author: GARRISON, Judge. REDMANN, Judge,

text:
    Russell James TALLUTO v. Leo PATCHEN, Paul Donahue, and Robert Ballard.
    No. 9903.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Rehearings Denied May 17, 1979.

      Steven Plotkin, New Orleans, for plaintiff-appellee.
    Deutsch, Kerrigan & Stiles, Robert E. Kerrigan, Jr., Philip D. Lorio, III, New Orleans, for defendants-appellants Leo Patch-en, Robert Ballard and Transportation Insurance Co.
    Sessions, Fishman, Rosenson, Snellings & Boisfontaine, James Ryan, III, New Orleans, for defendant-intervenor-appellant Transportation Insurance Co. as the Workmen’s Compensation Insurer of Martin Marietta Corp.
    Before REDMANN, LEMMON and GARRISON, JJ.
   GARRISON, Judge.

Russell Talluto, plaintiff in this matter, injured his wrist on March 5,1976 when he and a co-worker attempted to lift and move a heavy table pursuant to instructions from their supervisor. Plaintiff filed an action in tort against certain “executive officers” of his employer, Martin Marietta Corporation, and against their liability insurer. He sued alternatively to receive workmen’s compensation benefits. The tort defendants (Leo Patchen, Paul Donahue, Robert Ballard and Continental Casualty Company) denied liability, asserting no negligence or, in the alternative, that plaintiff had been contributorily negligent and/or had assumed the risk. The workmen’s compensation insurer (Transportation Insurance Company) intervened for reimbursement of benefits paid.

The nonjury trial took place on December 21 and 22,1977. The judgment rendered, in substance, was as follows:

(1) Plaintiff’s claim against Paul Donahue was dismissed;
(2) Judgment was rendered in favor of plaintiff and against Leo Patchen, Robert Ballard and Continental Casualty Company (incorrectly named in the judgment as Continental Nation American Insurance Company) in the amount of $283,650.00 plus legal interest and all costs;
(3) Judgment was rendered in favor of Transportation Insurance Company and against Patchen, Ballard and Continental Casualty for reimbursement of both past and future workmen’s compensation benefits paid or payable to plaintiff as well as for medical expenses;
(4) Plaintiff was decreed to be entitled to workmen’s compensation benefits for permanent total disability in the amount of $85.00 per week during the entire period of his disability;
(5) Plaintiff’s demand for statutory penalties and attorney’s fees in connection with his workmen’s compensation claim was dismissed; and
(6) The three expert witnesses were awarded fees of $300.00 each, to be taxed against defendants.

Defendants Patchen, Ballard and Continental Casualty have appealed, assigning as error the following: the trial court’s failure to find that plaintiff had assumed the risk and/or was contributorily negligent; the trial court’s award of future lost wages to plaintiff; and the trial court’s award of damages to plaintiff for pain and suffering in the amount of $120,000 (alternatively, that such award is excessive).

Defendant-intervenor Transportation Insurance Company has appealed the trial court’s determination that plaintiff is totally and permanently disabled and thereby entitled to maximum workmen’s compensation benefits. Because we adjudicate the merits of the demand against the third party and fix Transportation Insurance’s rights under its intervention (which essentially involves merely a credit against the amount of the tort judgment, since Transportation Insurance and Continental Casualty are interrelated companies), and because Transportation Insurance, has been paying maximum weekly benefits at time of trial and had paid all benefits due, it is not necessary that we specifically address the issue raised by Transportation Insurance’s appeal.

FACTS

At the time of the accident Russell Tallu-to was 30 years old, 5 feet 9% inches tall and weighed approximately 170 pounds. He had a high school education and had completed almost two years of college. He had been working at Martin Marietta as a spray foam insulation mechanic for about IV2 years, and before that had worked both as an insurance inspector and in a clerical capacity for the Small Business Administration.

The accident occurred at approximately 3:30 p. m. on March 5, 1976. Talluto and Rumore had been ordered by Lew Patchen, their supervisor, to move two large tables which had been delivered to their working area, one table face-down atop a similar table. The tables were placed with one side against a wall; one end was next to, but about 2 or 3 inches from, some cabinets. The other side and end were open and accessible, although located nearby was a post extending from the floor to the ceiling. Both Talluto and Rumore asked Patchen for either a forklift truck or additional personnel to help move tables. Patchen responded that no help was available and emphatically ordered them to move the tables immediately. Although both men were aware that they had the right to call for a union shop steward and a representative from the safety department if they felt the job was unsafe, neither made such a request. In addition, although they knew that either of them could have ordered a forklift truck from the Transportation Department on his own, neither man did this because they felt that no forklift would be delivered so close to the end of the shift.

After Patchen denied their request for assistance, the men proceeded to attempt to move the top table. Without discussing in advance how they would handle it, they positioned themselves at either end of the top table and attempted to pick it up. Ru-more, who was standing at the end of the table next to the cabinets, stated that he grasped the leg of the table farthest from the wall with his left hand and crossed his right hand over to grasp the leg closest to the wall. It was his intention to “flip” the table over. He did not notice how Talluto grasped it. Talluto himself could not remember exactly how he grasped the table. However, as he and Rumore attempted to lift it, it slipped and fell on his hand and wrist.

Although Talluto apparently was in considerable pain immediately after the accident, he did not get medical treatment right away because it was late on a Friday afternoon. Instead, he waited until Monday morning, at which time he went to Dr. Lothschuetz, the company doctor. After two visits to Dr. Lothschuetz, Talluto was referred to Dr. Segura, who gave the injury conservative treatment. When it continued to worsen after two or three visits, Dr. Segura referred Talluto to Dr. Harry Hoer-ner, an orthopaedic surgeon.

Dr. Hoerner X-rayed Talluto’s wrist, but could find no fractures. He initially diagnosed the injury as a sprain to the wrist, and continued conservative treatment by application of a splint and resting the wrist. Talluto returned to Dr. Hoerner for followup visits at intervals of approximately three weeks. When he continued to complain of pain and swelling in his wrist, Dr. Hoerner prescribed anti-inflammatory medication. By the end of June 1976, Talluto still complained of pain and Dr. Hoerner injected cortisone into the tender area of the wrist, because Talluto had stated that the oral medication hadn’t helped and the doctor did not want to continue oral steroids because of possible side effects.

When Talluto returned to Dr. Hoerner in mid-July, still complaining of pain and tenderness in the wrist, the doctor diagnosed a DeQuervain’s Syndrome and recommended surgery to explore the wrist and release the tendons. This surgery was performed on August 3, 1976 to release the extensor tendons of the thumb, explore the area and biopsy local tissue.

Following the operation Talluto continued to see Dr. Hoerner for examinations every few weeks. He still complained of pain and limited motion in his wrist. He was taking an ánti-inflammatory medication and had been advised by the doctor to exercise his wrist. After his November 1, 1976 visit, Dr. Hoerner gave Talluto a qualified return-to-work permit. However, on December 1st, when Talluto complained of increased pain and inability to use his hand and wrist, Dr. Hoerner advised him not to work for four weeks more, but to return to work in January. (We note that Talluto had not returned to work since his injury).

When Talluto came for his January 12, 1977 examination, Dr. Hoerner advised him that he could do light work using his right hand. Because Talluto still persisted with complaints of pain, Dr. Hoerner referred him to Dr. Ray Haddad. Dr. Haddad felt that the superficial branch of the radial nerve was tied up in the scar and that this was causing the pain and tenderness. Dr. Haddad recommended blocking the nerve to obtain temporary relief, and possibly surgery (resection of the nerve itself).

When Talluto saw Dr. Hoerner on March 30, 1977, Dr. Hoerner advised him that he could return to work. On May 11th Dr. Hoerner injected the nerve in Talluto’s hand to block it, which gave Talluto temporary relief. When Talluto returned on May 23rd his complaints were the same, however, and these continued through the visit of June 20th. At that time Dr. Hoerner concluded that he needed additional surgery to resect the nerve and to explore the wrist.

On June 27,1977 Talluto was admitted to the hospital with a diagnosis of neuroma (scarring) on the superficial radial nerve of the right wrist. Surgery was performed the following day, and approximately six to seven inches of nerve removed from Tallu-to’s forearm. As a result, Talluto now suffers a loss of sensation to the top portion of the thumb and half of the top of the hand, because the sensory nerve is gone.

After the second operation, Talluto continued to see Dr. Hoerner at three- to four-week intervals. He still complained of limited motion and tenderness over the scar and had permanent loss of sensation over the nerve distribution. Dr. Hoerner listed his final diagnosis as “a sprain to the ligaments of his right wrist with a contusion of the extensive tendon resulting in DeQuer-vain’s Syndrome and neuroma of the superficial branch of the radial nerve.” He attributed the injury to Talluto’s hand being crushed or squeezed between the two tables, and estimated that Talluto would have a permanent partial disability of 15% to 20% of the right extremity.

As of the date of trial, Talluto was still complaining of inability to close his fingers and grip, write with his right hand for long periods, and dress himself with his right hand; he continued to complain that he had pain in his wrist, that it swelled when he attempted to lift heavy objects, and that he could not bend or flex the wrist. Dr. Hoer-ner could give no medical justification for these complaints, but felt they could be improved with active use of the hand and wrist.

