permanent
Ruth H. Edwards
0.564 acre at $1000 per acre 564.00
. Temporary
0.99 acre at $100 per acre 99.00
(d)Tract 316-B - Permanent
Nancy Boynton, et al
0.81 acre at $1000 per acre 810.00
Temporary
2.39 acres at $100 per acre 239.00
(e)Tracts 318 & 318-A - Permanent
2.22 acres at $1000 per acre 2,220.00
Temporary
2.87 acres at $100 per acre 287.00
Permanent Temporary
(f) Tract 320 - Permanent
1.71 acres at $1000 per acre 1,710.00’
Temporary
2.68 acres at $100 per acre 268.00
(g) Tract 321 - Permanent
0.431 acre at $1000 per acre 431.00
Temporary
0.70 acre at $100 per acre 70.00

Defendants filed a supplemental and amending answer to plaintiff’s appeal claiming additional damages in the amount of $165.00 for cleaning out a ditch on the north edge of defendants’ property. This claim was apparently omitted from the trial court judgment by oversight. We further amend the trial court judgment to include this claim.

In all other respects the judgment of the trial court is affirmed.

All costs of this appeal are assessed one-half against the plaintiff and one-half, collectively, against the defendants on a consolidated basis.

AMENDED AND AFFIRMED.


text:
    LOUISIANA INTRASTATE GAS CORPORATION, Plaintiff-Appellant, v. Randall Watkins GREENE et al., Defendants-Appellees.
    No. 5836.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Rehearing Denied April 5, 1977.
    Broussard, Broussard & Moresi by Marcus A. Broussard, Jr., Abbeville, Ellison, Gary & Field by David M. Ellison, Jr., Baton Rouge, for plaintiff-appellant.
    Roger C. Edwards and Roger E. Boynton, Abbeville, for defendants-appellees.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

For reasons handed down this date in Louisiana Intrastate Gas Corporation v. Edwards et al., our docket number 5835, La. App., 343 So.2d 1166, the judgment rendered by the trial court is amended, reducing the amount awarded therein to $55.00 for the permanent right-of-way, $9.20 for temporary work area, and $100.00 for land leveling.

AMENDED AND AFFIRMED.


text:
    Barney R. WALKER, Plaintiff-Appellant, v. R. T. GRAHAM et al., Defendants-Appellees.
    No. 5838.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Rehearings Denied April 5, 1977.
    Writ Refused June 1, 1977.

      Franklin & Rothell by David A. Rothell, Shreveport, for plaintiff-appellant.
    Plauche, Smith, Hebert & Nieset by James R. Nieset, Lakes Charles, Davis & Simmons by Kenneth N. Simmons, Many, George & George, Ltd., Baton Rouge, Caldwell Roberts, Mayer, Smith & Roberts, Shreveport, for defendants-appellees.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

This suit was filed by Barney Walker against Trudie Cloud, R. T. Graham and Sidney Sanders for the purpose of recovering damages from them which are alleged to be due to the plaintiff as a result of the contraction by the plaintiff of serum hepatitis, which is alleged to have occurred as a result of the plaintiff accidently puncturing his skin on February 14, 1975, and again March 1, 1975, with hypodermic needles which had been negligently thrown into trash cans at the Allen Sanitarium at Converse, Sabine Parish, Louisiana. The defendants are alleged to have been supervisory employees of the hospital and further alleged to have been negligent in several respects including failure to provide the plaintiff a safe place within which to work, failure to initiate a proper method of disposing of used hypodermic needles, failure to remedy a dangerous situation, and failure to provide the plaintiff with protective clothing. By means of a third party demand the defendants named Dr. John Bag-ley, M.D. and the St. Paul Fire & Marine Insurance Company as third party defendants.

All of the original defendants, and third party defendants have denied any negligence on their part in connection with the plaintiff’s injury, and alternatively plead contributory negligence and assumption of risk on the part of the plaintiff as a bar to his recovery.

Defendants, Sanders, Cloud and Graham, allege in their third party petition against Dr. Bagley, that Dr. Bagley was directly responsible for the supervision of the orderlies at Allen Hospital at all times and places pertinent in this lawsuit, and that further he was directly responsible for the initiation and institution of safety programs for the proper disposal of hypodermic needles after they had been used, at all times and places pertinent to this lawsuit.

