author: SWIFT, Judge.

text:
    James R. BOSWELL, Jr., Plaintiff-Appellant, v. JOHN DEERE COMPANY, et al., Defendants-Appellees.
    Nos. 8343, 8399.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.
    Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiff-appellant.
    Henry M. Bernstein, Shreveport, for in-tervenor-appellant.
    Hall, Lestage & Lestage, H. O. Lestage, III, DeRidder, William P. Polk, Alexandria, for defendants-appellees.
    Before GUIDRY, FORET and SWIFT, JJ.
   SWIFT, Judge.

James R. Boswell, Jr., plaintiff, was employed as a truck driver for H. P. Equipment Company, Inc. (H. P. Equipment) in Pineville, Louisiana. On July 19,1978, Boswell drove an eight-foot wide low boy trailer to Oberlin, Louisiana, to deliver a new Clark grapple skidder. A grapple skidder is a four-wheeled diesel powered vehicle used in timber operations. The machine is approximately 10 feet wide and has a blade in the front and a knuckle boom in the rear. To facilitate steering it pivots in the middle on a hinge.

The buyers of the Clark skidder were defendants, Boise Southern Company, and its joint venturers, Bovill, Inc. and Southern Forest Products, Inc. (hereinafter collectively referred to as Boise Southern). Boise Southern was trading-in two used John Deere skidders, so plaintiff drove from Oberlin to Boise Southern’s plant in Elizabeth, Louisiana, to retrieve these two skid-ders. As Boswell had never operated a Deere skidder, employees of Boise Southern drove the two skidders onto the low boy trailer. The blade of the rear skidder was facing the back of the trailer. Plaintiff secured the rear skidder with three chains. He placed one from the knuckle boom at its rear to the front skidder, one across its hinge area in the middle and one on its blade at the rear of the trailer. Once the chains were in place Boswell used binders to remove all slack and keep them taut. He then returned the vehicles to H. P. Equipment’s place of business in Pineville.

The next day, in order to unload the skidders from the trailer, Boswell first unfastened all three of the binders to loosen the chains that secured the skidder on the rear. He then removed the chain which secured the blade of that machine. Plaintiff climbed aboard the rear skidder and started the engine. At that moment its hinge flexed and the left rear tire moved towards the passenger side of the trailer. Mr. Freddie Sayer, a sales manager of H. P. Equipment, noticed from his office that the left rear wheel of the rear skidder seemed ready to fall off of the right side of the trailer. Sayer went outside and told plaintiff to get off the skidder. Boswell did so, but he left the engine running. Another employee, Floyd Lamartiniere, drove a Clark skidder up against the protruding left rear wheel placing the front blade of his skidder against this wheel of the Deere skidder to hold it in place, and locked his brakes.

Boswell and Sayer climbed back upon the trailer and unhooked the chain which connected the knuckle boom of the rear skidder to the skidder on the front of the low boy. Thus, only the chain across the hinge area of the rear skidder remained fastened, although it was unbound. Plaintiff next went to the right side of the trailer to a position between the supporting Clark skid-der and the rear Deere skidder in order to unfasten the last chain. As he did this the Deere skidder’s left front wheel fell off of the trailer, thereby crushing Boswell between the left front tires of the Deere skidder and the Clark skidder. He sustained severe personal injuries in the accident.

Plaintiff sued for $2,273,800.00 for damages allegedly sustained as a result of negligence of the defendants John Deere Company (John Deere), the manufacturer of the skidder, and Boise Southern, the owners of the Deere skidders. He alleged that the Deere skidder that caused his injuries was defective in design and manufacture and that the defendants knew of its unreasonably dangerous characteristic to unexpectedly flex or lurch to the left when the engine was started. He also asserted that a defective hydraulic steering valve was an additional cause of such motion and that the defendants failed to provide a stabilizer bar to prevent the flexion. Plaintiff further alleged that John Deere and also Boise Southern, who sold the skidder to his employer, failed to give him notice of the skidder’s dangerous characteristic.

Aetna Casualty & Surety Company, H. P. Equipment’s workmen’s compensation insurer, intervened to recover the amount it paid as benefits to Boswell.

The defendants denied all allegations of their negligence and pleaded in the alternative contributory negligence and assumption of risk on the part of plaintiff.

Following plaintiff’s presentation of evidence at the trial, the trial judge directed a verdict in favor of Boise Southern, holding that they violated no duty owed to Boswell. The Court said:

“There is no proof that they would anticipate, or were aware or knew that if this machine were started on a low boy it was subject to being jerked off. I don’t know that anyone can anticipate that, certainly not the parties that were trading in this machine. The motion for a directed verdict will be granted.”

The trial court, however, denied John Deere’s motion for a directed verdict. After completion of the trial on the merits judgment was rendered in favor of John Deere and the suit was dismissed. Plaintiff appealed separately from each judgment.

In his written reasons for judgment after stating the facts, the trial judge said:

“The Supreme Court in Weber v. Fidelity & Casualty Company, 259 La. 599, 250 So.2d 754 (1971), stated that in order for a plaintiff to recover in a products liability case it must prove; (1) the manufacturer’s product was defective; (2) the product was being subjected to normal use; (3) the product was unreasonably dangerous in that use; and (4) the injuries were proximately caused by the defect.
“As the Court stated in Weber, the manufacturer is liable, without proof of specific fault or of knowledge of the defect, if the injured person proves that he was injured by the product because the product was defective or unreasonably dangerous in normal use, and that the product was defective when it left the hands of the manufacturer. The plaintiff failed to prove that the product was defective when it left the manufacturer. In fact, the evidence tended to show that this John Deere 540-A grapple skidder was completely worn out. One of the plaintiff’s own witnesses testified that this skidder was nothing but a piece of junk.
“Conflicting evidence was introduced at trial as to whether the skidder actually flexes upon being started. The Court is of the opinion that the skidder may flex or move to some degree upon its first being started. However, the Court does not find this to be a defect in the product, as this does not make it unreasonably dangerous for normal use.
“No direct evidence could be adduced at trial showing what caused the John Deere skidder to fall off the trailer. In Reeves v. Great Atlantic & Pacific Tea Company, Inc., 370 So.2d 202 (La.App.3rd Cir. 1979), the Court quoted from the Weber case and addressed itself to the burden of proof in showing causation in a products liability suit. There they stated:
“In this civil case, the plaintiff’s burden is to prove causation by a preponderance of the evidence. The burden may be met either by direct or as in this case by circumstantial evidence. Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Naquin v. Marquette Casualty Company, 244 La. 569, 153 So.2d 395 (1963).
“As we stated in the latter decision, 153 So.2d 397; ‘Taken as a whole, circumstantial evidence must exclude other reasonable hypothesis (sic) with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes. Otherwise, the mere identification by the record of another possibility, although not shown to be causally active, would break the chain of causation.’ ”

This Court is of the opinion that other reasonably hypothesis (sic) as to the cause of the accident do exist.

“The Court finds that the most reasonable cause of the accident was a combination of factors. The Court accepts the evidence that the grapple skidder moved when it was started on the low boy trailer. At that point in time Floyd Lamarti-niere pushed another grapple skidder with a blade up against the rear wheel of the grapple skidder sitting on the low boy trailer. A chain was still holding that grapple skidder bound down to the low boy trailer. When plaintiff loosened the binder and chain holding down the front wheels of that grapple skidder, it is reasonable to assume that the pressure ex-, erted from the Clark grapple skidder operated by Mr. Lamartiniere, caused the front wheels of the John Deere grapple skidder to fall off the low boy trailer, causing injury to the plaintiff. When Mr. Lamartiniere pushed the blade of the Clark skidder up against the rear tire of the John Deere skidder, pressure was then exerted upon the front wheels of the John Deere skidder. However, they could not move as long as the chain was binding them to the trailer. Once this chain was removed it is reasonable to assume, taking into account the nature of a grapple skidder, that the front wheels themselves would twist and would fall off the trailer. Pressure against the rear of the skidder would cause it to pivot and the front of the skidder to move in the opposite direction.
“Insofar as the Court finds that there is no causal connection between any defect in the grapple skidder and any injury to the plaintiff, the Court does not find it necessary to address plaintiff’s contentions of inadequate warnings.”

It is clear to us that any tendency of the skidder to flex upon starting its engine did not cause it to fall from the trailer. After ignition the plaintiff let it run, got off the trailer, got back on and unhooked the chain between the two skidders, then got back on the ground to remove the last chain when the skidder fell upon him. Obviously, the starting of the engine did not cause the skidder to flex and fall from the low boy.

The trier of fact’s determination that the most reasonable cause of the accident, i. e., pressure on the skidder’s protruding left rear wheel by the blade of the Clark skid-der, was supported by the plaintiff’s witness, Freddie Sayer, who said:

“Well we got another machine to put up against the rear wheel of it that was up on the low boy, we put the blade up against the rear wheel to push it back up or stabilize it on the machine so it couldn’t fall off.
* * * * * *
“Well where it was sitting there the rear wheel was trying to fall off so we put the blade up against the rear wheel of the John Deere, with the Clark skidder, to shove it back up on there to have it secure where we could take the chains off of it.
******
“We was pushing against the back end of the machine, the front end twisted around and fell . . . . ” (Emphasis added.)

We are in full accord with the findings of fact and conclusions of the trial court and see no reason to disturb its judgments.

Having affirmed the trial judge’s determination that the plaintiff failed to prove that the alleged defect in the Deere skidder was the cause in fact of his injuries, it is unnecessary to discuss further the issue of whether Boise Southern breached any duty as a “seller” to warn of the flexion tendency of the skidder.