As previously stated, plaintiff underwent two separate operations on his wrist, the first one to release the swollen tendons and the second one to excise a nerve that had been caught up in scar tissue. As a result of the second operation, plaintiff has a permanent loss of sensation on part of the back of his right hand. Talluto testified at trial that he could not grasp with his right hand or perform fine movements with it, such as shaving or writing for long periods. He also testified that he could not squeeze a trigger or lift heavy objects, such as would be required if he returned to his former occupation as a spray foam insulation mechanic. However, he admitted that he had not attempted to return to work since his injury.

Dr. Hoerner, whose expert testimony was the only expert medical evidence offered at trial, testified that plaintiff had a 15-to-20 percent permanent partial disability of his right extremity. However, Dr. Hoerner could give no medical explanation for the lingering manual disabilities claimed by plaintiff. He felt that the disability would decrease with active use of the hand, and he also felt that plaintiff could return to his former job duties as described by plaintiff on the witness stand. He felt that plaintiff could not perform heavy manual labor; nonetheless, the doctor could not explain why plaintiff apparently could not perform fine movements with his fingers. Dr. Hoer-ner also stated that he felt plaintiff was “overreacting” to examination of the sensitive area.

Talluto’s own testimony was the only evidence in support of his claims that he could not perform his job duties. His second operation had taken place approximately six to seven months before trial. However, he had not attempted to return to work, either before or after that operation.

LIABILITY

In his oral Reasons for Judgment the trial court concluded that Patchen was negligent “in ordering this large benchtype table to be moved by two men.” Patchen’s immediate supervisor, Ballard, was also found negligent in failing to advise Patchen “to have the proper manpower and/or mechanical equipment to take off the large table in question for its removal to another part of the building.” As mentioned above, the precise weight of the tables was never shown at trial, other than through estimates. However, from the photographs of the tables, from their position close against a wall and a set of cabinets, from the report of the Martin Marietta Safety Engineer that the table weighed 250 pounds, and from the testimony of a safety expert presented by plaintiff, we concluded the tables were too heavy and in too awkward a position for two men to handle safely.

A safety expert, who had 32 years of fulltime safety work with a large compensation insurer, opined that two men could not handle the table safely because of its weight and of the awkward conditions of having limited access on two sides. He stated that several labor and governmental groups used the figure of 88 pounds per man as the maximum safe weight to handle, but depending on circumstances he used the figure of 50 pounds per man as that which “would likely not produce injuries and therefor losses.” He concluded that Patchen’s conduct as a supervisor was substandard because he had the responsibility to see that the employees were provided with a safe method to perform work with safe equipment under the circumstances, and that it was imprudent to act on expediency rather than to postpone completion of the task until it could be performed under safer circumstances.

Furthermore, the accident report by plaintiff’s employee’s senior safety engineer stated that the “work bench was too heavy and awkward for two people to handle.”

This evidence furnishes adequate support for the findings of the trial judge, and, accordingly, we affirm the finding of negligence on the part of Patchen. Canter v. Koehring, 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), reh. den., January 26, 1979. However, there is no evidence that Ballard participated in the rash decision to require completion of the task under circumstances involving substantial risk of injury or that he was negligent in delegating responsibility for safe completion of the task to Patchen. Accordingly, the determination that Ballard was liable must be reversed.

PLAINTIFF’S CONTRIBUTORY NEGLIGENCE/ASSUMPTION OF THE RISK

It is clear from the record that both Talluto and Rumore felt it was unsafe for the two of them alone to move the tables. Not only had they requested additional assistance from Patchen, but also they both testified at trial that they felt the tables were too heavy. Both men were aware that they had the right to call for a union-shop steward and a representative from the safety department to inspect the job if they felt it was unsafe. In addition, they could have ordered a forklift truck on their own. However, neither man made any such requests, nor did they, before attempting to move the tables, discuss in what manner they would handle them. Talluto testified that they did not call the Safety Department because it was late in the day and by the time a safety man came in,

“[I]t would have been overtime and we couldn’t work overtime, and probably a reprimand and plus he said he wanted them moved now.”

Rumore who had been promoted to supervisor by time of trial, testified that they didn’t call a safety man because

“[I]f something puts you in immediate danger of your life you can refuse and get safety down there. And my own experience, if it is not going to kill you right at the time it is best to do what your supervisor says because it is insubordination.”

In contrast, defendants presented the testimony of Louis Tanner, who had been plaintiff’s co-worker for a year-and-a-half. Tanner testified that he himself had in the past refused to perform tasks which he considered unsafe, and had not suffered any disciplinary repercussions. The first incident he described involved a refusal to work in a spray-painting booth in which the ventilation system was functioning improperly; in the second incident, he had refused to climb a ladder on top a tank, feeling it was unsafe because he was a large man. He also testified that in circumstances when he had been given an order to lift an object too heavy for him to handle he would usually get someone to help him. However, he admitted that he had never been in a situation similar to Talluto’s (i. e., receiving a firm order to perform a task, near the end of the shift, for which he needed to order a forklift or additional help). Tanner testified that it was sometimes difficult to get a forklift near the end of a shift.

Defendants contend that Talluto was con-tributorily negligent and/or assumed the risk in attempting to lift a table that he felt was too heavy. They contend that although Patchen refused to obtain help for Talluto and Rumore, both men knew they had the right under their union contract and the rules and regulations of the company to demand further safety measures. Further, defendants aver that Talluto was contributorily negligent in attempting to lift the table in an unusually hazardous manner.

Plaintiff, on the other hand, denies that he was contributorily negligent, because he did request assistance from his supervisor. He contends that he had to follow Patchen’s emphatic order that “I want them moved now” under company rules or he would have been subject to discipline for insubordination or to more subtle forms of punishment. Furthermore, the risk involved was not one which endangered his life, but one which encompassed danger from loss of grip or control and possible injury to an extremity (which is exactly what occurred).

Both sides cite numerous cases in support of their positions. The trial judge, in his oral reasons for judgment, cited the cases of O’Keefe v. Warner, 288 So.2d 911 (La.App. 1st Cir. 1973), writ refused [293 So.2d 170] April 11, 1974, and Jones [Chaney] v. Brupbacher, 242 So.2d 627 (La.App. 4th Cir. 1970), for the proposition that plaintiff was not obligated to continue protesting the safety of the situation at the risk of reprimand or of losing his job. The O’Keefe case stated:

“[T]he appellants failed to prove contributory negligence or assumption of the risk on the part of O’Keefe. The duties of his work required him to be where he was, and he was doing his best to discharge those duties.
“We agree with the observation by Judge Redmann of the 4th Circuit in a somewhat similar situation:
“ ‘. . . .a workman’s superior cannot create or permit danger and send the workman into it with a warning and escape liability on a theory that the workman was contributorily negligent merely by going into the danger. The workman’s only other alternatives are to try to tell his superior how to run the job, or to quit.’ Chaney v. Brupbacher, 242 So.2d 627, at 631 (La.App. 4th Cir. 1970).” 288 So.2d at 914.

Defendants cite cases for the proposition that an employee who exposes himself to a known danger assumes the risk of such exposure and is guilty of contributory negligence if he suffers injury as a result thereof. In Pearson v. Hartford Ace. & Indem., 345 So.2d 123 (La.App. 1st Cir. 1977), writs refused June 30, 1977 [347 So.2d 255 and 347 So.2d 256], the court stated:

“If a workman performs his job in the face of an obvious danger, then he is contributorily negligent. But he is not to be judged as contributorily negligent just because he fails to stop, to analyze the possible alternatives and, with some superior wisdom, calculate the relative advantages and disadvantages of these alternatives before he acts. In other words, if the safe alternative is as readily available and as obvious to the workman as is the danger of not choosing it, then the workman is guilty of contributory negligence in performing the dangerous task.” 345 So.2d at 127, 128.

The case of Miller v. Employers Mut. Liability Ins. Co. of Wisconsin, 349 So.2d 1353 (La.App. 2nd Cir. 1977), writ denied 352 So.2d 235, described the following factors for determining an employee’s contributory negligence:

“Emerging as criteria for determining an employee’s contributory negligence are: (1) relative knowledge of the danger by the supervising employee and the injured employee; (2) relative control over the employee’s situation; (3) the degree to which the employee’s conduct is voluntary on his part; (4) alternatives available to the employee; (5) obviousness of the danger; and (6) relative ability to eliminate the danger.” 349 So.2d at 1362.

Although some portions of the Pearson and Miller criteria appear applicable to the facts of this case, under the specific circumstances before us we cannot say the trial court was “clearly wrong” in finding that Talluto neither was contributorily negligent nor assumed the risk. See Arceneaux v. Domingue, supra. Patchen had given a firm order to Talluto and Rumore to move the tables “now”. They exercised their “reasonable alternative” of asking for assistance in order to eliminate or minimize the risk, but were refused. While they realized that turning the table over in confined quarters and under awkward conditions without additional assistance involved a considerable risk of injury, their conduct in proceeding to lift the tables under these circumstances was not entirely voluntary, but rather was compelled by a direct and reiterated order by their supervisor. We find no manifest error in the trial court’s conclusion that Talluto was free of contributory negligence and assumption of the risk. Canter v. Koehring Company, supra; Arceneaux v. Domingue, supra.

