author: CHIASSON, Judge.

text:
    Laverne PEARSON v. HARTFORD ACCIDENT & INDEMNITY COMPANY and Shell Chemical, Inc.
    No. 11216.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writs Refused June 30, 1977.

      Gordon M. White, Baton Rouge, for plaintiff & appellant.
    Gerald L. Walter, Jr., Baton Rouge, for defendant, Hartford & H. E. Wiese, Inc., appellees.
    William A. Norfolk, Baton Rouge, for defendant The Travelers Ins. Co. & appel-lee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

The plaintiff-appellant, Laverne Pearson, was employed by H. E. Wiese, Inc. (Wiese), third party defendant-appellee, as a maintenance millwright. Wiese had a contract with the Shell Chemical Company (Shell) under which Wiese performed routine maintenance work at Shell’s Geismar plant. As the result of an industrial accident at the Shell plant on August 2, 1968, Pearson lost the distal phalanges of the first three fingers on his right hand.

To recover for this injury Pearson filed suit seeking damages in tort from Shell or, in the alternative, workmen’s compensation benefits for total permanent disability from Wiese’s insurer, the Hartford Accident & Indemnity Company (Hartford), defendant-appellee and third party defendant-appel-lee.

Hartford answered alleging payment of all benefits due Pearson as workmen’s compensation and intervened asking that it be recognized as subrogated' to Pearson’s rights against Shell to the extent of its workmen’s compensation payments.

Shell filed a peremptory exception alleging that Pearson’s sole remedy as to Shell was for workmen’s compensation.

Pearson filed supplemental and amending petitions adding as defendants in tort Jim Champine, an employee of Shell, now deceased, and his insurer, The Travelers Insurance Company (Travelers), defendant-appellee and third party plaintiff-appellant. Pearson’s suit against Shell was dismissed on his own motion.

Travelers filed a peremptory exception alleging prescription. The District Court rendered judgment sustaining the exception and dismissing Pearson’s suit. Pearson appealed this decision. This Court affirmed the dismissal, La.App., 263 So.2d 430 (1st Cir. 1972). The Louisiana Supreme Court on Writ of Certiorari, or Review, reversed that decision and remanded the case to the District Court for trial on the merits, La., 281 So.2d 724 (1973).

Travelers answered Pearson’s petition denying negligence on the part of its insured and, in the alternative, pleading contributory negligence on the part of Pearson. Travelers also filed a third party petition alleging that under the terms of the maintenance contract, Wiese has a duty to defend Shell and its employees in tort suits arising under the agreement. Travelers contends that Wiese and its insurer, Hartford, are liable to Travelers for the cost and expense of defending this tort action.

Wiese and Hartford answered the third party petition alleging that under the terms of the contract there is no duty to defend where the negligence of a Shell employee is alleged to be the sole cause of the injury.

Following a trial on the merits the District Court rendered judgment in favor of Hartford and Travelers and against Pearson, dismissing Pearson’s suit, and in favor of Hartford and Wiese and against Travelers, dismissing Travelers’ third party demand. This appeal has been brought by Pearson and Travelers from the judgment dismissing their demands. Neither written nor oral reasons for judgment have been provided by the District Court.

There are two findings of fact and law which would support the dismissal of Pearson’s suit against Travelers. First, a finding that Pearson’s injury was not caused by the negligence of Champine. Second, a finding that while Champine’s negligence was a cause of Pearson’s injury Pearson was also contributorily negligent.

Based on the evidence contained in the record we find the following:

The accident upon which this suit is based occurred when Pearson attempted to clean the intake fan-housing of a large gas turbine. The turbine was out of service at the time of the accident. To prevent internal damage to the turbine as it cooled, the intake fan was being driven by a helper turbine at approximately 600 RPM. The electric motor which normally turned the fan at 5 to 10 RPM during cooling had frozen and had been removed for testing.

While the turbine was down it was suggested by James Pujáis, a representative of the turbine manufacturer, Westinghouse Electric Corporation, that the turbine intake should be cleaned. Champine, the Shell employee in charge of the work on the turbine, instructed Pearson and three other millwrights to clean the intake.

There is considerable disagreement as to what the cleaning instructions were and as to when they were given. It is clear however, that Champine was negligent in either ordering or allowing the millwrights to enter the turbine while the fan was in motion and that this negligence was a cause of the accident. When the accident occurred, at least two people were attempting to determine when the turbine could be stopped and blocked so that it could be safely cleaned.

We are aware of and in agreement with the jurisprudence which holds that an employer who places his employees in a position of undisclosed danger is liable to the employee who is injured thereby. There is also a rule however, 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. Swilley v. American Fire & Casualty Company, 148 So.2d 157 (La.App., 1st Cir. 1962); Pfister v. Phoenix of Hartford Insurance Company, La.App., 290 So.2d 362 (4th Cir. 1974).

It is apparent from Pearson’s testimony that he was fully aware of the danger of attempting to clean the turbine while the fan was in motion and that he accepted the inherent risk.

The plaintiff contends that the test for contributory negligence in the employer-employee relationship was set forth in Chaney v. Brupbacher, 242 So.2d 627 (La.App., 4th Cir. 1970). This case and several others were discussed in Pfister v. Phoenix of Hartford Insurance Company, supra, pg. 365.

In distinguishing these cases the Court said:

“Plaintiff relies principally on Chaney v. Brupbacher, La.App., 242 So.2d 627; Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133; Hall v. Hartford Accident & Indemnity Co., La.App., 278 So.2d 795; and Boure v. New Orleans Public Service, Inc., La.App., 255 So.2d 776, to refute the contributory negligence.
“In Chaney the decedent employee was electrocuted when the boom of a crane, which was being used to assist in the unloading of steel beams, came into contact with a high voltage power line located over the work yard. The corporate vice-president had directed that the crane be moved from its original position to a position closer to the job site and closer to the wire. Contact was made with the wire when the decedent was walking away from the crane, pulling on the jib line to bring it down to attach to a beam intended to be moved. Contributory negligence was not appropriate in this case in that the deceased did not have full knowledge of the danger of the situation and could therefore not be said to have assumed the risk. By directing the moving of the crane, the defendant vice-president had created the dangerous situation and had a greater appreciation of the risk than the deceased.
“The plaintiff in the Langlois case was injured by breathing gas fumes that escaped from the defendant’s premises. The plaintiff was a fireman sent on a rescue mission to a place adjacent to the defendant’s chemical plant. The defendant pled contributory negligence and assumption of risk in that plaintiff did nothing to protect himself from breathing the fumes. The evidence established that plaintiff had received training for working in areas contaminated with gas and had been taught the nature of the risks involved as well as the proper use of the safety breathing equipment which was at his disposal at the time of the accident and he chose not to use. The court stated that contributory negligence was not a defense because original negligence on the part of the defendant was not present and the defendant was strictly liable. Although the plaintiff was more knowledgeable than most about the nature of exposure to gases, the court held that he had not assumed the risk. The dangerous condition did not emanate from the site of the rescue mission, but came from the adjoining property. The plaintiff not only encountered the gas at the rescue site but in the fire truck returning from the mission and later at the firehouse. His exposure to the risk in the line of his duty was minimal.
“Justices Hamlin and Summers both wrote dissents to the majority opinion stressing that the plaintiff had assumed the risk. Plaintiff knew upon leaving the firehouse that he was called to assist in a rescue mission made necessary by gas escaping from an unknown source. Upon arriving at the scene the gas was immediately apparent. It could be seen and plaintiff’s eyes began to water, his throat tickled and he started coughing. He had been trained that when encountering gas, especially gas of an unknown type, he was to assume the worst and take precautionary measures to guard against being overcome. When he experienced the reactions noted, it became incumbent upon him to use an available air pack for his protection.
“The Hall case involved an injury to the plaintiff when a motorcycle wheel which he was assembling exploded as he inflated the tire. In the course of assembling the wheels, plaintiff mounted tires on the wheels and inflated them to properly seat the tire. He was instructed to inflate them at a pressure of 40 to 45 p. s. i, although the recommended pressure for actual use was 15 p. s. i. The inflating station used for this purpose delivered a maximum pressure of 100 p. s. i. The service hose from the air compressor was fitted with a gauge that registered the internal pressure of the tire being inflated only when the button controlling the air flow was released by the operator. Negligence was established on the part of the employer for providing an inadequately designed gauge that did not constantly register the internal pressure of the tire. While plaintiff could have periodically released the button and checked the pressure of the inflating tire, the court felt that the margin between the pressure required to seat the tire and the pressure at which the wheel assembly separated was too small to be a safe one. The ultimate strength of the wheel assembly was only approximately twice the expected load. The court felt that a ratio of at least four to one would be necessary under the circumstances. These were factors within the control of the defendant and should have been known by him. On the other hand, plaintiff neither created and maintained the unsafe situation nor was he imputed with knowledge that it existed. Under the circumstances, plaintiff’s actions were not negligence on his part.
“The final case cited by plaintiff to refute contributory negligence is Boure v. New Orleans Public Service, Inc. The plaintiff sued Public Service for injuries he received when the hose to a spray painter he was operating came in contact with a high tension wire. Plaintiff was painting the underside of a new bridge in close proximity to the wire which ran under the bridge at a right angle. The majority court determined that Public Service had notice of the work going on so close to the wire. It was aware of the danger of the situation and had offered to de-energize the wire while work was progressing in that area. In the opinion of the court, the offer to de-energize the line was insufficient to exculpate the defendant of negligent conduct. The court further reasoned that the plaintiff was not guilty of contributory negligence. While the plaintiff was aware of the line under him, he still could not have prevented the occurrence of the accident, for it was not attributable to a lack of knowledge or the failure to take adequate measures to protect his safety. He had no control over his employer, the location where he was directed to paint nor any request for Public Service to de-energize the line. Further, the responsibility for keeping the hose away from other objects while he was painting was that of his helper.
“These cases are clearly distinguishable from the present case. In Chaney and Hall the court found that the plaintiffs did not possess the necessary knowledge of the danger or voluntarily assume the risk. In both cases, the employer had created the dangerous situation and possessed a knowledge of the danger superi- or to that of the employee. In the present case the plaintiff fully realized the risks attached to the job and realized them more than the defendant. He had the requisite knowledge of the circumstances to voluntarily assume the risk. “The court felt in Langlois that the risk involved was only minimally related to the plaintiff’s job. The court seemed to say that only in the line of duty could a situation present itself wherein the plaintiff fireman could have assumed the risk. The danger encountered by Mr. Pfister in the present case was clearly related to the duties of his job.
“Finally, the facts in the Boure case lack the necessary ingredient of voluntary assumption of the risk. While the plaintiff was aware of the danger the presence of the high power line created, the court found that he had no control over the situation. He could not, therefore, have assumed the risk. The facts of the present case show that Mr. Pfister not only appreciated the danger of the situation but tried to remove that danger. However, he cut his efforts too short. After his complaints were made in the meeting with Mr. Wuescher, he continued to work in the same unsafe conditions and did not seek further relief from Mr. Ward.”