For the foregoing reasons, the judgments of the trial court are affirmed at appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

author: FORET, Judge. GUIDRY, Judge,

license: Public Domain

text:
    Daniel AUGUSTINE, Plaintiff-Appellee, v. COURTNEY CONSTRUCTION COMPANY OF ALEXANDRIA, INC. and Safeco Insurance Company, Defendants-Appellants.
    No. 8358.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.
    Writ Denied Dec. 4, 1981.

      Franklin, Moore & Walsh, Carolyn Pratt Perry, Baton Rouge, for defendants-appellants.
    Harold J. Brouillette, Marksville, for plaintiff-appellee.
    Before GUIDRY, FORET and SWIFT, JJ.
   FORET, Judge.

Daniel Augustine (appellee) brought this workmen’s compensation action against Courtney Construction Company of Alexandria, Inc. and Safeco Insurance Company, his employer and its workmen’s compensation insurer.

The trial court rendered judgment in favor of appellee and against appellants, who appealed from that judgment and urge the trial court erred in that:

(1) In finding that appellee is totally and permanently disabled on the basis that he is unable to work without substantial pain;
(2) Appellant is not limited to benefits under the schedule of specific losses found in LSA-R.S. 23:1221(4);
(3) And finally, in finding that Safeco Insurance Company was arbitrary or capricious in terminating the workmen’s compensation benefits on October 15, 1980.

FACTS

Appellee was riding in a truck owned by his employer and being driven by a fellow employee on February 21, 1979, when that truck collided with an automobile. The accident occurred on U.S. Highway 71 in St. Landry Parish, approximately twelve miles south of the town of Bunkie. Appellee sustained injury to his back and right wrist and was taken by ambulance to Bunkie General Hospital.

Safeco paid appellee workmen’s compensation benefits of $141.00 per week from the date of the accident until October 15, 1980. Appellee brought this action alleging that, as a result of the injuries he received in the accident, he has been totally incapacitated from engaging in any gainful occupation for wages (except very light work while enduring severe pain), and that he is totally and permanently disabled within the meaning of the Louisiana Workmen’s Compensation Act. See LSA-R.S. 23:1021, et seq. Appellee further alleged that Safeco had acted arbitrarily and capriciously in terminating his benefits and that he was then entitled to the statutory penalties and attorney’s fees.

“(2) For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.”

The trial court rendered judgment in favor of appellee finding him to be totally and permanently disabled and awarding him $141.00 per week. The trial court also found that appellant, Safeco Insurance Company, had acted arbitrarily and capriciously in terminating payment of benefits to appellee and assessed the statutory penalty of 12% of all unpaid benefits due and attorney’s fees of $3,500.00. Appellants appealed suspensively.

APPELLEE’S DISABILITY

The trial court found that appellee could not perform the tasks associated with his employment at the time of the accident without substantial pain. It was on the basis of this finding that the trial court held that appellee was totally and permanently disabled.

Appellants contend that the trial court committed manifest error in finding appel-lee to be totally and permanently disabled. They argue that the evidence establishes that appellee is neither totally and permanently disabled nor is he partially disabled. Instead, appellants’ position is that appellee is only entitled to an award under the schedule of specific losses.

The record reflects that appellee received emergency medical treatment from Dr. John E. Lemoine immediately following the accident. X-rays revealed that appellee had suffered fractures of the transverse processes of L-l-2-3 on the left and a fracture of the radial styloid portion of the radius (right wrist) involving approximately one-third of the joint space in the accident. Dr. Lemoine applied a short-arm cast to appellee’s right wrist and gave him medication for pain. Appellee remained under observation in the hospital for two days.

Mr. Lemoine referred appellee to Dr. Ray J. Beurlot, Jr., an orthopedic surgeon, for evaluation. Dr. Beurlot first examined ap-pellee on April 3, 1979, approximately six weeks after the accident. Appellee complained of pain in his lower back, left hip, left leg, and right wrist. He told Dr. Beur-lot that he was taking muscle relaxants and pain killers prescribed by Dr. Lemoine at the time and that these helped. Dr. Beurlot reviewed the x-rays taken of appellee shortly after the accident and his diagnosis was essentially the same as Dr. Lemoine’s. He recommended that the cast be removed from appellee’s right wrist and that appel-lee begin active motion of the joint. He also recommended a series of exercises for appellee’s back. Dr. Beurlot noted that ap-pellee might have some residual discomfort in his right wrist as the fracture extended into the joint.

Dr. Lemoine sent a report to Safeco on July 10, 1979, in which he stated that, “Patient should recover with no residual”. Ap-pellee had been put on a progressive exercise program and was encouraged to ambulate without limitation. The report did note that appellee continued to complain of back pain and that he had been hospitalized on May 20, 1979 for treatment with continuous pelvic traction and had shown moderate improvement. It was further noted that appellee was having no difficulty with his right wrist and that the fracture had healed well. Dr. Lemoine stated that he felt that appellee would be able to return to work within one to two months and that he encouraged appellee to work toward that end. Dr. Lemoine made another report on appellee’s condition on October 5,1979. He stated that appellee had been discharged on August 31, 1979, and that he felt that ap-pellee had recovered sufficiently to return to work. Dr. Lemoine stated that appellee should make an effort to return to work.

Appellee’s counsel later contacted Dr. Beurlot and asked him to examine appellee once again because he was still having trouble with his back and wrist. Dr. Beurlot examined appellee for the second time on November 6, 1979 with appellee complaining of pain in his right wrist and back. There was a slight restriction of movement in the wrist and back, but the fractures had healed well. X-rays revealed mild or early arthritic changes in the right wrist joint, which Dr. Beurlot testified resulted from injuries received in the accident. There was a decrease in sensation (to pin pick and light touch) over the web of the great toe of the left foot. Dr. Beurlot concluded that appellee’s injuries were resolving themselves with some residual present. He felt that there would be continued improvement with a continuation of some pain in the right wrist on extreme motion and with heavy lifting or repetitive motion.

Dr. Beurlot next examined appellee, who was still complaining of pain in his right wrist and back, on July 1, 1980. There was still a slight restriction of motion in the right wrist, but there was no restriction of motion in the back. X-rays revealed no significant change in the arthritic condition of the right wrist. Sensation was normal in all areas examined, and there was no evidence of atrophy or weakness in any muscles examined. Dr. Beurlot assigned a 10% impairment to the right wrist and told ap-pellee that if the pain became more severe a wrist fusion could be performed to relieve it.

Dr. Beurlot last examined appellee on September 4, 1980, and appellee related the same complaints made at the previous examination. Dr. Beurlot found that appel-lee’s condition was essentially unchanged. Dr. Beurlot’s opinion was that the injuries to appellee’s right wrist had resulted in a permanent partial disability of that joint. He felt that appellee would suffer some discomfort in his wrist if he attempted to perform the tasks associated with the job he had held with appellant, Courtney Construction Company. Dr. Beurlot testified that appellee’s complaints of pain in his right wrist were consistent with the injuries he had suffered. However, he noted that appellee’s complaints of pain in his back were harder to evaluate, although it was possible that appellee could still be experiencing pain there. He stated that his testimony on the discomfort appellee might experience in performing the tasks associated with his job was based solely on the condition of appellee’s right wrist. He felt that appellee’s back should give him no more than occasional discomfort that could be relieved with a mild, non-narcotic, analgesic.

Appellee testified that he remained in bed for approximately three months after the accident. He then began to help his wife around the house and to do a little work in the yard. He stated that he continued to have trouble with his back and arm and was taking medication for pain about four times a day. Appellee went to work for one M.L. Weeks on March 1, 1980, at a pigskin processing plant and is presently working there. Appellee was employed as a cook and testified that part of his duties included unloading sixty-pound boxes of pigskins from a truck and carrying them into the plant. He used his left (dominant) hand to balance the boxes on his right shoulder. Also, he was required to lift a basket weighing twenty-five to thirty pounds and to carry it within the plant once or twice a day. Appellee is left handed and used his left arm to do this.

Appellee was being paid the minimum wage when he began work at the plant. However, he received a raise two weeks before trial, which boosted his pay to $4.00 per hour. Appellee stated that he was continuing to experience pain in his right wrist and back at the time of trial and that he might have to quit his job because of this. Appellee testified that the only jobs he has ever held involved manual labor. He had completed the ninth grade in high school and was thirty-seven years old at the time of trial. Appellee admitted that he had been contacted by one of the job superintendents for Courtney Construction Company, who told him that his job was waiting for him whenever he felt that he could return.

A worker who cannot return to any gainful employment without suffering substantial pain is entitled to compensation benefits for total disability. Lattin v. HICA Corporation, 395 So.2d 690 (La.1981); Wilson v. Ebasco Services, Inc., 393 So.2d 1248 (La.1981); Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980); Whitaker v. Church’s Fried Chicken, Inc., 387 So.2d 1093 (La.1980). However, substantial pain cases must also be analyzed within the framework of the Odd Lot Doctrine adopted by the Louisiana Supreme Court in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980). See Lattin v. HICA Corporation, supra; Wilson v. Ebasco Services, Inc., supra; Calogero v. City of New Orleans, 397 So.2d 1252 (La.1980); Dusang v. Henry C. Beck Builders, Inc., supra.