Defendants-appellants Patchen, Ballard and their insurer assert as further errors the trial judge’s award of general damages in the amount of $120,000 and of future lost wages in the amount of $153,817. (The award of past lost wages, in the amount of $9,833, is not appealed.) They contend that $20,000 is the most that should have been awarded for general damages, and that plaintiff has not proven his total and permanent disability sufficiently to justify an award for future lost wages.

The current standard for appellate » review of damage awards has been clearly set forth in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976):

“[BJefore a Court of Appeal can disturb an award made by a trial court . the record must clearly reveal that the trier of fact abused its discretion in making its award. [Citations omitted.] Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. [Citations omitted.] It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.” 341 So.2d 335.

See also Bitoun v. Landry, 302 So.2d 278 (La.1974); Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974).

As to the award for pain and suffering, plaintiff underwent two separate operations. The photograph submitted into evidence shows that he was left with very visible and angry-looking scars. The trial court’s own examination of plaintiff’s wrist and hand while plaintiff was on the witness stand revealed a pulsating “balloon” or bubble in plaintiff’s skin, caused by a swollen artery, and that plaintiff did not appear to have full flexion or full extension. Dr. Hoerner testified that although he could find no medical reason why plaintiff should still be having pain and difficulty in using his wrist and hand, plaintiff had always been a cooperative and apparently truthful patient. After the second operation, plaintiff was left with a permanent loss of sensation on the back of his right hand. The doctor testified that although this loss of sensation should not affect plaintiff’s ability to perform his job duties, plaintiff needed to be careful because he could injure himself without being aware of it. Plaintiff himself testified that he had once burned the back of his hand on a stove without being aware of it because he had no sensation in that area of his hand.

In addition, the plaintiff was left with a 15-to-20 percent permanent disability of his right upper extremity. The trial court also took into consideration the fact that plaintiff, who testified that formerly he had been very active in amateur sports such as baseball and football, would suffer an anatomical and functional loss which limit or prohibit his participation in such sports in the future.

As to future lost wages, Melville S. Wolf-son, an expert in the field of labor economics, testified on plaintiff’s behalf as to lost wages. Wolf son concluded that plaintiff’s future lost wages would be $153,817. He computed this by taking the difference between $5.61 (the hourly wage plaintiff would have been earning in his former position at time of trial) and $3.40 (the lowest hourly wage paid at Martin Marietta, assuming plaintiff were to be rehired by them as a handicapped worker). The difference between these two figures was $2.21. The economic expert then multiplied $2.21 by 2,008 (the number of hours plaintiff had worked in the calendar year preceding his injury). The yearly difference was $4,437. Taking into consideration the Martin Marietta history of regular and periodic wage increases he used a figure of 3% for wage increases and 8% for decrease in purchasing power, and he used a discount rate of 5%. The figure at which he then arrived as future lost wages in the remaining 31.4 years of his work-life expectancy was $153,-817. This calculation was based on the assumption that plaintiff would be unable to return to the job he was doing at the time of accident, and further that plaintiff would be unable to find a job in any capacity that would pay the equivalent of his wages as a spray foam insulation mechanic. Dr. Wolfson conceded, however, that in 1970 an average person of plaintiff’s age and education in Louisiana earned about $12,000.

Alex Wilcox, manager of employee and labor relations at Martin Marietta, testified that the lowest-paid category of worker at the company was the helper position, at $3.40 an hour. He stated that most of these were manual labor positions. He also testified that plaintiff’s former position, Mechanic A Insulation, was a job connected with federal government contracts regarding construction of fuel tanks for the space shuttle. To his knowledge, the contracts were to expire in the last quarter of 1978; if the contracts were not renewed, plaintiff’s position and others connected with that particular program would be abolished. However, he testified that there were other jobs in the area for spray foam insulation mechanics, noting that he knew such jobs were available because Martin Marietta had been doing wage surveys for contract preparation.

Wilcox noted that Talluto had been fired from Marietta in February 1977 because he had overstayed his leave of absence, without requesting a further extension of leave, and because the last letter the company had received from Dr. Hoerner stated that plaintiff could return to work at light duty. Wilcox stated that upon expiration of a leave, if the employee does not request an extension, the company assumes he is voluntarily terminating his employment. Tal-luto had requested his original leave of absence on August 2, 1976 and renewed it by written request six times, covering the period August 2, 1976 through January 30, 1977. He was terminated on February 2, 1977, when he failed to request a further extension.

Wilcox testified that the company does hire handicapped people. Although to his knowledge there were no one-armed employees, he stated that the company would have made a concerted effort to place Tal-luto in a job at his current wage, although he could not guarantee that they could have placed him.

Among the documents Wilcox brought to court with him and which were introduced into evidence was one called “Employee Change Notice.” This had been executed in connection with Talluto’s termination and bore the notations, “overstayed leave of absence,” “quit without notice,” and not okay for rehire,” Wilcox testified that “not okay for rehire” is used for all employees who quit without notice. He stated that, without extenuating circumstances, Talluto would not have been rehired.

It is apparent that the trial judge weighed plaintiff’s testimony far too heavily, in the area of continuing pain and disability, in contrast to that of Dr. Hoerner. Although the trial judge specifically rejected that portion of Dr. Hoerner’s testimony which was unfavorable, rejected unfavorable evidence does not fulfill a plaintiff’s burden of proof, and plaintiff’s assertion of continuing pain and disability were therefore unsupported by any medical evidence. Thus, although the evidence indicated that plaintiff would be permanently disabled, plaintiff simply did not show by a preponderance of the evidence that he would also be totally disabled. For purposes of future wages, the investigation must center on whether plaintiff’s permanent partial disability will impair his earning capacity.

Dr. Hoerner’s estimate of 15-to-20 percent permanent partial disability extended to the entire upper right extremity. Obviously, certain side effects of this disability necessarily would affect plaintiff’s ability to earn a living in the future, and Dr. Hoerner opined he could not do sustained heavy labor, although he could perform any fine movements with the hand, and any of the mechanical tasks of the semi-skilled work he did prior to the accident. Moreover, Dr. Hoerner’s testimony that plaintiff’s present disability would decrease with more intensive use of his hand is important, and must be given weight. In addition, plaintiff has education, training and experience that would make him eligible for other jobs besides that in which he was injured, and he has not shown that the disability in his right arm will bar him from other jobs such as he formerly had (i. e., claims adjuster, clerical work.)

“An award for loss of future earnings cannot be made on any scientific basis; neither can it be determined with mathematical certainty. However, where it appears reasonably certain and probable that a loss of earning capacity will be experienced, the courts will exercise a sound discretion and award such recovery therefor as appears just and fair to both litigants under the circumstances.” Courville v. B & B Engineering and Supply Company, 230 So.2d 377 at 382 (La.App. 1st Cir. 1969).

The medical evidence does not establish that plaintiff’s future earning capability has been damaged to the extent that he will never be able to earn wages at a rate approaching that which he previously earned. In comparing what, according to the record, plaintiff obviously is no longer able to do to earn a living, with what he will be able to do after maximum recovery, we find that the award of $153,817 was not supported by the medical evidence. Furthermore, the trial court’s overevaluation of plaintiff’s complaints which were unsupported by medical evidence had to influence the amount of the awards for pain and suffering and for permanent disability.

Accordingly, the overall awards must be set aside as not supported by the evidence. We amend the judgment to grant a total award of $125,000, apportioned as follows: $75,000 for pain and suffering; $9,833.00 for loss of wages up to time of trial; $40,-167.00 for loss of earning capacity.

For these reasons, we amend the judgment of the trial court to decrease the award to $125,000 and to eliminate the adjudication of workmen’s compensation liability.

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

AMENDED AND AFFIRMED.

REDMANN, J., dissents in part.

REDMANN, Judge,

dissenting in part.

Concurring in the resolution of the difficult liability question and in the conclusion that the awards for general damages and loss of future earnings were excessive and in their reduction, I would further reduce quantum to a fraction of the majority’s figure.

      . R.S. 23:1032 was amended, effective October 1, 1976, to make workmen’s compensation an injured employee’s exclusive remedy in claims against “executive officers,” thus barring “executive officer” tort suits. The tort defendants herein had asserted the amendment as a bar in an exception of no right or no cause of action, which was overruled by the trial court and which has not been reasserted on appeal. However, because plaintiff was injured on March 5, 1976, his right of action arose prior to the effective date of the amendment and accordingly his suit is not barred. See Green v. Liberty Mutual Insurance Co., 352 So.2d 366 (La.App. 4th Cir. 1977), writ refused Jan. 30, 1978.

      . Plaintiff had been receiving workmen’s compensation benefits in the amount of $85.00 per week from August 6, 1976 through February 18, 1977. After February 18, 1977 payment of benefits was suspended by the compensation insurer. Thus, plaintiffs petition of March 4, 1977 (as amended) prayed for workmen’s compensation benefits in the alternative. However, the compensation insurer voluntarily reinstated benefits on June 27, 1977.

      . The actual weight of the tables was never clearly established. Estimates by the witnesses varied between 100 pounds and 250 pounds. The accident report prepared by the Martin Marietta safety engineer stated the weight at 250 pounds. The tables’ dimensions were approximately 6 feet long by 3 feet wide by 3 feet high.

      . It was 3:30 p. m. on a Friday afternoon, and the shift ended at 3:48 p. m.

      . A tendonitis or inflammation of the extensor tendons of the thumb.

