author:
COLE, Judge.
      EDWARDS, Judge.

text:
    Lavon WOODARD, Individually, etc. v. Elvin MAYS, et al.
    No. 14485.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 1981.
    On Rehearing June 29, 1982.
    William N. Faller, Baton Rouge, for plaintiff.
    Michael J. Paduda, Bogalusa, for defendant Louisiana Farm Bureau Mut. Ins. Co.
    John W. Anthony, Bogalusa, for defendants Elvin May & M. L. Howard.
    Robert P. Hogan, Mandeville, for defendant Parish Wood Products.
    Before COVINGTON, EDWARDS and COLE, JJ.
   COLE, Judge.

Plaintiff’s son, 16 year old Timmy Woodard, was injured when his motorcycle collided with a tractor-trailer logging truck owned by defendant Elvin Mays. Plaintiff filed suit, both individually and on behalf of his minor son, against these defendants: Elvin Mays; M. L. Howard, the driver of the truck; Parish Wood Products, Inc., the alleged employer of Mays and Howard; and Louisiana Farm Bureau Mutual Insurance Company, plaintiff’s uninsured motorist carrier. Parish Wood Products was dismissed in a partial judgment and that judgment has not been appealed.

After a lengthy trial on the merits the district court found defendants Mays and Howard were negligent but Timmy’s contributory negligence barred his recovery. Plaintiff has filed this devolutive appeal.

The accident occurred on January 8,1979, on Louisiana Highway 38, a rural road in Washington Parish near the Mississippi-Louisiana state line. Timmy Woodard was traveling south on the highway when he approached a curve of almost 90 degrees to the right. Testimony at trial revealed irreconcilable versions of how the accident occurred. M. L. Howard and Elvin Mays both testified their logging truck was parked partially on the shoulder of the northbound lane and partially on the roadway. Timmy testified the truck was not on the shoulder at all but was positioned diagonally across the road, with the front end of the truck in the southbound lane and the back end partially in the northbound lane. Both sides testified the truck was facing south.

In written reasons for judgment the trial court solved the conflicting versions as follows:

“. .. In light of the testimony of these witnesses and the record, this Court does not believe the testimony of M. L. Howard and Elvin Mays concerning how this accident happened. Insofar as the positioning of the truck right before the accident is concerned, this Court accepts the testimony of Timmy Woodard and accordingly, finds that this accident happened in the manner related by Timmy Woodard.”

We have carefully examined the record and find no manifest error on the part of the trial court. There were no eyewitnesses to the accident, therefore the court had no choice but to decide which version of the accident was the most credible. Aside from that of the parties involved in the accident, the only other pertinent testimony was that of W. D. Kennedy. He testified he was driving his logging truck on Highway 38 and arrived at the scene shortly after the accident occurred. He approached the scene from the south (the opposite direction from which Timmy was traveling) and stated he saw a logging truck “blocking the road” so that the truck had to move in order for Kennedy to get by. He described the truck as having the front wheels off the center line and the back wheels on the edge of the blacktop, leaving only a six foot space of roadway unblocked. This description puts the truck in the same general position as described by Timmy.

Unfortunately the truck driven by Howard was moved very soon after the accident occurred so that no other witnesses could testify as to its initial position. Corrine Freeman testified she had been traveling on this road, directly behind Mr. Kennedy. When she came upon the scene the Howard truck was already being moved up the road and ultimately pulled off onto the southbound lane’s shoulder. Deputy Sheriff Melvin Garrett stated that when he arrived at the scene the truck had already been moved to this same position.

As always, this court grants much discretion to the trial court’s factual conclusions and will not disturb the findings unless we feel manifest error has been made. Canter v. Koehring Company, 283 So.2d 716 (La.1973), rehearing denied 1973. This court stated the matter quite clearly in an earlier opinion.

“. . . However, when it comes to reviewing the facts, we, as an intermediate appellate court, are clearly not in as good a position as the trial court to find the facts of a given situation. The trier deals face-to-face with the litigants and their counsel and sees the witnesses eye-to-eye as the situation giving rise to the action is verbally reenacted.” Mitchell v. Sigrest, 345 So.2d 141 (La.App. 1st Cir. 1977), at p. 144.

We feel there is enough evidence in the record to justify the trial court’s decision to believe Timmy’s version of how the accident occurred.

Just as there were conflicting accounts as to the position of the truck, the parties related different versions of how the impact actually occurred. M. L. Howard stated that as he sat half-asleep in the cab of the truck (parked on the side of the road) he felt a “bump” which was Timmy’s motorcycle colliding with the truck. Timmy testified he saw the truck blocking the road and began to apply gradually his back brake. He determined he could get past the truck by passing around the left rear end on a small portion of the northbound lane. He crossed over from the southbound lane into the northbound lane and was positioned immediately behind the left rear end of the truck. (He estimated the distance to be about four feet.) The trial court concluded that Timmy’s motorcycle was then going about five miles per hour when the truck suddenly began to back up. Timmy was unable to complete his maneuver around the truck and the bumper of the truck struck the right midportion of Timmy’s motorcycle, causing him to be knocked to the ground. He sustained serious leg injuries.

Again it is evident from the trial court’s statement quoted above that the court believed Timmy’s version of the accident. We again defer that decision to the trial court because it is solely a matter of credibility. Canter, supra.

Plaintiff raises four errors to be considered here. First, he contends the trial court erred in finding Timmy to be contrib-utorily negligent. We agree with the court’s conclusion that Timmy’s behavior fell below the standard of reasonable care. There are two aspects to Timmy’s negligence. One is that he failed to bring his motorcycle to a complete stop before attempting to get around the truck on the extremely narrow portion of the road. The other is that he was careless in allowing his motorcycle to come so close to the rear of the truck that he had no means of escape when the truck began to back up. On the former point the court had this observation.

“... It is hard for this Court to understand how any reasonable man could believe that he could safely pass through this narrow lane without first stopping his vehicle and taking just a few moments to survey the situation before attempting to pass through such a narrow path.”

We note the expert testimony offered by both sides established Timmy had more than ample time to stop his motorcycle before attempting to go around the truck. Defendant’s accident investigation expert, Colonel Joseph Andre, testified Timmy should have been able to see the logging truck from 200 feet away. Even using the more conservative estimate supplied by plaintiff’s accident expert, Richard Seal, Timmy had 110 feet in which to stop. Skid tests conducted by Colonel Andre showed that if Timmy was traveling at 20 miles per hour he could have come to a complete stop within 35.2 feet. This is based on 22 feet reaction time and 13.2 feet of braking time.

Timmy testified he did not want to “slam on” his brakes because of his rather precarious position in a sharp curve. It was not until he realized the truck was backing up that he attempted to bring his motorcycle to a complete halt. We can understand his caution on this matter but the evidence shows that he had at least 110 feet to come to a complete halt, and that if he had “slammed on” his brakes he could have stopped in 35.2 feet. Therefore it is obvious that even without a sudden application of his brakes he could have gradually stopped his motorcycle before reaching the truck. Instead, he chose only to slow down and to maneuver around the rear of the truck without ever coming to a complete halt.

The second aspect of Timmy’s negligence is his careless action of allowing his motorcycle to come within four feet of the truck. Common sense dictates that a logging truck found diagonally blocking a roadway is not going to remain in that position forever. Various photographs submitted at trial show that the rear of the truck was very near a gravel road which intersected with Highway 38. This fact makes it even more obvious that the truck was likely to be moving backward in order to reach the gravel road. A reasonable person would anticipate that a truck found in this position might be very likely to back up and would not get so near the rear of the truck so as to have no escape if the vehicle moved in a reverse direction.

Plaintiff’s second argument is that the court erred in rejecting the applicability of the “sudden emergency” doctrine. Without going into a detailed analysis of this theory, it is obvious that the court rejected it because the court did not find Timmy to be confronted with a sudden emergency. The evidence shows he could have brought his motorcycle to a complete stop in ample time to avoid putting himself so near the truck as to be injured when it backed up. Instead of so doing he chose to place himself in this position of great peril and therefore cannot try to exculpate himself by calling the situation a sudden emergency.

