author: CULPEPPER, Judge.

text:
    BUNKIE FUNERAL HOME, INC., Plaintiffs & Appellees, et al., v. Julian McNUTT, et al., Defendants & Appellants.
    No. 8668.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.

      Brittain & Williams, Jack O. Brittain, Natchitoches, for defendants-appellants-ap-pellees.
    Gold, Little, Simon, Weems & Bruser, Larry Feldman, Jr., Alexandria, for defendants-appellees-appellants.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Stafford, Stewart & Potter, Walter May, Voltz & Ware, Gus A. Voltz, Alexandria, for defendants-appel-lees.
    Chris J. Roy, Alexandria, for plaintiffs-appellees.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   CULPEPPER, Judge.

This case was consolidated for trial, and for appeal, with Charles A. Roberts, Sr., et al., v. Jeff D. Keys, et al., 414 So.2d 1273, in which a separate judgment is being rendered by us this date. Both cases are for damages arising from accidents in which an automobile first struck and killed a black calf and then an ambulance struck the dead calf lying on the highway. The present case is by Bunkie Funeral Home, Inc. and Jeff D. Keys, respectively the owner and the driver of the ambulance, for property damage to the ambulance and for personal injuries sustained by the driver. The companion case by Mr. and Mrs. Charles A. Roberts, Sr., and Charles A. Roberts, Jr., is for personal injuries suffered by Mrs. Roberts and Charles, Jr. as occupants of the ambulance. Suit was filed against numerous defendants in the present case by Bunk-ie Funeral Home and Jeff Keys. These include Horace C. Pringle, driver of the first car which hit the calf, and his liability insurer, State Farm Mutual Auto Insurance, Charles Davis, one of the defendants alleged to be the owner of the calf, and Julian McNutt, the defendant found by the trial court to be the owner of the calf, and his liability insurer, Southern Farm Bureau Casualty Insurance Company. In the suit brought by Mr. and Mrs. Roberts and their son, the defendants include Horace C. Prin-gle and his insurer, Julian McNutt and his insurer, Jeff D. Keys, Bunkie Funeral Home, Inc., Mrs. Alena J. Thurman, president of the funeral home, and the liability insurer of both the ambulance and Mrs. Thurman, Aetna Casualty & Surety Company-

The trial judge found that defendant, Julian McNutt, was owner of the black calf and was negligent in allowing it to get on the highway, which negligence was the sole cause of the accident and injuries. He further found that Horace C. Pringle and Jeff D. Keys were not guilty of any negligence in the accident. The trial court awarded general damages for personal injuries to Charles Roberts, Jr. in the amount of $5,000, and to Barbara Roberts in the amount of $140,000, but denied the personal injury claim made by Jeff Keys. He also awarded property damages to Bunkie Funeral Home in the amount of $21,183.89 for destruction of its ambulance. From this judgment, Jeff D. Keys, in his posture as plaintiff in the present case, and defendants, Julian McNutt and Southern Farm Bureau, have appealed.

The following issues have been raised and briefed by the parties: (1) Whether the evidence was sufficient to prove defendant McNutt was owner of the calf; (2) whether Horace Pringle was guilty of negligence or non-negligent fault; (3) whether Jeff Keys was guilty of negligence or non-negligent fault; (4) if Jeff Keys was guilty of fault, whether Mrs. Alena Thurman may be held personally liable by piercing the corporate veil of Bunkie Funeral Home; (5) whether the $140,000 for general damages awarded to Barbara Roberts is excessive; (6) whether the award to Bunkie Funeral Home for property damage is excessive; (7) whether the award to Bunkie Funeral Home is inadequate; (8) whether Jeff Keys is entitled to an award for general damages?

FACTS

This case arises out of two separate accidents which occurred on U. S. Highway 71 just north of Lecompte, Louisiana. Highway 71 is a stock law highway, upon which livestock are prohibited to go at large, LSA-R.S. 3:2803. At the point at which these accidents occurred, the highway is a divided, four-lane highway, and had been resurfaced just prior to the accident, leaving it a dark black color. The accidents occurred at night and the highway was unilluminated, except for the headlights of traffic. According to the testimony of both drivers, it had rained earlier in the day, but the road was not wet, nor was there standing water in the roadway.

At approximately 8:30 p. m. on July 10, 1977, Horace C. Pringle was proceeding north on Highway 71 in the right-hand lane at a speed of 50-55 miles per hour. He noticed, standing off the roadway to his right, a small, yellow, white-faced calf, which momentarily diverted his attention from the road in front of him. A short distance later, he hit a dark object located approximately at the center line of the two north bound lanes of the highway, apparently striking it with the left front fender of his automobile. He brought the car to a stop on the east shoulder of the road and backed his vehicle to a point a short distance south of the object he had struck, which he then discovered was a solid black calf, lying across the center line with its head pointed in an easterly direction. After turning on his emergency flashers, Mr. Pringle began making calls on his CB radio in an attempt to contact the State Police. After being informed via the radio that he should try the emergency channel 9, he changed channels and began to continue his calls. At this point, he glanced in his rear view mirror and noticed a set of flashing lights apparently heading north on the highway. Seconds later, the ambulance owned by Bunkie Funeral Home and driven by Jeff D. Keys, collided with the black calf as it lay in the middle of the roadway.

Earlier that same evening, Mr. Keys had received a call that emergency transportation was required for a patient at Bunkie General Hospital, who was to be transferred to Cabrini Hospital in Alexandria. He had proceeded to the hospital and picked up Charles Roberts, Jr., the victim of a shotgun accident, who had suffered an injury to his left hand. Charles, Jr. (Chuck) was accompanied by his mother, Barbara Roberts, who was a registered nurse. Mr. Keys had his flashing emergency lights on, with his headlights on low beam, and was proceeding north at approximately 65-70 miles per hour. At the time of the accident, the ambulance was in the left-hand lane of travel, having passed slower traffic in the right-hand lane several moments before the impact. Mr. Keys testified that he saw the animal just as he hit it but could not tell what it was at the time. After the impact, the ambulance skidded out of control, with the calf locked under the wheel, and hit the shoulder of the road. At this point, the calf was dislodged from the undercarriage, and the ambulance skidded into a ditch and flipped over against an embankment. As a result of this accident, all three occupants of the ambulance sustained personal injuries, and the ambulance itself was a total loss.

OWNERSHIP OF THE CALF

Several cattle owners in the area were sued as alleged owners of the calf which was killed in the accident. However, by the close of the evidence, all had been granted either summary judgments or judgments of dismissal, with the exception of defendants Charles Davis and Julian McNutt. The trial judge ruled in favor of the defendant Charles Davis, and against defendant McNutt, finding that the plaintiff had shown by a preponderance of the evidence that the calf belonged to McNutt, and that he was negligent in allowing it to go at large upon the highway. Defendant McNutt contends first that the trial court erred in placing the burden of proof on him to show that he was not owner of the calf, rather than on the plaintiffs to show that he was, and second, that the evidence was sufficient to show that Mr. McNutt did not own the calf. All plaintiffs contend that the evidence in the record supports the trial court’s finding of McNutt’s ownership.

None of the witnesses who viewed the dead calf could testify as to any distinctive markings of ownership on the carcass. It was not branded. There was no evidence of any openings or holes in any of the fences in the surrounding area through which the black calf and its apparent companion could have found their way to the highway. Therefore, the plaintiffs’ case regarding ownership of the dead calf consisted entirely of circumstantial evidence.

The defendants rely on Motors Insurance Corporation v. Melder, 336 So.2d 954 (La. App. 3rd Cir. 1976), in which this court recognized the following standard against which the sufficiency of circumstantial evidence must be judged:

“ ‘Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes.’ Lombard v. Sewerage and Water Board of New Orleans, 284 So.2d 905, 913 (La.1973); Naquin v. Marquette Casualty Co., 244 La. 569, 153 So.2d 395, 397 (1963).”