Dr. Bagley subsequently filed a motion for summary judgment to which he attached an affidavit stating that in January, February and March of 1975, he maintained an office in the Allen Sanitarium, however at no time was he ever responsible for the supervision of orderlies at the Allen Sanitarium, and he was never responsible for the initiation and institution of safety programs for the proper disposal of hypodermic needles after they had been used.

Sanders, Cloud and Graham, the original defendants, then filed an opposition to Dr. Bagley’s motion for summary judgment and attached thereto an affidavit contradicting the statements contained in the affidavit of Dr. Bagley. A motion for summary judgment was also filed by defendants Graham, Sanders and Cloud alleging that the pleadings and the deposition of plaintiff showed that there was no genuine issue as to material fact, but that even if the defendants could be proved negligent in causing injury to the plaintiff, then the contributory negligence of Barney Walker is so evident that there remains no relevant, genuine issue of fact, and therefore plaintiff should be found contributorily negligent as a matter of law and his suit dismissed.

On August 18, 1976, the trial court rendered a summary judgment in favor of defendants, Graham, Sanders and Cloud, dismissing plaintiff’s suit at his costs. Plaintiff has appealed this adverse judgment.

A summary judgment may not be rendered unless the pleadings, depositions, affidavits, and like evidence show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. C.C.P. Arts. 966, 967; State Farm Fire & Cas. Co. v. Sentry In- demn. Co., 316 So.2d 185 (La.App. 3 Cir. 1975); cases too numerous to cite. It is no substitute for a trial on the merits. All reasonable doubts are resolved against the granting of a summary judgment (Mandella v. Russo, 294 So.2d 598 (La.App. 4 Cir. 1974) even where it may be favored by a preponderance of the evidence. Odom v. Hooper, 273 So.2d 510 (La.1973) (contributory negligence); Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).

We are aware of two recent Louisiana Supreme Court decisions dealing with the issue of granting a summary judgment against a plaintiff where defendant alleges that plaintiff was contributorily negligent as a matter of law. The first such case is Odom v. Hooper, supra, decided by the Supreme Court in 1973. Odom involved a suit by a mother for damages for the death of her son resulting from an automobile-train collision wherein plaintiff’s son crashed into a stopped, unlighted boxcar, where the defendant’s railroad tracks intersected with Broadway Street in the City of Alexandria. The defendants filed a motion for summary judgment. The trial court granted the motion for summary judgment, based on its holding that plaintiff’s son was contributo-rily negligent as a matter of law, and accordingly dismissed plaintiff’s suit. Plaintiff appealed, and we affirmed at 257 So.2d 797. On certiorari the Supreme Court reversed and remanded. The Court held that reasonableness and prudence of a deceased driver was a factual matter and must be tried on the merits of the case.

To quote from Odom at page 514:

“It is well established that the existence vel non of contributory negligence is a question of fact, and that the arbiter of such fact is judge or jury, (citations omitted). The rule is that: ‘To recover damages for injuries sustained through the alleged fault of another, the fault, and the connection between the fault and the injuries must be shown, with reasonable certainty. There can be no recovery where only the possibility or probability of such fault and connection is shown. . ’ Cracker v. Allstate Insurance Company, 259 La. 578, 250 So.2d 746, at p. 749.”

We do not wish to quote excessively from Odom, which contained considerable language to the effect that summary judgments should be granted only in those cases where there is absolutely no genuine issue as to material facts, and that all reasonable doubt should be resolved against the mover for a summary judgment, however it should be noted that the Court stated at page 515 as follows:

“In disposing of a motion for summary judgment, the pleadings and annexed documents as well as the affidavits must be considered. Grace v. Morales, La. App., 210 So.2d 60, 1968. Plaintiff's pleadings . . . allege in detail the alleged negligence of the defendants. The allegations pertain to material facts which require proof; such proof can only be adduced on trial of the merits. Defendant’s answer avers contributory negligence, . . . These averments can only be proved on trial. It follows that a trial on the merits of the instant matter will produce an answer to the substantial controversy presented. The liberality of Article 5051, LSA-C.C.P. . . . is a proper vehicle to be employed herein for the denial of summary judgment.”