The Louisiana Supreme Court, in Lattin v. HICA Corporation, supra, stated that:

“Under the odd lot doctrine, a claimant is considered totally disabled if his injury makes him an odd lot in the labor market, that is, one capable of obtaining employment periodically but one whose services are so limited in quality, dependability or quantity that a reasonably stable market for his services does not exist. An odd lot claimant need not be absolutely helpless to qualify for total disability. If the claimant can prove that his physical condition, mental capacity, education, training age or other factors combine to place him at a substantial disadvantage in the competitive labor market, he has made out a prima facie case for classification in the odd lot category. This satisfies his burden of proving that he should be awarded benefits for permanent and total disability. The employer or insurer must then show that some form of gainful occupation is regularly and continuously available to the employee within reasonable proximity to the employee’s residence.”
“The odd lot doctrine is also applicable to substantial pain eases because a worker who, due to his injury, can function only with substantial pain or with the help of fellow workers may not be considered a particularly desirable employee. Thus, if a claimant’s pain appreciably limits the types of work available to him and greatly diminishes his ability to compete in the labor market, he can be treated as an odd lot worker and be awarded total disability, unless there is proof that jobs are realistically available to him. On the other hand, if a worker cannot perform the same work that he did before his injury because it causes him substantial pain, but he has the mental capacity to perform other jobs which are available, he should be considered partially disabled. Dusang v. Henry C. Beck Builders, Inc., supra.”

Appellee described the duties associated with his work at the time of the accident. Courtney Construction Company is primarily engaged in the construction of highways. Appellee testified that he climbed down into trenches dug on the side of the highway to guide sections of pipe together when drainage pipes, etc. were being constructed. He also helped erect the forms into which concrete was poured to construct the roadway. The forms weighed approximately 90 pounds each and were handled by at least two, and sometimes three, employees. Once the concrete was poured, workers would get in it and use shovels to spread it around. The concrete was then allowed to dry and the forms were removed. Appellee testified that it was sometimes necessary to use a sledgehammer when putting the forms together or taking them apart. Ap-pellee testified that he has made no attempt to perform any of these tasks since the accident because he is afraid that he will be unable to do them. Dr. Beurlot testified that appellee would probably experience some discomfort if he attempted to perform these tasks. However, he stated that this discomfort would be related to the wrist injury only. Dr. Beurlot testified with respect to appellee’s back injury that:

“A. On his back it’s not inconceivable that the man could have occasional discomfort in his back to the point where he may take a mild analgesic or non-narcotie medication from time to time but not to the point that his back in itself would render him incapacitated or disabled. Mostly it’s his wrist that the primary opinions were based on.”

The evidence shows that appellee has been working for at least nine months at a job that does involve manual labor, in spite of the pain he claims to be experiencing. The medical evidence shows that the fractures suffered by appellee in the accident had healed properly. Further, that while appellee fractured his right wrist, he is a left-handed individual. Dr. Lemoine felt that appellee had recovered sufficiently to return to work. Dr. Beurlot could find no residuals with respect to appellee’s back injury and felt that the residuals in appel-lee’s right wrist were not severe enough to warrant cortisone treatments or surgery. Appellee’s pain at the time of trial was apparently being relieved by non-prescription pain killers.

A claimant will not be held to be disabled solely because he suffers some residual pain and discomfort when he attempts to work following a work-related accident. The residual pain or discomfort in such a circumstance will be considered disabling only if it is substantial or appreciable pain. Hollis v. Travelers Insurance Company, 368 So.2d 154 (La.App. 3 Cir. 1978); Breaux v. Kaplan Rice Mill, Inc., 280 So.2d 923 (La.App. 3 Cir.1973). Whether a claimant’s pain is substantial enough to be disabling is a question of fact that must be determined according to the circumstances of each individual case.

After carefully reviewing all of the evidence in the record, we conclude that the finding of the trial court that appellee’s pain is substantial enough to render him totally and permanently disabled is clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

The claimant has the burden of proving to a legal certainty and by a reasonable preponderance of the evidence that he is disabled. Guidry v. Ford, Bacon & Davis Construction Corp., 376 So.2d 352 (La.App. 3 Cir.1979); Soileau v. Bituminous Casualty Corporation, 348 So.2d 1313 (La.App. 3 Cir.1977); Hamilton v. Georgia Pacific Corp., 344 So.2d 400 (La.App. 1 Cir. 1977).

The issue of whether or not he has carried this burden must be determined by examining the totality of the evidence, including both lay and medical testimony. Crawford v. Al Smith Plumbing & Heating Service, Inc., 352 So.2d 669 (La.1977); Guidry v. Ford, Bacon & Davis Construction Corp., supra.

In order to be classified as partially disabled, appellee would have to prove that he cannot perform the same or similar work that he did before his injury because it causes him substantial pain. See Lattin v. HICA Corp., supra; Dusang v. Henry C. Beck Builders, Inc., supra. We have concluded that the trial court’s finding that appellee was suffering from substantial pain is clearly wrong. We find that appel-lee has failed to prove that he cannot perform the same or similar work that he did before his injury because it causes him substantial pain and, therefore, he cannot be classified as being partially disabled.

We note that, even if appellee would have presented a prima facie case for his inclusion in the Odd Lot category, Courtney Construction Company has made a showing that there are jobs which are available to appellee. Wayne Gaspard, an accountant employed by Courtney, testified that appel-lee was considered to be a dependable and reliable employee. Carl Stephens, a job superintendent employed by Courtney, testified that he had authority to hire and fire workers. He first met appellee in 1973 when he hired him as a laborer. He explained that some of appellee’s tasks required little or no motion in the wrist, i. e., driving a truck, operating a front-end loader, or flagging traffic. Stephens expressed his belief that with a little training, appel-lee would make a good foreman or supervisor as he had been used in a similar position in the past with good results. Stephens described appellee as one of his key men and stated that he would hire appellee “tomorrow” if appellee were willing to return to work. Stephens further stated that he would use appellee as a foreman, which would allow appellee to escape having to use his wrist as he would simply supervise other employees. He testified that approximately thirty percent of the employees working under him have some sort of disability that prevents them from doing certain tasks and he simply assigns those capable of performing a particular task to do it. He estimated that appellee would be paid somewhere between $6.75 and $7.00 per hour if he came back to work. Stephens testified that he had personally spoken to appellee several times since the accident in an attempt to get him to return to work. Appellee himself testified that he had left Courtney a number of times in the past to accept employment elsewhere, but that he was always hired back when he wanted to return to work for them.

This testimony by Stephens, when combined with the fact that appellee has been employed for the last nine months, clearly shows that there is some form of gainful occupation, regularly and continuously available to the appellee within reasonable proximity to his residence.

In the present case, we find that the uncontradicted medical and lay testimony indicates a permanent residual impairment of wrist function (right wrist), which recurrently produces significant pain and soreness upon exertion, and which probably will do so for the remainder of appellee’s life. The uncontradicted medical opinion of 10% permanent impairment or loss of function of the right wrist is based on these recurring episodes of pain, not substantial enough to be disabling (but significant enough to produce aching and soreness), as well as upon the slight restriction of motion of the joint.

This type of residual arising from permanent impairment of function entitles a claimant to compensation under LSA-R.S. 23:1221(4)(p), in the schedule providing for compensation for specific losses which do not produce total or partial disability. LSA—R.S. 2S:1221(4)(p) authorizes the court to allow reasonable compensation for a residual “where the usefulness of a physical function is seriously permanently impaired.” Ventress v. Danel-Ryder, Inc., 225 So.2d 765 (La.App. 3 Cir. 1969). It is a limited award, however. Under this provision, the court may award a maximum of 100 weeks compensation, in either a percentage of up to 66%% of the claimant’s wages (not to exceed the statutory maximum weekly compensation, LSA-R.S. 23:1202), or else a fixed amount of between the statutory minimum and the statutory maximum compensation awardable under LSA-R.S. 23:1202.

Appellee was injured on February 21, 1979, and the average weekly wage, as determined by the Administrator of the Division of Employment Security, at the time was $210.88. Thus, under the circumstances of this case, the most appellee would be entitled to is $4,100.00, which is the statutory minimum.

TERMINATION OF APPELLEE’S BENEFITS

The record shows that Safeco has paid appellee $12,126.00 in workmen’s compensation benefits. This exceeds the amount which we have found appellee to be entitled to. We conclude that the record establishes that the trial court’s finding that Safeco acted arbitrarily and capriciously in terminating payment of workmen’s compensation benefits to appellee is clearly wrong. Arceneaux v. Domingue, supra; Canter v. Koehring Company, supra.

Thus, appellee is not entitled to the statutory penalty of 12% of the workmen’s compensation benefits found to be due and owing or to an award for attorney’s fees.

For the above and foregoing reasons, the judgment of the trial court is reversed.

All costs of this appeal, and in the trial court, are assessed against plaintiff-appel-lee.

REVERSED.

GUIDRY, Judge,

concurring.

I agree with my brethren that the trial court clearly erred in finding plaintiff totally and permanently disabled. I likewise agree that the record will not support a conclusion that plaintiff is partially disabled under LSA-R.S. 23:1221(3). Therefore, the “odd lot doctrine” is clearly inapplicable and no good purpose is served by a discussion thereof.

For these reasons I respectfully concur in the result.

      . LSA-R.S. 23:1221(2) provides, in pertinent part, as follows:

      . LSA-R.S. 23:1221(3) provides, in pertinent part, as follows:
      “(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training, and experience,”

      .The traverse processes are projections of bones, approximately an inch to one and one-half inches in length, which protrude from the side of each vertebra. Their function is to act as attachment points or anchorage for certain muscles that run inside the body along the back wall. They are located away from the nerve structures usually associated with back problems.