Two additional cases which might be viewed as supporting the plaintiff’s contention are Galloway v. Employers Mutual of Wausau, La.App., 286 So.2d 676 (4th Cir.1973) and O’Keefe v. Warner, La.App., 288 So.2d 911 (1st Cir. 1973).

In Galloway the plaintiff slipped on a piece of scrap metal as he stepped over an exposed moving worm gear. His pants caught in the gear and in a matter of seconds, his entire penis was traumatically and totally amputated.

In affirming a jury’s determination that the plaintiff was not contributorily negligent the majority of the Court stated:

“Since there has always been and always will be a plea of contributory negligence in these third party tort actions against fellow employees, it may be well to look a little further into the concept. If a highway repairman were to be told by his boss to work in the open highway among fast-moving vehicles without protective barriers, etc. the workman should have ‘better sense’ than to do so. If an electrical lineman were told by his boss to work on energized high voltage wires without his protective gloves, he ought to have ‘better sense’ than to do so. 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.”

' It appears, therefore, that the majority in Galloway concluded that the danger- inherent in stepping over an exposed worm gear while it was in motion was not obvious and that the plaintiff had no readily available alternative. In his dissent Judge Samuels found the plaintiff contributorily negligent because the inherent danger was obvious and because there was a readily available alternative.

In O'Keefe the plaintiff was injured when a crane he was operating tipped over because of a defective condition, a stripped or partially stripped gear which made it impossible on occasions to keep the boom from swinging to the side. The Court on appeal concluded that the defendants had failed to prove contributory negligence or assumption of risk on the part of the plaintiff.

In the present case we find that the danger was obvious and known to Pearson and that an alternative, waiting until the turbine was stopped and blocked" before cleaning it, was readily available.

Under these facts we conclude that Pearson was contributorily negligent and therefore barred from recovery.

Pearson contends that as a result of the accident he is totally and permanently disabled within the meaning of the workmen’s compensation law. A skilled worker is totally and permanently disabled when his injuries prevent him from performing work of the same or. similar nature. Denoux v. Hartford Accident & Indemnity Company, La.App., 336 So.2d 268 (1st Cir. 1976). Following his injury Pearson worked as either a millwright of a millwright foreman for approximately five years. Pearson quit work as ¿'millwright only after he had sustained a second unrelated injury. While Pearson did' have some minor difficulty in performing some of the activities of a millwright, he was still able to perform the duties of a millwright prior to the second injury.

We are aware of the development in our jurisprudence of the application of the total permanent disability provisions of the workmen’s compensation •’ statute in those exceptional cases where, notwithstanding the fixed schedule of- compensation, the employee can prove total permanent disability. This exception should be applied with caution and only where there is clear and convincing proof by the claimant of his total permanent disability. Tillman v. Hartford Accident & Indemnity Company, La.App., 314 So.2d 507 (1st Cir.1975). There has been no such proof in this case.

The contractual provision which forms the basis for Travelers’ third party demand provides:

“. . . Wiese shall defend and indemnify Shell, its employees and agents against all claims of and liability to third parties (including, without limitation, all employees of Shell or Wiese and all of their subcontractors and their employees) for injury to or death of persons or loss of or damage to property arising out of or in connection with the performance of this contract, except where such injury, death, loss, or damage has resulted from the negligence of Shell without negligence or fault on the part of Wiese or any of their subcontractors, in which case this clause shall not apply, and further provided that where such, injury, death, loss, or damage has resulted from the contributory negligence of Shell, Wiese’s responsibility for that portion of the claim attributable to Shell shall be limited to $250,000 each person and $500,000 each occurrence for bodily injury and property damage limits of $100,000 each accident and $100,000 aggregate. Wiese shall defend all suits brought upon such claims and pay all costs and expenses incidental thereto, but Shell shall have the right, at its option, to participate in the defense of any such suit, without relieving Wiese of any obligations hereunder.”

The suit filed by Pearson was based solely on the negligence of Champine, an employee of Shell. Under the terms of the contract there is no duty to defend where the suit is based solely on the negligence of Shell or its employees.

For the above reasons, the judgment appealed from is affirmed. Cost to be paid in equal proportions by Laverne Pearson, plaintiff-appellant, and Travelers Insurance Company, third party plaintiff-appellant.

AFFIRMED.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Dr.G.P. MUSSO, Jr. v. ST. MARY PARISH HOSPITAL SERVICE DISTRICT NO. 1 et al.
    No. 11217.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writ Refused July 1, 1977.
    John E. Conery, Franklin, for appellee.
    Paul J. Breaux, Raymond M. Allen, Lafayette, for appellants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

This is a tort suit by a doctor for personal injuries suffered while helping transfer a patient from an operating table to an adjacent bed. ■ Defendants filed an answer in the form of general denial and a third party demand against the surgeon in charge of the operation. Defendants appealed from the judgment, awarding damages to the plaintiff and dismissing the third party demand.

The sole issue before this court is whether the finding of negligence was manifestly erroneous.

We reverse and render.

Dr. Musso was on the staff of Franklin Foundation Hospital, operated by the defendant. On the day of the accident, he was assisting Dr. J. M. Fernandez in performing a hernia operation on a large man. Present during the operation were an anesthetist, a scrub nurse and at times, a circulating nurse, and possibly an operating room supervisor and a maid. After surr gery, the two doctors positioned themselves one on each side of the patient, Dr. Fernandez beside the operating room table and Dr. Musso beside a hospital bed placed alongside the operating table. The anesthetist and another nurse were at the patient’s head and the scrub nurse at his feet. The doctors pulled upward on a heavy “lifting sheet”, placed under the hips and lower back of the patient, and Dr. Musso pulled on it, while the anesthetist and nurse at the head lifted the head and shoulders and the nurse at the bottom of the table lifted the feet.

Dr. Musso’s version of the accident is that during the move, the patient’s right shoulder or arm threatened to drop into the small area between the table and the bed. Dr. Fernandez instructed Dr. Musso to grab the patient. Dr. Musso bent forward and reached under the arm and shoulder of the patient. As he seized the patient and supported the weight of the upper body, he felt a severe pain in his back.

Subsequent examination revealed a herniated disc,' which was removed by surgery. Dr. Musso. progressed very well after his operation, but still was unable to assist in surgery at the time of trial. The permanent disability in his back has been assessed at fifteen to twenty percent. • .

The trial court found that thé'hospital was negligent in the method used in transferring the patient. Since this was a hospital function, the hospital was held liable for the damages plaintiff suffered. The third party demand of defendants against Dr. Fernandez was dismissed with prejudice.

We hold that the trial court committed manifest error. We are well aware of the narrow limits in appellate review of facts, as most recently stated in Billiot v. Bourg, La., 338 So.2d 1148 (1976). However, we believe that our constitutional duty to review both law and fact demands more than a cursory perusal of the evidence and an unquestioning approval of the judgment of the lower court.

The mere fact that an accident happens or an injury occurs does not raise a presumption or authorize an inference of negligence on the part of the defendant. Shields v. United States Gas Pipeline Company, La.App., 110 So.2d 881 (2nd Cir. 1959). Actionable negligence results from the creation or maintenance of an unreasonable risk of harm to others. Smolinski v. Taulli, La., 276 So.2d 286 (1973); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).

The moving of the patient was done in a routine manner. All witnesses, including Dr. Musso, said that patients had been moved by this method for years and no one could recall a single instance of a patient falling while being transferred. A proven safe method of transferring patients over a long period of time is evidence of the absence of negligence.

The trial judge concluded that strong male orderlies should have been at the head and feet of the patient. The evidence, however, indicates that strength was not an important factor in moving these patients. The people positioned at the head and shoulders were not required to lift the entire upper torso in the movement; they were only required to lift the head and shoulder area off the bed while the two persons on the side slid the patient on the lift sheet. A nurse replaced Dr. Musso and completed the transfer without incident. No one — Dr. Musso, Dr. Fernandez or any of the hospital personnel — indicated that he thought lack of strength contributed to the accident. Much larger patients had been moved often with the same or similar personnel, all without accident.

Plaintiff’s one item of testimony to support an act of negligence was that the patient’s right arm might have been allowed to fall off the draw sheet under his body. He is the only one who so conjectured; every one else said that the arm was within the “lifter”, and did not fall into the space. We note, though, that Dr. Musso was closest to the right arm of the patent. Presumably, he would be the one to prevent such an occurrence. Dr. Musso was also responsible for holding the hospital bed firmly against the operating table. There is no way a large arm and shoulder could wedge in between the two if they were held together properly. If there was any negligence at all in the transfer, it can only be attributed to the plaintiff.