It was further noted that this test allows the trier of fact to weigh other reasonable hypotheses against the one offered by the plaintiffs to determine whether the evidence as a whole constitutes a preponderance.

Mr. McNutt was the owner of the property fronting the highway at the point at which the accident occurred. His fences were well constructed and, as stated above, no holes were found in them. Access to Mr. McNutt’s property could only be gained through his front gate, located just off Highway 71 and normally kept chained and padlocked. However, it was shown that, on the Friday and Saturday preceding the accident, the gate had been left open for a considerable length of time in order to provide admittance to vehicles of persons participating in a quarter horse show which was held on McNutt’s property. Mr. McNutt testified that, because of the show, he had transferred all of his cattle from the other pastures on his property to a pasture located behind his house, which was well away from the road. However, photographs taken the night of the accident were introduced at trial showing the presence of cattle in the pasture which fronts on the highway. There was no explanation as to how or when the cattle came to be in this pasture.

Charles Davis owns the property fronting on the highway to the north of McNutt’s property. He testified that the only black Angus calves he owned at the time had white faces, and that they would have had to cross from two to four fences or get through three gates to get to the highway. At the time of the accident, he had 15 calves and none were missing when he made his customary count the morning after the accident, nor at any later date.

The owner of the land across the highway from McNutt was Warren Haggert. He testified that his cattle were in the pasture by his house, some 2V2 miles from McNutt’s fence, at the time of the accident. His property is separated from McNutt’s by both lanes of the highway and the Rock Island railroad right of way, which has a double fence. He has a registered brand, but does not brand the calves he keeps at his house. He also testified that most of the calves he owned at the time were black with white faces, along with a few red ones with white faces.

The dead calf was solid black. The calf on the side of the road was a yellow white-faced calf. Defendant McNutt testified that he knew the calf on the side of the road was not his because he had only a few white-faced calves at that time. Therefore, presumably the rest were solid in color like the dead calf. McNutt was the only cattle owner to actually view the dead calf, and the only person to testify that it had been recently castrated. However, both he and Davis testified they did not castrate their calves. Defendant Haggert testified that he only castrated his animals in the late fall.

According to the McNutts’ records, of their calves bought, sold or lost, they should have had 64 calves, and yet their count on the Monday after the accident revealed they had only 62. They had on their property an impounding pen, used by the State Police for impounding cattle found at large upon the highway. The yellow calf was placed there by defendant McNutt, but had mysteriously disappeared the next day, despite the claimed impregnability of all McNutt’s fences and gates.

The fact that the accident occurred adjacent to Mr. McNutt’s property, that he was the only cattleman in the area with solid black calves, and that the discrepancy between his records and the count of his calves on the day after the accident, all point to Mr. McNutt’s ownership of the calves. In addition to this, it is undisputed that his animals were in the pasture next to the road, and that this front gate was open on the preceding Friday, Saturday and part of the day Sunday. These facts, in the aggregate, lead us to conclude the trial judge was not clearly wrong in his finding the evidence presented excludes, with a fair amount of certainty, every reasonable hypothesis but that, the dead calf was owned by defendant McNutt.

PRINGLE’S NEGLIGENCE

All plaintiffs, as well as defendant McNutt, contend on this appeal that the trial court erred in finding that defendant Pringle was free of actionable negligence. They argue that he breached a duty to either remove the dead calf from the traveled portion of the road, or to provide some warning of the obstruction to the traffic on the highway.

A motorist has a duty not to cause an obstruction to the normal flow of traffic on a highway or to adequately warn approaching motorists of any obstructions he does cause. State Farm Mutual Automobile Insurance Company v. So. Cen. Bell Tel. Company, 359 So.2d 1318 (La.App. 4th Cir. 1978). This duty is designed to prevent the risk of confused or inattentive drivers colliding with such obstructions. State Farm Auto Insurance Company v. So. Cen. Bell, supra; Thibodeaux v. Lock Clinic, 303 So.2d 570 (La.App. 4th Cir. 1974). However, whether or not a motorist has complied with this duty is a question of fact depending on the circumstances of each case. ThiBodeaux v. Lock Clinic, supra.

The cases relied on by the plaintiffs and defendant-appellant McNutt, wherein motorists were held liable for negligence in failing to adequately warn approaching motorists of obstructions in the highway, involved obstructions by a vehicle or a boat which had been under the custody and control of the defendant immediately preceding the subsequent collision. See State Farm Mutual Automobile Insurance Company, supra; Thibodeaux, supra; Adams v. Allstate Insurance Company, 212 So.2d 204 (La.App. 4th Cir. 1968). Furthermore, in each of these cases, it was shown the defendants involved had ample means, as well as ample time, in which to effectively warn oncoming traffic of the obstruction.

In the instant case, the trial judge decided that the second accident occurred so soon after Pringle hit the calf that he did not have time to prevent the ambulance from hitting the dead calf. The lapse of time .between the first collision and the second was estimated by both Mr. and Mrs. Pringle as being only a very short time, Mrs. Pringle estimating that it was no more than a minute or so. Mr. Pringle testified that he only had time to make one CB call, change channels, and make maybe two calls on the emergency channel. No evidence was introduced to rebut this testimony, nor was there any evidence that Mr. Pringle had the means with which to effectively warn approaching traffic other than his emergency flashers. For these reasons, we do not find the trial judge was clearly wrong in holding Pringle free of negligence.

Plaintiffs Roberts contend that even if defendant Pringle was not guilty of negligence, he should be held liable for non-negligent fault under Seals v. Morris, 410 So.2d 715 (La.1981). In that case, a collision occurred between plaintiff and defendant when defendant noticed a green snake on his shoulder, lost control of his truck and proceeded past a stop sign into an intersection. The Supreme Court held that although the defendant was not negligent he was at fault, and that for defendant to escape responsibility he would have to prove that the damages to the fault-free plaintiff were caused by the fault of a third person or by some external circumstance sufficient to discharge the defendant from responsibility. The Seals case has no application here because Pringle was neither negligent nor at fault. This case is controlled by the established jurisprudential rule that a motorist traveling at night is not charged with the duty of guarding against striking an unexpected or unusual obstruction, which he had no reason to anticipate he would encounter on the highway. Kirk v. United Gas Public Service Company, 185 La. 580, 170 So. 1 (1936).

KEYS’ NEGLIGENCE

It is also contended by the plaintiffs Roberts and defendant McNutt that the driver of the ambulance was guilty of negligence in exceeding the speed limit, failing to see and heed the emergency flashers on the Pringle vehicle, and failing to see the calf in the headlights of the Pringle vehicle. These contentions are without merit.

In the first place, it is clear that the failure to see and heed the emergency flashers on the Pringle vehicle was not a cause in fact of the accident, inasmuch as the ambulance was already in the left lane of travel. The natural response of a motorist on a four-lane highway, upon seeing such an emergency signal, would be to move to the left-hand lane of the highway. Since Mr. Keys was already in the left-hand lane of travel, his failure to see the emergency signal of the Pringle vehicle was not a cause in fact of the subsequent accident.