      . Although this figure does not appear in the record, the difference of $4,437 for 31.4 years, discounted at 5% but without factors for wages increases and inflation, would yield a sum of slightly over $69,000.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    Dennis R. VALCOURT v. DIXIE LEASING OF NEW ORLEANS, INC., et al.
    No. 9921.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.

      Tooley, Gardner & Waldmann, Lester J. Waldmann, New Orleans, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, C. Gordon Johnson, Jr., New Orleans, for defendants-appellees Ramrod Trucking, Inc. and Steel, Inc.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff brought this damage suit against a number of defendants for damages sustained while he was operating a truck and trailer loaded with steel. He has taken this appeal from a summary judgment dismissing his suit against two of the defendants, Ramrod Trucking, Inc. and Steel, Inc.

Plaintiff was an employee of Superior Labor Services, which was in the business of furnishing workers to other employers on a temporary basis. Ramrod was in the business of hauling and was employed by Steel to haul steel from the Mississippi River wharf to its plant in Harvey, Louisiana. In order to accomplish its work Ramrod leased a truck and trailer and employed plaintiff to operate the rig.

On the day of the accident, plaintiff picked up a load of steel at the wharf, and while leaving the wharf area he came to a sudden stop and the load shifted forward crushing the cab and pinning plaintiff against the steering wheel.

Ramrod obtained its summary judgment on the ground that it was the employer of plaintiff pursuant to R.S. 23:1061, and as such was insulated from tort liability to plaintiff whose remedy was exclusively in workmen’s compensation.

The record supports the summary judgment in favor of Ramrod. This is simply a case where a trucking company has hired from a temporary labor agency a truck driver to perform its usual work of hauling. Plaintiff relied on his own affidavit to the effect that he thought he was working for Steel, Inc., and did in fact report to work at Steel, Inc.’s facility in Harvey on the morning of the accident as he did on previous mornings. This, however, does not contradict the real employment situation which was established by Ramrod’s president, Edward Winstein, III, that Ramrod had a contract to deliver for Steel and employed plaintiff through Superior to drive the rig. Under these circumstances the summary judgment was properly granted in favor of Ramrod. Burse v. Boh Brothers Construction Company, 349 So.2d 438 (La.App. 4th Cir. 1977) writ refused, 351 So.2d 172.

One of plaintiff’s principal theories of liability was that the rig itself was defective in that there was no “headache bar” on the trailer which would have prevented the steel from shifting into the cab. Any liability for the missing headache bar seems to rest exclusively on Ramrod which leased the rig in the first instance and whose president, Winstein, admitted that it was missing from the truck. In view of our conclusion as to Ramrod’s relationship to plaintiff as his employer, however, the missing headache bar cannot provide plaintiff with a cause of action against Ramrod.

As to Steel, Inc., however, a different result obtains. Plaintiff’s case here is based on allegations that Steel’s employees improperly loaded or overloaded the vehicle. In support of the motion for summary judgment Steel also relied on Winstein’s deposition wherein he testified that none of Steel’s employees were involved in the loading of the truck and he identified an employee of a co-defendant as the individual who was in charge of the loading.

In this court, Steel takes the curious position that it was simply a vendor of the steel, whose customer, represented by the truck driver, came to the wharf and was entirely responsible himself for loading the steel prior to taking it away. This is not supported by the record. In his affidavit plaintiff stated that he reported to the Steel, Inc. yard in Harvey where he picked up a truck, was sent to the dock, and was given instructions by Winstein whom he thought to be an employee of Steel. Upon reaching the wharf Mr. McCrossen, an employee of T. Smith & Sons, loaded the truck with steel. Winstein acknowledged that he was at the dock when plaintiff’s truck was loaded but he denied supervising the loading. However, in response to a question as to what he was doing he replied that he was “[sjetting out the next load for the truck immediately following that one.” He testified that a 42 to 44 thousand pound load placed on each truck was within the limits allowed by the law and safety considerations.

These facts do not provide us with a basis for resolving in Steel’s favor every reasonable doubt as to its liability on its motion for summary judgment. No one from Steel testified by deposition or affidavit. Nothing establishes the relationship of McCros-sen to Steel. While we have the statement of plaintiff that he thought McCrossen was an employee of T. Smith & Company and Winstein’s assertion that McCrossen was employed by Tom Hicks Transfer Company, this is not to say that he was not an agent or perhaps a borrowed servant of Steel, Inc. The steel belonged to Steel, it was loaded at Steel’s wharf and was being transferred to another facility owned or operated by Steel. This was not the case where some third-party came to the wharf and bought the steel to carry it away to its own facility. It was simply being transferred from one location to another, remaining at all times under the ultimate control of Steel. Under these circumstances, we believe the summary judgment in favor of Steel, Inc. was erroneously granted and that judgment will be reversed.

Accordingly, the judgment in favor of Ramrod Trucking, Inc. and against plaintiff, Dennis R. Valcourt, is affirmed. The summary judgment in favor of Steel, Inc., and against plaintiff, Dennis R. Valcourt, is reversed and set aside, and there is judgment in favor of plaintiff, Dennis R. Valc-ourt, overruling the motion for summary judgment filed by Steel, Inc. The case is remanded to the trial court for additional proceedings in plaintiff’s suit against Steel, Inc. All costs are to await the outcome of these proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


author: BOUTALL, Judge.

text:
    Leon KOLMAISTER v. CONNECTICUT GENERAL LIFE INSURANCE COMPANY et al.
    No. 9949.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Rehearing Denied May 17, 1979.
    Writ Refused July 2, 1979.

      A. D. Freeman, of Satterlee, Mestayer & Freeman, Irving Novick, New Orleans, for Leon Kolmaister, plaintiff-appellant.
    Phelps, Dunbar, Marks, Claverie & Sims, John P. Manard, Jr., New Orleans, for Connecticut General Life Insurance Co., defendant-appellee.
    Dermot S. McGlinchey and William F. Bologna of McGlinchey, Stafford, Mintz & Hoffman, New Orleans, for Nathan Hal-pern, Jr. and Kessler-Bodenheimer, Inc., defendants-appellees.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This is a case dealing with the question of coverage under a group insurance plan.

Orlick-Kolmaister, Inc. contracted with Connecticut General Life Insurance Company, appellee, in 1960 to provide group, life, accident and medical insurance for its employees. The policy remained in effect by periodic renewals for fifteen years. The dispute arose when Lillian Kolmaister, wife of appellant herein, suffered two strokes in July, 1975 entailing great expense for her care. Connecticut General claimed that Mrs. Kolmaister was ineligible for major medical coverage under the policy, which covered dependents of employees, since she was past the age of 65. Under the policy, coverage terminated at the time that a dependent became eligible for the Federal Medicare Program. Mr. Kolmaister sued for a declaratory judgment to the effect that he be allowed to recover from Connecticut General “all sums to which he was entitled” under the major medical feature of the group insurance policy. Named defendants were Connecticut General and its alleged agents, Kessler-Bodenheimer, Inc. and Nathan Halpern, Jr. Trial was held before a jury resulting in a verdict in favor of the defendant insurance company and Halpern. Kessler-Bodenheimer was dismissed by the judge on a motion for directed verdict. It is from these judgments that Kolmaister appeals.

Appellant first contends the trier of fact erred in not allowing reformation of the contract, or, alternatively, holding Connecticut General and Halpern solidarily liable for appellant’s loss because the error and reliance was induced by them. As to reformation, we are of the opinion that reformation does not lie in this case. An insurance policy may be reformed after proof that it does not express the actual contract intended by the parties due to mutual error or mistake. M. F. A. Life Insurance Company v. Huey, 347 So.2d 63 (La.App. 2d Cir. 1977). Reformation is also proper where the agent who issues the policy acts in a negligent, mistaken, or fraudulent manner. Herbert v. Breaux, 285 So.2d 829 (La.App. 1st Cir. 1973).

A review of the testimony leads to the conclusion that the findings of the trier of fact were not manifestly erroneous or clearly wrong. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We are convinced that the mistake in this case was only on the side of the appellant and that any negligence was only on the part of himself and Orlick-Kolmaister’s employees.

The policy provision in question was first incorporated into the 1967 policy and included in each subsequent policy. The testimony reveals and the jury must have found that appellant has not shown that appellee failed to point out the changes at the regularly scheduled meeting held about the time of each policy renewal. Connecticut General’s office manager testified that the medicare changes were incorporated into the standard oral presentation and written summary given to company policy holders. Further, after passage of the Medicare Act, all policy holders are required to elect to take the Medicare supplement or refuse such coverage. Orlick-Kolmaister elected to take such coverage as shown by the form filled out by the office manager of Connecticut General to this effect. There is simply no evidence to indicate that such an act was done without proper authorization from the insured.

Mr. Kolmaister’s testimony that the presentations did not contain the pertinent information is not enough standing alone for this court to find that the jury verdict was clearly wrong. He was the only member of Orlick-Kolmaister who testified that he was present at the 1967 meeting. He admitted that he had no independent recall of what provisions were mentioned in the presentation at the meeting. He then testified that he was never informed that a Medicare program was included in his policy. Appellant has simply not carried his burden of proof in light of all the evidence presented.