Article 5051 of the Code of Civil Procedure states as follows:

“The articles of this Code are to be construed liberally, and with due regard'for the fact that rules of procedure implement the substantive law and are not an end in themselves.”

The other Supreme Court case to which we alluded above is Cates v. Beauregard Electric Co-Operative, Inc., 328 So.2d 367 (La.1976). In Cates the suit was against an owner of a utility pole and the owner of land where the pole was located, to recover for injuries sustained by a youth, sixteen years of age, when he touched an energized electric wire on the pole. The facts show that the boy had climbed the pole to cut an electric wire under the assumption that there was no “live” wires on the pole. On motion for summary judgment the trial court held that the boy was contributorily negligent with respect to the injuries sustained when he climbed the pole and touched the energized electric wire. We affirmed at 316 So.2d 907, as did the Supreme Court.

We find the factual situation in the case at bar to be substantially more akin to the Odom decision than it is to the Cates decision. In Cates the plaintiff was a trespasser who recklessly placed himself in the position of great danger by his negligent acts. Cates therefore presents a stronger case on its own facts than did Odom and then do the facts in the case at bar, and is distinguished on that ground.

There is no doubt that there is a legal duty imposed on an employer to furnish employees with a safe place to work and the employer is under an additional duty to reasonably protect those employees, who, due to either youth or inexperience, may be assumed unlikely to use due precautions. Parrenin v. Crescent City Stock Yard, 120 La. 75, 44 So. 990 (1907); and an employer has a duty of not only warning an inexperienced employee (17 year old boy) of the dangers of his employment, but he must also instruct the employee on how to avoid the dangers. Parker v. Crowell & Spencer Lumber Co., 115 La. 463, 39 So. 445 (1905). The mere fact that an employee has knowledge of the existence of certain dangers connected with his employment will not always prevent his recovery for injuries received because of such dangers. Gusman v. Caffery Central Refinery & Railroad, 49 La.Ann. 1264, 22 So. 742 (1897).

In the case at bar plaintiff, Barney Walker, was but 19 years of age and obviously inexperienced in the work in which he was doing. There is nothing to show that he knew what hepatitis was, or that he assumed the risk of contracting same from discarded hypodermic needles. It is fairly clear from his deposition that he knew of the presence of the needles in the disposable garbage bags which he was handling, but there remains open the question as to whether or not the defendants (assuming arguendo that they were responsible for doing so) gave plaintiff any special instructions as to how to handle these bags, or that he was furnished with and/or advised to wear protective clothing and/or gloves. The question further remains as to whether any other method, than that which he used, could have been used by the plaintiff in disposing of the garbage.

There exists the further issue as to whether or not defendants are chargeable with aggravated negligence, in which case plaintiff’s contributory negligence would have to be of a reckless character to defeat his recovery. All of those, and possibly other issues, remain open to questions, the answers to which can only be resolved at trial on the merits.

For the foregoing reasons, the judgment appealed from is reversed, and the matter is hereby remanded to the trial court for further proceedings.

All costs of this appeal are assessed against the defendants-appellees.

REVERSED AND REMANDED.


text:
    James D. ADAMS, Plaintiff-Appellant, v. The TRAVELERS INSURANCE COMPANY et al., Defendants-Appellees.
    No. 5839.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Rehearing Denied April 5, 1977.
    Writ Refused May 26, 1977.

      Davis & Simmons by Kenneth N. Simmons, Many, for plaintiff-appellant.
    Watson, Murchison, Crews & Arthur, William P. Crews, Natchitoches, Provosty & Sadler by William H. deLaunay, Jr., Alexandria, for defendants-appellees.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

Plaintiff instituted this suit to recover damages for personal injuries and property damage he sustained as a result of an automobile accident which occurred in Sabine Parish on September 5, 1975. The accident happened when the car plaintiff was driving was rear ended by an automobile driven by Donna Saveli and owned by Lester Sa-veli, her father-in-law. Made defendants are Travelers Insurance Company (hereinafter referred to as “Travelers”), insurer of Lester Saveli’s vehicle and Allstate Insurance Company,' insurer of a vehicle owned by Donna Saveli and her husband. The trial court awarded judgment in favor of plaintiff and against Travelers in the amount of $3,068.32. The trial court dismissed plaintiff’s suit against Allstate Insurance Company. Plaintiff appeals asking for an increase in the award of damages.