      . The radial styloid portion of the radius refers to the boney knot found on the arm bone at the base of the wrist.

      . A wrist fusion consists of the inlaying or embedding of a piece of bone in one of the bones of the forearm and a specific bone of the hand thereby crossing the wrist joint. This restricts the motion of the wrist and relieves the pain caused by such motion.

      . Trial was held on December 18, 1980, which meant that appellee had been steadily employed for almost nine months pre-trial.

      . “(p) In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-six and two-thirds per centum of wages during one hundred weeks.”

      . Assuming an award made on the basis of the maximum number of weeks under LSA-R.S. 23:1221(4)(p), the statutory minimum is computed in the following manner: $210.88 (the average weekly wage at the time of appellee’s injury) times .20 (20% of that wage as provided for in LSA-R.S. 23:1202) times 100 (the maximum number of weeks of compensation under LSA-R.S. 23:1221(4)(p) equals $4,100.00.
      The calculation based solely on LSA-R.S. 23:1221(4)(p), without taking into account the statutory minimum yields the following result: $210.88 (average weekly wage) times .666 (66.6% of that wage, the maximum as provided for in both LSA-R.S. 23:1202 and 1221(4)(p)) times 100 (the maximum number of weeks of compensation under LSA-R.S. 23:1221(4)(p)) times .10 (the 10% disability assigned to the wrist) equals $1,400.00 or less than the minimum benefit.


text:
    CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY, Plaintiff-Appellant, v. STATE FARM FIRE & CASUALTY CO., et al., Defendants-Appellees.
    No. 8359.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.

      Stafford, Stewart & Potter, Russell L. Potter, Alexandria, for plaintiff-appellant.
    Gist, Methvin, Hughes & Munsterman, David A. Hughes, Alexandria, for defendants-appellees.
    Before GUIDRY, FORET and SWIFT, JJ.
   SWIFT, Judge.

Plaintiff, Cambridge Mutual Fire Insurance Co., the fire insurer and subrogee of John and Diane Whaley, filed suit against Kenneth and Shirley Campbell and their liability insurer, State Farm Fire and Casualty Co., for $74,433.00, the amount the plaintiff paid to the Whaleys as damages to their house by fire. The plaintiff has appealed from the trial court’s judgment holding that the Whaleys’ contributory negligence barred its recovery.

On December 7, 1979, between 11:00 and 11:30 p. m. Mr. and Mrs. Whaley returned te their home with the Campbells after having dinner at a local restaurant. The two couples entered the living room and seated themselves. Mrs. Campbell was seated in a cushioned wingback chair and smoked one or more cigarettes. The chair’s seat cushion was removable.

Shortly after midnight the Campbells left and the Whaleys retired for the night. At 1:38 a. m. the local fire department was notified of a fire at the Whaley home. After investigation the fire department concluded the origin of the fire was probably the stuffed wingback chair in which Mrs. Campbell had been seated earlier.

At the trial John Whaley testified he had observed Mrs. Campbell brushing the cushion of her chair, although he did not actually see her drop any ashes into it. Diane Whaley stated she had observed some ashes and sparks from Mrs. Campbell’s cigarette falling into the chair. The latter immediately got partially up or slid to one side and then brushed the chair. The Campbells had no recollection of Mrs. Campbell dropping either fire or ashes into the chair, but did not deny such incident occurred. Neither Mr. nor Mrs. Whaley said or did anything about the ashes falling into the chair.

The trial court found that Mrs. Campbell was negligent and that the Whaleys were contributorily negligent. The plaintiff-appellant contends that the trial court erred in the latter determination which precludes its recovery. We disagree.

The appellant argues that the Whaleys were not obliged to inspect the chair, since Mrs. Campbell was under a duty to carefully brush out the ashes and the Whaleys had no reason to anticipate she would be negligent in this respect.

Contributory negligence, of course, is conduct on the part of a plaintiff which falls below the standard to which that person should conform for his own protection, the standard being that of a reasonable man under like circumstances. Smolinski v. Taulli, 276 So.2d 286 (La.1973); Dupas v. City of New Orleans, 354 So.2d 1311 (La.1978), on remand 361 So.2d 911 (La.App. 4 Cir. 1978), writ denied 364 So.2d 121, cert. den. 440 U.S. 971, 99 S.Ct. 1534, 59 L.Ed. 788. A person who fails to exercise the degree of care and prudence required in avoiding a danger which that person has observed and knows about is eontributorily negligent. Marino v. Clark, 349 So.2d 429 (La.App. 4 Cir. 1977), writ denied 351 So.2d 177 (La.1977).

The determination of contributory negligence is a question of fact to be determined by the trier of fact. Skinner v. Nightingale, 377 So.2d 1348 (La.App. 1 Cir. 1979); Cooksey v. Central Louisiana Electric Co., 279 So.2d 242 (La.App. 3 Cir. 1973). Such a factual determination by the trial court will not be disturbed on appeal unless a review of the record reveals that the trial court was manifestly erroneous or clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Mrs. Whaley saw the live ash fall into the chair. Since she had observed and had knowledge of the danger, she was under a duty to exercise the degree of care and prudence of a reasonable person to avoid such danger for her own protection and her property.

The evidence shows Mrs. Whaley failed in this duty. She did not inspect the chair after the incident and did not even mention such incident to the Campbells or to her husband. The cushion of the chair could have been easily removed to determine if the ash was still burning.

The record also reflects that Mr. Whaley observed Mrs. Campbell brushing the seat of the chair while she was smoking a cigarette. It was certainly reasonable for him to assume from this that ashes, some of which may have been live, had been dropped into the seam of the chair. However, Mr. Whaley also failed to inspect the chair to determine whether it was burning.

We are in accord with the trial judge’s factual determinations and also with his conclusion that the Whaleys were contribu-torily negligent.

We are unable to agree with appellant’s contention that Mrs. Whaley was not negligent for the reason that Mrs. Campbell was the person in the best position to determine the extent of the danger and failed to remedy the situation. Mrs. Whaley saw as much as or more than Mrs. Campbell and should have been just as aware of the danger. Unquestionably, she had a.n equal or better opportunity to eliminate same. Clearly, Mrs. Whaley was negligent for one of the same reasons that Mrs. Campbell was negligent, i. e., failing to see that the live ashes were actually extinguished, and such negligence on the part of both persons proximately caused this fire loss.

The appellant also contends that persons who use cigarettes should be held to a high degree of care because a cigarette is a dangerous instrumentality and as Mrs. Campbell failed to exercise such care in the use of her cigarettes she should be held strictly liable. Again, we cannot agree.

The law is settled that persons who use or handle inherently dangerous agencies, substances, or instrumentalities such as explosives, electricity, firearms, combustibles and fireworks which might endanger persons or property are held to a high or extraordinary degree of care. Waters v. Southern Farm Bureau Casualty Insurance Co., 212 So.2d 487 (La.App. 3 Cir. 1968), writ refused 214 So.2d 720 (La.1968); Miller v. Lambert, 380 So.2d 695 (La.App. 4 Cir. 1980). Also, when an instrumentality which is not inherently dangerous becomes dangerous through its use by the owner, the owner is under a duty of care “to take reasonable measures to protect unsuspecting persons from injury . . . failure to do so constitutes negligence.” Duxworth v. Pat Caffey Contractor, Inc., 209 So.2d 497 (La.App. 4 Cir. 1968), writ denied 252 La. 258, 210 So.2d 505. (Emphasis added.)

We find no authority for the proposition that cigarettes themselves are inherently dangerous instrumentalities. While they can become dangerous through the manner of their use, responsibility for damages resulting therefrom is based on negligence, not strict liability.

For the foregoing reasons, the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

      . The appellee’s counsel on appeal has not questioned the trial court’s factual determination that the fire was caused by Mrs. Campbell dropping live ashes onto the chair.


author: GUIDRY, Judge.

text:
    Lorraine Lasseigne ALVAREZ et al., Plaintiffs-Appellees-Appellants, v. HUB CITY IRON WORKS, INC., Employee Profit Sharing Trust, Defendant-Appellant.
    No. 8360.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.
    Rehearing Denied Nov. 20, 1981.
    Allan L. Durand, St. Martinville, for defendant-appellant.
    Armentor & Wattigny, Minos H. Armentor, New Iberia, for plaintiffs-appellees-ap-pellants.
    James A. Hammers, St. Martinville, for defendant-appellee.
    Before GUIDRY, FORET and SWIFT, JJ.
   GUIDRY, Judge.

This is a possessory action.

The record reflects that plaintiffs and defendant own adjoining parcels of land in St. Martin Parish, Louisiana, both of which are bounded west by Louisiana Highway 347 and extend east to a line 40 arpents from Bayou Teche. Defendant’s property, hereinafter referred to as the Hub City tract, contains 61 acres and is located immediately north of plaintiffs’ land. That portion of plaintiffs’ land located east of highway 347, hereafter referred to as the Las-seigne tract, contains approximately 122 acres. Both tracts of land are traversed near their eastern extremities by a railroad track which runs generally north and south. For many years prior to the institution of this suit both properties were used for the cultivation of sugar cane. The properties have never been separated by a fence, however, at least since the early 1930s a field drainage ditch, which runs generally east and west and which is located in close proximity to the common boundary of such properties, has remained in existence in the same place.