Plaintiff’s third argument is that the court erred in failing to apply the doctrine of last clear chance so as to allow Timmy to recover in spite of his contributory negligence. In order to use this doctrine the party relying upon it (the plaintiff) must prove three elements. First, the plaintiff must have been in a position of peril of which he was unaware or from which he was unable to extricate himself. Second, the defendant must have actually discovered the plaintiff’s peril or could have, by the exercise of ordinary and reasonable care, discovered the plaintiff’s peril. Third, at that time, the defendant must have been able, with the exercise of reasonable and ordinary care, to have avoided the accident. Mitchell, supra. However, before the doctrine can be applied the essential elements must be established by a preponderance of the evidence. They will not be presumed. Mitchell, supra; Kontomitras v. New Orleans Public Service, Inc., 314 So.2d 441 (La.App. 4th Cir. 1975).

There is no doubt that plaintiff has shown that at the moment of the accident he was in a position of peril from which he was unable to extricate himself. However, we find no evidence establishing that defendant could have discovered the peril by use of ordinary care or that he could have discovered the peril in time to avoid the accident. It is tempting to presume that had M. L. Howard looked in his rear view or side mirrors he would have seen the boy in time to avoid the accident, yet we cannot make this assumption. Although there was testimony establishing the truck had a rear view mirror, there was none concerning the existence of side mirrors, the angles of the mirrors, the height of the truck bed as opposed to the height of the motorcycle, or any of the other pertinent factors that would prove the defendant could have seen Timmy in time to avoid the accident. It must be noted the truck was at an angle in the road and Timmy crossed from the southbound lane to the northbound lane in his attempt to get around the truck. Without positive evidence we simply cannot presume that Timmy would have been in the driver’s vision for a length of time sufficient for the driver to stop the backward motion and avoid hitting Timmy. We are limited to the evidence presented at trial and we conclude there was not a preponderance of evidence establishing these aspects of the last clear chance doctrine.

Plaintiff’s final argument need not be discussed because it deals with the responsibility of its uninsured motorists’ coverage. Such coverage is not an issue since no defendants were held liable.

For these reasons, the judgment of the trial court is affirmed. Plaintiff-appellant is to pay all costs.

AFFIRMED.

ON REHEARING

Before COVINGTON, EDWARDS and COLE, JJ.

EDWARDS, Judge.

We granted a rehearing to redetermine whether or not the driver of the lumber truck had the last clear chance to avoid the accident.

The three elements of the doctrine of last clear chance, as we indicated in our original opinion are: (1) the plaintiff must have been in a position of peril of which he was unaware and from which he was unable to extricate himself; (2) the defendant must have been aware of plaintiff’s peril, or should have been aware of plaintiff’s peril, by the exercise of ordinary and reasonable care; and (3) the defendant by the exercise of ordinary and reasonable care must have been able to have avoided the accident. See Mitchell v. Sigrest, 345 So.2d 141 (La. App. 1st Cir. 1977).

In the present case Timmy Woodard negligently entered a position of peril when he arrived some four feet behind the truck as it started to move backwards. It is doubtful, given the time element involved, that the truck driver had time to stop the truck when it started to move in reverse gear, even had he been aware of Timmy Woodard’s presence. However, he was not proven to have been aware of Timmy’s presence. Nor is it shown that the driver should reasonably have been aware of Timmy’s peril. Because of the height of the cab of the truck, the rear axle mountings, and the wheels themselves, Timmy was in all probability in the driver’s blind spot. Even if we assume that the truck was equipped with rear view and side mirrors, we are uncertain that the driver could have seen Timmy, because he was out of the driver’s field of vision. In any event, the burden was on plaintiff to show that the driver knew or should reasonably have known of Timmy’s position of peril. Mitchell, supra. All plaintiff presents us with is conjecture. Plaintiff has not met the burden of proof.

Plaintiff relies heavily upon the decision of the Louisiana Supreme Court in Guilbeau v. Liberty Mutual Insurance Company, 338 So.2d 600 (La.1976). The facts in Guilbeau differ sharply from the facts of the present case. In Guilbeau, the truck driver struck a pedestrian who was unaware of the truck’s presence, and who was, in fact, walking away from the truck. Also, in Guilbeau, the truck backed some 1500 feet, not 4 feet, as in the present case.

In sum, the present accident was unfortunate, but it was not proven that the truck driver had the last clear chance to avoid the accident.

The original opinion of this court is reinstated and plaintiff’s suit is dismissed.

COLE, J., respectfully dissents.

      . The trial court concluded that Timmy was traveling between fifteen and twenty miles per hour when he first saw the logging truck.


source: Caselaw Access Project

author: SHORTESS, Judge.

license: Public Domain

text:
    Donna Sue LEDET v. Robert A. LEDET.
    No. 14930.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1982.

      Joseph H. Simpson, Amite, for plaintiff.
    D. Warren Ashy, Lafayette, for defendant-appellant.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   SHORTESS, Judge.

Donna Sue Ledet (plaintiff) and Robert A. Ledet (defendant) were divorced by judgment signed August 7,1981, which also granted the permanent care and custody of their minor children, David and Dwight Le-det, to plaintiff, and fixed child support at $550.00 per month.

Defendant appeals from the child support portion of the judgment and complains that the trial court erred in increasing child support from $200.00 to $550.00 per month, when no increase was warranted and could not be supported by the record.

When the parties separated, by stipulation and without a judicial determination child support was fixed at $200.00 per month.

Both parties have a substantial income. Defendant is a private airplane pilot employed by the Charter Corporation and has a gross monthly income of $2,200.00. After deductions, he has a net income of $1,551.00. His itemized expenses total $1,687.92. Included therein is $305.00 per month for a 1978 Porche automobile which he purchased after the separation. Also included are department store accounts for clothing and other items, many of which were incurred after the separation. Since the original award of child support, defendant moved out of the jointly-owned house and plaintiff moved in and assumed payment of the $376.00 monthly house note.

Plaintiff is employed as an oil and gas lease broker and earns approximately $2,500.00 per month. Additionally, she receives travel and meal expenses of approximately $250.00 per week. This job is not permanent and could end at any time. She estimated her total expenses to be $2,195.00 per month for herself and her children, but did not separate her expenses from the children’s expenses.

Civil Code Article 227 provides:

Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining and educating their children.

The trial court is vested with considerable discretion in setting an award of child support. Trahan v. Trahan, 405 So.2d 1160 (La.App. 1st Cir. 1981)

Defendant argues that he cannot afford to pay $550.00 for the support of his minor children because of his expenses. But the law is clear that a parent’s primary obligation is to his children. Laiche v. Laiche, 237 La. 298, 111 So.2d 120 (1959). Also, a parent will not be relieved of his obligation to support his children because of an unstable financial condition brought upon himself. Laiche v. Laiche, supra.

Considering the respective financial positions of the parents, it appears that the trial court’s award of child support was liberal, but we are not in a position to say that the award represented a clear abuse of the trial court’s discretion, and we affirm at plaintiff’s costs.

AFFIRMED.


author: CULPEPPER, Judge. LABORDE, Judge,

text:
    Bertha Lou CULP, Plaintiff & Appellant, v. BELDEN CORPORATION, Defendant & Appellee.
    No. 82-27.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Brousaard, Bolton & Halcomb, Roy S. Halcomb, Jr., Alexandria, for plaintiff & appellant.
    Gahagan & Wilson, Donald R. Wilson and Paul Boudreaux, Jr., Jena, for defendant & appellee.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   CULPEPPER, Judge.

Mrs. Betha Lou Culp sues her former employer, Belden Corporation, for workmen’s compensation benefits for total and permanent disability, plus penalties and attorney’s fees. The district court awarded claimant maximum benefits for 100 weeks, plus any unpaid medical and travel expenses, subject to a credit for all payments previously made. The claim for penalties and attorney’s fees was denied. From this judgment, claimant appeals and raises the following questions: (1) Whether the district court erred in failing to find the plaintiff totally and permanently disabled; (2) whether the district court erred in denying the claim for penalties and attorney’s fees.

FACTS

Claimant, a licensed practical nurse and certified audiometric technician, was employed at Belden Corporation’s Jena plant as “plant nurse.” On May 25, 1978, while stooping over to retrieve or store supplies under an examining table in the first-aid room at the plant, she sustained the injury which was subsequently diagnosed as a low back strain. She received conservative treatment from her family doctor, who referred her to Dr. C. W. Lowery, an orthopedic specialist in Alexandria. Plaintiff continued working at Belden until September 17, 1978, at which time, she stated, she felt she could not fulfill the responsibilities of her job. She moved to Beaumont, Texas in January, 1979.