Dr. Musso testified to the devotion and experience of the personnel, making the statement at one time that he denied that any nurse had done anything wrong.

The lower court’s conclusion that the two hospital employees at the head of the patient should have realized they were not capable of completing the transfer, and should have halted the operation, is unsupported by the testimony adduced. All testimony, including that of Dr. Musso, was to the effect that there was nothing unusual about this transfer. The patient’s arm may have been moving somewhat, not an unusual occurrence for one coming out from under the affects of anesthesia. However, no one was concerned that this would make the transfer any more difficult. No one had reason to believe that slight arm movement would cause the patient to fall when the bed and the operating table were supposed to be held firmly against each other.

Plaintiff presented no expert testimony which would show that stronger personnel were needed to complete the transfer. The conclusion of the court on this point was speculative. The complaints by employees of lack of orderlies in the operating room area appears to have been nothing more than ordinary informal grumblings about minor grievances that accompany every job.

As a matter of fact, the allegations of insufficient personnel were disproved. Everyone testified that additional help was available if needed and called. This included male orderlies, two of whom were on the day shift, laboratory technicians and physical therapists, as well as additional nurses. Both Dr. Musso and Dr. Fernandez testified they felt they had sufficient personnel and could have got more if needed without any problem, except, maybe, having to wait. There was no urgency, however, in moving the patient.

While there were allegations of lack of experienced personnel, they were not proved. Dr. Musso himself stated that he did not think the nurses were insufficiently trained. The only evidence as to lack of equipment was that the hospital evidently did not have a hydraulic lifter at the time of the accident. The lifter even when made available later, was not often used because of complaints of being cumbersome.

In summary, we do not believe the record justifies recovery for the plaintiff. There is no doubt that Dr. Musso received serious injuries; however he has not produced any evidence to indicate that defendant should be held liable for those injuries.

For the above reasons, the judgment in favor of plaintiff and against defendant is reversed. Judgment is rendered in favor of St. Mary Parish Hospital Service District No. 1 and Argonaut Insurance Company, dismissing plaintiff’s suit at his costs.

REVERSED AND RENDERED.

      . At another time Dr. Musso admitted he did not know what happened.

      . The hospital administrator named four that would have been available if called.


author: ELLIS, Judge.

text:
    L. T. CHAUVIN v. NELKIN INSURANCE AGENCY, INC., et al.
    No. 11218.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writ Refused June 30, 1977.
    Dale P. Martin, Lippman, Hunter & Rawls, Morgan City, for plaintiff.
    Richard L. Bodet, New Orleans, for defendants.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge.

In this suit, plaintiff L. T. Chauvin seeks damages arising from the alleged failure of Nelkin Insurance Agency, Inc. to obtain hull insurance on the plaintiff’s vessel “Jody Beth”. Defendants are the Nelkin agency and Appalachian Insurance Company, its errors and omissions insurer. Personal service was obtained on Nelkin on May 15, 1975, and service was made on Appalachian, through the Secretary of State on May 20,1975. On June 27,1975, a preliminary default was entered as to both defendants. Judgment by default was confirmed on July 11, 1975, against both defendants, in solido, for $10,128.47. Since personal service was made on both defendants, no notice of judgment was required. Article 1913, Code of Civil Procedure.

On November 7, 1975, on motion of both defendants, a new trial was applied for, and a hearing set for November 21, 1975. A number of continuances were granted at the instance of defendants, the last of which fixed the matter for March 19, 1976. On March 18, 1976, defendants filed a pleading styled “Supplemental and Amended Motion for New Trial and Alternative Petition to Annul Judgment and for Injunction.” In the pleading, defendants ask for a temporary restraining order and preliminary injunction to stay the execution of the July 11, 1975, judgment; for judgment declaring the said judgment null; and for a rule to show cause why the said judgment should not be annulled, and a new trial granted. An order was signed setting the case for trial on March 19, 1976.

After a hearing, judgment was rendered denying the motion for a new trial and the alternative petition to annul. From that judgment, plaintiff has perfected a suspen-sive appeal. By judgment of this court, dated September 20, 1976, the appeal was limited to the dismissal of the alternative petition to annul. Chauvin v. Nelkin Ins. Agency, Inc., 337 So.2d 1230 (La.App. 1st Cir. 1976).

We recognize that, ordinarily, a suit for nullity is by ordinary rather than summary process, subject to the usual delays for citation, service of process and answer. However, in this case, defendants chose to use summary process, and no objection was made by either party to holding the hearing on March 19,1976. Plaintiff’s counsel made it clear in his argument to the court that he was asking the court to rule on his “Alternative Petition for Nullity”.

When it was pointed out by opposing counsel that no evidence had been adduced by defendant in support of their nullity action, defendants’ counsel said:

“Your Honor, we are asking the Court to make a determination on the petition to set aside the judgment. We are not asking the Court to consider any evidence which we failed to present; but rather, we are attacking the plaintiff’s proof of his claim. The proof of his claim had to necessitate him saying that there was no policy issued and that there is not in fact a policy and it also had to include a presentation to this court that this matter was not prescribed on its face. We suggest to the Court that both of those things do exist. There is in fact a policy, and we offer, file and introduce into the record our memorandum with attached deposition of Mr. Nelkin, with the attached insurance policy issued by Reliance Mutual of America, Inc. to Mr. Chauvin, as well as the insurance policy of the Appalachian Insurance Company. That is what we are asking the Court to decide on; not the fact that we failed to produce evidence but the fact that the plaintiff could not have possibly sustained a burden of proof in his case originally because, had the Court known that there was a policy, then it could not have rendered a judgment against a defendant saying that he negligently failed to obtain one.”

The two documents offered in evidence by defendants were excluded by the court because both were Xerox copies, not properly certified or otherwise identified. Defendants’ counsel’s request that he be given time within which to produce the original documents, was denied. The court then ruled that there was no evidence of fraud or ill practice, and that defendants were not entitled to have the July 11,1975, judgment annulled.

Article 2004 of the Code of Civil Procedure provides as follows:

“A final judgment obtained by fraud or ill practices may be annulled.”

As we stated in Alleman v. Guillot, 225 So.2d 607 (La.App. 1st Cir. 1969):

“(1) The applicable rule is that fraud which justifies annulment of a judgment is not confined to conduct which is fraudulent in the strict sense of the term. The provisions of LSA-C.C.P. 2004 are not limited to cases of actual fraud or intentional wrongdoing but encompasses those situations wherein judgment is obtained through some improper practice or procedure which operates, even innocently, to deprive the party cast of some legal right, and where enforcement of the judgment would be unconscientious and inequitable. St. Mary v. St. Mary, La.App., 175 So.2d 893, and authorities therein cited.
“Each such case must be considered from the viewpoint of whether under its own peculiar circumstances, it would be inequitable or unconscionable to permit the judgment to stand considering the procedure or practice employed therein. Dare v. Myrick, La.App., 168 So.2d 845, and cases therein cited.
“(2) Also applicable herein is the well established principle that an action of nullity may not be substituted for nor take the place of an appeal. Romero v. Galley, La.App., 79 So.2d 625.
“(3) In confirming judgment by default plaintiff is not obligated to disclose possible defenses which may be raised by his adversary in the event he makes an appearance. Scruggs v. Butler Furniture Co., Inc., La.App., 104 So.2d 178. Neither does the fact that a plaintiff presents merely his own version of the controversy and fails to disclose a contrary position or view held by defendant, constitute fraud or ill practice, provided he does not present his contentions on false, fabricated or perjured testimony. Romero v. Galley, La.App., 79 So.2d 625.”

The only “ill practice” alleged by defendants is that the judgment must have been based on false or perjured testimony. He alleges that, had he been permitted to introduce the insurance policy and the deposition of Mr. Nelkin, it would have proved that a hull insurance policy covering the “Jody Beth” was, in fact, obtained by the Nelkin agency. He further alleges that the only way that plaintiff could have won the case, even by default, was to testify that no policy was issued, and that his evidence would have proved that evidence to be false.

However, plaintiff’s petition alleges that a policy was delivered to him by Nelkin, but that no such policy was ever actually issued by the insurance companies, which had denied coverage when a claim was made. Plaintiff’s petition therefore admits the fact which defendants sought to prove, and they could not have been prejudiced by the ruling of the trial judge. The claim that the judgment must have been obtained on false or perjured testimony is also without merit, because plaintiff must have proven the allegations of his petition in order to have judgment rendered in his favor.

Defendants’ contention that the action filed by plaintiff was prescribed cannot be considered. The judgment in question is final, was never properly appealed, and, as we have found, can not be nullified. The argument comes too late.

The judgment appealed from is therefore affirmed, at defendants’ cost.

AFFIRMED.


text:
    Murray J. GROS v. TOWN OF PATTERSON.
    No. 11219.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writ Refused July 1, 1977.

      Thomas L. Mahfouz, Lippman, Hunter & Rawls, Morgan City, for plaintiff.
    Charles C. Culotta, Jr., Patterson, for defendant.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

This is an appeal of a judgment of the District Court in favor of the Town of Patterson, defendant-appellee, and against Murray J. Gros, plaintiff-appellant, dismissing appellant’s demand for back pay and benefits alleged as due because of the illegal termination of the appellant from his position as the Assistant Chief of the Patterson Police Department.

The Town of Patterson is incorporated and governed under the provisions of the Lawrason Act, R.S. 33:321 et seq., and does not have a Civil Service System.