Defendant acquired the Hub City tract on April 6, 1978. Thereafter, defendant caused a survey to be made of this property preparatory to converting the land into a residential subdivision. The instant controversy arose when defendant, in furtherance of its plan for development of the Hub City tract, land leveled the field ditch and a strip of ground south thereof. In effect, defendant in its operation incorporated the ditch and five or six rows of sugar cane located south of the ditch in its subdivision development. According to the record, this event occurred on or about June 12, 1979. This suit was filed on July 16, 1979.

The trial court rendered judgment in favor of plaintiffs, recognizing their right to possession of the disputed area, the northern limits of which are defined in the trial court’s judgment as the field ditch, formerly existing between the property of Clerfe Potier and Anaclet Lasseigne, as located on the plat of Clarence Thibodeaux (Defendant’s Ex. 1) and projected on the west to Louisiana Highway 347 and on the east to the Missouri Pacific Railroad right of way. In addition plaintiff was awarded damages in the sum of $1500.00.

Both plaintiffs and defendant have appealed. Defendant assigns as error the trial court’s conclusion that plaintiffs had such possession of the disputed strip sufficient to maintain the possessory action. Additionally, defendant urges that the trial court erred, as a matter of law, in concluding that the field ditch was a visible bound sufficient to delineate the extent of plaintiffs’ possession. On appeal plaintiffs question only the quantum of the trial court’s award of damages.

We first address defendant-appellant’s specifications of error.

The possessory action is one brought by the possessor of immovable property or of a real right to be maintained in his possession of the property or enjoyment of the right when his possession has been disturbed. (LSA-C.C.P. Article 3655). In the possessory action, the ownership or title of the parties to the immovable property or real right is not at issue. (LSA-C.C.P. Article 3661). A plaintiff in a possessory action is one who possesses for himself. A predial lessee possesses for his lessor and not for himself. (LSA-C.C.P. Articles 3656 and 3660). One has possession of immovable property sufficient to maintain the pos-sessory action when he has corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper. (LSA-C.C.P. Article 3660). LSA-C.C.P. Article 3658 provides that in order to maintain the possessory action the possessor must allege and prove the following:

(1) He had possession of the immovable property or real right at the time the disturbance occurred;
(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
(3) The disturbance was one in fact or in law, as defined in Article 3659; and
(4) The possessory action was instituted within a year of the disturbance.”

In the recent case of Harper v. Willis, 383 So.2d 1299 (La.App. 3rd Cir. 1980) writ denied, 390 So.2d 202 (La.), we discussed the possession necessary for maintenance of the possessory action. In that case we stated:

“. . .LSA-C.C. art. 3436 requires two distinct elements for a person to acquire possession: (1) the intention of possessing as owner and (2) the corporeal possession of the thing. Our jurisprudence usually states that the term ‘corporeal possession’ means the actual, physical, open, public, unequivocal, continuous, and uninterrupted possession of property with the intent of possessing it as owner. Gerrold v. Barnhart, 128 La. 1099, 55 So. 688 (1911); Wm. T. Burton Industries, Inc. v. McDonald, supra [346 So.2d 1333 (La.App.)], Succession of Kemp v. Robertson, 316 So.2d 919 (La.App. 1st Cir. 1975), writ denied, 320 So.2d 906.
It is well established that the ‘corporeal possession’ required to bring a possessory action is identical to that required for acquisitive prescription of thirty years. LSA-C.C. articles 3499-3505; Hill v. Richey, et al., 221 La. 402, 59 So.2d 434 (La.1952); Johnson v. Merritt, 131 So.2d 562 (La.App. 2nd Cir. 1961); Case v. Jeanerette Lumber & Shingle Company, Inc., 79 So.2d 650 (La.App. 1st Cir. 1955); Broussard v. Motty, 174 So.2d 246 (La.App. 3rd Cir. 1965); Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975); Norton v. Addie, 337 So.2d 432 (La.1976); Wagley v. Cross, 347 So.2d 859 (La.App. 3rd Cir. 1977).
It is clear that the intent to possess as owner has to do with the subjective intent of one who professes to possess and does not mean that the possessor must pretend to have valid title rights. The possessor may actually have title, but in the possessory action that factor is significant only in determining intent. The intent may exist without title to the knowledge of the possessor, for as shown above, even our codes permit a person in bad faith or a usurper to maintain the possessory action. LSA-C.C. arts. 3450, 3452, and 3454 and LSA-C.C.P. art. 3660. In as much as the corporeal possession required as a predicate to a possessory action is the same as that required for acquisitive prescription of 30 years, the corporeal possession must be open and notorious and adverse or hostile to the true owner and everyone else.”

We find no merit in defendant’s contention that the field ditch was not a visible bound sufficient to delineate the extent of plaintiffs’ possession. It is well settled that a ditch may be sufficient to serve as a visible bound delineating the extent of possession. Coleman v. Henderson, 353 So.2d 1091 (La.App. 2nd Cir. 1977) and cases therein cited. As set forth in Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952):

“What the court means by ‘enclosures’, as that term is used in the numerous cases found in the jurisprudence, is that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, whether by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the boundaries or limits thereof. To say that the term means ‘enclosed only by a fence or wall’ would be giving it a very strict and narrow construction, not justified or supported by the articles of the Code, as we have hereinabove pointed out, and would lead to absurd consequences in some cases. ”

Defendant’s suggestion that the field ditch in question was too insignificant to serve as a visible bound belies the fact that for almost 50 years the ditch actually served as the division line between the two properties.

The record in this case reflects that the field drainage ditch, located as aforestated in close proximity to the common boundary of plaintiffs’ and defendant’s properties, was constructed prior to the early 1930s and was maintained in the same place until filled in by defendant on or about June 12, 1979. During this entire period of time both properties were cultivated in sugar cane by the respective owners thereof or their tenants, with the field ditch being accepted by both owners and tenants as the dividing line. There is no testimony in the record to the contrary, except that of the brother of plaintiffs, Clet Lasseigne, who, following his late father’s retirement in the early 1960s, began to farm the Lasseigne tract as a lessee and, who during the approximate same period also farmed the Hub City tract under a share crop arrangement. Clet Lasseigne testified, contrary to his sisters and Charles Broussard, a former tenant on the Hub City tract, that he was aware, as was his late father, that the drainage ditch was not a boundary ditch. The learned trial judge resolved this conflict in the evidence favorable to the plaintiffs concluding that at the time of the disturbance plaintiffs were in corporeal possession of the disputed strip with the intention of possessing as owners. In this connection the trial judge stated in his oral reasons for judgment as follows:

“The evidence overwhelmingly establishes to my satisfaction possession up to the field ditch that we have heard so much about and a line extended from it in each direction from time immemorial, for all practical purposes, actual physical, corporeal possession by farming and harvesting crops. The disturbance is admitted. There’s no question that in fact a portion of the area south of the field ditch was in fact incorporated by the defendant into its property and rows were done away with and the ditch done away with. We have no problem with that. The question is the character of the possession. The plaintiff must possess as owner.
Alright, the plaintiffs in this case are the three daughters of, for our purposes the original owners of the property. They are the ones claiming that their possession has been disturbed. All of the evidence in this case shows that the activity conducted on this tract of land by the ancestors of the present owners, that is, by their father, with the single exception of the testimony of Mr. Clet Lasseigne, was as owner. He did all of those things that an owner does. Now the question, of course, is, what was the character of the possession at the time of and for the year previous to the disturbance, which of course was long after Mr. Lasseigne, Sr., was deceased. Now, the water is muddied by the fact that we have the same tenant on both tracts of land. If we had separate tenants it would probably be easier. But Mr. Clet Lasseigne has testified that he was aware and that his father before him was aware that the drainage ditch was not a boundary. It was, however accepted by the previous tenant on the Potier property, because he so testified. It was accepted by Mr. Lasseigne, Sr., by all evidence that has been introduced except the testimony of his son; and it was at least accepted even by Mr. Clet Lasseigne, Jr. — is that correct, his full name — for purposes of dividing the proceeds of the crops grown by him on the respective tracts except to the extent that he says that he had a gentleman’s agreement with Mr. Potier to give him sone (sic) heat-treated seed cane or an occasional load of cane to make up for the fact that maybe some of the cane was from his property.
To the contrary of that, we have the testimony of Mr. Thibodeaux to the effect that Mr. Lasseigne had informed him that the ditch had been established as a dividing line and that from the general tenor of the conversation, he considered it to be not a firmly fixed ownership line, but a basis on which the crop was divided. This is corroborative of Mr. Lasseigne’s testimony in one respect and contradictory in another. I am satisfied that even if Mr. Lasseigne’s testimony is accepted, that is, that there was a gentlemen’s agreement between himself and Mr. Potier to return an occasional amount of cane, that this was an agreement just exactly as he said, between himself and Mr. Potier, not an agreement made by him as agent for the owners of the property, and therefore cannot possibly bind the owners of the property, the plaintiffs in this case, since their entire testimony has been to the contrary, that they were never aware of any arrangement other than the fact that everything south of the ditch belonged to them and their father before them, and north of the ditch belonged to Mr. Potier.
Accordingly, I am going to find for the plaintiff (sic) in this case.”

We find that the record in this case clearly supports the trial court’s conclusion that plaintiffs have established by competent proof all requisites for maintenance of the possessory action and therefore, the judgment of the trial court maintaining plaintiffs in possession of the disputed strip will be affirmed.