We further find no clear error in the trial judge’s holding that the failure to see the calf in the headlights of the Pringle vehicle did not constitute negligence. As stated earlier, a motorist driving on a high speed highway at night is not as a matter of law required to see an unlighted and unexpected object in his path in time to come to a safe stop. Bordelon v. State, through Department of Highways, 253 So.2d 677 (La.App. 1st Cir. 1971), writ refused 260 La. 18, 254 So.2d 619 (1971). This highway is unilluminated at the point at which the accident occurred. The evidence indicates that the calf was lying across the center line of the highway, with the greater part of the bulk probably in the left lane. The Pringle vehicle was parked only a short distance south of the calf on the shoulder of the road, with the headlights on dim and pointing directly up the shoulder of the road. Therefore, it is unlikely that the Pringle headlights cast much, if any, illumination on the bulk of the calf as it lay on the dark surface of the roadway. Under these circumstances, we concur in the trial court’s finding that Keys was free of fault in failing to detect the presence of the calf.

We further reject the contention that the excessive speed of 65-70 miles per hour constituted negligence. The argument is that inasmuch as the patient’s condition evidenced no cause for alarm on the way from one hospital to another, the driver was not on an emergency mission, and therefore not authorized to exceed the speed limit. As stated by this court in Cassity v. Williams, 373 So.2d 586 (La.App. 3rd Cir. 1979):

“[2] Although the driver of an emergency vehicle is authorized by LSA-R.S. 32:24 to exceed speed limits and to disregard regulations governing direction of traffic flow, the statute also expressly provides that such driver is not relieved of the duty to drive with due regard for the safety of others. Carpenter v. Hartford Accident and Indemnity Co., 333 So.2d 296 (La.App. 1 Cir. 1976).”

Two factors to be considered in determining whether a particular act of a driver of an emergency vehicle is excusable are (1) the inherent danger of the act of the driver and (2) whether the dangerous act is necessary to the performance of the emergency function. See Hryhorchuk v. Smith, 379 So.2d 281 (La.App. 3rd Cir. 1979), modified on other grounds 390 So.2d 497 (La.1980). The inherent danger of proceeding at this speed on a divided four-lane, stock law highway, where a night motorist may assume the roadway will be clear of unexpected obstructions, is not, in and of itself, great enough to render the driver negligent. Furthermore, although the patient’s immediate condition was not cause for alarm, it is also apparent that all due speed was advisable in transporting this young patient for further treatment, as long as the driver continued to exercise due regard for the safety of others. We conclude the trial court’s finding was not clearly wrong.

We also reject plaintiff Robert’s contention that Keys was guilty of non-negligent fault for the same reasons stated in connection with our finding that Pringle was not guilty of non-negligent fault.

Inasmuch as we find no liability on the part of Keys, which could be imputed to Bunkie Funeral Home as his employer, there is no need for a finding as to the nature of the corporate existence and function of Bunkie Funeral Home, Inc.

BUNKIE FUNERAL HOME, INC.

Defendant-appellant McNutt urges that the award made by the trial court to Bunkie Funeral Home for the loss of its ambulance was excessive, inasmuch as the amount awarded was the same sum as the corporation paid for the ambulance in 1976. As stated above, the inquiry is whether or not the trial court abused its discretion. Ordinarily, if a vehicle is a total loss, the plaintiff-owner would be entitled to the market value of the vehicle before the accident, less its salvage value, if any. However, there is no mechanical rule which may be applied in the assessment of property damage, and each case rests on its own facts and circumstances as supported by the proof in the record. See Coleman v. Victor, 326 So.2d 344 (La.1976); Kalmn, Inc. v. Empire Gas Corporation, 406 So.2d 276 (La. App. 3rd Cir. 1981).

The defendant argues that the award should have been the fair market value before the accident, less salvage value. Inasmuch as no evidence was introduced into the record to show what these values were, the trial court was effectively precluded from making an award on this basis. The only figures introduced which were pertinent to the value of the damages sustained by Bunkie Funeral Home were the respective prices of the destroyed ambulance and the replacement ambulance. We therefore find the trial court’s award of $21,183.89 for destruction of the ambulance was not excessive, since this was the lowest figure introduced into evidence.

Bunkie Funeral Home argues that the trial court erred in rejecting its claim for damages for loss of use of its vehicle for the three months it took to procure a replacement. The general rule is that where a wrecked vehicle is totally destroyed or repair is not economically feasible, damages for the loss of use of the vehicle are recoverable, but only for a reasonable period of time, i.e., that period in which the owner should become aware of the situation and secure a replacement. Hoffman v. All Star Insurance Corporation, 288 So.2d 388 (La.App. 4th Cir. 1974), writ refused 290 So.2d 909 (1974); Washington v. Lake City Beverage, 352 So.2d 717 (La. App. 3rd Cir. 1977), writ refused 354 So.2d 1050 (La.1978). Since there was no evidence introduced to show what would have been a reasonable period of time in which to secure and put into operation a replacement for the destroyed ambulance, we find no abuse of the trial court’s discretion in rejecting this item of damages.

JEFF D. KEYS’ DAMAGES

The trial court found Jeff Keys proved no damages. We conclude that this holding by the trial judge was manifestly erroneous.

We recognize that we must give great weight to the finding of fact by the trial judge. Canter v. Koehring Company, 283 So.2d 716 (La.1973). However, plaintiffs with clearly objective symptoms of injury should not be refused general damages. See Robinson v. General Motors Corporation, 328 So.2d 751 (La.App. 4th Cir. 1976); Mora v. American Motors Leasing Corporation, 364 So.2d 1343 (La.App. 4th Cir. 1978). A review of the evidence convinces us that the trial judge was clearly wrong in denying damages for Mr. Keys’ personal injuries. See also Moss v. Security. National Insurance Company, 350 So.2d 247 (La.App. 3rd Cir. 1977), writ refused 352 So.2d 239 (La.1977).

Mr. Keys himself testified as to his injuries, hospitalization, and treatment by Dr. John Lemoine, his family physician. The deposition of Dr. Lemoine was introduced into evidence, and shows that Keys suffered a moderate cervical strain causing pain in his neck, and non-displaced fracture of the acronium, which is the bony process coming off the scapula and uniting with the collar bone. Dr. Lemoine testified that these were significant injuries, and that at the time of treatment, Keys was in severe pain consistent with the type of injuries suffered. The plaintiff was hospitalized for five days, and discharged before his injuries were healed. It was estimated that such injuries would take approximately eight to ten weeks to heal completely.

It was stipulated by the parties at trial that Aetna, who joined with Mr. Keys and Bunkie Funeral Home as plaintiffs in the original petition in its capacity as the workmen’s compensation insurer, had paid a total of $1,017.66 in workmen’s benefits and medical expenses to and on behalf of Mr. Keys.

We therefore shall award, under the principles of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), the lowest amount which could reasonably have been awarded for the damages to Mr. Keys by the trier of fact. We find the lowest amount which could reasonably have been awarded to Mr. Keys for his general damages to be $5,000 for pain and suffering, and mental anguish. Since Aetna has not appealed its subrogation claim, we cannot amend the judgment in its favor.

AWARD TO BARBARA ROBERTS

Defendant-appellant contends the award of $140,000 to Barbara Roberts for general damages is so excessive as to constitute an abuse of discretion by the trial judge. Mrs. Roberts’ counsel concedes the award is on the high side, but argues it is not an abuse of discretion.

The evidence shows that immediately after the accident Mrs. Roberts was taken to a hospital in Alexandria where she was seen by Dr. Douglas L. Gamburg, a specialist in orthopedic surgery, who became the treating physician. His diagnosis was fracture of the right scapula (shoulder blade), fracture of the right clavicle (collar bone) and a small avulsion fracture of the fourth lumbar vertebra. She was hospitalized and her right arm placed in side arm traction to reduce pain and allow healing of the fractured collar bone. The fracture to the shoulder bone required no specific attention, as it heals itself. The avulsion fracture of the spine required no treatment except bed rest. She remained in the hospital until August 1, 1977, when she was discharged with her right arm in a sling.