The medical testimony was that plaintiff had preexisting conditions of mild lordosis (sway back) and mild scoliosis (curvature of the spine), which were aggravated by the low back strain. The treatment prescribed by both specialists, Dr. Lowery of Alexandria and Dr. Starr of Beaumont, was conservative — pain medication, muscle relaxers and exercise to strengthen the muscles of the lower back. The concensus of expert opinion was that the plaintiff has a weak back, which she must learn to live with and which will cause her mild and intermittent pain in the future. She should not do any heavy lifting (over 25-30 pounds) nor excessive bending or stooping. The opinion of all the medical experts was that the claimant was able to return to work as an LPN in a job not requiring heavy lifting or excessive stooping or bending.

Mrs. Culp reported her accident to her superior, who was in charge of processing workmen’s compensation claims, the day after it occurred. Claimant completed the report, this being one of her duties. She was paid benefits from the time she stopped working as Belden’s plant nurse through the date of the trial, but there is a dispute concerning an interruption in payment.

The trial court found that although the plaintiff probably has minimal residual limitations in her ability to perform some duties required of nurses in some employments, she was physically able to return to the same type of work she was doing at the Belden plant at the time of the accident. He held that under LSA-R.S. 23:1221(4)(p) she was entitled to compensation for only 100 weeks from the date of her accident, and he denied the claim for penalties and attorney’s fees. He further held that while Bel-den was not entitled to recover any benefits which may have been paid in excess of those due, it could offset this amount against plaintiff’s claim for unpaid medical or travel expense. From this judgment, the claimant appeals, raising the issues of permanent disability and entitlement to penalties and attorney’s fees.

PERMANENT DISABILITY

The record shows that the duties of the plant nurse at Belden’s Jena plant consisted primarily of clerical duties, such as preparing and maintaining files, keeping medical records, and typing. The actual nursing activities consisted of rendering basic first-aid, treating minor injuries, checking blood pressure and hearing, and determining whether or not an injured or ill employee needed to see a doctor. She never saw more than 10 persons in one day for medical reasons, and on most days much less than that number. When a patient was not ambulatory and required moving, other employees were always available to assist. Furthermore, in the years that Mrs. Culp was Belden’s plant nurse, there had been very few stretcher cases, none of which she was required to lift herself.

We recognize that a worker who cannot return to any gainful employment without suffering substantial pain is enti-tied to compensation benefits for total disability. Lattin v. HICA Corporation, 395 So.2d 690 (La.1981); Wilson Ebasco Services, Inc., 393 So.2d 1248 (La.1981). Furthermore, substantial pain cases now must be analyzed within the framework of the odd-lot doctrine adopted by the Louisiana Supreme Court in Dusang v. Henry C. Beck Builders, Inc., 389 So.2d 367 (La.1980) and further explained in Oster v. Wetzel Printings, Inc., 390 So.2d 1318 (La.1980). See Lattin v. HICA Corporation, supra; Wilson v. Ebasco Service, Inc., supra; Calogero v. City of New Orleans, 397 So.2d 1252 (La.1980). As stated in Lattin, supra:

“[2,3] 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.
[“4,5] The odd lot doctrine is also applicable to substantial pain cases 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.”

The expert medical testimony is that plaintiff would probably have back pain with heavy lifting or prolonged bending or stooping, but that this will not prevent her from returning to employment in the nursing profession which does not entail such activities.

Mrs. Culp testified that not only did her back cause pain with bending and lifting, but also began hurting when she sat for long periods of time. Although the job at Belden’s entailed typing, she admitted there was nothing which would have prevented her from taking a break to move around and rest her back if necessary, while she worked.

Appellant has not returned to work at Belden. Her request to return on a part-time basis was rejected, but her return as a full-time worker would have been acceptable. She was terminated as a Belden employee only when she notified the company that she and her family were moving to Beaumont, Texas, several months after her injury.

Mrs. Culp points to the rejection of her application for employment by a hospital in Beaumont as evidence that her ability to compete in the labor market is greatly diminished. There was, however, testimony by an expert in occupational health nursing to the effect that the majority of jobs in that field do not involve strenuous activity, and that there are other employees around to assist with any heavy lifting required. The job of a nurse in a hospital environment, however, would necessarily entail much more lifting, exertion, and standing for long periods of time. While the claimant has not returned to work as an occupational health nurse, she has successfully done private nursing which involved more lifting and physical activity than a job in the occupational health field. Mrs. Culp is also a certified audiometric technician, qualified to perform hearing tests. She stated that the schools in her area did not require anyone to conduct hearing examinations, and she could not get a job in this field.

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. See Dusang, supra; Augustine v. Courtney Construction Company of Alexandria, Inc., 405 So.2d 579 (La.App. 3rd Cir. 1981); and Hollis v. Travelers Insurance Company, 368 So.2d 154 (La.App. 3rd Cir. 1978). 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. Augustine v. Courtney Construction Company of Alexandria, Inc., supra; Guidry v. Ford, Bacon & Davis Construction Corporation, 376 So.2d 352 (La.App. 3rd Cir. 1979).

The claimant has the burden of proving to a legal certainty and by a reasonable preponderance of the evidence that he is disabled. Augustine v. Courtney Construction Company, supra; Guidry v. Ford, Bacon & Davis Construction Corporation, supra; Guidry v. Ford, Bacon & Davis Construction Corporation, supra. Whether or not this claimant has carried the burden of proving disability must be determined by examining the totality of the evidence, including both lay and medical testimony. Augustine, supra; Crawford v. A1 Smith Plumbing & Heating Service, Inc., 352 So.2d 669 (La.1977).

On appellate review, the trial court’s factual findings on the issue of disability are entitled to great weight. They should not be disturbed unless clearly wrong. Crump v. Hartford Accident & Indemnity Company, 367 So.2d 300 (La.1979). The trial court found the appellant failed to prove substantial pain prevented her from performing types of work which were available to her. We discern no clear error in this finding of fact by the trial court.

PENALTIES AND ATTORNEY’S FEES

Appellant contends she is nevertheless entitled to penalties and attorney’s fees as a consequence of the defendant’s arbitrary and capricious termination of benefits in December, 1979, and also because of the failure to pay certain travel expenses incurred in connection with medical treatment.

The record shows that Mrs. Culp received benefits regularly from the time she ceased working in September, 1978, through November 25, 1979. Belden thereafter failed to pay her until February 8, 1980, when benefits were paid to cover the period up through January 13,1980. Thereafter, benefits were paid until after the trial.

A Belden employee testified the benefits were terminated because of a misunderstanding caused by Mrs. Culp’s attorney writing a letter stating she was working part-time in Beaumont and therefore had some earnings which should be credited against her weekly benefits. In December of 1979, plaintiff’s attorney actually returned to Belden two cheeks for cancellation because the claimant earned in excess of the weekly benefits. The workmen’s compensation supervisor for Belden testified it was felt that if Mrs. Culp was going to work, even just part-time, this was an unsatisfactory method of discerning exactly how much she was entitled to receive from it each week, inasmuch as it was after the fact of payment and the company received no documentation thereof. Mr. Campbell stated the company wish to avoid overpayment in order to keep the records straight. Belden is self-insured.

It is well-settled that compensation benefits may not be discontinued when it is known that the employee is at least partially disabled. Such arbitrary action will subject the employer to statutory penalties. Fruge v. Pacific Employers Insurance Company, 226 La. 530, 76 So.2d 719 (1954); King v. Insurance Company of N. A., 288 So.2d 878 (La.App. 3rd Cir. 1974).

However, we do not believe the defendant was arbitrary or capricious in discontinuing payments here when it learned that plaintiff was working, inasmuch as this fact led to a substantial question as to whether benefits were still due the employee, and if so, how much. See Romano v. Davis, 339 So.2d 1309 (La.App. 1st Cir. 1976). The trial judge obviously found the defendant was in good faith in attempting to work out an acceptable solution for determining the correct amount to pay the claimant each week, which finding of fact by the trial court is entitled to great weight. See Andrus v. Rimmer & Garrett, Inc., 316 So.2d 433 (La.App. 3rd Cir. 1975). We find no error in this holding of the district court.