On or about January 15, 1974, the appellant was either fired or indefinitely suspended by Jessie W. Paul, Patterson’s Chief of Police. The appellant’s pay was stopped by the Mayor of Patterson, Fred A. Mens-men, at the end of January, 1974. A resolution dismissing the áppellant was passed by the Patterson Board of Aldermen in June, 1974.

The appellant brought this action alleging that he was owed back pay and benefits from the time of his firing or suspension by Chief Paul until his dismissal by the Board of Aldermen. Following a trial on the merits the District Court held that the appellant had not been illegally terminated and dismissed his suit.

The appellant contends that:

1. The lower court erred in concluding the Chief of Police Paul had the inherent power to terminate the plaintiff as Assistant Chief of Police of the Town of Patterson. Further, the lower court erred in concluding that plaintiff was only indefinitely suspended and not terminated by Chief Paul.
2. The lower court erred in not awarding damages to the plaintiff in the sum of $4,264.45 with interest from date of judicial demand and for all costs.

The District Court found that the appellant was indefinitely suspended by Chief Paul. Under R.S. 33:423 the marshal is the chief law enforcement officer of the Town and as such has supervision of the police department with the authority to control property and assign personnel. Lentini v. City of Kenner, 252 La. 413, 211 So.2d 311 (1968). We are of the opinion that the authority to control property and assign personnel includes the power to suspend. Chief Paul, as the chief law enforcement officer of the Town of Patterson, had the authority to suspend the appellant.

The holding of the Court in Graham v. Marshall, La.App., 333 So.2d 707 (2nd Cir. 1976), may be distinguished from the present case because as was stated by the Court in Graham:

“The sole issue on appeal is whether the mayor and the board of aldermen or the elected chief of police has the authority to hire and fire police officers in a municipality organized and governed by the provisions of the Lawrason Act, Louisiana Revised Statutes 33:321, et seq.”

In the present case it is the authority to suspend which is at issue.

The appellant took no formal action against his suspension until after his discharge by the Board of Aldermen. At that time he brought this action to recover lost wages and benefits. The appellant is not entitled to recover wages for the period he was legally suspended and not performing the duties of Assistant Chief of Police.

For the above reasons, the judgment appealed from is affirmed. Cost to be paid by appellant.

AFFIRMED.

      . If the holding in the Graham case is interpreted to be contrary to our holding herein, we would then disagree with the holding in the Graham case.


author: LOTTINGER, Judge.

text:
    Patricia LaCROIX, as natural tutrix of the minor, Michelle Watts v. MIDDLE SOUTH SERVICES, INC., et al.
    No. 11188.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writ Refused June 15, 1977.

      Wilson M. Montero, Jr., New Orleans, Mike J. Balen, Covington, for plaintiff appellant.
    Robert J. Young, Jr., New Orleans, for defendant appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a suit by Patricia LaCroix, as natural tutrix of the minor, Michelle Watts against Middle South Services, Inc., Louisiana Power & Light Company, and Harold L. Quave, as defendants. The Trial Court rendered judgment in favor of defendants, dismissing plaintiff’s suit. Plaintiff has taken this appeal.

This suit results from an automobile-bicycle accident. The plaintiff is the mother and natural tutrix of the minor child, Michelle Watts, who on June 28, 1972, at approximately , 5:15 P.M.,. was struck by. an automobile driven by defendant, Harold L. Quave. The petition alleges that defendant Quave was employed at the time by Louisiana Power & Light Company and/or Middle South Services, Inc. and was within the scope of his employment, thus claiming liability on the part of the tiyo. companies.

The evidence reflects that the minor was thirteen years of age at . the time of the accident and was riding her bicycle on the shoulder of Louisiana Highway 21 near Covington, Louisiana. The defendant, whom the evidence reflects was employed by Louisiana Power & Light Co. at the time, was operating a company car going in the same direction as the minor.' He noticed the minor on the bicycle some distance ahead of him and testified that, as another vehicle was approaching him and he realized that the two cars would’meet at approximately the same spot where the bicycle was being ridden on the shoulder, he took his foot off of the accelerator and allowed his car to coast. After. the approaching car passed, he turned towards the center of the highway so that his left tire “was just over the center line” when there was an impact on the right side or the right front of the car. He said it happened very rapidly and could not explain what caused the car and the bicycle to meet. He said that after the impact the bicycle was on the hood of his car. He saw Michelle go beside the car on the right side of the car. He immediately swerved to his left as a reaction to keep the car away from her. He stated that as soon as he could see in the rearview mirror she was clear, he veered back to the right. The bicycle came off the car and went under the car at this point, and he dragged it off to the shoulder of the road.

Michelle testified that she left her home to go to the house of a friend across the highway and just a couple houses down the road. She crossed the highway, proceeded to her right shoulder, noticed the friends were not at home and was intending to go to the next house to turn around to return home. The next thing she remembers is waking up in the middle of the road. She knew nothing whatsoever about the accident nor the cause thereof.

Considering the high level of care that is required of motorists as they approach young children alongside the highways, we feel that the defendant was negligent in the manner in which he was operating his automobile.

The evidence reflects that upon first noticing Michelle, the defendant was traveling at a speed of 55 miles an hour. He took his foot off the accelerator to allow the oncoming automobile to pass before meeting Michelle, and he testified that at the time of the impact, his vehicle was proceeding at approximately 45 miles per hour. There is not one bit of evidence in the record that defendant blew his horn nor took any other evasive action except to release his foot from the accelerator and pull his left wheels just over the center line of the highway. Neither is the width of the highway in evidence, though it was only two lanes. At the time of the accident, there were no other cars coming from either direction, and we feel that defendant should have reduced his speed more, pulled further to the left and blown his horn. There is also nothing in the record to show what caused the bicycle to come onto the highway and strike the car.

The jurisprudence of this state places a high degree of care upon a motorist who sees the presence of young children near the road as did defendant in the instant case and imposes upon him the duty to anticipate that the child might act suddenly, unpredictably and often foolish and a finding that the child was negligent does not necessarily lead to a conclusion that the child was guilty of such contributory negligence as would defeat his recovery. Kelly v. Messina, 318 So.2d 74 (La.App. 4th Cir. 1975); Price v. Watts, 215 So.2d 187 (La.App. 3rd Cir. 1968; Ates v. State Farm Mutual Automobile Insurance Co., 191 So.2d 332 (La.App. 3rd Cir. 1966); and Bo-sarge v. Spiess & Co., 145 So. 21 (La.App. Orl.Cir. 1932).

In order for a child’s negligence to constitute such contributory negligence, he must have acted knowingly and heedlessly with reckless disregard for the consequences. Freeman v. Wilcox, 303 So.2d 840 (La.App. 1st Cir. 1974), writ refused 307 So.2d 630 (La.1975) and Kelly v. Messina, supra. There is no evidence in the record which would lead this Court to the conclusion that the minor was negligent.

Under the jurisprudence of this state we are compelled to disagree with the Trial Court which held:

“Under the circumstances, the Court can find no negligence on the part of Mr. Quave in attempting to pass the bike as he did. He observed it for a great distance, saw that it was on the shoulder of the road, and had no reason to believe that he could not pass safely by pulling his vehicle near the center of the roadway.”

QUANTUM

Immediately after the accident Michelle Watts was transported by ambulance to St. Tammany Parish General Hospital where she was seen in the emergency room by Doctor Jacob H. Kety. At this time his findings were a cerebral concussion laceration of the scalp about 4 inches long, a 3 inch long laceration of the right leg, multiple abrasions and contusions. The lacerations were sutured and the abrasions and contusions were cleansed and dressed. She was admitted to the hospital for observation. On June 30,1972, she was discharged. Dr. Kety saw her an additional 19 visits after her discharge from the hospital. She had developed a hematoma as well as a thrombophlebitis condition on her left leg, which was painful. She was placed on medication for this condition as well as administered ultrasonic and whirlpool treatments.

Additional medical evidence in the record relates that plastic surgery was recommended. On examination and in his report Dr. William J. Pollock states that on the right lower leg there was a 4 X 1.5 cm full thickness scar, roughly triangular in shape with depression of the area secondary to loss of subcutaneous fat. On the inner aspect of the left upper leg just below the knee, there was a 4 X 1.5 cm depressed more superficially scarred area. Apparently her left leg just below the knee was severely bruised, and a blood clot formed. The skin overlaying the subcutaneous clot ultimately ulcerated and the clotted material was drained out and subsequently healed. Dr. Pollock cautioned that scars can never be completely removed, and revision of the scars simply means the production of scars of better aesthetic qualities than the ones she now possesses. He expected with surgery she would be in the hospital two days and then two weeks in bed at home.

Neurological examinations proved negative. She was cautioned by one of her doctors that birth control pills currently available may exacerbate her preexisting phlebitis condition.

After reviewing all of the medical evidence available to this Court and considering that this young lady was 13 years of age at the time of the accident, 17 years old at the time of trial, under much pain for some time, and the emotional stress caused by the scars, we are convinced that the amount of $15,000.00 for general damages, and $2,300.00 for property damage including future medical is justified.

Drs. Jacob H. Kety and Robert L. Ap-plebaum testified by deposition and expert witness fees in the amounts of $75.00 each is awarded and taxed as costs.

Therefore, for the above and foregoing reasons the judgment of the Trial Court is reversed, and IT IS ORDERED, ADJUDGED and DECREED that there be judgment in favor of plaintiff, and against the defendants, Louisiana Power & Light Company and Harold L. Quave in solido as follows: In favor of Patricia LaCroix, individually, for Two Thousand Three Hundred Dollars ($2,300.00), and in favor of Patricia LaCroix, as natural tutrix of the minor, Michelle Watts, for Fifteen Thousand Dollars ($15,000.00), with legal interest on both amounts from the date of judicial demand until paid; expert witness fees of Drs. Jacob H. Kety and Robert L. Applebaum be fixed at Seventy-Five Dollars ($75.00) each and taxed as costs; and that defendants-ap-pellees pay all costs of these proceedings.