Plaintiffs have appealed asserting that the damages awarded are inadequate. In their petition plaintiffs seek to recover both special and general damages. The trial court found the evidence with regard to the cost of restoring the ditch and land to be highly speculative and the evidence as to plaintiffs’ emotional suffering to be very unimpressive. The trial court allowed plaintiffs the sum of $1500.00 as damages. Our review of the record reveals no clear error or abuse of discretion by the trial court in this award.

For the reasons assigned the judgment appealed from is affirmed. Costs of this appeal are assessed one-half (V2) to plaintiffs-appellants and one-half (V2) to defendant-appellant.

AFFIRMED.

      . At trial, evidence of ownership was introduced for the limited purposes allowed by LSA-C.C.P. Article 3661.

      . The field ditch referred to does not extend across the entire width of the adjoining properties. Rather, the ditch commences at a point some distance east of highway 347 and extends east to a point a short distance west of the railroad track.

      . Hub City tract.

      . The Civil Engineer who surveyed the Hub City tract.


text:
    James D. DAVIS, Plaintiff-Defendant In Rule-Appellee, v. Jane Thompson DAVIS, Defendant-Plaintiff In Rule-Appellant.
    No. 8367.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.
    Rehearing Denied Nov. 20, 1981.

      John G. Williams, Natchitoches, for plaintiff-appellant.
    Davis & Murchison, James D. Davis and H. Dillon Murchison, Alexandria, for defendant-appellee.
    Before GUIDRY, FORET and SWIFT, JJ.
   GUIDRY, Judge.

Plaintiff, Jane T. Davis, obtained the issuance of a rule directing defendant, James D. Davis, to show cause why alimony and child support payments allegedly past due should not be paid and why the defendant should not be held in contempt of court for his refusal to comply with the judgment ordering such payments. Following the filing of the instant rule, the defendant sought to remove this suit to the United States District Court for the Western District of Louisiana. The Federal Court denied defendant’s removal petition and remanded the case to the Ninth Judicial District Court for trial. Following remand, judgment was rendered by the trial court dismissing both plaintiff’s demand for past due alimony and her demand that defendant be held in contempt of court. Further, the trial court ordered defendant to pay $530.00 in past due child support payments plus legal interest from the date of demand until paid. The trial court awarded attorney’s fees to the plaintiff in the sum of $1800.00 and assessed all costs of the proceedings to the defendant. Plaintiff appealed. Defendant answered plaintiff’s appeal seeking a reversal of the trial court’s awards of past due child support and attorney’s fees. In the alternative, defendant seeks a reduction of the trial court’s award of attorney’s fees alleging that the award is excessive and constitutes an abuse of discretion.

The issues presented on appeal are: (1) Did the defendant incur any obligation to plaintiff under the alimony decree of April 4, 1977? (2) Did the trial court err in concluding that the defendant owed $530.00 in past due child support payments? (3) Is the award of attorney’s fees in the sum of $1800.00 excessive?

FACTS

Plaintiff and defendant were married on October 10,1959. Three children were born of that union, James D. Davis, III, Webster T. Davis, and Drew Anna Davis. At the time of trial in August, 1980, James and Webster were adults however, Drew Anna Davis was then 17 years old.

On April 6, 1972, the parties obtained a decree of absolute divorce. Custody of the parties’ minor children was awarded to Mr. Davis. The record reflects that that judgment contained no provision for alimony in favor of Mrs. Davis.

On December 17, 1974, the judgment of divorce was amended to provide that custody of Webster T. Davis and Drew Anna Davis be transferred to Mrs. Davis and that the defendant, James D. Davis, pay to Mrs. Davis the sum of $500.00 per month in alimony and $250.00 in child support. On September 14, 1976 the judgment was again amended to award custody of James D. Davis, III to Mrs. Davis and increase alimony payments to $600.00 per month, the child support award remaining at $250.00 monthly-

Mrs. Davis remarried on March 25, 1977.

On April 4, 1977, after Mrs. Davis’ -remarriage, the divorce judgment ..was again amended in accordance with a joint stipulation entered into by the parties. This modification, which forms the basis of the instant dispute, increased plaintiff’s alimony to the sum of $750.00 per month and decreased the amount of child support to the sum of $150.00 per month. In addition, defendant agreed to pay all reasonable medical expenses incurred by the parties’ three children.

At trial of this matter, both parties testified that the alimony and child support payments provided for in the divorce judgment as amended were intended as child support. However, pursuant to an agreement between the parties, such payments were designated in the judgment partly as alimony so that the defendant could avail himself of certain tax advantages. In this regard, defendant testified as follows:

“. . . during- this period of time ... us ... we made various agreements, Mrs. Davis and myself, with regard to child support, you know, about increasing it. It increased, you know, everytime we talked. The alimony thing that she is talking about was really a tax break for me because of the bracket that I was in. I never intended to pay her alimony at all because she was working, we were divorced and she knows as well as I do that all of this was . . . that I was paying was for the children, not for her . . . not for her expenses, not for her upkeep or anything else. My statement to my children was, and still is, that I want them to live as well with their mother as they would have with me and to that end I have sent everything that I could, when I could, I’ve given them a car, I’ve given them, you know, everything ...”

The record reflects that the defendant regularly met his alimony and child support obligations until September of 1978 at which time defendant ceased to make monthly payments. Defendant testified that he and Mrs. Davis mutually agreed on or about January, 1979 that the alimony and child support payments would no longer be paid on a regular monthly basis due to a change in the defendant’s professional and financial status. Contrary to defendant’s testimony, plaintiff stated that no such agreement had been reached, rather, Mrs. Davis testified that she urged the defendant to seek a judicial modification of the divorce judgment lowering the total amount of support due and designating the entire sum as child support. Mrs. Davis stated that the defendant failed to take such action. Defendant’s alleged refusal to meet his alimony and child support obligations culminated in the filing of the instant suit.

DID THE DEFENDANT INCUR ANY OBLIGATION TO PLAINTIFF UNDER THE ALIMONY DECREE OF APRIL 4, 1977?

The trial court, in written reasons, concluded that the alimony provision ($750.00 monthly) of the April 4, 1977 judgment was unenforceable because under LSA-C.C. Art. 160, alimony terminates when the spouse receiving such payments remarries. Thus, the trial court determined that since Mrs. Davis was already remarried prior to the date of the judgment, the alimony portion of that judgment had no legal effect.

Plaintiff asserts error in this conclusion contending that the general rule that alimony terminates by operation of law upon the remarriage of the spouse receiving such payments is inapplicable to the instant case. Plaintiff avers that the rule does not apply where defendant has full knowledge of his ex-spouse’s remarriage yet freely and voluntarily enters into a stipulation providing for the continuance of such payments. In support of her argument, plaintiff contends that the instant case is analogous to the decision in Shows v. Shows, 345 So.2d 975 (La.App. 2d Cir. 1977) wherein the court concluded that a husband who obtained a separation from bed and board based upon his wife’s fault, and who thereafter, consented to a judgment in her favor for permanent alimony after divorce, and who did not appeal from such judgment, could not, in a subsequent proceeding, raise the issue of his wife’s nonentitlement to alimony by reason of her fault. On the other hand, the defendant contends that his obligation for alimony payments ceased upon plaintiff’s remarriage which actually occurred prior to rendition of the judgment of April 4, 1977.

After carefully reviewing the record in light of recent jurisprudence, we conclude that the learned trial judge erred in determining that the alimony provision of the April 4, 1977 judgment is unenforceable. We reach this conclusion because we find that although the April 4, 1977 judgment was framed so as to award plaintiff alimony in the amount of $750.00 monthly, it is clear from the record that the provision for such payments, pursuant to an agreement between the parties, was intended as child support under LSA-C.C. Article 227 and not as alimony under LSA-C.C. Article 160. This being so, we need not consider the issue as to whether or not under the peculiar circumstances of this ease, the defendant would be estopped, as plaintiff contends, to question the validity of this provision.

In the recent case of Dubroc v. Dubroc, 388 So.2d 377 (La.1980), our Supreme Court considered the effect which a bilateral agreement entered into by the parties could have on a divorce judgment providing for child support payments. In Dubroc, supra, the mother was awarded custody of the parties’ two children and child support in the amount of $250.00 monthly. Subsequent to rendition of the judgment, the parties agreed that the father would take custody of one of the children and his obligation of child support payments to the mother would be reduced by one-half. Neither party complained of this arrangement until Mrs. Dubroc instituted a rule to make past due child support executory in support of which she urged that such judgment was enforceable as written until judicially modified. The issue in Dubroc, supra, was simply whether or not the parties to a divorce judgment could agree bilaterally to modify the terms of the judgment. In rejecting Mrs. Dubroc’s demand, our Supreme Court stated:

“The Civil Code nowhere mandates a lawsuit for a change in alimony, and the Code of Civil Procedure merely provides for the proper procedure in seeking ar-rearages.”
“Since the parent’s duty of support and upbringing is a legal duty owed to the child, it cannot be renounced or suspended.® There is no prohibition, however, expressed by the law against a spouse’s agreement to suspend his right to compel the other parent without custody to turn over to him in advance money necessary for the child’s maintenance. Of course, an essential prerequisite to such a conventional modification of a parent’s right to receive support payments is implied. The parent may not, by suspension of this right, thwart the purpose for which the right is established, i. e., the enforcement of the child’s right to support and upbringing.
For these reasons, an agreement by a parent to suspend his right to receive child support payments will not be enforced unless it meets the requisites for a conventional obligation and fosters the continued support and upbringing of the child. To allow the parent to suspend his right to receive support payments under circumstances contrary to the child’s interests, would be inimical to the ultimate goal of support and upbringing of the child. On the other hand, if the parties clearly agree to a suspension of the payments, and such agreement does not interrupt the child’s maintenance or upbringing or otherwise work to his detriment, the agreement should be enforceable.”