The plaintiff also argues that the defendant was arbitrary and capricious in failing to reimburse her for various small travel expenses. Each of these claims, in amounts ranging from $4.00, was separately reported to Belden, but no verification therefor was furnished the company. A careful reading of the record reveals no positive evidence that these items had not been paid, or that the failure to pay them, if any, was arbitrary and capricious. Therefore, we cannot say that the trial court was clearly wrong in holding that Belden did not arbitrarily refuse to pay these items.

We affirm the trial court’s denial of penalties and attorney’s fees.

For the above and foregoing reasons, the judgment appealed is affirmed. All costs of appeal are assessed against plaintiff-appellant.

AFFIRMED.

LABORDE, Judge,

dissenting.

I dissent for the reasons which I expressed in Lastrapes v. CNA Ins. Co., 401 So.2d 658 (La.App. 3rd Cir. 1981).


text:
    Mrs. Mary Jane C. MECHE, Individually, as Natural Tutrix of and for the Use and Benefit of her Three Minor Children, Alton Joseph Meche, Pamela Ann Meche, and Mary Rhodnoda Meche; James A. Meche, Tina Meche Midkiff and Patricia Meche Naquin, Plaintiffs & Appellants, v. GULF STATES UTILITIES COMPANY, Defendant & Appellee.
    No. 82-28.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.
    Joe J. Tritico and C. Jerre Lloyd, Lake Charles, for plaintiffs & appellants.
    Stockwell, Sievert, Viccellio, Clements & Shaddock, Fred S. Sievert, Jr., Lake Charles, for defendant & appellee.
    Before CULPEPPER, SWIFT and LA-BORDE, JJ.
   CULPEPPER, Judge.

Mr. Leroy Joseph Meche was killed, and his 16 year old son, Alton Joseph Meche, was seriously injured, when the television antenna they were raising in a trailer park came in contact with defendant’s electric line. Mr. Meche’s widow sues individually and as natural tutrix of their three minor children, including Alton Joseph Meche. Three major children of Mr. Meche also join as plaintiffs. A jury found the defendant utility company was not negligent, and that its electric line did not create an unreasonable risk of harm. From a judgment rejecting their demands and dismissing their suit, plaintiffs appeal.

The substantial issue is whether the jury was clearly wrong in its finding of fact that the defendant’s electric line did not create an unreasonable risk of harm.

On February 14, 1980, one of Mr. and Mrs. Leroy Meche’s daughters, Patricia Meche Naquin, and her husband moved their trailer home from Carlyss, Louisiana to the Atherton Trailer Park on Bayou DTnde Road near Sulphur, Louisiana. The next afternoon, Mr. Naquin, assisted by friends, leveled the trailer. Later in the afternoon Mr. and Mrs. Leroy Meche and their minor children, and also their married daughter, Tina Meche Midkiff, and her husband, Ricky, arrived for a visit. They all had a gumbo supper in the Naquin trailer home.

After supper they were watching television, and the reception was poor. Dale Naquin, Joey Meche, Ricky Midkiff and Mr. Leroy Meche drove in Leroy’s truck to Car-lyss and picked up the Naquin television antenna, which had not yet been moved to the new site. About 8:30 or 9:00 p. m., during hours of darkness, the three men and Joey were erecting the antenna on the north side of the trailer. The antenna was 27 feet 10% inches long and was made of metal pipe. Naquin was on a ladder next to the north wall of the trailer. Leroy Meche, Ricky Midkiff and Joey Meche were raising the antenna toward Naquin. The top of the antenna struck Gulf States’ 7,600 volt uninsulated electric line, which was approximately 23 feet above ground level. Mr. Leroy Meche was killed instantly, and Alton (Joey) Meche was seriously burned.

The electric line which caused the accident had been installed in July of 1979 at the request of the trailer park owner, Mr. Charles H. Atherton. The trailer park fronts approximately 176 feet on the north side of Bayou DTnde Road and runs back in a northerly direction between parallel lines approximately 250 feet. A service road, 20 feet in width, runs north and south approximately through the center of the park. Each trailer space is about 50 feet in width, fronting on the service road. There was an existing electric line running along the west boundary of the trailer park servicing the trailers on the west side of the service road. Atherton applied for an additional line to service three trailers on the east side of the service road and located in the northern portion of the park. Atherton and Jeffrey Fulton, Gulf States’ service representative, originally selected a route for the line running from Bayou DTnde Road, thence northerly along the western boundary of the trailer park next to the adjoining property of C. D. Lewis, and thence along the northern boundary of the trailer park, also adjoining property of C. D. Lewis, to a pole on the northeast corner of the park. However, C. D. Lewis refused to give permission for the location of the new line along the eastern and northern boundaries of the park. Gulf States then changed the plan to run the line from the existing line on the west boundary of the park to the east boundary and along a line 50 feet south of the north boundary of the park. This line ran across the park between the two northernmost trailer spaces on each side of the service road. It was constructed on poles 35 feet in height, with the energized line on the bottom, at a height of 22 feet and 16/i6 of an inch from the ground, according to plaintiffs’ witnesses, or 23 feet 5*/2 inches from the ground, according to the defense witnesses.

The Naquin trailer was located on the west side of the service road in the second trailer space from the northern boundary of the park. The electric line in question was located 13 feet 4V2 inches horizontally north of the Naquin trailer and 12 feet 215/u inches vertically above the top of the Na-quin trailer.

The elevation of the hot line met the minimum requirements of the National Electric Safety Code that uninsulated electric lines over driveways, roads and residential areas be at least 20 feet above the ground. The code does not specifically prescribe a minimum height for trailer parks.

Plaintiffs’ expert witness, Dr. Ambrose Ramsey, testified that although the line met the minimum height required by the code, it would have been safer to install the line 25 to 30 feet high. He also suggested safer alternatives would have been to run the line along the northern property line, as originally planned, or to insulate it or place it underground.

Dr. Virgil Boaz, another expert for the plaintiffs, testified that the line as located across the trailer park between trailer spaces presented a safety problem in the erection of TV antennae. He agreed with Dr. Ramsey that safer alternatives would have been to locate the line along the north boundary, place it underground, insulate it, or raise it to a higher elevation.

On the other hand, defendant’s expert witness, Dr. Wayne Roelle, who had impressive credentials including membership on a working subcommittee which prepares and revises the National Electric Safety Code, testified that the line in question was in complete compliance with the National Code. He stated further he thought the line was reasonably safe because it was easily visible in daylight and it was not reasonably foreseeable that someone would raise a 27-foot antenna into the line during hours of darkness.

Mr. Roelle explained the difficulties and dangers involved in the other alternatives suggested by plaintiffs’ experts. As to placing the line underground, Roelle explained that an entirely new set of hazards are involved, such as existing underground pipes, people digging into the ground to place new pipes, putting metal fence posts down and placement of transformers and connections above ground where they would be dangerous to children. As to insulation, Roelle stated this was not advisable or practical because of the voltage involved and the short life of the insulating materials. As to placing the lines higher, Roelle explained the minimum clearances provided by the code are designed to place the lines out of the reach of the people engaged in normal activities. It is not contemplated that people are going to raise unusually high TV antennae or other such metal objects into a plainly visible line in a residential area or trailer park.

The most recent electrocution case decided by the Louisiana Supreme Court is Kent v. Gulf States Utilities Company, et al.,-So.2d-(La.1982). In that case an employee on a highway construction project was using a rake with a 30-foot aluminum pole to create antihydroplane grooves on the surface of the concrete. As he was working, the aluminum pole contacted Gulf States’ uninsulated electric line, located 25 feet 8 inches above the surface of the ground. Kent was seriously injured. In the trial court, a jury awarded plaintiff three million dollars, which was reduced as against Gulf States Utilities to the sum of one million dollars because of prior settlements with other defendants. The First Circuit Court of Appeal reversed on the grounds of Kent’s contributory negligence, i.e., the line was clearly visible to Kent, it had been pointed out to him shortly before the accident, and he knew it was there. The Supreme Court granted writs. In discussing liability under LSA-C.C. article 2315 (negligence) and liability under LSA-C.C. article 2317 (strict liability), the court stated these cases fall into three categories: (1) Negligence cases based on fault causing damage to another; (2) strict liability cases based on responsibility under Civil Code article 2317 for damage caused by a thing or an activity which is under a person’s control or in his custody; (3) absolute liability for ultra-hazardous activities such as blasting with explosives, pile driving, storage of toxic gas and crop dusting with airplanes.