It is important to point out that the policy holder is required to advise his employees of the termination or reduction in benefits of a group insurance plan. Greer v. Continental Casualty Company, 347 So.2d 70 (La.App. 2d Cir. 1977). The insurer is of course required by statute to provide the means to do so, i. e. a certificate for delivery to the employees. See Louisiana Revised Statute, 22:215. The policies in this case provided for this requirement (see section 40 of the 1967 and 73 policies). Further, the evidence shows that Connecticut General provided booklets to Orlick-Kol-maister for this purpose and that each booklet contained provisions dealing with Medicare. A reading of the booklets placed in evidence convinces us that Connecticut General has complied with the law in this area and that the books are not “hopelessly misleading” as appellant contends.

We feel that appellant’s contentions are without merit. We have carefully examined the actions of the insurer and the agent and cannot find them guilty of negligence, nor do we feel that this is a case in which the insurance contract can properly be reformed. As stated, we find that if any one was negligent in this case, it was the employees of Orlick-Kolmaister, including appellant. These findings make it unnecessary for us to consider the dismissal of Kessler-Bodenheimer as a defendant by directed verdict. Kessler-Bodenheimer is not liable for the same basic reasons.

Appellant’s final contentions deal with alleged comments on the evidence on the trial judge and the jury instructions. We find that appellant has waived his right to object as to the jury instructions mentioned in appellant’s brief since no specific objection was made in court on this point. General objections are not sufficient to preserve rights under Code of Civil Procedure Article 1793. See Fincher v. Surrette, 365 So.2d 860 (La.App. 4th Cir. 1978). The appellant did, however, object specifically to certain portions of the trial judge’s jury charge in which he allegedly commented on the evidence to the prejudice of the appellant and we will, therefore, consider this contention.

A trial judge must endeavor to avoid commenting on the evidence. Lauro v. Travelers Insurance Company, 261 So.2d 261 (La.App. 4th Cir. 1972). The judge, however, has the responsibility to avoid confusing the jury and the right to use whatever semantics may be appropriate for this purpose. Alexander v. Alton Ochsner Medical Foundation, 276 So.2d 794 (La.App. 4th Cir. 1973). We have examined that section of the judge’s charge to which appellant objects and we feel that the trial judge was simply making use of all means available to help the jury understand the issues in the case. These questions were in no way prejudicial to appellant’s case, nor did they constitute a comment on the evidence presented.

For all of the above reasons, the judgment below is affirmed.

AFFIRMED.

      . Appellant, Leon Kolmaister, was in 1960, and has remained owner, president and chief executive officer of Orlick-Kolmaister, Inc.

      . Appellant argued that the judge erred in instructing the jury that the Kolmaister company had an affirmative duty to inform Connecticut General of all coverage as desired.

      . In the context that the judge was explaining to the jury its duty to evaluate the policy and the evidence, he posed a number of questions, the first few of which we quote along with the introductory remarks:
      “I’m just going to suggest — Was the plaintiff, Mr. Kolmaister, informed of this policy provision? Did he know or should he have known of the Medicare provisions and limitations that were placed in this policy as far back as 1967? If they were placed in the policy as far back as 1967, was this brought to his attention, that is, the Medicare aspects of the case? In ’67 was it brought to his attention or should he have become aware of it when they renegotiated the policy in ’70 or again in ’73? Was this Medicare limitation a part of this insurance program for eight full years or not? When was it instituted? Was it instituted in ’67 and again renewed each time the policy was revised? Did the Kol-maister Company have the opportunity to reject the Medicare limitations in this policy and, if so, did it avail itself of that opportunity? Did they make some selection as to what they wanted and did they get what they selected?”


author: BEER, Judge.

text:
    BLUE STREAK ENTERPRISES, INC. v. GULF COAST MARINE, INC., et al.
    No. 9951.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.

      Dodge, Friend, Wilson & Spedale, Denis Paul Juge, Gordon F. Wilson, Jr., New Orleans, for defendant-appellant.
    Camp, Carmouche, Palmer, Barsh & Hunter, Frederick S. Haygood, Metairie, for third party defendant-appellee.
    Before SAMUEL, BEER and GARRISON, JJ.
   BEER, Judge.

Blue Streak Enterprises, Inc. (hereafter, “Blue Streak”) secured insurance covering its Gulf Outlet Marina from its insurance agent, Theriot, Duet & Theriot, Inc., which brokered the insurance through Gulf Coast Marine, Inc. The policy afforded coverage for the period of July 24, 1975 to July 24, 1976.

On September 4, 1975, Blue Streak and Robert Berthelot allegedly executed a written contract under the terms of which Blue Streak would sell the marina to Berthelot in January of 1976. However, the act of sale was apparently not passed until December 2, 1976. Sometime after the execution of the agreement to sell, but prior to both the expiration of the insurance policy and the actual act of sale, Berthelot allegedly represented himself as the new owner of the marina to Dauterive & Trist Insurance Agency, Inc. and instructed them to secure a new policy of insurance covering the marina. He made the same representation of ownership to Gulf Coast, informing them that the policy then in effect was not to be renewed. On July 31, 1976, Blue Streak’s Marina was damaged by a tornado, but the Gulf Coast policy (which might have covered the damage) had lapsed on July 24,1976. Consequently, on February 24, 1977, Blue Streak filed suit against Gulf Coast Marine, alleging breach of contract and, alternatively, negligence and also sued Dauterive & Trist for negligently advising Gulf Coast not to renew. Thereafter, the following incidental demands were filed:

a. April 22, 1977 — Gulf Coast third-partied Dauterive & Trist.
b. May 10, 1977 — Dauterive & Trist reconvened against Gulf Coast Marine and third-partied Berthelot and Gulf Outlet Marina, Inc.
c. August 10, 1977 — Gulf Coast third-partied Theriot.

Theriot filed an exception of prescription (based on LSA — C.C.P. art. 1067) which the trial court maintained and, thus, dismissed Gulf Coast’s third-party demand. Gulf Coast has devolutively appealed, alleging error in the trial court’s apparent application of LSA — C.C.P. art. 1067 to an incidental demand for indemnification or contribution. Accordingly, the only issue before us is whether the third-party demand for indemnification or contribution has prescribed.

C.C.P. art. 1067 provides:

“An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.”

In the instant case, the appellee argues that Gulf Coast’s third-party demand against Theriot was filed more than one year after the alleged tort and more than 90 days from the date of the main demand, and that it has, therefore, prescribed.

Third-party plaintiff-appellant, Gulf Coast, contends that their incidental demand could not have prescribed because their cause of action for indemnification or contribution does not accrue until Gulf Coast has paid Blue Streak. Alternatively, appellant argues that Blue Streak’s suit against one solidary obligor, Gulf Coast, interrupted prescription against its co-debtors in solido — Theriot. (LSA — R.S. 9:5801.)

Originally, C.C.P. art. 1067 was enacted to permit the institution, in certain circumstances, of reconventional demands on which prescription had run. (See Acts, State of Louisiana 1970, V. II, No. 472, p. 1152.) This article was amended in 1974 to encompass all incidental demands. The legislative intent was expressed as follows:

“To amend and reenact Article 1067 of the Louisiana Code of Civil Procedure relative to the filing of prescribed recon-ventional demands by providing time within which to file any incidental demands and third party demands after the filing of the main demand.” Acts, State of Louisiana 1974, Vol. I, No. 86, p. 262.

In Thomas v. W & W Clarklift, Inc. and Reliance Insurance Company, 365 So.2d 913 (La.App. 4th Cir. 1978), decided by us in December, 1978, we held that C.C.P. art. 1067 is limited in application to incidental demands which have otherwise prescribed and therefore serves as a 90-day extension to file prescribed incidental demands, observing:

“If the claim has not otherwise prescribed in the first place the article has no application whatsoever . . . .”

But this is not a C.C.P. art. 1067 case. Prescription does not begin to run on claims for indemnification and/or contribution until the party seeking same is, itself, cast in judgment. See Edward Levy Metals, Inc. v. New Orleans Public Belt R., 243 La. 860, 148 So.2d 580 at 583 (1963). (Also note Sharp v. Massey-Ferguson, Inc., La.App., 153 So.2d 508, and LeBlanc v. Big Jim’s, Inc., La.App., 252 So.2d 181.)

Accordingly, the judgment of the trial court is reversed, costs to await final outcome of the litigation.

REVERSED.

      . LSA-C.C. art. 3536 (1870).


author: REDMANN, Judge. STOULIG, Judge,

text:
    Albert W. LOPEZ v. CITY OF NEW ORLEANS.
    No. 9956.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Rehearing Denied May 17, 1979.
    Writ Granted July 2,1979.

      Michael A. Villa, Levy, Smith & Gennusa, New Orleans, for plaintiff.
    Delbert G. Talley, Donald A. Hoffman, New Orleans, for defendant.
    Before REDMANN, GULOTTA, STOUL-IG, BOUTALL and BEER, JJ.
   REDMANN, Judge.

“Chief Albert Lopez has a long history of left posterior cervical pain radiating to his left shoulder. ... He has continued to have intermittent difficulty since [an injury of June 1965].
“In recent months [testified to mean two or more] he has had a progression of his symptoms. An x-ray taken in March of 1975 revealed evidence of a deteriorated cervical disc.
“In view of the nature of his problem, I recommended that Chief Lopez be placed on pension.”