As neither Travelers nor Allstate have appealed or answered the appeal of plaintiff the sole issue before this court is the correctness of the trial court’s award of damages.

A review of the facts surrounding the accident show that plaintiff was, just prior to the accident, proceeding in' an easterly direction on Louisiana Highway 6, west of Many. Plaintiff at this time noticed a construction site ahead where several cars were parked on either side of the highway. As plaintiff approached the site he gradually slowed down and later stopped in order to allow a turning vehicle to pull onto the highway shoulder. Donna Saveli, who was also proceeding in an easterly direction on Highway 6, was following directly behind plaintiff. She likewise slowed down, however she failed to come to a complete stop. The car Donna Saveli was driving collided with the rear of plaintiff’s car. At the time of the accident it was approximately 5:30 p. m. and there was a light rain.

The investigating officer who testified, James Napier of the State Police, indicated in his report that the damage to plaintiff’s vehicle was light. Plaintiff’s Exhibit P-7 reveals that the property damage to plaintiff’s car amounted to $120.22. The state trooper testified that there were no observable injuries to any of the parties involved in the accident.

Plaintiff, who at the time of the accident was accompanied by his two young sons, was traveling to a Many High School football game. Plaintiff performed janitorial services at the high school and also helped out during the ball games. The testimony of plaintiff reflects that following the accident he with his two sons proceeded on to the game where they remained until it was over. It was admitted by plaintiff that neither one of his sons sustained any injuries in the accident.

On the following day, Saturday, September 6,1975 plaintiff with complaints of pain in his right arm went to the Many Clinic for x-rays. Although the bill for these services appears in the record no medical evidence was presented in this regard.

On September 7, 1975 plaintiff consulted Dr. J. Lane Sauls in Deridder who admitted plaintiff to the hospital for a complete physical examination. Dr. Sauls, a general practitioner,' had been the plaintiff’s family physician for some fifteen years. Dr. Sauls’ examination of the plaintiff, a 48 year old male, was relative to his complaints of severe headaches, nausea, dizziness, backache and pain in the right elbow. Plaintiff remained in the hospital for four days.

A complete physical examination of plaintiff revealed no abnormality, although the physician instituted treatment for a mild concussion. . The physical examination showed only minimal bruising about the plaintiff’s head. X-rays showed a spur on the tip of plaintiff’s elbow, however, Dr. Sauls stated that this condition was degenerative in nature and not necessarily related to the automobile accident. X-rays of the lumbar spine revealed a fusion of the lumbosacral joint with a moderate narrowing of the interspace at the third lumbar. A past medical history of plaintiff showed that he had had a lumbosacral arthrodesis in 1964 which later developed symptoms of herniation in 1969.

Plaintiff again saw Dr. Sauls on September 18, 1975 with continued complaints of headaches and nervousness. Dr. Sauls prescribed medication for plaintiff.

A third examination of plaintiff by Dr. Sauls on September 25, 1975 showed some improvement. Plaintiff complained only of light headaches. Plaintiff, again seen by Dr. Sauls on October 9, 1975, was still improving. An examination on October 25th revealed that plaintiff had only occasional headaches, however he complained of back pain and stiffness in the neck. At this time plaintiff was treated with physiotherapy. On November 6, 1975, Dr. Sauls finding that plaintiff had recovered from his injuries, discharged him. Dr. Sauls testified that at this time his findings and the x-rays did not indicate any specific or definitive damage to plaintiff’s back. The doctor concluded that plaintiff had muscle soreness of a mild to moderate nature. Dr. Sauls suggested to plaintiff that if he had continued problems with his back to consult Dr. Edwin Simonton Jr. Dr. Simonton was an orthopedic specialist who had performed the lumbar fusion on plaintiff in 1964.