Thereafter she continued to see Dr. Gam-burg, who testified as follows that her shoulder and collar bone injuries healed normally:

“Q. Dr. Gamburg, what’s the normal healing time for a shoulder fracture of the clavicle and scapula such as she had in a lady of her age?
A. About three months.
Q. Was her healing time within the framework that you would consider normal?
A. I think it was, yes.
Q. Once the fractures are healed, is there any real reason for there to be further complaints of pain?
A. Well, there could be many reasons for continuing complaints. Ordinarily they fade with time. The soft tisuses around the clavicle and the scapula can be injured at the time of the accident or injury and they may have lingering symptoms for up to three to six months. But unless there’s been some joint disruption or some change in configuration of a joint relationship as a result of the fracture the pain generally subsides and leaves the patient with minimal impairment.
Q. There was no joint impairment in connection with her fractures, were there?
A. I never was able to find any problem.
Q. Now, the weakness which she had following it, it was due to — primarily to the bruises to the tissues and to her not using the arm for that period of time, is that correct?
A. Right. There is a weakness that would be expected following immobilization and injury. However, her weakness in October of ’78 could not be explained strictly on the basis of the initial injury and its immediate aftermath.
Q. In a normal situation, with the use of the extremity after the fractures have healed the strength comes back, does it not?
A. That’s correct.”

With regard to the avulsion fracture of L-4, Dr. Gamburg testified:

“Q. Now, talking about the avulsion fracture of L-4, in the beginning you indicated a slight crush — crushing of the L-4 and then later on in your testimony you referred to it as an avulsion fracture. Can you clarify it for me a little bit? Do we have a compression type of a fracture or do we just have a piece of the bone tearing off with the ligament?
A. It is an avulsion fracture rather than a compression fracture. It’s a piece of bone that tore off with the ligament — with the anterior longitudinal ligament.
Q. Then there really wasn’t any crushing of the vertebra itself?
A. That’s correct.
Q. All right. And you said that the slight avulsion which she had was not really significant from a neurological standpoint? Is that — did I understand you correctly?
A. Yes. That’s correct.”

About six weeks after the accident, Mrs. Roberts was seen by Dr. Babson Fresh, a neurosurgeon in Alexandria, who found no nerve root pressure resulting from the vertebra injury nor any other neurological abnormality resulting from her injuries.

Mrs. Roberts was also seen by Dr. Davidson H. Texada, a psychiatrist, whose report dated August 28, 1978 states that he found no emotional condition resulting from the accident.

At the trial, plaintiff testified she was then 49 years of age and was a registered nurse. However, her last employment was about a year before the accident. She was director of nurses at a nursing home in Simmesport. She testified that before the accident she had no physical infirmities, and that she could work, go fishing with her husband, dance, and generally do anything she wanted. However, she says that since the accident she still has pain in her back, that she limps, that she has pain in her arm and has trouble using her hands, that her kidney function has been affected so that she has difficulty voiding, and that she does not feel like going places and doing things as she did before the accident.

Apparently the trial judge was impressed by the testimony of Mrs. Roberts that she has residuals from the accident. However, there is absolutely no expert medical testimony to support the existence of these residuals. The three doctors listed above, including Dr. Gamburg, who was the treating physician, could find no justification for her continued complaints. They all expressed the opinion she had no residuals.

Under the evidence, we conclude the award of $140,000 in general damages was an abuse of the trial court’s discretion. We find the highest award which can be justified under the evidence is $80,000. We will reduce the award accordingly.

THE DECREE

For the reasons assigned, the judgment appealed is amended to award to Jeff D. Keys for general damages the sum of $5,000, together with legal interest thereon from date of judicial demand until paid. In all other respects, the judgment appealed is affirmed at the cost of defendants-appellants, Julian McNutt and Southern Farm Bureau Casualty Insurance Company.

AFFIRMED, AS AMENDED.


source: Caselaw Access Project

license: Public Domain

text:
    Charles A. ROBERTS, Sr., et al., Plaintiffs & Appellees, v. Jeff D. KEYS, et al., Defendants & Appellants.
    No. 8669.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Rehearing Denied April 29, 1982.
    Writ Denied June 21,1982.
    Brittain & Williams, Jack 0. Brittain, Natchitoches, for defendants-appellants-ap-pellees.
    Gold, Little, Simon, Weems & Bruser, Larry Feldman, Jr., Alexandria, for defendants-appellees-appellants.
    Gist, Methvin, Hughes & Munsterman, DeWitt T. Methvin, Jr., Stafford, Stewart & Potter, Walter May, Voltz & Ware, Gus A. Voltz, Alexandria, for defendants-appel-lees.
    Chris J. Roy, Alexandria, for plaintiffs-appellees.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   CULPEPPER, Judge.

This is a companion case to Bunkie Funeral Homes, Inc., et al. v. Julian McNutt, et al., 414 So.2d 1263, in which a separate opinion is being rendered by us this date. For the reasons assigned in our opinion in the companion case, the award to Mrs. Barbara Roberts for general damages is reduced from the sum of $140,000 to the sum of $80,000. In all other respects, the judgment appealed in the present case is affirmed at the cost of defendants-appellants, Julian McNutt and Southern Farm Bureau Casualty Insurance Company.

AFFIRMED, AS AMENDED.


author: STOKER, Judge.

text:
    Mark BIALY, Plaintiff-Appellee, v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant-Appellant.
    No. 8683.
    Court of Appeal of Louisiana, Third Circuit.
    March 17, 1982.
    Rehearing Denied May 10, 1982.
    Writ Denied July 2, 1982.

      William J. Doran, Jr., Baton Rouge, for defendant-appellant-appellee.
    Trimble and Associates, Lon P. Wilson, Alexandria, for plaintiff-appellee.
    Kramer & Laird, Martin Laird, III, Alexandria, for plaintiff-appellee-appellant.
    Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, Gist, Methvin, Hughes & Munsterman, John W. Munsterman, McLure & McLure, John G. McLure, Alexandria, for defendants-appellees.
    Before CULPEPPER, GUIDRY and STOKER, JJ.
   STOKER, Judge.

This case arises out of a two car collision which occurred on January 16, 1978, on a bridge over the Red River between Alexandria and Pineville, Louisiana. The bridge, commonly known as the Fulton Street Bridge, is part of the Louisiana State Highway system, and was designed, built and maintained by the State. Nancy Bialy’s car crossed the median of the bridge and was struck in the opposing lane of traffic by a bread truck driven by Elbert Smith. Nancy Bialy (Mrs. Bialy) was killed in the accident, and her husband, plaintiff-appellee Mark Bialy (Bialy) brought this claim for his damages and his wife’s wrongful death against defendant-appellant, the State of Louisiana, through the Department of Transportation and Development (State). Bialy’s petition alleges that the State is strictly liable because the bridge in their custody was defective, or alternatively, that the State was negligent in its design, construction, or maintenance of the bridge. In a companion case which we decide this date, Elbert Smith (Smith) sued Bialy and his insurer for damages, alleging that Mrs. Bialy was negligent in her operation of the vehicle. Smith also sued the State, arguing in the alternative that the State was strictly liable or liable in negligence for the accident. Both Smith’s and Bialy’s cases were consolidated for trial. The court found that neither Mrs. Bialy nor Smith were negligent and awarded $286,966.55 to Bialy and $530,000.00 to Smith against the State. The State appealed this judgment and Bialy and Smith answered the appeal, seeking increases in their awards.

FACTS

The Fulton Street Bridge is a lift bridge, the lift section of which is a level, open, metal grid. The rest of the bridge is concrete which slopes to meet the lift section. The bridge has two lanes of travel in each direction which at the time of the accident were divided by a concrete median ten inches high and four feet wide.