Thus, on March 10, 1975, 30 days after the incident of February 8, 1975 sued on, the only physician to give evidence in this case wrote to the Fire Department Superintendent to support Chief Lopez’s request for disability pension without mentioning any February 8 incident.

Many months after the grant of the pension, Chief Lopez demanded workmen’s compensation, alleging that when donning his raincoat at a fire on February 8, 1975, he experienced an injury to his neck which totally and permanently disables him.

Because that March 10 report gave no support to any February 8 incident, this court remanded to allow medical evidence. The only evidence came from Dr. Jack Ruli, the Civil Service Physician for the Fire Department. Dr. Ruli did not treat Chief Lopez; Chief Lopez was being treated by a chiropractor who did not testify.

Dr. Ruli’s testimony does not support plaintiff’s claim that the February 8, 1975 incident disabled him (as plaintiff theorizes) by a permanent aggravation of his pre-ex-isting and previously though intermittently symptomatic “slight narrowing of the inter-vertebral space between C-5 and C-6 poste-riorly” with slight foraminal encroachment.

Reversed; dismissed at plaintiff’s cost.

STOULIG, J., dissents.

STOULIG, Judge,

dissenting.

I respectfully dissent.

The City of New Orleans has appealed a judgment awarding plaintiff, Albert W. Lopez, maximum workmen’s compensation benefits of $65 per week for a period not to exceed 500 weeks for a job-connected injury that left him totally and permanently disabled.

The trial court gave this same award previously; however, on appeal we annulled the first judgment after concluding the medical evidence did not establish a connexity between the accident and the disability.

The facts are set forth in this court’s first opinion, Lopez v. City of New Orleans, 350 So.2d 1262, La.App. (1977), in which the case was remanded for the limited purpose of adducing medical evidence to establish a connexity between the disability of which plaintiff now complains and the accident of February 8, 1975.

I reiterate several factual conclusions in the first opinion because appellant has raised them as issues again on this appeal, and they have already been adjudicated. First this court concluded plaintiff did suffer an accident in the course and scope of his employment on February 8, 1975. Second the opinion concludes he reported the incident to his employer timely. Third, while not stating it in so many words, the first case held that plaintiff’s credibility is not questioned. His exemplary work record ás a member of the New Orleans Fire Department for 22 years, when considered in the light of the many job-connected injuries he has sustained, convinced the panel in the first case of his sincerity in complaints of disabling pain.

The evidence on remand does nothing to change any of these conclusions. Dr. Jack Ruli, the Fire Department physician, testified plaintiff saw him on February 23, 1975 with complaints of cervical pain; however, he pointed out that plaintiff was being treated by a chiropractor and for this reason he did not treat him for the neck complaints. Shortly thereafter Dr. Ruli did an evaluation of Lopez’s condition and x rays disclosed a narrowing of the disc spaces between C-5 and C-6. In Dr. Ruli’s opinion plaintiff with his medical history should not have returned to his firefighting duties after February 1975. In his letter of March 10 to Superintendent William McCrossen, Dr. Ruli recommended that appellee be placed on disability pension.

On the question of whether the trauma of February 8 produced temporary painful symptoms that later subsided or constituted the final insult that pushed plaintiff into the totally disabled category, Dr. Ruli stated either was possible. He explained the complaints plaintiff had could have been an episode of pain from the cervical condition that pre-existed this trauma or from a cervical sprain caused by this accident. The hypothetical question as to whether the plaintiff with his medical history could have suffered a cervical sprain that totally disabled him as a result of the February 8 incident was not answered directly.

Dr. Ruli seemed reluctant to give an unequivocal opinion on the issue of permanent disability; however, we are satisfied that his testimony supports the judgment of the trial court. After attempting to elicit the doctor’s opinion on whether the effects of the February 8 accident were more probably temporary or permanent in nature, he was asked:

“Q What if he never improved after the incident of putting on the fire jacket?
MR. TALLEY:
Objection, that wasn’t covered on direct or cross.
THE COURT:
This is a compensation suit, and the Court has the liberty to permit what evidence is necessary.
THE WITNESS:
I think that it would aggravate his pain.
BY MR. VILLA:
Q What if he had never gotten better?
A Then I would think that you would have more of an indication that there would be some cause or relationship between February 8th and the persistence of his pain.”

Because the court in the first case concluded Chief Lopez is a credible witness, his persistent cervical problem since February 1975 to which he testified, coupled with Dr. Ruli’s opinion, should entitle him to maximum compensation benefits.

      . A. . . .1 don’t know if it could cause a permanent aggravation, but it would certainly hurt . . . for a period of time. Q. And it would be an aggravation of his pre-ex-istent condition? A. At the time, yes. . Q. Is it sufficient for a fireman ... to obtain a disability pension ... to show that his particular condition has been caused by the stress of fire duty over the years? A. No, sir, he would have to have a specific accident or injury report. Q. Okay. Is this why, in your report of March 10, 1975, you specifically mentioned the June 1965 accident? A. Yes, sir. Q. And this report, Doctor, was written after you had taken a complete history from Chief Lopez, is that correct? A. That’s right and at the time when he came to me on February 23rd [1975] I didn’t recall the injury back in 1965, I don’t believe that I was the Fire Department doctor at that time. . Q. Doctor, Chief Lopez has testified that he had pain in the neck on February 8, 1975. He saw you on March [sic; February] 23, ’75 and you wrote your report on March 10, 1975, after you had carefully questioned him about his history and there is no mention of that February 8th pain, is that correct? A. Yes, sir. .
      A. . The only thing I can say from the injury or accident on February 8th is that when he made a sudden jolt he sustained a pain in his neck. . . . and whether or not that made the disc last permanently I can’t answer that, I think it would be highly unlikely. . Q. . couldn’t it be said with medical certainty that [the February 8, 1975 sharp pain while putting on the raincoat] could have aggravated — Mr. Talley: Objection. . . . [overruled] A. 1 can’t answer that. ... In all honesty, I cannot answer that that would have caused, that that per se would have aggravated it sufficiently to cause total and permanent disability. . . ... It is very difficult to say that this would have made the disc deteriorate more, I can’t answer that. I don’t know. . Q. What if he had never gotten better? A. Then I think that you would have more of an indication that there would be some cause or [causal?] relationship between February 8th and the persistence of his pain.
      There was no evidence that Chief Lopez “had never gotten better”. To the contrary, the evidence is that his pain was intermittent, just as it was reported to have been prior to the February 8 accident.

      . Reversing on other grounds, we have accepted as the law of the case the earlier panel’s resolution of the problem that this accident was not reported within six months as required by R.S. 23:1291.
      Plaintiffs expectation that disability retirement automatically entitles one to workmen’s compensation as well underscores another problem, perhaps of a legislative nature: both laws are social legislation intended (as also is the unemployment compensation law) to alleviate the disaster of wage-loss. Despite Guerrera v. City of New Orleans, La.App. 4 Cir. 1968, 212 So.2d 223, which overlooked R.S. 33:1995.-1, reducing sick leave pay by the amount of workmen’s compensation paid — and despite R.S. 33:2113, making rights granted by any other statute unaffected by pension payments [but not vice versa] — the problem of whether the law requires two or more replacements for one loss of wages deserves study.

      . This is the maximum workmen’s compensation benefit payable under R.S. 23:1201 for injuries occurring in February 1975.


text:
    James OLIVER v. Frank JONES et al.
    No. 9978.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Writ Granted June 1, 1979.

      Orlando G. Bendana, Wayne H. Carlton, Jr., New Orleans, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson, John J. Hainkel, Jr., Daniel R. Hynes, and Hammett, Leake, Hammett, Hulse & Nelson, Frank H. Walk, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, BEER and GARRISON, JJ.
   BEER, Judge.

James Oliver sustained serious injuries in a head-on automobile collision between his vehicle and that of Frank Jones, who allegedly swerved in his successful attempt to miss hitting a truck which had suddenly turned left across his lane and, thereafter, fled the scene. Oliver sued Jones and his insurer, Allstate Insurance Company, and also sued Government Employees Insurance Company (hereafter, “GEICO”), his own (Oliver’s) uninsured motorist carrier. The jury returned a general verdict in favor of all defendants. Oliver appeals.

Though not addressed in either brief, the issue of the introduction of a facsimile of the pertinent GEICO policy (instead of the policy itself) provoked some discussion at the time that this matter was orally argued before us. However,the brief filed by able counsel for appellant refers, at various points, to “The pertinent portions of Mr. Oliver’s policy . . . ” and “. the policy language . . .,” and we feel constrained by our rules to address only the issues properly raised on appeal. (See Uniform Rules, Courts of Appeal, Rule IXA.)

By its own terms, the GEICO policy requires physical contact between the insured automobile and the hit-and-run automobile which cannot be identified.

Here, the record supports a conclusion that the accident was caused by an unidentified green truck which fled the scene (or, perhaps, unknowingly turned left and thereafter proceeded from the scene of this serious accident without its driver even realizing what had happened) after its left turn across Jones’ right of way caused him to take the swerving evasive action which resulted in his head-on collision with Oliver’s vehicle. The record also completely supports the conclusion that there was no contact whatsoever between either of the physically involved vehicles and the green truck.

Faced with these frustrating circumstances, appellant’s able counsel argues that the “physical contact” provision of the uninsured motorist provision is contrary to public policy. Appellee GEICO contends that coverage is a matter of contract between the parties.