In discussing liability for damages caused by things, the court explained the distinction between negligence cases and strict liability cases as follows:

“Because the term ‘thing’ encompasses a virtually unlimited range of subject matter, the Loescher [v. Parr, 324 So.2d 441] decision has since been cited by innumerable litigants seeking to avoid the necessity of proving personal negligence in tort cases. The distinction between negligence cases and strict liability cases (such as Loescher) has largely been either misunderstood or completely disregarded. It is therefore appropriate for this court, in determining the applicability of Art. 2317, to review first the distinguishing effect of applying strict liability under that article.
“In a typical negligence case against the owner of a thing (such as a tree) which is actively involved in the causation of injury, the claimant must prove that something about the thing created an unreasonable risk of injury that resulted in the damage, that the owner knew or should have known of that risk, and that the owner nevertheless failed to render the thing safe or to take adequate steps to prevent the damage caused by the thing. Under traditional negligence concepts, the knowledge (actual or constructive) gives rise to the duty to take reasonable steps to protect against injurious consequences “resulting from the risk, and no responsibility is placed on the owner who acted reasonably but nevertheless failed to discover that the thing presented an unreasonable risk of harm.”
“In a strict liability case against the same owner, the claimant is relieved only of proving that the owner knew or should have known of the risk involved. The claimant must still prove that under the circumstances the thing presented an unreasonable risk of harm which resulted in the damage (or must prove, as some decisions have characterized this element of proof, that the thing was defective). The resulting liability is strict in the sense that the owner’s duty to protect against injurious consequences resulting from the risk does not depend on actual or constructive knowledge of the risk, the factor which usually gives rise to a duty under negligence concepts. Under strict liabiiity concepts, the mere fact of the owner’s relationship with and responsibility for the damage-causing thing gives rise to an absolute duty to discover the risks presented by the thing in custody. If the owner breaches that absolute duty to discover, he is presumed to have discovered any risks presented by the thing in custody, and the owner accordingly will be held liable for failing to take steps to prevent injury resulting because the thing in his custody presented an unreasonable risk of injury to another.
“Thus, while the basis for determining the existence of the duty (to take reasonable steps to prevent injury as a result of the thing’s presenting an unreasonable risk of harm) is different in C.C. Art. 2317 strict liability cases and in ordinary negligence cases, the duty which arises is the same. The extent of the duty (and the resulting degree of care necessary to fulfill the duty) depends upon the particular facts and circumstances of each case.”

Under this analysis, the Supreme Court concluded that the Kent case involved negligence, not strict liability, because Gulf States, the owner of the thing, had knowledge of the electric line and any risk it created. The court held further that the case did not involve ultra-hazardous activities requiring application of absolute liability. The Supreme Court ultimately held in Kent that the Gulf States electric line over the highway did not constitute an unreasonable risk of harm. The decision of the Court of Appeal was affirmed on the basis that Gulf States was not negligent.

Applying the rules stated in Kent to the present matter, this is a negligence case, not a strict liability case, because Gulf States Utilities had actual knowledge of the electric line and any risk of harm it created. The issue is whether the line created an unreasonable risk of harm. After hearing all of the evidence as to the facts and circumstances of the accident, as described above, the nature and location of the line in question, and the conflicting opinions of the expert witnesses, the jury decided as a fact that the line did create an unreasonable risk of harm. We conclude the jury was not clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

On appeal, plaintiffs contend the judge’s charge to the jury was erroneous and inadequate and that the trial judge erroneously refused to give a special charge requested by the plaintiffs. We find nothing wrong with the judge’s charge, which included the following:

“. .. You are instructed that as a matter of law, a utility company, or any agency maintaining a potentially dangerous facility, such as electrical transmission lines is required to use the utmost care to reduce hazards to life as far as practicable and is liable for damages to any person who might forseeably contact the wire which creates the hazardous condition. Accordingly, a utility company is negligent where it has failed to take practical steps to reduce the hazard of the line by providing such clearance as is reasonably required for the reasonable, forseeable use of the surface below, by failing to insulate the line, or by its failure to provide guards to effectively isolate its line from accidental contact by persons using the surface below. However, an operator is not required to guard against hazards which could not be reasonably anticipated. A power company is not an insurer against all accidents which may occur involving its distribution lines and operation, however, the company is legally bound to safeguard against occurrences that can be reasonably expected or contemplated. Thus, the mere existence of electric transmission lines constitutes adequate notice of the fact that it does carry electricity, and absent some peculiar and unusual circumstances, the operator of such a line is not required to post warnings signs all along its lines or on all parts advising that the line is energized.”

The trial judge refused to give the following charge requested by the plaintiffs:

"The Court further charges you that electric utility company’s compliance with the minimum height provided in the National Electric Safety Code would not absolve an electric company from liability in all instances. In this respect, the Court charges you that you should note that the contingency of a TV antenna being raised in a trailer park to a height in excess of the minimum prescribed by the National Electric Safety Code would be reasonably anticipated, and that in such circumstances it is the duty of the electric company to provide for the safety of the public.”

The above charge requested by the plaintiffs is taken largely from the case of Thomas v. Gulf States Utilities Company, 128 So.2d 323 (La. 1st Cir. 1961, in which the court ultimately denied liability on the basis of the plaintiff’s contributory negligence. Without deciding whether the charge requested by the plaintiffs is a correct statement of the law, we conclude that the charges which were given by the trial judge were complete, proper and fair, and that the trial judge did not err in refusing to give the requested charge.

In a motion for a new trial, plaintiffs urged jury misconduct because several of the jurors were asleep during important portions of the trial. The judge held a hearing and took evidence on these charges of misconduct and concluded they had no merit. We find no abuse of the trial judge’s discretion in this regard.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.

LABORDE, J., dissents and assigns reasons.

LABORDE, Judge,

dissenting.

After reviewing the record, I am convinced the jury was clearly wrong in finding Gulf States Utilities to be free from negligence. I would reverse that finding.

I believe that Gulf States Utilities’ duties to install lines so as to reduce hazards and to use the necessary care and prudence to prevent injury at places where others have the right to go for work or pleasure clearly encompass the risks incurred by decedent and Joey, those being death and severe personal injury by electrocution while attempting to raise a television antenna next to a trailer in a trailer park. No public policy will be furthered by allowing Gulf States Utilities to escape liability for its substandard behavior. Although I concede that the utility of electrical services is great and these services necessitate toleration of electrical equipment, in this instance the foreseeability that people who live in trailers will have television antennae and that such antennae may be raised to heights in excess of the heights of the wires as happened here is equally great. Also great here is the magnitude of harm; persons coming in contact with a 7,500 volt wire are certain to be seriously injured, if not killed. When faced with such high degrees of magnitude of harm and foreseeability, Gulf States Utilities has, at the very least, a duty to explore safer alternatives in providing its highly useful electrical services. This is where the scales tip heavily in favor of plaintiffs. Gulf States Utilities could have insulated or buried the highly energized wire, alternatives which are especially attractive here because of the short distance involved (the width of the trailer park). Gulf States Utilities also could have selected a different route, one that did not run through the trailer park between the trailers. Finally, and at the very least, Gulf States Utilities could have elevated the wire, especially in light of the fact that it knew there would be trailer homes in close proximity.

For these reasons, I respectfully dissent.

      . See Thomas v. Gulf States Utilities Co., 128 So.2d 323 (La.App. 1st Cir. 1961) cert. denied.

      . See Allien v. Louisiana Power & Light Company, 202 So.2d 704 (La.App. 3rd Cir. 1967).


author: CUTRER, Judge.

text:
    Ruby NED, Plaintiff-Appellee, v. NATIONAL FIRE & MARINE INSURANCE COMPANY, et al., Defendants-Appellants.
    No. 82-42.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Gold, Little, Simon, Weems & Bruser, Herbert J. Mang, Jr., Alexandria, for defendants-appellants.
    Bolen & Erwin, John B. Honeycutt, Jr., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

This appeal arises out of a third party demand by a liability insurer seeking indemnification for payments expended in the settlement of claims arising out of a vehicular collision.

Three suits for damages emanated from a truck-automobile accident. The suits were filed by the owner, driver and passengers of the automobile. These parties-plaintiff were Issac Readoux (owner) and his wife, Evelyn, Valeria Malveaux and Ruby Ned. The defendants were Terry Manley, driver of the truck, Woody Goodgame (title owner of the truck), Delores Franklin, actual owner of the truck, and her liability insurer, National Fire & Marine Insurance Company (National Fire). The suits were all compromised and settled by National Fire. A third party demand was filed by defendants against McNair Transport, Inc. (McNair), and its insurer, Excalibur Insurance Company (Excalibur), seeking indemnification for the sums expended by National Fire in the settlement of the claims.