According to witnesses, Mrs. Bialy was in the right-hand northbound lane travelling within the posted 50 mile per hour speed limit when her car began to “fishtail” at or close to the point at which the concrete and metal grid portions of the bridge meet. The weather was wet and near freezing, but there was no ice on the bridge. The car swerved two or three times on the metal grid and then ran against the curb of the median for a short distance. Finally, the car was thrown into the air over the median and landed in the southbound lanes of traffic, where it was struck by a Cotton Brothers Baking Company bread truck driven by Smith. The first witnesses to arrive seconds later found Mrs. Bialy dead from the impact.

The trial court gave the following written reasons for its judgment in favor of plaintiffs Bialy and Smith:

“The evidence was to the effect that neither Mrs. Bialy nor Mr. Smith was negligent; that the cause of the accident was the unsafe condition of the bridge; and that the state highway department had ample notice and failed to correct the defects prior to this tragic accident. The bridge lacked an adequate barrier between the opposing lanes; the metal grid had not been properly maintained and was dangerously slippery; the fifty mile speed limit on the bridge was unsafe; and there were no signs warning of the slippery condition of the bridge when it was wet.”

The State alleges that the trial court erred in the following respects:

“I. The trial court erred in its finding that the cause of the accident was the unsafe condition of the bridge.
II. The trial court erred in failure to find Nancy Bialy guilty of contributory negligence which is attributable to plaintiff, Mark Bialy.
III. The trial court erred in awarding an excessive amount of damages to both plaintiffs.”

The State also urges in a supplemental brief that should we find the State to be strictly liable under LSA-C.C. art. 2317, there is no wrongful death action under Article 2317. These arguments will be addressed below.

WAS THE BRIDGE UNSAFE?

The State contends that the trial court erred in finding that the cause of the accident was the unsafe condition of the bridge. The jurisprudence regarding this issue is summarized in Bush v. State, Through the Department of Highways, 395 So.2d 916 (La.App. 2nd Cir. 1981), writs denied, 399 So.2d 609 (La.1981), as follows:

“... The law is settled that the Department of Highways is not responsible for every accident which may occur on the state highways, nor is it a guarantor of the safety of travelers thereon, or an insurer against all injury which may result from obstructions or defects in such highways.... Generally, it is the duty of the Highway Department to construct and maintain the highways in a condition reasonably safe for persons exercising ordinary care and reasonable prudence.... (citations omitted)
United States Fidelity and Guaranty Co. v. State, Department of Highways, 339 So.2d 780 (La.1976).
“... However, reasonable care requires, and the Department does owe, a duty to the traveling public to erect barricades, signs and adequate markings to warn against extremely dangerous, trap-like hazards, unusual obstructions, perilous conditions or defects in the road.... Whether the warning is required, reasonable, or adequate is determined by the place where the danger exists, the nature of the road and the general situation and circumstances surrounding it. All of these factors, together with the kind and speed of vehicles, are to be taken into consideration to determine whether the Department has discharged its duty.... (citations omitted)
Vervik v. State, Department of Highways, 302 So.2d 895 (La.1974).
“There is no fixed rule for determining what is a dangerous defect in a public way; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question: Was the public way maintained in a reasonably safe condition for persons exercising ordinary care and prudence? ... (citations omitted)
Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975).”

Plaintiffs sought to establish that the bridge was not “maintained in a reasonably safe condition for persons exercising ordinary prudence” chiefly by the testimony of Dr. Robert Brenner, an expert in safety and traffic engineering. Dr. Brenner pointed out several risk factors in the design, construction, and maintenance of the bridge, all of which made the bridge more unsafe and which, in Dr. Brenner’s opinion, contributed to the causation of the accident. Dr. Brenner stated that the median separating the opposing lanes of traffic on the bridge is now recognized as dangerous for freeway use because a vehicle striking it is propelled upward and across the median which results in loss of control. A median barrier is recommended instead, preferably the so-called “New Jersey” barrier, which is designed to redirect the straying vehicle back into the proper lane while allowing the driver to regain control of the vehicle. According to the standards of the American Association of State Highway Officials, a multi-state body in which Louisiana officials participate and which promulgates highway safety standards, a median barrier was recommended for the Fulton Street bridge before the accident occurred in that the average daily traffic count on the bridge exceeded 20,000 and the median was less than 10 feet wide.

Dr. Brenner also pointed out several flaws in the design and maintenance of the metal grid on the bridge. The metal grid consists of strips of steel welded together in a “star in a box” pattern. Each strip of steel in the original design was notched to increase traction on the grid. Evidence in the form of pictures and testimony was introduced to show that there were several areas on the northbound lanes of the grid where the welds had come loose; and that there were other areas where repairs were made, but the new strips were welded inconsistently with the original pattern and were smooth instead of notched. Evidence of recognized safety standards was introduced which recommended the welding of studs at the junctures of the metal strips. This was not done in this case. Dr. Brenner also pointed out the existence of an “entry bump” consisting of a drop from the concrete portion of the bridge to the metal grid. All of these factors can cause different frictions on the different tires of a car, which makes instability and loss of control of the car more likely.

Finally, Dr. Brenner testified that the most cost-effective risk-reducing measures which the State should have taken were the lowering of the speed limit and the placement of “Slippery When Wet” signs on the bridge. Dr. Brenner stated that the fact that metal grid decks are more slippery than concrete surfaces is a well known problem, and the slipperiness of metal decks greatly increases when wet. This problem could be ameliorated if the drivers were made aware of the possible danger in advance and were made to reduce their speeds.

All of the safety measures outlined above should have been effected prior to the date of the accident, according to Dr. Brenner. If the measures had been taken prior to that time, the probability of the accident would have been “substantially reduced,” and the probability of the car’s crossing the median would have been “essentially zero”, in Dr. Brenner’s opinion.

Considering the foregoing expert testimony, there was ample evidence adduced at trial to show that the unsafe condition of the bridge was a substantial factor in the causation of the accident in question.

The State contends that the Fulton Street Bridge met the design standards in effect when the bridge was built in 1962, and that therefore the bridge was not defective. For this proposition, the State cites Roberts v. Winston Carriers, Inc., 304 So.2d 818 (La.App. 3rd Cir. 1974), writ denied, 309 So.2d 341 (La.1975). However, we fail to find support for the State’s argument in that case. This court in Roberts found that a curb which was built in 1934 or 1935 was not “hazardous” and did not in fact contribute to the accident in that ease which occurred in 1972. We did not rely on the fact that the curb met nationally accepted standards when built to support our finding that the curb was not in fact hazardous. Furthermore, there is no showing in the Roberts case that the failure of the State to widen the highway on which the accident occurred to accommodate an increase in traffic was a causative factor in the accident.

The State also cites Shipp v. City of Alexandria, 395 So.2d 727 (La.1981) to support its contention that the bridge, even if found to be defective, did not present an unreasonable risk of harm to a driver exercising ordinary care and reasonable prudence. In Shipp, the Louisiana Supreme Court found that a hole in street pavement about an inch and a half to two inches deep was not a defect which occasioned an unreasonable risk of injury to the plaintiff. Obviously, in the instant case, the lack of proper maintenance of the bridge and the inadequate warnings to motorists, as well as the lack of an adequate barrier which greatly increased the risk of dangerous head-on collisions, are “defects” which pose an unreasonable risk of injury to motorists using the bridge.

WAS MRS. BIALY CONTRIBUTORILY NEGLIGENT?