Collins v. New Orleans Public Service, Inc., 234 So.2d 270 (La.App. 4th Cir. 1970), has been expressly followed by Hensley v. Government Employees Insurance Company, Inc., 340 So.2d 603 (La.App. 1st Cir. 1976); Tyler v. State Farm Mutual Automobile Insurance Company, 290 So.2d 388 (La.App. 2nd Cir. 1974); and April v. Millers Mutual Fire Insurance Company of Texaco, 273 So.2d 50 (La.App. 4th Cir. 1973).

Thus, we are confronted by clear holdings that the physical contact provision relative to the unidentified hit-and-run driver is valid and enforceable. Since there is no evidence of physical contact or of the identity of the “hit-and-run” driver, the verdict dismissing plaintiff’s suit against GEICO must be affirmed.

It is undisputed that, on March 25, 1976, at about 5:30 p. m., Jones’ vehicle struck Oliver’s vehicle head on just west of the intersection of Paris Road and Old Gentilly Road. The roadway was wet. The intersection is controlled by overhead traffic lights. A six-inch concrete median divides the Old Gentilly Road approach to the intersection. The speed limit was 55 m. p. h. Oliver was heading east on Old Gentilly Road and had stopped his vehicle in the left hand (turning) lane, several yards behind the previously noted green truck, awaiting the change of light signals. Jones was heading west on Old Gentilly Road in the left land. When the light turned green, the truck apparently hesitated and then executed a left turn onto Paris Road, thus blocking Jones’ lane of travel. In an effort to avoid hitting the truck, he swerved to the left, hit the brakes, lost control of his car and skidded into the oncoming Oliver’s lane, hitting Oliver’s car. The truck completed its turn and disappeared down Paris Road.

Oliver contends that Jones waited too long to apply his brakes and lost control of his vehicle primarily for that reason, arguing that the green truck turned across his lane when he (Jones) was well back from the intersection. However, his trial testimony conflicted with that of his deposition on this point. Jones acknowledges that he definitely realized that the truck was turning and would not yield but only became aware of this critical fact when it was approximately 50 yards ahead of him, at which time he was traveling at 30-35 m. p. h.

Though he could possibly have stopped when he first saw the truck’s wheels canted to the left but not yet, apparently, moving into the turn, he only had a positive indication at about 50 yards’ distance that it was, in fact, turning.

Wallace Steiber, a disinterested witness whose car was stopped several yards behind Oliver’s (on Old Gentilly Road), testified that the green truck started turning slowly when Jones was approximately four car lengths away. He estimated Jones’ speed at 45 m. p. h. and felt that Jones missed hitting the green truck by about one car length when he swerved, jumped the median, skidded and hit Oliver’s car head on.

It is certainly true that a motorist whose vehicle is in the wrong lane at the time of collision has the burden of showing that the collision was not caused by his negligence or that his action was justified by the circumstances. Kierum v. Stonewall Insurance Company, 247 So.2d 166 (La.App. 3rd Cir. 1971). Jones relies on the doctrine of sudden emergency to justify his evasive action. Even so, application of the doctrine does not excuse an improper lookout which contributes to the suddenness of the emergency, not does it excuse a person who should have seen an emergency situation in sufficient time to avoid an accident or one who was not driving at a safe speed. Thibodeaux v. The Lock Clinic, 303 So.2d 570 (La.App. 4th Cir. 1974). Thus, the issue which the jury was obliged to resolve was whether Jones met the burden of proof of sudden emergency as well as its applicability to the facts of this case.

LSA-R.S. 32:122 provides:

“The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close thereto as to constitute an immediate hazard.”

The record supports the apparent jury finding that Jones was approximately four car lengths from the intersection when the green truck created an immediate hazard by turning left into his lane of traffic and that, upon being so confronted, Jones’ evasive actions did not fall below the level of reasonableness under the circumstances. Accordingly, we conclude the judgment must be affirmed.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . “Hit-and-run automobile” means an automobile which causes bodily injury to an insured arising out of physical contact of such automobile with the insured or with an automobile which the insured is occupying at the time of the accident, provided: (1) there cannot be ascertained the identity of either the operator or the owner of such “hit-and-run automobile; ” (2) the insured oi someone on his behalf shall have reported the accident within 24 hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles, and shall have filed with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof; and (3) at the company’s request, the insured or his legal representative makes available for inspection the automobile which the insured was occupying at the time of the accident.


author: SCHOTT, Judge. REDMANN, Judge,

text:
    Mary Wells EDWARDS, wife of and Ellis Edwards, and Ellis Edwards on behalf of his minor children, Alfred Edwards, Jacquelyn Edwards, Tyrone Edwards, Jerome Edwards and Frank Edwards v. Joel D. YORK.
    No. 9983.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.

      O’Keefe, O’Keefe & Berrigan, New Orleans, Peggy M. Vicknair and Cerio A. Dimarco, New Orleans, for plaintiffs-appellants.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, Robert Henry Sarpy, Jr., New Orleans, for defendant-appellee.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

This case involves insurance coverage on the plaintiff with respect to an automobile liability insurance policy issued by The Travelers Insurance Company.

Plaintiff’s son was injured as a result of the negligence of an uninsured motorist on March 31, 1973. Plaintiff was initially insured by Travelers under a six month policy for the period of March 24 to September 24, 1972. A second policy was issued for the period from September 24, 1972, through March 24, 1973. On February 22, 1973, Travelers sent to plaintiff and he received a document entitled “Continuation Declarations” which provided for coverage between March 24 and September 24, 1973, and contained a premium notice to be sent back to Travelers with a premium payment. On March 31, 1973, coincidentally the date of the accident sued on, Travelers sent to plaintiff and he received a document entitled “Offer to Reinstate Automobile Insurance.” This document had reference to the new policy for the period March 24 to September 24, 1973, and contained the following:

“IF YOU HAVE ALREADY MAILED YOUR PAYMENT PLEASE DISREGARD THIS NOTICE
“Since we have not received your payment for premium due on or before 03/24/73 your policy expired at 12:01 a. m. on the effective date of the successive policy period shown. If your payment is received within 20 days of the date of this notice, we will be pleased to reinstate your coverage without interruption. A notice of reinstatement will be sent to you when your payment is received. Please contact you Travelers Agent immediately if you have any questions.”

The offer to reinstate contained a stub for the insured’s convenience in returning it to Travelers with a payment of the premium. Plaintiff never paid the premium.

The case was tried to a jury and submitted on written interrogatories. These and the jury’s action thereon were as follows:

“I. Was the policy of The Travelers Insurance Company renewed?
YES _ NO X_”
I. Was the policy of The Travelers Insurance Company terminated prior to the date of the accident, i. e., March 31,1973?
YES X_ NO _”

In appealing from this judgment plaintiff contends that the policy was renewed by virtue of the continuation declarations document sent to plaintiff, and once it was renewed it was incumbent upon Travelers to effect a lawful cancellation of the policy. Since no cancellation notice was ever sent the policy remained in effect on the date of the accident. In order to consider these contentions, we refer first to the following provisions of the policy which expired on March 24, 1973:

“1. Policy Period, Territory Unless canceled or terminated, this policy may be continued in force for successive policy periods, each of the number of months stated in Item 2 of the declarations, by payment of the required continuation premium for each such successive policy period to the company or its duly authorized representative on or before the effective date thereof . . . ”
“35. Policy Continuation: If the company elects not to continue this policy in force for a successive policy period, it shall mail to the insured . . . writ-
ten notice of termination not less than twenty days prior to the expiration date of the then current policy period: provided that, notwithstanding the failure of the company to comply with the foregoing provisions of this paragraph, this policy shall terminate
1. on such expiration date, if
* # ífc *
(b) the named insured fails to pay the premium as required by the company for the continuation of this policy.”

Since the premium for the new policy was never paid by plaintiff the previous policy was not continued in force and terminated on March 24 under its provisions quoted above. The notice sent to plaintiff on February 22 was an offer to renew the policy but it was not accepted by plaintiff.

The remaining question is whether or not the contractual provisions were in violation of the provisions of R.S. 22:636.1. Plaintiff contends that the offer to renew the policy by Travelers constituted a renewal under Paragraph A(5) of the cited statute which reads as follows:

“ ‘Renewal’ or ‘to renew’ means the issuance and delivery by an insurer of a policy replacing at the end of the policy period a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term; provided, however, that any policy with a policy period or term of less than six months shall for the purpose of this chapter be considered as if written for a policy period or term of six months. In addition, any policy written for a term longer than one year or any policy with no fixed expiration date, shall for the purpose of this chapter, be considered as if written for successive policy periods or terms of one year, and such policy may be terminated at the expiration of any annual period upon giving twenty days notice of cancellation prior to such anniversary date, and such cancellation shall not be subject to any other provisions of this chapter.”

In the first place, since this policy was for a term of six months the quoted paragraph has no application. Ray v. Associated Indem. Corp., 365 So.2d 5 (La.App. 4th Cir. 1978). Furthermore, Paragraph E of R.S. 22:636.1 provides:

“No insurer shall fail to renew a policy unless it shall mail or deliver to the named insured, at the address shown in the policy, at least twenty days advance notice of its intention not to renew. This subsection shall not apply: (1) if the insurer has manifested its willingness to renew, or (2) in case of nonpayment of premium; provided that, notwithstanding the failure of an insurer to comply with this subsection, the policy shall terminate on the effective date of any other insurance policy with respect to any automobile designated in both policies.”