The third party demand was tried by a jury. The jury answered interrogatories finding that the truck driver was negligent and that such negligence was the cause of the accident. The jury also found that the amounts paid to the damaged parties were reasonable. The jury further found that the third party plaintiffs were not entitled to indemnity from McNair and its insurer, Excalibur.

From a judgment dismissing the third party demand, third party plaintiffs appealed. The third party defendants, McNair and its insurer, Excalibur, answered the appeal contesting the jury’s determination of negligence of the driver of the truck and the reasonableness of the settlements.

The issues presented on appeal are as follows:

(1) Negligence of truck driver;
(2) Reasonableness of the settlement awards; and
(3) Whether the jury erred in finding that third party defendants owed no indemnity to National Fire.

NEGLIGENCE OF TRUCK DRIVER

McNair was the owner of tank trailers which it used to transport liquified petroleum products in interstate commerce. In order to transport the tank trailers, it entered into lease agreements with truck (tractor) owners whereby the owners would supply the truck and driver for the transporting of the tank trailers to destinations assigned by McNair. McNair executed an exclusive lease of five tractors owned by Allied Industries (Allied). Delores Franklin was dispatcher for Allied and she also personally owned an International tractor. She also entered into an exclusive lease of the tractor with McNair.

On April 25, 1979, McNair contacted Allied through Delores Franklin as dispatcher, requesting a tractor to pick up a trailer at its Port Allen, Louisiana,' facility, transport it to a facility whereby it would be loaded with petroleum products and then taken to the destination in Texas. Ms. Franklin sent an Allied tractor and driver as requested by McNair. The tractor picked up the load and began its journey proceeding to its destination in Texas. Upon reaching a point near Alexandria, Louisiana, the tractor became disabled and could not pull the load.

The driver of the disabled tractor called Ms. Franklin notifying her of the problem. After a conversation with William Connors, the dispatcher for McNair, Ms. Franklin’s International tractor proceeded from Allied’s shop in Prairieville, Louisiana, being driven by Steve Manley, an Allied mechanic. He was accompanied by his wife and assistant mechanic, Terry Manley.

The two mechanics left Prairieville after midnight and proceeded toward Alexandria. Terry assumed the driving duties in Livonia, Louisiana, and shortly thereafter, proceeded north on U. S. Highway 71 toward Alexandria. This highway is a blacktopped two-lane north-south highway. Construction was taking place 2.2 miles north of Morrow, on a flat and smooth, straight stretch of road. Construction signs were present notifying traffic of the construction. Terry Manley stated that she saw the road construction signs. The north-bound traffic was stopped by a flagman so that south-bound traffic could move around the construction work. As Terry Manley proceeded northward, she suddenly noticed that there were three vehicles stopped waiting for the south-bound traffic to proceed.

Terry Manley saw the danger and applied her brakes, skidding 190 feet on the paved portion of the road; she then swerved to the right and skidded 120 feet on the grassy shoulder before the tractor spun around and struck the plaintiff’s automobile which was the middle vehicle in the line of stopped vehicles. The automobile was struck in the right side causing moderate damage and injuries to its three passengers; Evelyn Readoux, the driver and wife of Issac Rea-doux, the owner of the car, Valeria Mal-veaux and her mother, Ruby Ned. This accident occurred at approximately 6:30 A.M. on April 26, 1979.

These facts clearly reveal that Terry Manley was not keeping a proper lookout and failed to keep the tractor under proper control as she entered into this construction zone. The findings of the jury that Terry Manley was negligent in the operation of the vehicle and such negligence was the cause of the accident is clearly supported by the record.

REASONABLENESS OF THE SETTLEMENTS

National Fire settled with Issac Readoux for the property damage to his car in the amount of $2,365.58. The personal injury claims of the three passengers were also settled in the following amounts: Evelyn Readoux, $4,500.00; Valeria Malveaux, $2,700.00 and Ruby Ned, $3,700.00.

Readoux, Malveaux and Ned testified as to the extent of their lost wages and pain and suffering in regard to their personal injury claims. The principal complaints of these parties was pain due to neck and back problems. The reasonableness of the settlement is reflected in the uncontradicted testimony of Dr. Gauthier who treated all three women who suffered from their injuries from six weeks to two months and were unable to work.

Ample testimony was deduced from Issac Readoux concerning the damage to his automobile, the costs of repairs and the rental of a replacement vehicle while his was being repaired. This testimony was corroborated by Uray J. Chenevert, repair manager for Pete Roy Ford in Bunkie, Louisiana, which performed all repair work. We find that the record clearly supports the jury’s determination of damages. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

INDEMNIFICATION

The third party demand by National Fire and its insured seeks indemnification by Excalibur (McNair’s insurer) for the amounts expended for settlements. The jury determined that National Fire and its insured were not entitled to indemnification. We disagree with this determination which we find to be clearly wrong.

At the outset, Franklin and McNair entered into an- exclusive lease agreement whereby Franklin would remain an independent contractor of McNair but the tractor leased by Franklin could only be used for McNair’s business operations. Paragraph 6 of this lease agreement provides:

“6. Contractor aerees to furnish satisfactory proof of insurance for public liability and property damage necessary to protect and indemnify Carrier when the equipment is heine operated for any reason other than Carrier dispatch instructions. (This coverage is commonly referred to as “Bobtail” insurance coverage.) Contractor further agrees that should he fail to provide such required proof of insurance, Carrier shall have the right, and is hereby authorized, to secure such insurance and deduct the cost thereof from the settlements due and owing Contractor. Contractor also agrees to furnish at his expense the necessary collision coverage for the equipment herein described.” (Emphasis added.)

Under this provision, the question of indemnification by Excalibur turns upon whether the tractor was dispatched by McNair. Connors, the McNair dispatcher, stated that the normal procedure followed by the driver whenever there is a breakdown is to notify the owner. The owner would then notify McNair of the delay and send out another tractor if one was available.

Ms. Franklin, as dispatcher for Allied, and Connors, dispatcher for McNair, had been doing business together for a long period of time. These business dealings arose out of the leasing of the Allied trucks and one owned by Ms. Franklin. As to the drivers that were assigned to the leased trucks, McNair required that they meet certain qualification standards in order to pull a loaded trailer in interstate commerce. When Ms. Franklin dispatched a truck to pull a trailer, she would dispatch a truck and a driver who had met the McNair qualification standards.

If a tractor became disabled during the hauling of a load, Ms. Franklin would notify McNair through its dispatcher, Connors, of the delay. If she had another truck available and it was acceptable to McNair, Ms. Franklin would send the truck to replace the disabled one.

On the day in question, the driver of the disabled tractor notified Ms. Franklin of the situation. Ms. Franklin called Connors and told him that no Allied trucks were available and the only truck that she had available was her International which was then being serviced at Allied’s garage and would be ready to go sometime that evening. She also told Connors that she did not have a qualified driver available to assign to deliver her tractor but could get a mechanic to deliver it to the disabled load. Connors told her that he would look elsewhere for an available tractor. After being unsuccessful in locating another tractor, Connors called Ms. Franklin again and told her to send her International tractor with a mechanic as driver. Ms. Franklin stated that Connors told her that it would be permissible for a mechanic to drive the tractor to Alexandria since the mechanic would not pull a load but would merely switch the International with the disabled tractor. The original qualified driver, John Pease, would continue with the load and the mechanic would return the disabled tractor to Allied’s shop.

As a result of the conversation with Connors, Ms. Franklin stated that she called the chief mechanic for Allied and told him to take the truck to the disabled load when he had finished with its maintenance. She did not specify the name of a particular mechanic that was to drive the tractor. The Manleys were Allied mechanics but not McNair qualified drivers. However, both had driven tractors on other occasions.

Connors’ memory of the exact conversation with Ms. Franklin was vague. He did not recall having told Ms. Franklin to send the truck with a mechanic as driver. He stated that he could not recall discussing with Ms. Franklin the unavailability of a qualified driver. He assumed a qualified driver would be assigned to the relief tractor.