The State contends that the trial court erred in not finding Mrs. Bialy con-tributorily negligent. At this point, we should discuss the basis of the State’s liability as found by the trial court. Although our discussion of this issue has heretofore been couched in terms of non-negligent liability under LSA-C.C. art. 2317, the trial court apparently found the State to be negligent in written reasons for judgment stating that “the state highway department had ample notice and failed to correct the defects prior to this tragic accident”. Considerable evidence was introduced at trial establishing that certain officials in the highway department knew or should have known of the disrepair of the grid section of the bridge and of the desirability of a median barrier to prevent crossover accidents. However, we find that the plaintiffs have a clear basis of liability under LSA-C.C. art. 2317, and therefore we need not discuss plaintiff’s allegations of negligence on the part of the State. The State’s arguments concerning Mrs. Bialy’s contributory negligence will still be considered in light of the fact that “victim fault” which is a defense to recovery under LSA-C.C. art. 2317 has been equated to contributory negligence. See Darbonne v. State Farm Mutual Automobile Insurance Company, 408 So.2d 300 (La.App. 3rd Cir. 1981), and the cases cited therein.

The evidence of Mrs. Bialy’s actions preceding and during her crisis is necessarily speculative since Mrs. Bialy was driving alone and was killed in the accident. The State chiefly relies on the testimony of one eyewitness to the accident who surmised that Mrs. Bialy “must have stepped on the brakes ‘cause just all at once [the car] turned completely sideways and came across the left lane ... and hit the little median and jumped the median and this Holsum bread truck hit her.” This witness and others testified that Mrs. Bialy's car “fishtailed two or three times” before spinning out of control. The State argues that stepping on the brakes was an improper response to the fishtailing and caused the car to spin uncontrollably.

The witnesses agree that Mrs. Bialy was driving straight ahead at a reasonable speed and was not trying to pass anyone when her car began to fishtail. Under these circumstances, it is likely that the condition of the bridge caused her initial dilemma. If Mrs. Bialy did in fact react improperly in trying to regain control of her car, she cannot be found guilty of contributory negligence for doing so. One who suddenly finds himself in position of imminent peril, without sufficient time to consider and weigh all circumstances or find the best means to avoid an impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself was brought about by his own negligence. This “doctrine of sudden emergency” is appropriate in the consideration of fault as it bears upon contributory negligence as well. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (La.1972).

The emergency which Mrs. Bialy found herself facing when she allegedly reacted improperly was not a product of her own negligence, but of the State’s negligence or of the defective condition of the bridge in the State’s custody and control. Therefore, Mrs. Bialy is not guilty of contributory negligence which would defeat her cause of action under LSA-C.C. art. 2315, or of “victim fault” which would defeat her cause of action under LSA-C.C. art. 2317.

WRONGFUL DEATH UNDER LSA-C.C. ART. 2317

The State in a supplemental brief contends that there is no wrongful death action available under Civil Code article 2317. The argument is basically that the wrongful death action is a statutory creation found in Civil Code article 2315, and is not available in an action based on Article 2317 because of the apparent holding of our Supreme Court in Loescher v. Parr, 324 So.2d 441 (La.1975), and Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980) that Civil Code article 2317 embodies a cause of action separate and distinct from that found in Article 2315.

Having found that the State is liable under Civil Code article 2317, however, we find further that there is a cause of action under LSA-C.C. art. 2317 for Mrs. Bialy’s wrongful death.

The actions for wrongful death and survival are found in LSA-C.C. art. -2315, the pertinent parts of which are as follows:

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
* * # * * *
“The right to recover all other damages caused by an offense or quasi offense, if the injured person dies, shall survive for a period of one year from the death of the deceased in favor of: (1) the surviving spouse and child or children of the deceased, or either such spouse or such child or children; (2) the surviving father and mother of the deceased, or either of them, if he left no spouse or child surviving; and (3) the surviving brothers and sisters of the deceased or any of them, if he left no spouse, child, or parent surviving. The survivors in whose favor this right of action survives may also recover the damages which they sustained through the wrongful death of the deceased.... ”

Speaking of the word “fault” in the first paragraph of LSA-C.C. art. 2315 as it relates to Articles 2316 through 2324, the Louisiana Supreme Court in Loescher v. Parr, supra, stated:

“The remaining articles [2316-2324] constitute an amplification as to what constitutes ‘fault’ and under what circumstances a defendant may be held liable for his act or that of a person or thing for which he is responsible.”

The Court continues by showing that LSA-C.C. art. 2316 is the basis for liability for negligent fault in Louisiana, whereas LSA-C.C. art. 2317 provides for liability based on non-negligent fault. Thus, LSA-C.C. art. 2315 is the article upon which all delictual responsibility is based and upon which LSA-C.C. arts. 2316 through 2324 depend.

Therefore, it is to be expected that the legislature would place the language embodying the wrongful death and survival actions in LSA-C.C. art. 2315 to indicate that it intended these actions to apply to all of the articles which are based upon LSA-C.C. art. 2315. This legislative intent is further shown by the fact that the survival and wrongful death actions are defined in the language added to LSA-C.C. art. 2315 as “[t]he right to recover all other damages caused by an offense or quasi offense, if the injured person dies ...” (emphasis supplied). The elements of offenses and quasi offenses are contained in LSA-C.C. arts. 2315 through 2324 and are not limited to any one of those articles. “Offense” and “quasi offense” are broad terms that include claims for negligent, non-negligent, and intentional delicts. Therefore, the right of certain designated beneficiaries to recover damages for the wrongful death and survival of an injured person as found in LSA-C.C. art. 2315 is applicable to actions for non-negligent delicts brought under LSA-C.C. art. 2317.

QUANTUM

As its third assignment of error, the State contends that the trial court abused its discretion with respect to the awards granted to both plaintiffs. The award to Bialy will be discussed below. The award to Smith will be discussed in a separate opinion rendered this same date, as mentioned above.

The trial court awarded the following damages to Bialy:

The State complains of the amounts awarded for two of these elements of damages: the award for Mrs. Bialy’s suffering prior to death, and the award for Bialy’s economic loss resulting from his wife’s death.

To show that Bialy failed to prove that his wife suffered any pain prior to her death, the State points out that two of the first witnesses to arrive at the scene of the accident testified that Mrs. Bialy showed no signs of life when they saw her. Wilbur Newsome, who was driving behind the bread truck when it struck Mrs. Bialy’s vehicle, stopped immediately after the accident to render assistance. He could not feel Mrs. Bialy’s pulse, so he turned his attention to the driver of the bread truck. Melvin Vallery, who was ahead of the bread truck in the same lane at the time of the accident, stopped his truck and went back to the scene. Mrs. Bialy showed no signs of life at that time, even though a woman was already trying to revive her through mouth-to-mouth resuscitation. No witness testified that he saw Mrs. Bialy alive after the accident, even for a brief moment. Under these circumstances, Bialy failed to prove that his wife experienced any conscious pain or suffering prior to her death. Therefore, the award of $10,000 for her suffering must be disallowed. Cf. Daniels v. Conn, 382 So.2d 945 (La.1980); and Blanchard v. Rodrigue, 340 So.2d 1001 (La.App. 1st Cir. 1976), writs denied, 341 So.2d 1129, 1130 (La.1977).

With regard to the award for Bialy’s economic loss from his wife’s death, the State complains of the admission of evidence introduced at trial of Mrs. Bialy’s potential earnings as a nurse, even though she was a part-time student employed at the minimum wage at the time of her death. The State also complains of the admission of evidence of the economic value of Mrs. Bialy’s household services which was introduced at trial. Bialy counters these arguments by contending that the trial court failed to take into account the expected increase in Mrs. Bialy’s earnings should she have later been employed as a nurse. He also complains that the trial court failed to consider the value of Mrs. Bialy’s household services in making its award. Bialy seeks an increase in the award to include these damages.