On January 9, 1976 plaintiff was examined by Dr. Edwin Simonton Jr., relative to his complaints of back and shoulder pain. X-rays taken by Dr. Simonton showed no evidence that plaintiff’s right shoulder was either fractured or dislocated. A view of the x-ray of the lumbar spine confirmed a solid union of the arthodesis of the lumbo-sacral joint. There was some narrowing of the third lumbar interspace. Dr. Simonton was of the opinion that plaintiff had some mild degenerative change above the fusion which had been aggravated by the trauma of the accident. The doctor stated that the narrowing of the interspace was not a result of the accident, but rather due to the lumbar fusion performed in 1964. Dr. Si-monton could not give the extent of the aggravation except as it related to the complaints of pain experienced by the plaintiff. In regards to plaintiff’s shoulder complaints the physician determined that it was probably a pinched tendon.

The second examination by Dr. Simonton on March 15, 1976 revealed that the plaintiff was improved, but still had some complaints of back pain during physical activity. The doctor found evidence of mild muscle spasms and stiffness with motion in the lumbar area. Plaintiff thereafter started wearing a back support.

Dr. Simonton last examined the plaintiff on April 30, 1976. Plaintiff repeated his complaints of back pain, although much less severe with the use of the back support. Plaintiff also complained of neck pain. Examination revealed tenderness in the neck area and x-rays showed some narrowing of the 4th cervical interspace. Dr. Simonton unequivocally stated that these problems in the cervical area were not caused by the accident.

In reviewing the trial court’s award of $3,068.32 in damages we are guided by the well established rule that the trial court is granted great discretion in assessing the quantum of damages, and in the absence of manifest error or gross abuse of discretion, such award should not be disturbed. Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974).

The trial court did not render written reasons in this matter however, our review of the record establishes that the plaintiff as a result of this minor automobile accident did sustain a mild concussion and an aggravation of a degenerative lumbar condition. Further examination of the evidence shows that plaintiff’s complaints of headaches gradually disappeared and he was discharged from his physician’s care two months after the accident, although at this time he had complaints of back pain. Dr. Sauls, who found that plaintiff had recovered from his injuries, could not find any definitive damage to plaintiff’s back. The orthopedic surgeon, Dr. Simonton, who examined plaintiff subsequent to his discharge by Dr. Saul, found that there was aggravation of the degenerative lumbar condition, but stated that he could not give the extent of the aggravation except as it related to plaintiff’s complaints of pain.

Considering these facts we find that the trial court’s award of $3,068.32 is somewhat low, especially in light of the plaintiff’s continuing complaints of pain. However, the trial court must have been impressed by the fact that the medical evidence shows that plaintiff continued to be treated relative only to his subjective complaints of pain. Furthermore the record shows that plaintiff continued to perform the arduous tasks required of him as a janitor at the Many High School. In this regard the evidence reveals that following the accident plaintiff claimed 10 days of the 25 days sick leave he had accumulated, thereafter returning to his normal duties at the school.

The trial court award is somewhat low, however, under the evidence as outlined, it is not so inadequate as to constitute manifest error or a gross abuse of discretion. We therefore will not disturb this award. See Green v. Clark, 306 So.2d 396 (La.App. 4th Cir. 1975); Kennedy v. Insurance Company of North America, 276 So.2d 812 (La. App. 3rd Cir. 1973).

For the above and foregoing reasons the judgment appealed from is affirmed. All costs of these proceedings are to borne by the plaintiff-appellant.

AFFIRMED.

      . Travelers admits that it is the primary insurer and that Allstate Insurance Company would only be liable to plaintiff for such amount of the judgment in excess of the applicable liability limits of the Travelers’ policy, i. e., $10,-000.00.

      . We observe that the record in this matter indicates that the trial court awarded plaintiff $2,000.00 in general damages and in addition $1,068.32 in special damages. This latter figure including $120.22 in property damage.


text:
    Commitment of Cindy MALVO, Defendant-Appellant.
    No. 5914.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Rehearing Denied April 5, 1977.
    Writ Refused June 1, 1977.
    J. Michael Veron, Lake Charles, for defendant-appellant.
    Elsie Mae Whitman, Lake Charles, for plaintiff-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