The deposition of Connors reveals the following in this regard:

“Q. And, you — may I take it that you assumed that a qualified driver would drive the bobtail?
“A. That is correct.
“Q. And, may I also assume that if she had told you that a mechanic would have to drive it that you would not have agreed or—
“A. I don’t know whether I would have agreed or would not have agreed.
******
“Q. Are you saying — Mrs. Franklin has testified that she told you that she did not have a driver — the driver that normally drove this truck was not available, and that a mechanic would have to drive it and that you said that was okay?
* * * * sic *
“Q. Please, let me finish. (Continuing) whether your testimony is that you do not recall whether that is true or whether you are saying that that is not true?
“A. Okay. I am going to say that I do not recall that conversation. And, I would like to go a little further on that.
The way Allied Industrial operation ran, they had a driver pool. They had probably more drivers than they had tractors. Several different drivers drove the same tractors. So I assumed that there would be a qualified McNair driver, or I assumed there would be a — one of the drivers we were familiar with on the truck going to Alexandria.
“Q. Okay. But, you are not saying that she did not tell you this, you are just saying that you do not recall.
“A. That’s exactly right.”

Connors stated that he did not fill out any report on the accident.

As we consider the testimony of Ms. Franklin and Connors and the circumstances surrounding the conversation between the two dispatchers, we conclude that Ms. Franklin’s testimony best accords with reason and probability. We find that Connors (faced with a delay in a delivery of the load, the fact that no other trucks were available, and the further fact that a mechanic driver would only make delivery of the International to the disabled truck) authorized Ms. Franklin to send her International truck to replace the disabled truck. He also authorized her to assign a mechanic to make the delivery of the replacement truck. This action by Connors was a “dispatch” of the replacement truck on behalf of McNair. The jury was clearly wrong in concluding otherwise.

Having found that McNair dispatched the tractor, the indemnity clause of the lease agreement is effective, and the third party plaintiffs are entitled to recover from Excalibur the amounts expended in the settlement of the claims which totaled $13,265.58.

For the foregoing reasons, the judgment of the trial court in favor of Excalibur Insurance Company is reversed; judgment is rendered in favor of the third party plaintiffs and against third party defendant in the amount of $13,265.58. All costs in the trial court and for this appeal shall be paid by third party defendant-appellee.

REVERSED AND RENDERED.

      . Both Ms. Franklin’s and Connors’ testimony was presented by reading the depositions of each to the jury.

      . Connors was discharged from his job on March 4, 1980. He stated that the reason for his discharge was “log violations.”

      . We note that the trial court failed to instruct on the principal issue of the case; i.e., indemnity. The charges fully covered the issues of negligence and damages but the only portion of the charge that could be considered as referring to the indemnity question reads as follows:
      “Under Federal law, the certificated carrier in this case, McNair, the lessee, has the full responsibility for the entire operation of temporarily or permanently leased equipment, whether owner-driver or otherwise.”
      The lack of instructions may have contributed to the jury’s error.


text:
    Larry STUTTS, Sr., Plaintiff-Appellee, v. LIBERTY MUTUAL INSURANCE CO., Defendant-Appellant.
    No. 82-51.
    Court of Appeal of Louisiana, Third Circuit.
    July 2, 1982.

      Christovich & Kearney, Thomas C. Cow-an, New Orleans, for defendant-appellant.
    Thomas, Dunahoe & Gregory, Edwin Du-nahoe, Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

This appeal arises out of a suit for death benefits by a surviving parent under the provisions of the workmen’s compensation statute, LSA-R.S. 23:1231.

Larry Stutts, Jr. (Larry), an employee of Davis & Sons disappeared from his job as a pumper helper on a tank battery located in Grand Bay, Plaquemines Parish, Louisiana, April 28, 1981. A few days later, Larry’s body was found floating under a boat dock in the bay by C. B. Guthrie, an employee of Gulf Oil Company. The cause of Larry’s fall remains unknown but the circumstantial evidence shows that he somehow fell overboard from the tank battery.

Larry is survived by his father, Larry Stutts, Sr. (plaintiff), his mother, Susie Reed (Mrs. Reed subsequently married Ben Reed upon the dissolution of her “marriage” to plaintiff), and Mrs. Fannie C. Ballard (Fannie), his maternal grandmother, with whom he had lived since he was two years old up until the time of his demise.

Davis & Sons informed its insurer, Liberty Mutual Insurance Company (Liberty Mutual), of the accident vis á vis the forms which had been provided by it. On May 21, 1981, plaintiff, through his attorney, made written demand on Liberty Mutual for the death benefits due him as provided by statute. Liberty Mutual refused payment to plaintiff on the grounds that Fannie was a dependent and was entitled to weekly compensation payments. No payments, however, were made to Fannie.

On July 28, 1981, more than sixty days from written demand, plaintiff filed this suit. The trial judge rendered judgment awarding plaintiff $20,000.00 as death benefits due to a surviving parent of an employee who has no legal dependents. The trial court also awarded penalties and attorney’s fees.

From this adverse judgment, Liberty Mutual appealed. The issues presented on appeal are whether the trial court erred in making the following findings:

(1) In finding that at the time of death Larry Stutts, Jr., was within the course and scope of his employment;
(2) In finding Fannie C. Ballard was not a legal dependent of Larry Stutts, Jr., under the provisions of the workmen’s compensation statute;
(3) In finding plaintiff to be the father of Larry and thus entitled to benefits as a surviving parent;
(4) In refusing to grant a continuance to Liberty Mutual;
(5) In overruling the exception of jurisdiction (venue) filed by Liberty Mutual; and
(6) In assessment of attorney’s fees and penalties.

COURSE AND SCOPE OF EMPLOYMENT

In a “Statement of Uncontested Material Facts” filed by Liberty Mutual, it was stated that:

“At the time of death he [Larry Stutts, Jr.] was employed by Davis and Sons Inc. in Grand Bay, Plaquemines Parish, State of Louisiana.”

While admitting employment at the time of death, Liberty Mutual contends that the circumstantial evidence presented was not sufficient to establish that Larry was within the course and scope of such employment at the time of death. There were no eye witnesses to the incident.

Larry and his grandmother, Fannie, moved to Empire, Louisiana, approximately two years prior to his death. They had relatives working in the area. Through the assistance of Louis Waters, a half-brother, Larry obtained employment with Davis & Sons as a pumper on a tank battery located in Grand Bay. His working hours were from 3:00 P.M. until 11:00 P.M. He worked six days per week, with each Friday off. Larry worked at this job for the next two years. The evidence is undisputed that Larry was a regular, dependable worker. Waters, a foreman for Davis & Sons, testified that the tank battery was located on a land-fill in the bay. Larry’s duties were to check and keep in working order the various pieces of operating equipment in the battery. Waters stated that the operating equipment was located on two levels. The upper level had hand rails around the platform and the floor remained free of oil. The lower level, however, contained no hand rails and the flooring was oily and slippery. Waters stated that he had worked on the platforms and had difficulty walking or standing on the slippery surface of the lower level. Larry’s duties required him to traverse the area of the lower level.

On the day in question, Waters saw Larry leaving Fannie’s house at the usual customary time of approximately 1:30 P.M. to go to work. Waters lived across the street from Larry. Larry’s body was discovered four days later floating under a boat dock in the vicinity of the tank battery on which he worked.

Liberty Mutual, in its answer, alleged that Larry’s demise was caused by his own act, by his own provocation of a third person not under the control of the defendant, by his intoxication, by his deliberate failure to protect himself against an accident, or that Larry was an aggressor or took up arms against another party, ending in his demise, all of which was contrary to LSA— R.S. 23:1081. The record is completely void of any evidence that would tend to prove any of these allegations.

Liberty Mutual admits that Larry was employed by Davis & Sons at the time of his death. The evidence is undisputed that Larry was a reliable, dependable employee in the performance of his duties. There is no hint in the record that his death arose by-virtue of any acts alleged by Liberty Mutual in its answer. There was no indication of any foul play and there is no contention that his death was caused by anything other than by accidental drowning.

This case is strikingly similar to the case of Hocut v. Insurance Company of North America, 254 So.2d 108 (La.App. 3rd Cir. 1971), writ den., 260 La. 411, 256 So.2d 292 (1972).