Mrs. Bialy was 26 years old and was working full-time at a shoe store for $2.75 per hour at the time of her death. She was a part-time student and had completed one year of a two-and-a-half year nursing curriculum. Dr. George Rice, an expert economist, set Mrs. Bialy’s work life expectancy had she lived at 29.2 years. Dr. Rice also said he expected the minimum wage to increase by 8V2% per year, a figure roughly offset by his discount factor of 9%. Dr. Rice testified further that the value of a housewife’s services is “in the six to eight thousand dollar range.” Max Allen Crane, director of personnel at Rapides General Hospital, testified that starting registered nurses with no experience make $6.92 per hour for a 40 hour week at the hospital, and that immediate employment was available for nurses.

The trial court awarded to Bialy $125,000 for the economic loss he suffered from his wife’s death. Mrs.- Bialy’s total earnings during her projected work-life of 29.2 years would have been $160,000, assuming she continued to make $2.75 per hour for a forty hour week and worked fifty weeks a year. Since the expected rise in the minimum wage would be roughly offset by the discount factor proposed by Dr. Rice, there is no need to include as factors either of these figures.

It is obvious that the trial court did not give great weight to the evidence of Mrs. Bialy’s potential career as a nurse or of her economic value as a housewife. Perhaps he was influenced by the fact that she had completed less than half of her required nursing studies, and the fact that no evidence of her services as a housewife was introduced. It is also possible that her household services were included as a factor in the general damages awarded to Bialy for his wife’s death. The trial judge may have also considered the fact that Mrs. Bialy was a young married woman of childbearing years whose working career may have been interrupted by the demands of raising a family. In any case, we feel that the award of $125,000 to Bialy for his economic loss resulting from the death of his wife is reasonably supported by the record. This sum, as well as the sum awarded for general damages, is within the “much discretion” of the trial court and will not be disturbed on appeal by this court. Reck v. Stevens, 373 So.2d 498 (La.1979).

Therefore, for the foregoing reasons, we affirm the trial court’s ruling except to amend the award of damages to delete the award of $10,000 to Bialy for his wife’s suffering prior to death.

AMENDED AND AFFIRMED AS AMENDED.

      . Smith v. Lumberman’s Mutual Casualty Co., et al., 414 So.2d 1281 (La.App. 3rd Cir. 1982).

      . The. Fulton Street Bridge runs generally northeast towards Pineville and southwest towards Alexandria, but for the sake of convenience we shall refer to the direction towards Pineville as north and that towards Alexandria as south.

      . Roberts v. Winston Carriers, Inc., supra, was not a case tried under LSA-C.C. art. 2317. However, we presume that the definition of “hazardous” in that case would be similar to the jurisprudential requirement of an unreasonable risk of harm for purposes of liability under LSA-C.C. art. 2317. See Jones v. City of Baton Rouge, 388 So.2d 737 (La.1980).

      . There was some disputed evidence at trial that there was an “Ice On Bridge” sign displayed at the time of the accident. The trial court must have either doubted that the sign was displayed, or must have felt that it did not convey an adequate warning to motorists.

      . The Second Circuit, in its recent decision of Laborde, et al v. Eagle Trucking Co., et al, 409 So.2d 1266 (La.App. 2nd Cir. 1982), agrees with our holding in the following language from that case:
      “The right to recover damages if the injured person dies because of a C.C. 2317 offense or quasi offense is set forth in C.C. 2315 ...”
      The issue in the Laborde case was whether the right to recover damages for wrongful death under LSA-C.C. art. 2317 was more extensive than that found in LSA-C.C. art. 2315.


text:
    Elbert A. SMITH, Plaintiff-Appellee-Appellant, v. LUMBERMEN’S MUTUAL CASUALTY CO., et al., Defendants-Appellants-Appellees.
    No. 8682.
    Court of Appeal of Louisiana, Third Circuit.
    March 17, 1982.
    Rehearing Denied May 10, 1982.
    Writ Denied July 2, 1982.
    William J. Doran, Jr., Baton Rouge, for defendant-appellant-appellee.
    Trimble and Associates, Lon P. Wilson, Alexandria, for plaintiff-appellee.
    Kramer & Laird, Martin Laird, III, Alexandria, for plaintiff-appellee-appellant.
    Gold, Little, Simon, Weems & Bruser, Eugene J. Sues, for appellant.
    Gist, Methvin, Hughes & Munsterman, John W. Munsterman, McLure & McLure, John G. McLure, Alexandria, for defendants-appellees.

      Before CULPEPPER, GUIDRY and STOKER, JJ.
   STOKER, Judge.

For the reasons stated in the companion case of Bialy v. State of Louisiana, Through the Department of Transportation and Development, 414 So.2d 1273 (La.App. 3rd Cir. 1982), in which we render a separate opinion on this date, the judgment of the trial court in favor of Smith against the State of Louisiana, through the Department of Transportation and Development, is affirmed. The judgment dismissing Smith’s claim against Bialy and his insurer, Lumbermen’s Mutual Casualty Company, is affirmed. The trial court’s judgment in favor of the intervenor, United States Fidelity and Guaranty Company, for the medical and compensation benefits it has paid or will pay to Smith is also affirmed.

The issues of the causation of Smith’s damages and of the amount of the award to Smith are discussed below.

The State argues that Smith’s disability does not stem from the accident, but from a pre-existing condition known as Marie Strumpell arthritis. Smith answered the State’s appeal, asking that the award for loss of earnings be increased from $300,-000 to $500,000, and that we award to him the costs of this appeal.

Smith’s continuing medical problems since the accident include pain in both knees and in his left leg which forces him to use crutches to walk. Smith also suffers from a severely restricted ability to expand his chest which has increasingly worsened since the accident. He must use his abdominal muscles to breath which causes shortness of breath. In the opinion of Dr. Banks, Smith’s treating orthopaedic surgeon, Smith is totally disabled and his condition is unlikely to improve.

Dr. Banks found evidence from x-rays that Smith had previously suffered from Marie Strumpell arthritis, a condition which is evidenced by the calcification of interspi-nous ligaments and which usually leaves some stiffness or restricted motion in the joints involved. According to Dr. Bank, however, this particular form of arthritis typically begins in young men between the ages of 23 and 25, and is normally not acute in men past the age of 30. Smith was 45 at the time of the accident, and, in Dr. Bank’s opinion, his disease was “burnt out” and had run its course by that time. While Dr. Banks did not know of any scientific basis for stating that Marie Strumpell arthritis is aggravated by trauma for the reason that the etiology of the disease is still unknown, he did state that in his experience with approximately fifty cases of the disease, he had never seen such rapid deterioration due to the progression of Marie Strumpell arthritis as experienced by Smith in anyone of Smith’s age. In fact, Dr. Banks stated that he did not believe that Smith’s present condition was attributable solely to Marie Strumpell arthritis, but he did state that the trauma of the accident or the period of forced inactivity due to the trauma was a likely cause of Smith’s problem.

Under these circumstances, the trial court was not clearly wrong in concluding that Smith would not be in his present condition but for the accident, despite the pre-exist-ing arthritis. Therefore, we affirm the trial court’s finding that the State is liable for Smith’s damages.

The trial court made the following awards to Smith:

The State contends that the trial court erred in awarding “an excessive amount of damages to both plaintiffs” but did not present in its brief any argument for the reduction of Smith’s award except for its contention that Smith’s disability is due to a pre-existing condition. We have discussed this argument above. Smith concedes that the award for general damages was within the trial court’s discretion, but contends that the award for loss of past and future earnings should be increased to not less than $400,000.