REVERSED AND RENDERED.

      . Subsequent to the filing of the petition, plaintiff voluntarily dismissed without prejudice the suit against Middle South Services, Inc.


text:
    Alton HEBERT, Jr. v. Wilbert MORALES et al.
    No. 11192.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writ Refused June 30, 1977.

      Triche & Sternfels, Risley C. Triche, Na-poleonville, for plaintiff-appellee.
    David L. Dawson, Jr., Baton Rouge, for defendant-appellant.
    Edward W. Gray, Percy, Macmurdo, Gray & Eaton, Baton Rouge, for defendant-appellant Insurance Co.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is a suit for damages as the result of a battery on plaintiff, Alton Hebert, Jr., by Wilbert “Wilton” Morales, Jr., hereafter Wilton Morales, the minor son of the defendant, Wilbert Morales. The Trial Court rendered judgment for general damages in the amount of $9,000.00 and special damages, namely hospital and doctor bills, in the amount of $694.25. It also awarded expert witness fees to certain doctors and taxed same as costs. From this judgment, defendant, Wilbert Morales, has appealed.

The specific battery which inflicted the injuries complained of culminated as a result of two encounters between Alton Hebert, Jr. and Wilton Morales, taking place on the evening in question. Wilton, his younger brother, Lane, and a friend had stopped at a bar-restaurant-poolroom at which Alton was present. After words, Alton hit Wilton’s friend in the face with his fist. Thereafter, Wilton, Lane and their friend left this establishment on foot headed toward the defendant’s camp on Lake Verret. Plaintiff and his companions started chasing them; Lane ran behind a camp into the woods; and Wilton and the friend eventually got to defendant’s camp, Wilton claiming that plaintiff punched him with fists a number of times before he could get to his father’s camp. Shortly thereafter, defendant, Wilton, and the friend left the camp in defendant’s pickup truck and went back to the establishment. Plaintiff contends that defendant, Wilton, and the friend returned to even the score. Defendant contends that they returned to look for Lane who did not get to defendant’s camp with Wilton and his friend. At any rate, it is undisputed that the defendant and Wilton found Alton, and shortly thereafter, Wilton hit Alton in the face with an eight inch iron rod or bar.

Plaintiff suffered a laceration of the left side of his face, a fracture of the bones in the vicinity of the left eye, and detached retina and folds of the retina of the left eye.

The Trial Judge found that the initial altercation ended when Wilton and his friend reached the safety of defendant’s camp. The Trial Judge, in Reasons for Judgment, stated the following:

“Wilbert Morales, who accompanied his minor son in the search for plaintiff, who participated in the invitation to plaintiff to resume the encounter, who was present at all times, and who knew or should have known that his son had armed himself with a weapon, is clearly liable to plaintiff because (1) young Morales was the aggressor in provoking the second altercation, and (2) even considering that plaintiff was willing to fight and stepped outside to do so making it a mutual undertaking, young Morales used more force than was reasonably necessary under the circumstances. The plaintiff, in consenting to a fistic encounter, certainly had no reason to expect that the first blow would be struck by his opponent with a metal bar which had been concealed in the darkness. Plaintiff at no time was armed nor did he use any weapon other than his fists. Young Morales was not acting in self defense but rather was bent upon enacting severe and unreasonable revenge for the earlier encounter.”

Defendant contends that plaintiff was the aggressor in the first incident when he struck Wilton’s friend and that he was also the aggressor in the incident with Wilton by leaving the establishment to fight. Defendant’s defense to this suit is two fold; first, that plaintiff was the aggressor, and secondly, that Wilton acted out of self defense.

The Trial Court found that plaintiff was the aggressor in the first incident which ended by the time Wilton and his friend reached the safety of defendant’s camp. It found that Wilton was the aggressor in provoking the second incident and in inflicting injuries complained of to plaintiff with the iron bar or rod. Under these circumstances, neither the aggressor doctrine nor the defense of self defense are available to. defendant, and the law is clear that the factual findings of the Trial Court must be upheld absent a showing of manifest error on the part of the Trial Judge. It is our opinion that the Trial Judge’s interpretation of the facts are reasonable and should not be disturbed.

Defendant also argues that the award for general damages is excessive and includes an award for loss of wages which were not asked for in plaintiff’s petition, the evidence in connection therewith being objected to by defendant. Inasmuch as the award for general damages was not itemized and did not specifically set an amount of damages for loss of wages, we find the award in and of itself not to be an abuse of the discretion of the Trial Judge even without a consideration of lost wages.

For the above and foregoing reasons, the judgment of the Trial Court is affirmed at appellant’s cost.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Carl L. MITCHELL v. Lannie SIGREST et al.
    No. 11194.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.

      Michael J. Paduda, Jr., and John N. Gal-laspy, Gallaspy & Paduda, Bogalusa, for plaintiff.
    John W. Anthony, Talley, Anthony, Hughes & Knight, Bogalusa, for defendants.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment awarding the plaintiff, Carl L. Mitchell, $20,088.40 damages for personal injuries and related expenses including $17,500.00 for pain and suffering. We reverse.

This action arises out of an incident which occurred at about 12:30 a. m., early Sunday morning, on August 4, 1974, in which the plaintiff, 19 years of age, was run over by a patrol car operated by Lannie Sigrest, a deputy sheriff for Washington Parish, one of defendants herein. The liability insurer, Southeastern Fidelity & Casualty Company, was also named a party defendant.

The Lakeview area where .the incident occurred is an unincorporated business area located on State Highway 10 outside the city of Bogalusa, Louisiana, lying between the city limits and the Pearl River. The last business establishment on the south side of the highway before reaching the river is the Green Door Lounge. The business establishment immediately to the west of the bar is a motorcycle repair shop known as Brad’s Cycle Shop. The area in question, due to numerous burglaries, break-ins and thefts over a period of time, has been classified by local law enforcement officials as a “high-crime area.”

On the evening before that Sunday morning, the plaintiff began drinking at the Green Door Lounge. After admittedly drinking approximately 20 bottles of beer, the plaintiff left the bar in such a drunken condition that he was only able to go a short distance before “passing out” flat on his back in a graveled driveway, which ran along the west side of the Cycle Shop.

Meanwhile, Deputy Sigrest was patrolling this area as one of his regular law enforcement duties. As Sigrest approached the vicinity of the bar and cycle shop, he noticed a motor vehicle in the rear of the bar. The circumstances and the lateness of the hour aroused the suspicions of the deputy, so that he turned off his headlights, slowed his patrol car, and moved toward the parked vehicle in a cautious manner. To reach the scene, the deputy slowly drove, with his-headlights off, along the driveway on the west side of the cycle shop. It was while Sigrest was thus proceeding in his patrol car that he ran over, the plaintiff, Carl L. Mitchell, who was lying unconscious in the driveway, which was described as made of mainly pea gravel and grass, some patches up to 18 to 24 inches in height. Investigating officers described the area in which the accident occurred as not being illuminated, although there appears to have been a night light behind the two buildings.

After hearing the testimony and considering all of the evidence, the trial court found that both Mitchell and Sigrest were negligent but, that, under the last clear chance doctrine, Deputy Sigrest was responsible for the injuries inflicted upon the plaintiff.

We have reviewed the evidence, the factual bases for the decision of the trial judge, and the applicable law. It appears that last clear chance was developed by the jurisprudence of this state in order to temper the harsh effects of the doctrine of contributory negligence. See Rozas, The Last Clear Chance Doctrine in Louisiana— An Analysis and Critique (Comment), 27 La.L.Rev. 269 (1967). Thus, last clear chance does not come into play until the evidence shows negligence on the part of both the plaintiff and the defendant. Hebert v. Meibaum, 209 La. 156, 24 So.2d 297 (1945); Butler v. State Farm Mutual Automobile Insurance Co., 265 So.2d 252 (La.App. 1 Cir. 1972); St. Amant v. Travelers Insurance Company, 233 So.2d 23 (La.App. 4 Cir. 1970); Malone, Torts, 22 La.L.Rev. 338, 344 (1962).

The jurisprudence has established that the essential elements of that doctrine are that: 1) the plaintiff was in a position of peril of which he was unaware or from which he was unable to extricate himself; 2) the defendant actually discovered the plaintiff’s peril or could have, by the exercise of -ordinary and reasonable care, discovered the plaintiff’s peril; and, 3) at that time, the defendant could have, with the exercise of ordinary and reasonable care, avoided the accident. Burnett v. Marchand, 186 So.2d 383 (La.App. 1 Cir. 1966); Gregoire v. Ohio Casualty Insurance Co., 158 So.2d 379 (La.App. 1 Cir. 1963), writ ref. 245 La. 730, 160 So.2d 595 (1964).

Under our settled jurisprudence a litigant relying upon the last clear chance doctrine has the burden of proving all facts and circumstances necessary to its application, and before the doctrine can be applied the essential elements must be established by a, preponderance of the evidence; they will not be presumed. Kontomitras v. New Orleans Public Service, Inc., 314 So.2d 441 (La.App. 4 Cir. 1975); Amacker v. Kirby, 224 So.2d 18 (La.App. 1 Cir. 1969), writ refused 254 La. 794, 226 So.2d 922; Williamson v. Aetna Insurance Co., 195 So.2d 763 (La.App. 1 Cir. 1967), writ ref. 250 La. 643, 197 So.2d 898 (1967).

Each case must stand or fall on its own peculiar facts in accord with the established principle that the negligence of a defendant, and his consequent liability to an injured plaintiff, is to be determined in the light of the circumstances of each particular case. Gregoire v. Ohio Casualty Insurance Co., supra.