Briefly, in Hocut, the deceased was a seaman who had been employed on a shrimping vessel. He was staying aboard the vessel while it was in port in Cameron. The day before the vessel was to sail on a fishing expedition, Hocut borrowed some money from the boat’s captain. Hocut was to sleep aboard the vessel that night. He was last seen at 8:00 P.M. that evening in a lounge drinking beer. The next morning the captain found his vessel locked and Ho-cut missing. The body was discovered almost two weeks from Hocut’s disappearance, floating in the water. It was found that Hocut must have fallen into the water upon his return to the vessel. This court concluded that Hocut was within the course and scope of his employment as he was returning to the vessel, as he had done previous nights, to sleep in preparation to set sail the next day.

The facts in the case at hand show that Larry was on duty the day in question and, in some manner, fell into the water from the battery and drowned. The evidence fully supports the trial court’s conclusion that Larry met his death while in the course and scope of his employment. Hocut v. Insurance Company of North America, supra.

WAS FANNIE A DEPENDENT?

Liberty Mutual contends that Larry’s grandmother, Fannie, was a dependent within the provisions of LSA-R.S. 23:1231 and the plaintiff, as a surviving parent, is not entitled to recovery. This statute reads as follows:

“For injury causing death within two years after the accident, there shail be paid to the legal dependent of the employee, actually and wholly dependent upon his earnings for support at the time of the accident and death, a weekly sum as hereinafter provided. If the employee leaves legal dependents only partially actually dependent upon his earnings for support at the time of the accident and death, the weekly compensation to be paid shall be equal to the same proportion of the weekly payments for the benefit of persons wholly dependent as the amount contributed by the employee to such partial dependents in the year prior to his death bears to the earnings of the deceased at the time of the accident.
“However, if the employee leaves no legal dependents, the sum of twenty thousand dollars shall be paid to each surviving parent of the deceased employee, in a lump sum, which shall constitute the sole and exclusive compensation in such cases. ”

Fannie is a seventy-eight-year-old woman who reared Larry beginning when he was two years of age. She took Larry into her home after his parents had separated and his mother had married Ben Reed. She also stated that she had delivered Larry upon his birth and that he was plaintiff’s son. When questioned at trial whether she was dependent upon Larry for her livelihood, she vehemently denied being so. She testified that, after she and Larry moved to Empire, they split the costs of their apartment rent ($150.00 per month), utilities (average $60.00 per month) and the telephone (estimated at $15.00 per month), one-half for herself and one-half for Larry. She further stated that each would purchase their own food as they did not have the same tastes. Her hospitalization, medicine and other medical expenses were paid for by Medicare. Fannie received $208.00 per month in welfare benefits and she stated that she could eat well and otherwise was able to care for herself on this amount.

Fannie and Larry had a very close relationship; one which was more like mother/son than grandmother/grandson. Fannie would wash Larry’s clothes and he would stay with her when he was off duty. He would also assist her in the household duties. However, the financial relationship in living together is symbiotic rather than one of dependency. When asked whether she (Fannie) was dependent on Larry for anything, she replied: “No way in the world.' Because you don’t ever know when a young persons’ fixing to step out”

On deposition, prior to trial, Fannie, in regard to questions concerning her financial dependency on Larry, responded:

“Q. Did you view yourself as dependent on Larry for anything?
“A. No, I didn’t depend on Larry for nothing because I didn’t figure he would be there very long. I figured he would soon marry and leave or get in with somebody and get a job off to himself.
“Q. ... I was asking you some questions about whether you depended on Larry for any kind of financial support of any kind, did you?
“A. No sir.”

In summary, Fannie had been on welfare for many years. She had managed to rear her two grandsons, Larry and Louis Waters, from the time they were babies. She accomplished this on the welfare payments she received. She furnished these two grandchildren the necessities of life until they were approximately eighteen years old, at which time they both began working. She continued to live with Larry after he began working but she steadfastly maintained her independence. She was steadfast in her position that Larry did not furnish any financial support for her upkeep. There is no evidence to the contrary.

The record fully supports the trial court’s conclusion that Fannie was not dependent on Larry at the time of his death.

PROOF OF PATERNITY

Liberty Mutual contends that plaintiff did not prove that he was the actual father of Larry; therefore, he is not entitled to collect the death benefits due to a surviving parent as provided by LSA-R.S. 23:1231. This argument has no merit. The record and undisputed testimony of all the witnesses clearly identifies plaintiff as the father and Susie Reed as the mother of Larry Stutts, Jr. Fannie Ballard stated that her daughter married plaintiff and that she delivered Larry when he was born. Plaintiff stated that the decedent was his child. Louis Waters, a half-brother of Larry, stated that plaintiff was the father of Larry. There is no proof to the contrary. Plaintiff and Susie lived together prior to and after the birth of Larry. We conclude that plaintiff was the father of Larry and is entitled to recover death benefits.

MOTION FOR CONTINUANCE

Liberty Mutual contends the trial court erred in not granting its motion for continuance. The record indicates that the motion for continuance was based upon the contention that Liberty Mutual needed more time to subpoena certain records of a savings account jointly held by Fannie and Larry which Liberty Mutual thought would show dependency. The trial court denied the motion but held the case open to allow the bank records to be introduced into evidence along with a deposition of the bank officer. The ruling of the trial judge was proper; it was not an abuse of his broad discretion. See, Harrison v. South Central Bell Tel. Co., 390 So.2d 219, 222 (La.App. 3rd Cir. 1980), writ denied, 396 So.2d 900 (La.1981).

As to the savings account of Larry and Fannie, she explained this both in her deposition and at trial. She stated that none of the money in the account belonged to her. She was listed on the account so that she could make deposits and withdrawals for Larry’s benefit. The withdrawals were not for her own purposes but to pay Larry’s truck notes and insurance premiums whenever his work schedule prevented him from doing so.

Fannie stated that after Larry’s death she contacted an attorney and closed out the account receiving the balance of $3,548.52. She stated that she intended to buy a tombstone for Larry’s grave with the money. The fact that she withdrew the savings after the death of Larry does not establish dependency during the time Larry lived with her.

JURISDICTION (VENUE)

Liberty Mutual further alleges that the trial court lacked jurisdiction of the matter because plaintiff was a resident of Sabine Parish, the Eleventh Judicial District, and not Natchitoches Parish, the Tenth Judicial District. We are not faced with a lack of subject matter jurisdiction as the district court is the proper forum to hear and decide this workmen’s compensation claim, but rather Liberty Mutual’s position raises a question of venue.

It is well established that venue is waiva-ble. The plaintiff, a resident of Sabine Parish, instituted this suit in Natchitoches Parish. LSA-C.C.P. art. 925 provides that all objections to venue are raised by the declinatory exception which shall be filed before the answer. LSA-C.C.P. 928. The defendant answered the petition without objecting to venue. Clearly, venue was waived. The trial court correctly overruled the exception.

PENALTIES AND ATTORNEY’S FEES

The last assignment of error alleged by Liberty Mutual is that the trial court erred in awarding penalties and attorney’s fees.

We find the action by Liberty Mutual to be arbitrary, capricious or without probable cause. Ms. Mary Jo Zichichi, Claims Adjuster for Liberty Mutual, stated that she talked to Fannie Ballard and other relatives around May 1981, concerning the dependency of Fannie. She received the demand letter from plaintiff on May 21,1981, claiming the surviving parent’s death benefit. Ms. Zichichi stated that she felt that Fannie was dependent even though she denied it. Fannie denied dependency in the telephone interview with Ms. Zichichi, on deposition and at trial. Ms. Zichichi gave no facts upon which she reached such a conclusion.

This suit was filed July 28, 1981, more than sixty days after the demand by plaintiff. No tender by Liberty Mutual to either Fannie or plaintiff was made prior to trial. The record discloses no probable cause for this failure to tender payment of benefits due to plaintiff, therefore, Liberty Mutual is liable for penalties and attorney’s fees.

Plaintiff’s attorney answered this appeal seeking an increase in attorney’s fees due to the appeal. We will award an additional $500.00 as attorney’s fees for this appeal. The trial court judgment will be amended accordingly.

For the foregoing reasons, the judgment of the trial court in favor of plaintiff, Larry Stutts, Sr., is amended by awarding $500.00 as additional attorney’s fees. In all other respects the judgment of the trial court is affirmed. All costs are assessed against defendant-appellant, Liberty Mutual Insurance Company.

AMENDED AND AFFIRMED.

      . In view of the evidence we have discussed, it is unnecessary for us to consider the admissibility of the accident reports received by Liberty Mutual from Davis & Sons and introduced into evidence.