On November 15, 1976 Bruce Malvo filed a petition seeking judicial commitment of his daughter, Cindy Malvo (hereinafter referred to as “patient”), under LSA-R.S. 28:53. In accordance with the provisions of this statute the court appointed an attorney to represent the patient and fixed the hearing on such matter for November 22, 1976. Thereafter, the appointed attorney, appearing on behalf of the patient, filed an exception of no cause of action alleging that LSA-R.S. 28:53 is unconstitutional. The patient’s attorney also filed an answer generally denying that she is mentally ill or that any such illness causes her to be dangerous to herself or others and/or incapable of caring for herself. The answer further alleges that Cindy Malvo is being detained at the Central Louisiana State Hospital (hereinafter referred to as “Central”) under a Coroner’s commitment which has expired, and there is no authority for her continued confinement. At the hearing on November 22,1976 the trial judge overruled the exception of no cause of action, although we note that no formal judgment dismissing the same appears in the record. After the hearing the trial court formally decreed Cindy Malvo judicially committed to Central. The appointed attorney has perfected an appeal on behalf of the patient, Cindy Malvo.

A review of the record indicates that the patient, an eighteen year old female, with a twelfth grade education, was at the time of the institution of these proceedings a patient at Central. She had been confined to the hospital on September 10, 1976 as a result of a 60 day Coroner’s commitment under LSA-R.S. 28:52 The patient had been previously treated at Central from October 1, 1975 to January 5, 1976.

The record shows that by letter to Bruce Malvo, dated October 28, 1976, the attending physician and clinical director of Central, Drs. W. L. Kirkpatrick and H. A. King, respectively, certified that the patient, Cindy Malvo, continues to suffer from a mental illness which causes her to be dangerous to herself or others and/or incapable of caring for herself or her person. The letter of certification sets forth that the patient will require treatment longer than the 60 days covered by the Coroner’s commitment and that a judicial order of commitment should be sought if treatment of the patient is to continue. Additionally the letter certifies that the patient was advised of her right to counsel to which she replied: “I’m O.K.— there’s nothing wrong with me.”

Following receipt of this letter Bruce Malvo filed the petition in the instant matter, attaching thereto the above referenced letters of certification. The petition was served upon the patient’s appointed attorney, who thereafter contacted the Central Louisiana State Hospital in this regard. The appointed attorney in a statement to the trial court stated that he spoke with the social worker in charge of the patient and discussed with her the patient’s ability to cooperate with him in the presentation of her defense. The appointed attorney related that the social worker was of the opinion that the patient would not be able to assist him very effectively and having her summoned to be present at the hearing would serve no useful function. In response to a request from patient’s attorney Central forwarded him certified and true copies of the patient’s medical files,' which the attorney introduced into evidence as Defendant’s Exhibit 1. On the basis of this evidence the appointed attorney formally waived the presence of Cindy Malvo at the hearing.

The medical records of the patient introduced by her attorney reveal that she is suffering from an acute paranoid schizophrenic reaction with self destructive tendencies. Daily medical charts indicate that the patient was usually hostile and agitated, using loud and profane language.

The only two witnesses to testify were Mr. and Mrs. Bruce Malvo, both of whom stated Cindy had, just prior to her commitment attacked Mrs. Malvo; that on occasion she lost control of herself, screaming and hollering and pulling at her hair; and that she was real nervous and trembled all the time. Their testimony revealed that Cindy had never attacked anyone else.

On the basis of the certification of Drs. Kirkpatrick and King to the effect that the patient suffers from a mental illness which causes her to be dangerous to herself and others and/or incapable of caring for herself; the medical records introduced as D-l, which included further certification of the patient’s condition; and, the testimony of Cindy’s parents, Mr. and Mrs. Bruce Malvo, the trial court entered an order judicially committing the patient to Central.

The patient appeals and contends that the trial court erred in the following particulars:

1. In finding that LSA-R.S. 28:53 was constitutional, and not in violation of the patient’s substantive due process rights.
2. In finding that the patient, Cindy Malvo, was not deprived of her constitutional rights to procedural due process, specifically the right to confrontation.
3. In concluding from the evidence adduced that the patient was dangerous and incapable of caring for herself, and further, in failing to appoint a commission under LSA-R.S. 28:54 to examine the patient.