The issue presented to this court in the instant case is similar to that confronted by our Supreme Court in Dabroc, supra. In both cases the issue is whether or not a judgment may be modified, as between the parties, by a conventional agreement. Here, we are not concerned with modification of a divorce judgment via a bilateral agreement entered into subsequent to rendition of the divorce judgment, but rather, we are concerned with a bilateral agreement entered into by the parties simultaneously with the rendition of the divorce judgment which provided that the judgment be “framed” in such a manner as to provide for the maintenance and support of the parties’ children in an agreed amount and at the same time afford the defendant a substantial tax advantage. As the court in Dubroc noted, the primary interest of the court is to insure the uninterrupted maintenance and support of the parties’ children. Therefore, if the bilateral agreement does not thwart the purpose and intent of the judgment, then there is no reason why such an agreement should not be enforced. In Dubroc, the Court found that the agreement did not interrupt the child’s maintenance and upbringing and was therefore, enforceable. In the instant case, the agreement was entered into in furtherance of the defendant’s obligation to support his minor children, and at the same time, afford him a measure of tax relief. Defendant should not now be permitted to repudiate this agreement by urging that, as framed, the judgment provides for child support in the amount of only $150.00 monthly. A refusal to enforce the agreement entered into by the parties herein would clearly contravene the intent of the divorce judgment as the intendment of that judgment was for the sum designated as alimony to be utilized for the support and maintenance of the parties’ children.

We recognize the potential danger of enforcing agreements entered into by parties to a judgment which alter the terms of such judgments. However, after reviewing the instant record in light of Dubroc, supra, we conclude that the agreement entered into by plaintiff and defendant is enforceable and that defendant’s obligation for child support under the judgment of April 4,1977 is in the sum of $900.00 monthly.

DID THE TRIAL COURT ERR IN CONCLUDING THAT THE DEFENDANT OWED $530.00 UNDER THE CHILD SUPPORT PROVISION OF THE 1977 JUDGMENT?

Defendant in his answer to the appeal seeks reversal of the trial court’s judgment ordering him to pay $530.00 in alleged arrearages under the child support provision of the April 4, 1977 judgment ($150.00 monthly). Although defendant at trial sought no credits for alleged “excess” payments, he contends on appeal that the record clearly establishes that -he has met his obligations under the child support provision of the judgment of April 4, 1977. The record contains several checks totaling $2620.00 made out by the defendant to the plaintiff during the period in dispute. The record also contains a check in the sum of $3000.00 which was paid by Mr. Davis to the plaintiff in accordance with a verbal agreement between the parties relative to the payment of the plaintiff’s income taxes as well as checks in the sum of $1000.00 and $708.40, representing payment by defendant of medical expenses incurred by the parties’ three children. Also, the record includes numerous checks totaling $625.00 which were given directly to the parties’ children by the defendant. The trial court concluded that Mr. Davis owed child support payments of $150.00 per month for the period extending from September 1,1978 to May 1, 1980, a total of $3150.00. The trial court next determined that only those payments made directly to Mrs. Davis by the defendant in fulfillment of his child support obligations could be credited to the total amount owed by him. Therefore, the court concluded, Mr. Davis owed to plaintiff the difference between the total amount due of $3150.00 and the amount paid directly to Mrs. Davis of $2620.00 or a total of $530.00. We find no error in the conclusions of the trial court. It is well settled that the obligation of the father is to support the minor children by making payments to the mother, and it is only by so complying that he fulfills his obligation. See Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir. 1978); Simon v. Calvert, 289 So.2d 567 (La.App. 3rd Cir. 1974); Rodriguez v. Rodriguez, 245 So.2d 765 (La.App. 4th Cir. 1971). The end result is that plaintiff is entitled to a credit on the total amount of support in arrears in the sum of $2620.00.

IS THE AWARD OF ATTORNEY’S FEES IN THE SUM OF $1800.00 EXCESSIVE?

Finally, defendant contends that the trial court’s award of attorney’s fees under LSA-R.S. 9:305 in the amount of $1800.00 is excessive and constitutes an abuse of discretion. On the other hand, plaintiff seeks an increase in such award for legal services rendered on appeal.

After evaluating the time and effort expended by plaintiff’s attorney in connection with the instant suit, we concur with the trial court’s award of attorney’s fees in the sum of $1800.00 and conclude that such an award does not constitute an abuse of that court’s discretion. We will not increase the award for services on appeal because we believe that the sum awarded at the trial level is sufficient to compensate plaintiff’s counsel for services rendered at both the trial level and on appeal.

For the above and foregoing reasons, the judgment appealed from is affirmed in part, reversed in part, and recast as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of Jane T. Davis and against James D. Davis for the full sum of $18,980.00 ($900.00 times 24 months less a credit of $2620.00) representing past due child support payments in arrears for the period from September 1, 1978 through August 1, 1980 (date of trial of rule) with legal interest from the date of judicial demand until paid together with all costs of these proceedings.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Jane Thompson Davis and against James D. Davis awarding unto plaintiff in rule the sum of $1,800.00 as attorney’s fees.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the demands by the plaintiff in rule that the defendant in rule be held in contempt of court is dismissed.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant in rule, James D. Davis, pay all costs of these proceedings at the trial level and on appeal.

AFFIRMED IN PART; REVERSED IN PART; AND RENDERED.

SWIFT, J., concurs, believing that the doctrine of equitable estoppel is applicable.

      . Plaintiff does not complain on appeal of the trial court’s refusal to hold defendant in contempt.

      . The trial record indicates that the defendant filed an Exception of Unauthorized Use of Summary Proceeding. The trial judge notes in his written reasons for judgment that he is unable to recall if any action was taken in regard to defendant’s exception. We observe from the record that this exception has not been disposed of and was apparently abandoned.

      . LSA-C.C. Art. 160 provides:
      “When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, alimony which shall not exceed one-third of his or her income. Alimony shall not be denied on the ground that one spouse obtained a valid divorce from the other spouse in a court of another state or country which had no jurisdiction over the person of the claimant spouse. In determining the entitlement and amount of alimony after divorce, the court shall consider the income, means, and assets of the spouses; the liquidity of such assets; the financial obligations of the spouses, in-eluding their earning capacity; the effect of custody of children of the marriage upon the spouse’s earning capacity; the time necessary for the recipient to acquire appropriate education, training, or employment; the health and age of the parties and their obligations to support or care for dependent children; any other circumstances that the court deems relevant.
      In determining whether the claimant spouse is entitled to alimony, the court shall consider his or her earning capacity, in light of all other circumstances.
      This alimony shall 'be revoked if it becomes unnecessary and terminates if the spouse to whom it has been awarded remarries.”

      . LSA-R.S. 9:305 provides:
      “When the court renders judgment in an action to make past due alimony or child support executory, except for good cause, the court shall award attorney’s fees and court costs to the prevailing party.”


author: DOMENGEAUX, Judge.

text:
    Jefferson DEBLIEUX, et al., Plaintiffs-Appellants, v. P. S. & SONS PAINTING, INC., et al., Defendants-Third Party Plaintiffs-Appellants, The Department of Transportation and Development, Third Party Defendant-Appellee.
    No. 8369.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 7, 1981.

      Thomas & Dunahoe, G. F. Thomas, Jr., Natchitoches, for plaintiff-appellant-appel-lee.
    Watson, Murchison, Crews, Arthur & Corkern, Ronald Corkern, Natchitoches, for defendants-appellees-appellants.
    James B. Frederick, Jr., Baton Rouge, for third party defendant-appellee.
    Before CULPEPPER, DOMENGEAUX, and DOUCET, JJ.
   DOMENGEAUX, Judge.

Plaintiffs, Jefferson DeBlieux and his sister, Lucille DeBlieux Kelly, brought this suit against defendants, P. S. & Sons Painting, Inc., and its public liability insurer, National Indemnity Company, seeking damages resulting from the alleged poisoning of their cows by defendant P. S. & Sons Painting, Inc. The defendants by third party action against the State of Louisiana, through the Department of Transportation and Development, seek judgment against the State for any amount of damages assessed against the defendants in favor of plaintiffs. The district court granted plaintiffs judgment in the amount of $11,439.22 against the original defendants, and denied those defendants’ third party action against the Department of Transportation and Development. Both the plaintiffs and the original defendants have appealed. In essence the plaintiffs seek increased and additional damages, and in the event judgment in favor of the plaintiffs is affirmed, defendants seek full indemnification or, alternatively, contribution from the State of Louisiana.

The issues presented on appeal are:

(1) Do plaintiffs have a right to raise allegations on appeal against third party defendants when plaintiffs failed to amend their original petition to include third party defendants as direct defendants in their suit?

(2) Do the indemnity and hold harmless provisions in the contracts executed by defendants indemnify the Department of Transportation from liability in this case?

(3) Has the trial court abused its discretion in awarding damages?

Plaintiffs are equal owners in indivisión of a tract of land situated on both sides of Louisiana Highway 6 at Grand Ecore, Louisiana. The property is the site of the east terminal of the Grand Ecore Bridge over Red River. The bridge is anchored on the lands of the plaintiffs pursuant to an easement granted the state in 1955. For approximately twenty-five years plaintiffs have conducted a cattle raising operation on the property.