The first element essential to the application of last clear chance in the instant case is not seriously questioned, and this element is established by the evidence. The plaintiff was in a position of peril of which he was unaware. • He was lying prostrate, in a drunken stupor, at night, in a driveway which was used as a passageway for motor vehicles.

In resolving the next element of last clear chance, namely, whether the defendant could or should have discovered the plaintiff’s plight by the exercise of ordinary and reasonable care, we, consider that the unusual, extraordinary and unexpected nature of the object or obstruction in the driveway, thus created by the plaintiff lying prostrate by reason of voluntary intoxication, is determinative of this issue.

The trial court found that the defendant should have discovered the plaintiff’s peril in time to have avoided the accident.

The trial judge found that the grass in the area where the plaintiff was lying at the time of the accident was short and not dense, that the area where the plaintiff was lying was located next door to the Green Door Lounge behind Brad’s Cycle Shop, and that the area where the plaintiff was lying was illuminated by the light from a nightlight on a pole behind the buildings.

With this pictured scene in mind, the trial judge concluded that:

“. . . Deputy Sigrest did not avail himself of the last clear chance to avoid the injury. He did not discover the perilous situation of Mr. Mitchell which he would have done if he had exercised the measure of caution and care which the circumstances of the location and his driving without lights required of him.”

There is no longer any room for questioning the first premise of appellate review, that the factual findings and conclusions of the trial court must be accorded great weight and must not be disturbed in the absence of manifest error. See Canter v. Koehring Company, 283 So.2d 716 (La.1973); Alexander v. St. Paul Fire & Marine Insurance Co., 312 So.2d 139 (La.App. 1 Cir. 1975), writ den. 313 So.2d 846 (La.1975).

In reviewing this case we are not unmindful of the Louisiana Supreme Court’s admonition in the recent case of Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976), that:

“An appellate court is simply not free to substitute its own version of the facts, however reasonable it may be, for that found by the trial court, unless the lower court committed manifest error by finding facts not reasonably supported by credible evidence in the record.”

This, of course, does not mean, as we conceive of our role as an intermediate appellate court, that we merely rubber-stamp the trial court’s version of the facts. As we view the Supreme Court’s admonition, it simply calls upon us to appreciate our role and function as a reviewing court. As a reviewing court, we are constitutionally bound to review both the facts and the law found and applied by the trial court. A review, by definition, is not a new view of the facts and the law of a particular case; it is a judicial (and hopefully, judicious) reexamination by a higher court of facts and law already viewed by a lower court. In brief, we review, not re-try. As an appeal court, we do not hold a second trial of a case — each litigant is entitled only to his own “day in court.” In that context, we do not provide “another” court-day.

In reviewing the law, as an appellate court, we are in just as good a position as the lower court to interpret the statutes and jurisprudence applicable to a given set of facts and to decide a case based on that law. Therefore, in that respect we are not bound by a “cold record” in construing and applying the law. However, when it comes to reviewing the facts, we, as an intermediate appellate court, are clearly not in as good a position as the trial court to find the facts of a given situation. The trier deals face-to-face with the litigants and their counsel and sees the witnesses eye-to-eye as the situation giving rise to the action is verbally reenacted. His function as trier of fact naturally places him in a better position to determine the credibility of a witness and the proper weight to be given to a witness’ testimony. Thus, as reviewer, we are not to find facts anew; we are not to substitute our version of facts for the trial court’s version. Rather, our function is to review the facts as found by the trier of fact in order to determine whether they are reasonably supported by credible evidence in the record. When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a rational factual basis for his finding, we should not, and do not, disturb this finding. See Canter v. Koehring Company, supra.

Our meticulous review in this case leads us to the conclusion that certain material facts as found by the trial court are not reasonably supported by credible evidence in the record.

We find that the trial judge in the instant case committed manifest error in the following factual findings which are material to a resolution of the indispensable second element of last clear chance:

In his “Reasons for Judgment,” the trial judge stated:

“The point of the accident was beyond the driveway in the grass, described as being approximately 16 to 18 inches in height. It was behind Brad’s Cycle Shop which is next door to the Green Door Lounge, and off the graveled passageway.” (emphasis supplied)

The evidence just does not support the finding that the point of the accident was behind Brad’s Shop; the accident happened on the west side of the Shop. All of the evidence leads only to the conclusion that at the time of the accident the plaintiff was lying prone on his back, partially in the driveway, on the west side of the Shop.

Deputy Sigrest was'in California at the time of the trial. His statement, given on the date of the accident, was introduced and read into the record without objection. It places the accident on the west side of Brad’s Cycle Shop, in the driveway. Deputy Leroy Lively, in the first vehicle to arrive at the scene after the accident, saw Mitchell lying on the side of Brad’s Cycle Shop when he got there. Deputy Ray Martin testified that he saw Mitchell lying on the west side of Brad’s Cycle Shop with his head toward the building, flat on his back. Deputy Earl Seals, who was patrolling with Deputy Martin, corroborated his testimony relative to Mitchell’s location when they arrived. None of the testimony places the location of the accident as being behind the Cycle Shop.

With regard to the length of the grass, the trial judge stated in his “Reasons for Judgment” that:

“From the photographs it appears that the grass was loose as contrasted from weeds which are stiff and tend to stand more erect. It appears to be thin and in the area nearest the building fairly well trampled down. This could have resulted from the number of people and vehicles taking part in the investigation.
“I do not find it to have been a dense grass in which a prone human body could have been obscured from view from one approaching slowly in an automobile with the head lights on.”

This factual finding and the inferences drawn therefrom by the trial judge are not supported by credible evidence. Chief Deputy Walker B. Smith, Jr., stated the grass was 12 to 18 inches high. Sigrest gave the height of the grass as 18-24 inches. Lively testified that the grass ranged in height up to 24 inches but that it was mainly “in the 12 to 16 inch range.” Deputy Martin placed the height of the grass at 14 to 18 inches, while Sergeant Donald Penton, of the Bogalusa Police Department, testified: “The grass was pretty high. I would estimate it sixteen, seventeen inches. It was real high.” Deputy Seals said the grass was 16 to 18 inches tall. The only testimony that the grass was short was that of the plaintiff’s brother-in-law, David Jenkins. It is interesting to observe that the shortness of the grass on behalf of the plaintiff was presented in this fashion:

“Q. When you went to the scene, what did you find?
A. Well, I found the grass where Skipper (Mitchell) was laying was short.
Q. What did you do then?
A. Went home and got my camera and came back and took some pictures of the area.”

This testimony of Jenkins is not corroborated by any disinterested witness. The testimony of the disinterested witnesses should have been given greater weight by the trial court than that of such interested witness. See Alexander v. St. Paul Fire & Marine Insurance Co., supra.

We now consider the question of illumination in the area where the accident occurred.

In his original “Reasons for Judgment” the trial judge found that the testimony did not touch on the “relative intensity of the darkness”; afterwards in an addendum, the trial judge pointed out that this finding was incorrect, calling attention to a diagram on the accident report which indicated that there was a pole with a night light behind the buildings. The trial judge then stated in this connection:

“The diagram also locates a ‘pole with nite lite’ near the street or the edge of the graveled driveway, but with the notation ‘not working at time of accident’. The absence of such notation with respect to the pole with nite lite’ behind the buildings, must be construed to mean that it was in working order at the time of the accident. This indicates that the area in question was not in total darkness.”

This finding, based upon negative inference, conflicts with the positive evidence in the record. The testimony of the law enforcement officers shows that the area where the plaintiff was lying was in darkness; there was no illumination. Deputies Lively, Martin and Seals so testified.

In addition, the accident report filed in the record, contains the following statement of the reporting officer:

“Deputy Sigrest stated that he was checking the business places in the Lake-view area and he turned his headlights off as he entered the driveway on the west side of Brad’s Cycle Shop. Due to the grass and shadows he didn’t see the subject lying in the drive.” (Emphasis added)

As the testimony of these witnesses is the only positive, credible evidence in the record regarding illumination of the driveway, we find as a fact that at the time of the accident there was no illumination of that area of the driveway where the accident occurred. The inferences drawn by the trial judge from a diagram on the accident report can not prevail over the testimony of the eye-witnesses. See Demandre v. Robinson, 220 So.2d 542 (La.App. 4 Cir. 1969). The evidence does not support conclusions that the grass was “short and not dense”, and that the accident occurred “behind” Brad’s Cycle Shop. These factual findings are not reasonably supported by credible evidence.

Counsel have not cited, nor has the court been able to find, any cases exactly in point. However, counsel for the appellant has cited the jurisprudence that the operator of a motor vehicle on a highway at night is not charged with the duty of guarding against unusual or unexpected obstructions in the roadway which he has no reason to anticipate he would encounter and which, under the circumstances, are difficult to discover. See Tauzier v. Bondio, 237 La. 516, 111 So.2d 756 (1959); Corkern v. McWilliams, 228 So.2d 236 (La.App. 1 Cir. 1969); Sanders v. Eilers, 217 So.2d 205 (La.App. 1 Cir. 1968); LeBlanc v. Aetna Casualty & Surety Co., 162 So.2d 153 (La.App. 3 Cir. 1964); Gregoire v. Ohio Casualty Insurance Co., supra.