In responding to defendant’s first contention we observe, and the defendant admits, that LSA-R.S. 28:53 has been the subject of constitutional scrutiny by this court before, and on each occasion the statute has been upheld as constitutional. In Hickman v. Fletcher, 317 So.2d 219 (La.App. 3rd Cir. 1975), writ refused 321 So.2d 366 (La.1975), we found the statute to comport with due process and the equal protection clauses of the 14th amendment. In In Re Williams, 297 So.2d 458 (La.App. 3rd Cir. 1974), the statute was found to be neither vague nor indefinite. See also State v. Commitment of Jackson, 289 So.2d 565 (La.App. 3rd Cir. 1974). Defendant argues however, that these decisions are not controlling having been rendered without consideration of the later United States Supreme Court decision in O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975).

Our study of the O’Connor case convinces us that it is inapplicable to the instant matter. In O’Connor, a patient, who had been involuntarily committed to a state mental institution for over 15 years brought an action in damages against the institution alleging that he had been deprived of his constitutional right to liberty. The evidence showed that the patient was neither dangerous to himself or to others and had not received treatment. In spite of this his frequent requests for discharge were refused, notwithstanding undertakings by responsible persons to care for him if necessary. The Supreme Court held that a State cannot constitutionally confine, without more, a non-dangerous individual who is capable of surviving safely in freedom by himself or with the help of willing family members and friends.

Able counsel for the patient argues that O’Connor holds that a finding of “mental illness” alone will not justify the institutionalization of a non-dangerous person, against his will who is incapable of caring for himself, without a showing by the committing authority that there is no alternative to custodial care. He contends therefore, that this being so, LSA-R.S. 28:53 is unconstitutional in that it contains no requirement for this alternative showing.

We do not agree that O’Connor espouses the proposition that it is incumbent upon the committing authority, before commitment of a non-dangerous person suffering from mental illness and who is incapable of caring for himself, to establish that there is no alternative to custodial care and that the statutory authority for involuntary commitment of such persons must contain such a proviso. Rather, the premise of O’Connor is simply to the effect that the continued institutionalization of such a person, when it is shown that such person is capable of living safely in freedom by himself or with the help of willing family members or friends deprives snch person of his constitutional right to liberty. O’Connor does not set a new standard for the initial commitment of mentally ill persons incapable of surviving safely in freedom but rather defines the conditions essential to their continued institutionalization. To require otherwise would place an almost impossible burden on the committing authority, i.e., the proof of a negative. It is common knowledge that in most, if not all, commitment proceedings the persons seeking commitment are those having the most concern for the health and personal safety of the mentally ill person. Clearly, in our view, the decision in O’Connor imposes no new constitutional limitation on the State’s power to judicially commit persons upon a showing that the individual is dangerous to himself or others and/or incapable of earing for himself or his personal safety. If anything the Supreme Court in O’Connor reaffirmed that State power.

This being considered we are of the opinion that LSA-R.S. 28:53, which requires a showing of mental illness which causes the person to be dangerous to himself or others and/or incapable of caring for himself or his personal safety before commitment affords all the constitutional safeguards of substantive due process. See Hickman v. Fletcher, supra; In re Williams, supra; State v. Commitment of Jackson, supra.

We next consider defendant’s contention that the statute and the application thereof by the trial court violates patient’s constitutional right of- procedural due process. More particularly appellant contends that LSA-R.S. 28:53 as applied, i.e., her commitment by the trial court, partially on the basis of the certificate of two physicians certifying that the patient is suffering from a mental illness which causes her to be dangerous to herself or others and/or incapable of caring for herself or her personal safety and corroborating medical records, violates her constitutional right to confrontation under the Sixth and Fourteenth Amendments to the U. S. Constitution and Louisiana Constitution Article 1 Section 16. This interesting argument was neither advanced nor considered in the three above cited cases.

At the outset we observe that it is well established that judicial commitment of a mentally ill person under LSA-R.S. 28:53 is a civil exercise of the State’s police power. It is neither a criminal proceeding nor a formal interdiction proceeding affecting the property rights of the person committed. In re Ingram, 82 So.2d 788 (La. App. 1st Cir. 1955). All of the procedural rules applicable to civil proceedings prevail in a commitment proceeding under LSA-R.S. 28:53. Although we acknowledge that the constitutional right of confrontation may be applicable in civil commitment proceedings we do not conclude that if applicable its application is or should be with the same force or rigidity as in criminal proceedings.