On or about September 4, 1979, the defendant painting contractor, under a contractual agreement with the State of Louisiana, began to remove old paint from the bridge structure and repaint it. The Louisiana Standard Specifications for Roads and Bridges requires that the old paint be removed by sandblasting to the extent that the metal reflects a “near white” finish. The paint removed from the bridge and the paint the contract called for in repairing the bridge were both lead-based and known to be toxic to animals and humans. The sandblasting of the old paint and/or the spraying of the new paint caused considerable deposits of the toxic paint and paint chippings to settle on the grass immediately under the bridge and for some distance therefrom in areas where the cattle grazed.

Soon after the work began, plaintiffs discovered that the cattle began to show symptoms that were later diagnosed by the veterinarian as lead poisoning. Before the cattle could be pastured in another area the plaintiffs lost fourteen head of common grade cows and eleven head of common grade calves. Upon advice of the veterinarian the remainder of the herd was temporarily quarantined. When the quarantine was lifted plaintiffs decided to get out of the cattle business and sold the remainder of their herd.

Plaintiffs on appeal ask for relief against third party defendant under Louisiana Constitution 1974, Article I, Section 4. Plaintiffs contend that the damage to their land amounts to an expropriation by the State entitling the plaintiffs to attorney’s fees as provided for in the 1974 Louisiana Constitution. For the reasons hereinafter stated, we find it unnecessary to address this expropriation issue. The plaintiffs raise this issue on appeal against third party defendant, the Department of Transportation and Development, even though the plaintiffs failed to amend their petition to include the third party defendant as a direct defendant below. The issue of whether a trial court may render a judgment against a third party defendant and in favor of a plaintiff, where the plaintiff has not amended his petition to include the third party defendant as a direct defendant in the plaintiff’s action, was considered in Heckel v. Travelers Insurance Company, 340 So.2d 363 (La.App. 1st Cir. 1976), and Ferrantelli v. Sanchez, 90 So.2d 351 (Court of Appeal, Orleans, 1956). Those courts held that under LSA C.C.P. Article 1111 it was necessary that the plaintiff amend his petition to include third party defendant as a direct defendant before judgment could be rendered in favor of the plaintiff and against the third party defendant. A judgment prohibited on the trial court level is obviously prohibited on appeal, therefore, the constitutional relief sought by plaintiffs on appeal is improperly before this court.

The next issue is whether the Department of Transportation and Development escapes liability by way of the hold harmless and indemnity clauses executed by defendant painting contractor. The principal contract does not provide an exculpatory clause. However, it does refer to and incorporate by reference the 1977 edition, Louisiana Standard Specifications for Roads and Bridges. Section 811.03 of those Standard Specifications informs the contractor that the contract calls for The Basic Lead Silico Chronmate Paint System. Section 811.06 requires that “all metal surfaces to be painted or coated should be cleaned by blast cleaning in accordance with the Near White Blast Cleaning Method.” Section 811.07 provides the following:

“Protection of the public and work. The contractor shall protect all parts of the work against disfigurement by spatters, splashes, and smirches of paint or of paint materials. The contractor shall be responsible for any damage caused by his operations to vehicles, persons, or property, including plants and animals; he shall provide protective measures at his expense and prevent such damage ...”

The contractor further adopts Section 107.16 Responsibility for Damages Claims, which states:

“The contractor shall indemnify the Department, its officers and employees from all suits, actions or claims of any character brought because of any injuries or damage received or sustained by any person or property on account of the operations of said contractor; or on account of or in consequence of any neglect in safeguarding the work; or through use of unacceptable materials in constructing the work; or because of any negligent act, omission or misconduct of said contractor; ...”

The State also requires that the contractor apply for and obtain a contractor’s bond. The form for this bond is supplied by the Department of Transportation and Development. The final page of the contractor’s bond reiterates the indemnity provision and particularly adds the following “hold harmless” language:

“P. S. & Sons Painting, Inc., contractor, ... shall indemnify and save harmless said Department of Transportation and Development against any loss or damage of whatever kind and character arising or occasioned by deeds of negligence of said principal, his agents, servants and employees, in the prosecution of the work, or by reason of improper safeguards or incomplete protection to the work; ...”

The trial court held and the record substantiates, that the proximate cause of the death of the plaintiffs’ cows resulted from the combined negligence of the defendant painting contractor and the third party defendants, The Department of Transportation and Development. P. S. & Sons Painting, Inc. knew or should have known of the Standard Specifications before they submitted their bid. Before beginning the sandblasting and painting the defendant painting contractor realized the danger involved in removing and applying lead-based paint, but proceeded with the operations, without taking any precautions to exclude plaintiffs’ cows from the work area. After the cows began to die P. S. & Sons, Inc.’s foreman was informed by the Department of Transportation and Development’s job engineer that lead poisoning was suspected. The Department of Transportation and Development’s job engineer requested that the foreman enclose the work area with barbed wire to prevent future grazing near and under the bridge. Both the defendant painting contractor and the Department of Transportation and Development failed to take any precautions. No protective wire was installed, the cows continued to graze in the work area, and as a result more of plaintiffs’ cows died of lead poisoning.

Defendants contend that the law prohibits a principal (state) to exculpate itself from liability by the employment of an independent contractor, when the work is inherently or intrinsically dangerous. The defendant cites Ewell v. Petro Processors of Louisiana, Inc., 364 So.2d 604 (La.App. 1st Cir. 1978) to support their contention. In Ewell, supra, the court said:

“Ordinarily, an employer is not liable for offenses of an independent contractor committed in the course of performing his duties under the contract. An important exception to this rule, which has been recognized in this State, is that if the work is inherently or intrinsically dangerous, unless proper precautions are taken to avoid injury, the employer cannot avoid liability by letting the work out to an independent contractor.
Our courts have also concluded that if the work is such that no precautions will render it completely safe, there can be no shifting of liability. Where an available safe method, which includes the taking of adequate precautions, will render it at least ordinarily safe, and the work is done in an unsafe manner, the employer would be liable if he has expressly or impliedly authorized the particular manner which will render the work unsafe, and not otherwise.”

In Ewell, supra, the defendants sought to exculpate themselves by simply relying on the general rule that the employer is not responsible for the acts of his independent contractor. In this case, however, the Department of Transportation and Development relies on the specific language of its contract with the contractor contained in Sections 811.07 and 107.16, supra. The record in this case does not support the conclusion that the painting contract by P. S. & Sons Painting, Inc. cannot be done safely. Furthermore, Section 811.07 places a responsibility for securing protective measures on the defendant at his expense. Section 811.07 additionally places responsibility on defendant for “any damages caused by his operation to property, including plants and animals.”

The effect to be given to the indemnity and hold harmless agreements under consideration in the present matter depends upon the intentions of the parties, which is the foremost requirement in the interpretation of any contract. LSA C.C. Article 1945. Although the indemnification and hold harmless clauses do not contain the words “even though caused by the negligence of indemnitee”, they could be interpreted to require indemnitor to indemnify indemnitee against its own negligence. Polozola v. Garlock, 376 So.2d 1009 (La.App. 1st Cir. 1979). We find that, considering the terms of the contract between P. S. & Sons Painting, Inc. and the Department of Transportation and Development (Sections 811.07 and 107.16, supra), coupled with the terms of the indemnity contract (supra), it seems clear that even though the Department of Transportation and Development was found negligent, P. S. & Sons, Inc.’s intention was to indemnify the Department of Transportation and Development from any liability resulting from defendant’s performance of the work contract.

The Court now turns its attention to the issue of damages. Absent an initial determination that the trial court’s very great discretion in the award of damages has been abused under the facts of this case, the reviewing Court should not disturb the trier’s award. Wilson v. Magee, 367 So.2d 314 (La.1979); Reck v. Stevens, 373 So.2d 498 (La.1979).

Under our jurisprudence general damages for mental anguish are appropriate where plaintiff’s injuries result from civil trespass upon his land. Scarbrock v. Fowler, 317 So.2d 285 (La.App. 3rd Cir. 1975); Hayward v. Carraway, 180 So.2d 758 (La.App. 1st Cir. 1965). Jefferson De-Blieux’s uncontradicted testimony shows that he is a 76 year old man who for the last twenty-five years devoted much of his spare time to his and his sister’s cattle raising operation. Plaintiff further testified that during this incident most of his time was spent trying to determine the cause of his cows’ deaths as well as trying to do something about it. It is evident that he suffered great frustration while watching his cattle die for no apparent reason, and being able to do nothing about it. Accordingly, we amend the trial court’s award to include $3,000.00 for mental anguish to plaintiff Jefferson DeBlieux. The other plaintiff, Lucille DeBlieux Kelly, did not testify, therefore, we are unable to determine whether an award for mental anguish in her favor would be appropriate.

Plaintiffs additionally ask for damages due to loss of timber, loss of clearing land, loss of value of barn, and loss of plaintiff’s income from time missed at work. We have reviewed the record and find no abuse of discretion on behalf of the trial court in refusing compensation for these claims. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

For the reasons assigned, the judgment appealed from is amended so as to award plaintiff, Jefferson DeBlieux, the additional sum of $3,000.00 for mental anguish. In all other respects, the judgment is affirmed. Interest on all sums inures from date of judicial demand. Costs of this appeal aré taxed one-half (Vs) to plaintiffs and one-half (V¿) to defendants.

AFFFIRMED, AS AMENDED.