In the case of Corkern v. McWilliams, supra at 237 the court stated:

“Plaintiff admits his own negligence, but claims that defendant had the last clear chance to avoid the accident. He claims that Mr. King should have seen him sooner, and, had he done so, he would have been able to avoid the accident.
“We cannot agree. We find the applicable law to have been expressed in the case of Sanders v. Eilers, 217 So.2d 205 (La.App. 1 Cir. 1968) as follows:
‘The rule is well established that one who operates a motor vehicle on public highways has a never ceasing duty to keep a sharp lookout ahead. A motorist is therefore held to have seen that which in the exercise of ordinary care he should have seen. Rottman v. Beverly, 183 La. 947, 165 So. 153; Jackson v. Cook, 189 La. 860, 181 So. 195. Thus, though as a general rule a motorist may assume that the road ahead is safe for travel, he must when traveling after darkness or in circumstances of limited or impaired visibility observe and so control his vehicle as to avoid discernable objects in his path of travel; that is, in adverse conditions a greater degree of care must be exercised. Watkins v. Strickland Transportation Co. (1956), La.App., 90 So.2d 561, and Her nandez v. State Farm Mutual Automobile Insurance Company (1966), La.App., 192 So.2d 679. This last rule however is subject to the well established exception that a night driver is not charged with the duty of guarding against unusual or unexpected obstructions which he had no reason to anticipate he would encounter on the highway and which under the circumstances are difficult to discover. Gregoire v. Ohio Casualty Ins. Co., La.App., 158 So.2d 379; Gros v. United States Fidelity & Guaranty Co., La.App., 183 So.2d 670.’
“In this case, the plaintiff was lying on a blacktop road, at night, wearing dark trousers. Mr. King stated that he was ten or fifteen feet from plaintiff when he realized there was a man lying in the road, rather than a branch or log, and that he immediately applied his brakes and swerved to the right. We do not think that Mr. King, under the circumstances of this case, was negligent in failing to observe plaintiff sooner than he did, and that it was then too late for him to avoid the accident.”

We are of the opinion that the last clear chance doctrine is not applicable to the instant case, because the evidence does not show that Deputy Sigrest should have discovered the plaintiff’s peril at such time as he could have, by the exercise of reasonable care, avoided the accident.

In the instant case, the plaintiff was lying in a partially overgrown driveway, at night, wearing blue jeans. Deputy Sigrest stated that he had already driven over the prone body before he realized that there was a man lying in the roadway, rather than a “fence post”. An unconscious person lying partially across a roadway, even though it may be one that is not traversed by numerous vehicles each day, is not such an object that a driver of a motor vehicle could, nor should, anticipate. We do not think that Deputy Sigrest, under the circumstances of this case, was negligent in failing to observe the plaintiff sooner. See Corkern v. McWilliams, supra. When he did, it was then obviously too late for him to avoid the accident because it had already happened. It cannot be said that it was unreasonable for the deputy to assume that no person would be lying unconscious in the driveway at that hour of the night.

We hold that the doctrine of last clear chance is unavailable to the plaintiff herein for the reason that the defendant did not discover and, under the circumstances shown, could not have discovered the presence of the plaintiff in the driveway in time to avoid the accident.

Accordingly, the judgment of the trial court is reversed and the plaintiff’s suit is dismissed at plaintiff-appellee’s costs.

REVERSED.


author: SARTAIN, Judge.

text:
    Chris W. DOBARD and Mercedes S. Dobard, husband and wife, Plaintiffs-Appellants, v. Thomas L. BECNEL and Allstate Insurance Company, Defendants-Appellees.
    No. 11197.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.
    Writ Refused June 30, 1977.

      Thomas L. Mahfouz, Lippman, Hunter & Rawls, Morgan City, for plaintiffs and appellants.
    Larry P. Boudreaux and Paul M. Batiza, Thibodaux, for defendants and appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

The sole issue presented on this appeal is that of quantum. Mr. and Mrs. Chris W. Dobard were injured in an automobile accident on February 11, 1975. Mr. Dobard was awarded the sum of $6,000.00 for personal injuries and $1,387.72 for special damages. Mrs. Dobard was awarded the sum of $4,000.00 for her injuries. Mr. Dobard’s claim for loss of future earnings was denied. Each has appealed contending that the amounts awarded for personal injuries are grossly inadequate and that the trial judge committed manifest error in failing to award Mr. Dobard’s claim for loss of future earnings. We affirm.

Following judgment on the merits the trial judge rendered detailed written reasons for judgment. With respect to Mr. Dobard’s injuries, the judge a quo’s written reasons for judgment state:

“In summation of Mr. Dobard’s physical problem, the Court concludes that his shoulder problem was directly tied to the accident and that there was sufficient evidence to indicate that it was also responsible for the vertigo symptoms which did not appear for almost seven months. His other pain complaints were probably due to pre-existing conditions, but were mildly aggravated by the accident. The Court feels that an award of $6,000.00 is sufficient to compensate Mr. Dobard for his past pain and suffering as well as any occasional pain which he may suffer from this shoulder injury in the future. This also is adequate to compensate him for the discomforts of the episodic vertigo and for the slight permanent injury which remains in the shoulder.”

Mr. Dobard argues that based on the above language the trial judge failed to compensate him for a “non-displaced fracture of his eighth (8th) rib.” It can be seen that in the district judge’s “summation” of Mr. Dobard’s injuries, above, he did not specifically state that the amount of $6,000.00 included the rib injury. However, the written reasons for judgment extensively recite the medical treatment received by Mr. Dobard for each of the injuries allegedly sustained by him, including the fractured rib. Therefore, we do not find that the district judge inadvertently omitted compensating Mr. Dobard for this particular injury. The next question is whether the award as a whole for all of the injuries sustained by Mr. Dobard is so grossly inadequate as to constitute an abuse of that discretion vested in the trier of fact. C.C. Art. 1934(3). We hold that it does not.

We have carefully reviewed the authorities cited by counsel for Mr. Dobard wherein awards were made for injuries of a similar nature. These authorities are not entirely apposite for the reason that the totality of the injuries therein compensated were far more severe than those in the instant case.

It is obvious from a reading of the written reasons for judgment that the trial judge did not find that the injuries sustained by Mr. Dobard were as disabling or as severe as claimed. Prom our own perusal of the record we do not choose to state that the district judge’s conclusion in this respect was unwarranted or unreasonable.

With respect to Mr. Dobard’s claim for future earnings the district judge found that Mr. Dobard had failed to meet his burden of proving his loss by a preponderance of the evidence. The record reflects that for a number of years prior to the accident Mr. Dobard was a commercial lobster fisherman. Several weeks before the accident he sold his boat. It was his intention to acquire a new vessel and to enter into a venture whereupon he was to obtain monkeys from South America, transport them to the United States, and sell them for medical research. In addition to this activity Mr. Dobard was to also continue commercial fishing and a charter service. In denying this claim the trial judge stated:

“ * * * The Court has only Mr. Do-bard’s testimony that he intended to reenter business, but even if we accept this as true, no evidence was offered to indicate what possible or probable income he would have realized from this new venture. This, coupled with the medical testimony that he had been urged to return to work by the orthopedic specialist as early as 60 days after the accident, leaves the Court with the conclusion that Mr. Dobard was not too eager to do so. In his testimony in court, he placed great emphasis on his fear of returning to sea because of the vertigo, but he had been urged to return to work four months before the first symptoms of vertigo appeared, so the Court will not accept this as justifying his failure to even attempt to resume a profitable activity. There is just no way the Court could estimate what income loss, if any, was suffered by Mr. Dobard as a result of this accident, and therefore, no award will be made for this item.”

With respect to Mrs. Dobard’s injuries, the trial judge found that she had sustained a moderately severe cervical strain which in turn aggravated a preexisting arthritic condition. Again, the district judge detailed the medical history of Mrs. Dobard’s complaints and treatment. While we feel that this award may be somewhat on the low side, we do not find it to be so inadequate as to constitute an abuse of discretion.

Accordingly, for the above reasons, the judgment of the district court is affirmed at appellants’ costs.

AFFIRMED.


text:
    Ernest ROBERTSON v. VALHI, INC., et al.
    No. 11198.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Rehearing Denied May 9, 1977.

      L. Hallman Woods, New Iberia, for plaintiff and appellant.
    James H. Drury, Drury, Lozes & Curry, ' New Orleans, for defendants and appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This is an appeal from an unsuccessful demand for workmen’s compensation benefits. We affirm.

The sole issue presented by this appeal is whether the plaintiff-appellant, Ernest Robertson, age 19, is totally and permanently disabled as a result of a tractor accident on November 7, 1974, while in the employ of defendant, Valhi, Inc. (formerly Southdown Land Company). The workmen’s compensation insurance carrier is Commerical Union Insurance Company, also named as a defendant.

The material facts are that the plaintiff, operating a tractor pulling a loaded cane wagon, was coming out of the sugar cane field, when the plaintiff swung in a left turn onto the headland, the tractor rolled to the right, causing the plaintiff to fall off the tractor. In so doing, he allegedly struck his back on an iron bracket which was a part of the tractor, causing injury.

Following his accident, he was taken to the emergency room at St. Ann Hospital in Raceland, Louisiana, where he was seen and examined by Dr. W. L. Simpson, who made a diagnosis of acute back sprain and hospitalized him for observation. X-rays were taken of the lumbar spine and were normal. After an uneventful stay in the hospital he was discharged.

It is admitted that the injury is covered under the workmen’s compensation law, that the defendants paid the plaintiff for the period of November 8, 1974, to June 19, 1975, at the rate of $65.00 per week, or a total sum of $2,080.00, and that medical benefits in the amount of $734.25 were also paid.

It is the appellant’s contention that the trial court was manifestly in error in not finding that he was totally incapacitated from performing work of any reasonable character for which he is suited by reason of his education, training and experience. He alleges that he is still in need of medical attention as a result of the injury and that he is entitled to all benefits which he should receive as a result of this total and permanent disability. Additionally, it is contended that the defendants’ discontinuance of the compensation was arbitrary, capricious, and without probably cause so as to entitle the appellant to statutory penalties, including reasonable attorney’s fees. Defendants’ position is that since the plaintiff was discharged to return to work with no physical disability, no further compensation benefits are due to him, and that their failure to pay benefits beyond June 19, 1975, could not be considered arbitrary, capricious, or without probable cause.