LSA-R.S. 13:3714 which provides as follows:

“Whenever a certified copy of the chart or record of any hospital in this state, signed by the director, assistant director, superintendent or secretary-treasurer of the board of administrators of the hospital in question, is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the record is sought to be used may summon and examine those making the original of said record as witnesses under cross-examination.”

and LSA-R.S. 28:53 permit the introduction in evidence of the certificate of the two physicians and the medical records which support the physicians’ certification that the patient was in fact mentally ill and dangerous to herself or others and/or incapable of providing for her own care and safety. These documents furnished at the very least prima facie proof of the matter therein contained. The patient was not completely deprived of her constitutional right of confrontation by the introduction of these documents for LSA-R.S. 13:3714 specifically grants to the patient the right to summon and examine those making the original of said records as witnesses under cross-examination. Further, we observe that under LSA-R.S. 28:53 it is the right of the patient to participate in the hearing and offer evidence in her own behalf and to present a defense. As a part of that right she has the right to compel attendance and testimony of witnesses and the right to an independent expert examination regarding her mental illness.

In the instant case patient through counsel waived her right to participate in the hearing. We do not question the propriety of this decision, rather to the contrary the record reveals that counsel after examination of the medical records and consultation with the staff at Central- determined that patient was suffering from a mental illness as a result of which she would be of no effective assistance at the hearing. In short her appearance would have served no useful function. We do note however, that patient’s attorney did not require the presence of Drs. Kirkpatrick and King for purpose of cross-examination. He made no effort to-secure the attendance of witnesses or secure an independent medical examination of patient in order to counter, if possible, the prima facie showing of mental illness and dangerousness established by the physician’s certificates and medical records. We do not necessarily question the propriety of this decision for the medical records and certificate appear to indicate that such action would have been at best an exercise in futility. Be that as it may, under the circumstances, there was no denial to patient of the right of confrontation. The right was there to be exercised. Plaintiff simply failed to take advantage of the right of confrontation which was afforded to her by LSA-R.S. 28:53, LSA-R.S. 13:3714 and pertinent articles of Louisiana’s Code of Civil Procedure. See State v. O’Brien, 255 La. 704, 232 So.2d 484 (1970).

For these reasons we find no merit in this contention.

Appellant finally asserts that the trial court erred in concluding from the evidence adduced that the patient was dangerous and incapable of caring for herself, and further, in failing to appoint a commission under LSA-R.S. 28:54 to examine the patient. This very issue was considered by us in In re Williams, supra. In Williams we stated:

“The certificate of two physicians which was attached to the original petition constituted at least prima facie proof of the mental illness of Mrs. Williams sufficient to support the judgment committing her to the hospital. That certificate was specifically required by LSA-R.S. 28:53. LSA-C.C.P. art. 853 provides that ‘A copy of any written instrument which is an exhibit to the pleadings is a part thereof for all purposes.’ Our conclusion is that the certificate of those physicians is admissible in evidence, and that since no proof was presented which tends to contradict the views expressed by those doctors, it serves as sufficient proof to support the judgment appealed from.”

In the instant case, like Williams, the certificates of the two treating physicians together with all the patient’s medical records standing alone, without contradictory proof, were sufficient to support a judicial commitment.

Finally in regards to the argument that the trial court erred in not appointing a commission under LSA-R.S. 28:54 to examine the patient, we observe that the provisions of that statute do not compel the appointment of a commission. Rather, LSA-R.S. 28:54 provides that “If a judge believes additional evidence is necessary, he may appoint a commission”. Our review of the record indicates that no additional evidence regarding the patient’s mental illness was necessary, and that she was a proper subject for commitment.

For the above and foregoing reasons the judgment appealed from is affirmed.

AFFIRMED.

      . No issue is raised regarding the validity of the Coroner’s commitment of the patient to Central under LSA-R.S. 28:52, although the patient’s attorney alleges that the Coroner’s commitment has now expired and that at the time of the hearing she was being held without authority.. We have previously held that a judicial commitment under LSA-R.S. 28:53 may be validly accomplished even though there has been no compliance with the provisions of LSA-R.S. 28:52. Hickman v. Fletcher, 317 So.2d 219 (La.App. 3rd Cir. 1975), writ denied 321 So.2d 366 (La. 1975).