In the instant case Travelers did manifest its willingness to renew so that it was under no obligation to renew unless plaintiff accepted its offer by paying the premium.

From the affidavit of an assistant manager of Travelers it acknowledges that the effect of the offer to reinstate sent out by Travelers on March 31, and presumably received by plaintiff after the date of the accident, enabled plaintiff to become insured by payment of the premium at any time until April 23, 1973. Had plaintiff taken advantage of this offer he would have been insured on the date of the accident, but his failure to accept the offer left him in the position where the previous policy had expired on March 24 because of his failure to pay the premium for the new policy and, consequently, there was no coverage on the day of the accident.

The judgment appealed from is affirmed.

AFFIRMED.

REDMANN, J., concurs with written reasons.

REDMANN, Judge,

concurring.

When an insured pays a past due premium in accordance with an insurer’s reinstatement requirements that apply that premium to the unpaid period, the insurer successfully refuses to honor claims arising between due date and payment; Sholes v. Continental Cas. Co., La.App. 4 Cir. 1967, 196 So.2d 680, writ refused 250 La. 899, 199 So.2d 916.

When an insured then argues that, if that be the case, his late payment really “reinstates” him as of the time of the payment and therefore the term of his policy must begin on that date so that he gets a full term of insurance for a full term’s premium, the insurer successfully rejects that argument; Mutual Benefit H. & A. Ass’n v. Kennedy, 5 Cir. 1943, 140 F.2d 24.

The overall result is that insurers collect premiums for a period during which they accept no risks. This result poses a public policy question. One possible answer is that the insurer making an “offer to reinstate” with “coverage continued without interruption” should be held to have continued the previous policy’s coverage without interruption as a sales device to sell future policies. That continued coverage should redound to the benefit of all third persons who are third-party beneficiaries of the policies (La.R.S. 22:655), such as the son of the named insured here. Those third-party beneficiaries, however, are not notified of the “offer” and it seems questionable that the insured should elect by his inaction to defeat the third-party beneficiaries’ claims. Perhaps the third party should have the opportunity to accept the “offer” — one who, like plaintiff child, has lost a leg could pay the $339 premium and collect the $15,000 limits — or perhaps the nature of insurance (against “contingencies”, La.R.S. 22:5(1)) is such that the continued coverage is conceptually sound only as an extension of the previous policy term in consideration of the insured’s reviewing the decision on whether or not to renew. If that be the case, plaintiff should recover.

One important factor in deciding whether that possible answer is a correct one is the ratio of premiums collected for “lapsed” periods to claims paid arising in those periods, compared to the ratio of timely-paid premiums to claims arising in pre-paid periods. No such information is contained in this record.

The present case troubles only because of those considerations. In other respects, Gitter v. Tennessee Farmers M. Ins. Co., 1969, 60 Tenn.App. 698, 450 S.W.2d 780, 782, cert. denied, Tenn.1970, seems correct in its abstract reasoning that an offer to reinstate with continuous coverage may create a grace period, but one during which coverage exists only if the premium is paid within the allotted time. On the record before us, I concur that plaintiff has not shown any entitlement to relief in the present state of the law.

      . After a May 21 accident plaintiff paid the past-due premium on June 12, in accord with policy provisions for automatic reinstatement, providing also the premium paid on June 12 “shall be applied to a period for which premium has not been previously paid. . . .”

      . The policy provided automatic “reinstatement” on late premium payment but expressly denied coverage between due date and late payment. A premium due March 1 was not paid until March 6 and then a premium the insurer claimed was due at noon on September 1 was not paid by that time. The insured suffered accidental death at 2 p. m. September 1. The majority rejected the argument that if the March 6 premium did not provide coverage for the five days from March 1 and 6, then the period of coverage, the term of the reinstated policy, should end not on September 1 but on September 6.


text:
    Lester H. THORNE v. GEORGE H. LEHLEITNER & CO., David Dumas and Liberty Mutual Insurance Co.
    No. 9986.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 10, 1979.
    Gerald P. Aurillo, Metairie, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser, New Orleans, for defendants-appellees.
    Before SAMUEL, BEER and GARRISON, JJ.
   BEER, Judge.

This is a quantum case, somewhat complicated by the fact that Lester H. Thome has received injuries in two separate, unrelated accidents. The first, on June 5, 1974, has been litigated to a final conclusion. In the course of that litigation, which resulted in a judgment for Thorne in the amount of $22,-994 ($17,500 in general damages and $3,323.52 in lost wages, etc.), he alleged and subsequently produced evidence seeking to verify injuries which we summarize from the transcript of that now final trial proceeding as constant headaches, dizziness, double vision, ringing in the ears, numbness of the arms and pain in his shoulders and down his back. The back pains caused him to experience difficulty in stooping and lifting. He was unable to straighten his shoulders or straighten his back. When he was seated, he experienced pains in his lower back and, after sitting for approximately 15 minutes, it became difficult for him to arise from a sitting position. His primary reason for returning to work in January of 1975 was fear of losing his job.

The second accident, which has provoked this appeal and the answer thereto, occurred on February 9,1976. Liability is not at issue.

Thorne contends that the second accident caused injuries which we summarize from the transcript of those trial proceedings as low back pain with shooting pains in the legs, plus essentially unchanged pains in the areas described more particularly in the paragraph dealing with the results allegedly flowing from the first accident.

Upon conclusion of the case involving the second accident, the district court awarded a total of $52,750.83, of which $50,561 was designated to cover “injuries, pain and suffering,” the balance covering medical expenses, etc. Here, Thorne seeks an increase and Lehleitner & Co., et al., seek, by answer to the appeal, a reduction.

Thorne relies heavily upon the testimony of Edward B. Storey, a physical therapist who acknowledges treatment of him after both accidents. Thorne sought to establish through Storey’s testimony that the second accident was the only one which resulted in the necessity for back therapy. Yet, Storey was confronted, at the trial of this case, with his own testimony from the first trial indicating therapy administered by Storey to Thorne relative to Thorne’s lumbar spinal area. Storey explains this away by blaming same on a “clerical error,” indicating that his earlier treatment was directed at upper thoracic back injury as opposed to a lumbar spine injury resulting from the second accident.

Dr. William Fisher saw Thorne after each accident but is now deceased. His records indicate that the first accident caused a concussion, neck, shoulder and back strain. The second accident caused some exacerbation of the neck and shoulder difficulties and a strain of the right thigh. Months later (some time in June of 1976) Thorne apparently complained to Dr. Fisher about his back.

Dr. Stuart Phillips acknowledged that Thorne experienced back pain before the second accident but was of the view that the second accident caused Thorne’s back pain to become persistent. Specifically, Dr. Phillips was of the view that Thorne suffered from a degenerative process which was aggravated by the second accident.

Dr. Harold M. Stokes agrees that Thorne suffered some degeneration in the lumbar spine prior to the second accident and also agrees that the second accident may have caused some aggravation of this condition, but is firmly of the view that the second accident caused nothing more than a strain which simply took longer to heal because of the degenerated situation noted above. He found no objective indication of nerve root involvement. Dr. Dorsey Dysart agrees that the degenerative process above described is playing a part in Thorne’s alleged disability, aggravated to some extent by trauma which could be attributable to the second accident.

Dr. Wayne Crutchfield, a chiropractor who saw Thome after each accident, blames the second accident for Thorne’s low back complaints.

Significant to us in our consideration of this case is the fact that no diagnostic procedures, indicative — one way or the other— of serious disc involvement, have been employed. Dr. Phillips acknowledges that a myelogram could confirm the existence of a herniated disc, observing “. . . and, of course, the test that would prove that beyond any doubt would be the myelogram . ” but goes on to say that he does not do a myelogram until “. you’re (meaning, in this case, Thome) ready to do surgery. . . . ”

Dr. Phillips also acknowledges at least one episode of lower back pain (though without radiating pain) complained of by Thorne subsequent to the first accident and prior to the second accident but qualifies that by observing that, in his view, such pain was arthritic in nature.

Accepting the fact finding on the part of the able trial judge that the second accident caused or aggravated a low back problem, this case would fall into the category that might be described as one in which the damage sought is based upon the alleged existence of a herniated lumbar disc where there is no myelographic study or subsequent corrective surgery in any way confirmatory of the claim.

This brings us to the real issue in this litigation: Has the appellant carried the burden of showing that his alleged injury supports a higher quantum award than the trial court has seen fit to render; has the appellee, in its answer to the appeal, carried the burden of showing that the trial court manifestly erred in making an award far greater than the record supports; or should the judgment be affirmed as rendered?

The written reasons for judgment indicate acceptance of witness Storey’s explanation regarding the apparent conflict between his testimony in the first and second trials. Those written reasons also indicate that the trial judge believed the injuries attributable to the second accident were “serious,” and these conclusions, though not unanimous among the medical experts, are supported by the testimony of some of them.

Taking all factors into consideration, including the contentions with respect to alleged loss of income, we cannot say that the quantum of the award is manifestly in error even though we believe it to be extremely generous and considerably higher than the amount that we would have seen fit to award on the basis of this record.

Accordingly, the judgment is affirmed, all parties to this appeal to bear their own costs.

AFFIRMED.