The plaintiff testified that his low back and the calves of both legs were bothering him when he was hospitalized following the accident. He claimed to be no better when he was discharged from the hospital. On the date of trial, June 21, 1976, he testified that he still had the same symptoms.

Following his discharge from the hospital, Robertson went to see Dr. Dexter Gary, an orthopedic surgeon in Houma, Louisiana, on December 5, 1974. From the doctor’s deposition we find that x-rays were taken of the plaintiff on this visit and Dr. Gary considered them “to be within normal limits, showing no fracture, dislocations or other evidence of disk (sic) degeneration.” It was Dr. Gary’s opinion that “he had no disability, and he was discharged to return to work.” Dr. Gary further testified that the plaintiff was reevaluated in his office by his associate on March 7, 1975, and that there was “nothing to show any acute problem; normal examination, and the recommendations to return to work without disability, was again made.” Dr. Gary also stated that he did not feel that either a discogram or myelogram was needed.

After his initial visit to Dr. Gary’s office on December 5,1974, the plaintiff consulted Dr. R. C. Llewellyn, a specialist in neurological surgery, in New Orleans, Louisiana, who examined Robertson on December 30, 1974, for purposes of evaluation. He again saw Robertson on March 5,1975, which was two days before he was seen by Dr. Gary’s associate orthopedic specialist. At that time, according to Dr. Llewellyn, Robertson was still complaining of pain in his back. Appellant was seen for the third time by Dr. Llewellyn on October 23,1975, still complaining and claiming to be unable to return to work. His last visit to Dr. Llewellyn was on May 10, 1976, and the doctor opined that Robertson’s condition seemed to have worsened. In his report after the first three visits Dr. Llewellyn recommended that the plaintiff be hospitalized and x-rays taken, followed by discograms and myelo-grams.

It is clear that Dr. Llewellyn never made a clinical diagnosis, despite four office visits, because he indicated each time that hospitalization, with x-rays, myelograms and discograms, was probably needed in order to make a diagnosis. For the same reasons, he gave no treatment. Dr. Llewellyn testified that the failure of the plaintiff to seek out-patient physical therapy after the accident could have been responsible for his slow recovery. The doctor acknowledged that he had not seen any x-rays of Robertson and had not discussed the case with any of the other doctors who had seen Robertson.

On August 7,1975, the plaintiff was seen by Dr. Pete H. Rhymes, an orthopedist, complaining of pain in his back which radiated into his buttocks. The x-rays were normal and Dr. Rhymes found no condition justifying a myelogram or discogram. He diagnosed appellant’s condition as a low back sprain and testified that Robertson had no discogenic disease.

The last orthopedic surgeon consulted in this matter was Dr. Ray J. Haddad, Jr., who saw the plaintiff on November 28, 1975. Again, x-rays were taken. According to Dr. Haddad, the x-rays showed slight congenital deformity, but no sign of traumatic change. Dr. Haddad’s impression was that “from an orthopedic standpoint, there was no evidence of nerve root irritation. I do not think he has demonstrable significant orthopedic objective findings.” He did not feel that the plaintiff exhibited enough physical or clinical evidence to warrant a myelogram or discogram. Dr. Had-dad found nothing to keep Robertson from returning to work. There was no lay testimony other than that of the plaintiff. ■ After reviewing the medical evidence, the trial judge found that the plaintiff had not proved a disability beyond the June 19,1975 date. Therefore, he dismissed the plaintiff’s suit, remarking in his excellent reasons for judgment:

“Like all back injuries, this is a pretty subjective matter. If a complainant says his back is hurting, there is really no way for a doctor to disprove this. An analysis of the evidence, however, reveals the preponderance of evidence to be on the side of the defendant. In support of plaintiff’s claim he offered his testimony that his back hurt and continues to prevent him from returning to work. In corroboration of this is offered the deposition of Dr. Llewellyn. Although Dr. Llewellyn wrote an extensive report after each visit, the sum total of his findings is that he wanted to look further and that he never really made a diagnosis to establish the extent of plaintiffs disability, if any, and whether the disability that did exist might have been more congenital than due to the accident. On the other hand, we have the testimony of the physician who immediately treated the plaintiff, that he felt that there was no disability at the time he discharged him from the hospital and the testimony of three orthopedic specialists, who later examined plaintiff, took x-rays, and concluded that the plaintiff was capable of returning to work.
“The Court is aware that merely because the score stands 3 to 1 in favor of the defense, the validity of plaintiff’s claim should not be thrown out, but the burden is on the plaintiff if he wishes to maintain his position to prove by a preponderance of the evidence the correctness of his position. This he has failed to do. Dr. Llewellyn’s conclusion, the Court feels, is more speculative than clinical, and in the face of the positive testimony of the other orthopedic specialists, the Court must side with the defendant’s position. In Allen v. Georgia Casualty & Surety Company, 324 So.2d [900] 901, the Third Circuit quoted with approval the trial court’s summation of that case:
‘The plaintiff’s complaints of continuing pain and suffering in his back and chest were not supported by any of the medical testimony but in fact were contradicted by the majority of it. The rule has been consistent in workmen’s compensation cases that the claimant may establish a right to workmen’s compensation by his testimony alone where the testimony is consistent and supported by the surrounding circumstances, provided there is nothing to discredit his testimony. Stoddard v. Insurance Company of North America, et al., 271 So.2d 367, Court of Appeal, Second Circuit, November, 1972.
‘The Court can only conclude that the plaintiff failed to support his claim by the required preponderance of evidence, and accordingly, the plaintiff’s suit should be dismissed at his cost.’
“By a strange coincidence the plaintiff in that case was also injured on November 7, 1974, and the Court concludes that in this case as in that one, while the claimant might have established a right to workmen’s compensation by his testimony and Dr. R. C. Llewellyn’s, in our case as in that case, the plaintiff’s case is discredited by the testimony of the other orthopedic specialists.”

The appellant complains that the trial court erred in disregarding the testimony of Dr. Llewellyn and in accepting the testimony of the three orthopedists. He contends that the quoted portion of the trial judge’s reasons implies that Dr. Llewellyn made neither a diagnosis nor a determination of disability. To refute this conclusion of the trial judge, the appellant offers the following portion of Dr. Llewellyn’s testimony:

“Q. Now, on each occasion of the exams you found objective evidence of injury?
A. I found objective evidence of muscle spasm and restriction of back mobility which I interpreted was a direct consequence of his injury.
Q. After having seen him some four times over a period of a year, have you been able to arrive at a clinical diagnosis?
A. I have not as to establishing an exact diagnosis as such as a ruptured disc or a bulging or torn disc or whether his problem is severe muscle injuries or lumbosacral joint sprains. I felt that his complaints and findings were a consequence of one of these mechanical post-injury problems. I felt that an exact post-injury diagnosis could be established by the patient having x-rays, myelograms and/or discograms performed.”

It does appear from the quoted testimony that Dr. Llewellyn did find some objective symptoms; however, we do not consider the finding of objective symptoms equivalent to diagnosing a patient’s condition. Rather, the quoted testimony supports the trial judge’s opinion that Dr. Llewellyn never made a diagnosis.

Moreover, it is clear that the plaintiff was not sent to Dr. Llewellyn for treatment; he was sent to the doctor only for the purpose of evaluation. At no time did Dr. Llewellyn administer any treatment to the plaintiff. We will not give Dr. Llewellyn’s testimony the weight to which we would accord that of a treating physician. His testimony is entitled only to the same weight as that of each of the other medical experts.

Furthermore, even if we accepted the appellant’s position that Dr. Llewellyn had unequivocally diagnosed the plaintiff’s condition as one of total and permanent disability, this would not necessarily mean that the plaintiff would prevail in this lawsuit. We have carefully read the depositions of all the medical experts and find the testimony of the three orthopedists to be more persuasive and convincing than that of the neurological surgeon. We find Dr. Llewellyn’s testimony to be vague and speculative. It appears to us that he never intended to express a firm opinion of the plaintiff’s condition unless and until he had the benefit of a myelogram and/or disco-gram. The other doctors considered such medical tests unnecessary and expressed their unequivocal opinions that the plaintiff was not totally and permanently disabled.

It is well settled that in a suit for workmen’s compensation benefits, the nature and extent of disability are issues of fact which must be determined in the light of the facts and circumstances of each individual case. Griffin v. Hochendel, 263 So.2d 474 (La.App. 1 Cir. 1972), writ den. 262 La. 1105, 266 So.2d 425.

Equally well settled is the rule that a party claiming workmen’s compensation benefits must establish his alleged disability by a preponderance of the evidence. Griffin v. Hochendel, supra; Perkins v. Southern Casualty Insurance Company, 262 So.2d 791 (La.App. 3 Cir. 1972).

Also pertinent herein is the principle that decisions of the trial court on questions of fact will not be disturbed on appeal, unless found to be manifestly erroneous. Orgeron v. New Orleans Stevedoring Company, 294 So.2d 844 (La.App. 4 Cir. 1974), writ denied La., 299 So.2d 361; Clevinger v. Continental Insurance Companies, 211 So.2d 718 (La.App. 2 Cir. 1968); Spreen v. Gibbs, 305 So.2d 494 (La. 1974). This is especially true when the trier’s decision is predicted upon an evaluation of the testimony of conflicting witnesses; Rayner v. Rayner, 216 La. 1099, 45 So.2d 637 (1950).

A careful review of the medical testimony and other evidence supports the conclusion reached by the trial court. The plaintiff failed to carry the burden of proof at the trial and, on appeal, he has failed to establish manifest error on the part of the trial court. The judgment is affirmed at plaintiff-appellant’s costs.

AFFIRMED.