Dr. Rice, an economics expert, gave two estimates of Smith’s past and future loss of earnings: one based solely on Smith’s last full year of wages in 1977 and another which includes the yearly increase in wages which Smith could expect based on the amount earned in the last ten weeks before trial by the salesman who had replaced Smith on Smith’s former delivery route. The reliability of this new salesman’s earnings as an indicator of increases in earnings which Smith would have received was sharply contested at trial.

The figure given by Dr. Rice representing the total of past and future loss of wages based on Smith’s 1977 earnings using a projected work-life expectancy of 16.1 years is $395,150. The trial court awarded $300,-000 to Smith for loss of past and future earnings. While the trial court might well have awarded a greater amount for wage loss based on the expert testimony, the amount actually awarded is within the trial court’s wide discretion. LSA-C.C. art. 1934(3); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976) and Reck v. Stevens, 373 So.2d 498 (La.1979). On the basis of these authorities we are unable to conclude that the trial court abused its discretion in this regard.

The trial judge is not bound by expert testimony but may weigh the testimony of expert witnesses in the same manner as he would any other evidence. Smith v. Andrepont, 378 So.2d 479 (La.App. 1st Cir. 1979), writ denied, 380 So.2d 102 (La.1980); and Necaise v. Vicknair, 391 So.2d 1347 (La.App. 4th Cir. 1980). The trial court’s assessment of the weight and credibility to be given expert testimony will not be disturbed unless found to be clearly erroneous. Guidry v. Davis, 382 So.2d 250 (La. App. 3rd Cir. 1980). The award granted by the trial court to Smith, while it does not exactly agree with any of the figures given in the expert testimony, is nevertheless a reasonable figure based on that testimony and will not be disturbed on appeal.

AFFIRMED.


author: DOUCET, Judge.

text:
    Ezra CHAPMAN, Plaintiff-Appellee and Appellant, v. BELDEN CORPORATION, Defendant-Appellee.
    No. 8686.
    Court of Appeal of Louisiana, Third Circuit.
    March 17, 1982.
    Rehearing Denied May 10, 1982.

      Charles E. Welsh, Asst. Atty. Gen., Shreveport, for defendant-appellant.
    Davis & Murchison by James D. Davis, Alexandria, for plaintiff-appellee-appellant.
    Gaharan & Wilson, Donald R. Wilson, Jena, for plaintiff-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

This is a workmen’s compensation case involving multiple defendants and numerous issues. The trial judge found that the plaintiff, Ezra Chapman, had suffered a compensable back injury in the course of his employment with Belden Corporation, defendant and third party plaintiff. The trial judge also found that the plaintiff, subsequent to the back injury, suffered a heart attack in the course of his employment as a member of the Louisiana National Guard, third party defendant, and was entitled to benefits as a result thereof. Judgment was granted in accordance with the trial judge’s findings. From this judgment both the Louisiana National Guard and Chapman have appealed. We affirm.

Plaintiff was employed as a supervisor at the Belden Corporation’s wire plant in Jena, Louisiana. On April 28, 1978, while stacking wire, he sustained a lumbosacral strain and was immediately taken to a doctor. He remained hospitalized for several days. Subsequently, he was released to return to work on May 12, 1978.

From May 12, 1978, through August 12, 1978, Chapman performed all of his duties as a supervisor at the Belden plant. In addition, Chapman also performed all of the duties required of him as a result of his employment with the Louisiana National Guard, where Chapman was an enlisted man at the rank of E-5, and performed the duties of a cook. During the period May 12,1978, through August 12,1978, Chapman attended three monthly Louisiana National Guard drills, and in addition attended summer camp for two weeks with the Louisiana National Guard. During this period of time he was able to perform all of his duties, at both Belden and the Louisiana National Guard satisfactorily, although he was in some pain as a result of his lumbosacral strain.

On August 12, 1978, plaintiff attended a Saturday drill at the Louisiana National Guard Armory at Jena, Louisiana where, as a cook, he supervised the cooking of the noon meal. After the meal had been prepared, the men served, and kitchen cleaned up, Chapman returned home whereupon he began to feel chest pains and a shortness of breath. Shortly thereafter, he suffered a myocardial infarction. He was hospitalized in Jena and Alexandria, Louisiana, until being transferred to St. Luke’s Hospital in Houston, Texas on November 3, 1978, where he underwent a triple coronary bypass operation.

After the bypass operation was performed, and Chapman had recovered therefrom, he attempted to return to his employment at Belden, working in a less strenuous position. However, Chapman was able to work only one and one-half days, after which he began to suffer from attacks from angina pectoris and left his job at the Bel-den plant, never to return.

During this period, and for a substantial period of time thereafter, Belden paid accident and sickness benefits to Chapman in excess of $29,000.00, including costs of the myocardial infarction, the triple bypass operation performed in Houston, the recuperative care, stress tests, EKGs and many other medical expenses associated solely with the heart attack.

Chapman filed a workmen’s compensation suit against his employer, Belden Corporation, on May 25,1979, alleging he was totally and permanently disabled as a result of injuries received. Subsequently the defendant and plaintiff filed amended complaints on May 9 and 27,1980, respectively, naming the State of Louisiana, through the Louisiana National Guard as a defendant, alleging that Chapman was entitled to workmen’s compensation from the Guard as the result of the heart attack which occurred on August 12, 1978. Additionally, defendant Belden, as third party plaintiff, sought recovery from the Guard of all medical and compensation benefits paid to Chapman following the August 12, 1978 heart attack. After various motions were heard and trial on the merits, the trial judge found Chapman to be totally and permanently disabled. Judgment was rendered in favor of Chapman and against Belden, awarding plaintiff 100 weeks of benefits in the amount of $138.00 per week, plus all medical expenses associated with a back injury, subject to a credit for all amounts previously paid by Belden, and also subject to a credit for all sums paid to Chapman by the Social Security Administration. Judgment was also rendered in favor of Chapman, against the Louisiana National Guard, awarding plaintiff workmen’s compensation benefits at the rate of $961.31 per month, pursuant to U.S.C. provisions, commencing August 12, 1978 and continuing for the duration of plaintiff’s disability and further awarding plaintiff medical expenses associated with the heart attack. Furthermore, judgment was granted in favor of Belden on their third party demand against the State.

ISSUES

The issues for consideration on appeal are: 1) whether the United States is an indispensable party in an action against the National Guard; 2) whether the trial judge erred in denying the Guard’s motion for Summary Judgment which was based upon LSA-R.S. 23:1211; 3) whether the trial court erred in setting the trial prior to answer; 4) whether the suits against the Guard were barred by prescription; 5) whether plaintiff established a casual connection between the employment activity with the Guard and the disability occasioned by the heart attack; 6) whether the award of benefits pursuant to 32 U.S.C. § 318 was proper; and 7) whether the award of attorney’s fees was warranted.

FAILURE TO JOIN THE UNITED STATES AS PARTY DEFENDANT

The Guard excepted to the petitions of plaintiff and Belden, seeking dismissal on the grounds that aforesaid parties had failed to join the United States as an indispensable party. The exception was overruled. Resolution of this issue depends on whether plaintiff is considered an employee of the State or United States. LSA-R. S.:29:3(B)(1) defines the organized militia as consisting of the National Guard, the Louisiana State Guard and other military forces which may be authorized by law. LSA-R.S. 29:4 provides:

“The national guard is divided into two classes, the active national guard and the inactive national guard.
A. The active national guard consists of the regularly commissioned, enlisted, organized, and uniformed military forces of Louisiana who participate in apportionment of the annual appropriation provided by the Congress of the United States of America for the support of the national guard.
B. The inactive national guard consists of all persons qualified for enlistment in the active national guard and who are enlisted in the inactive national guard and the officers and enlisted men transferred thereto pursuant to federal laws and regulations.”

We have found no Louisiana jurisprudence addressing the question of the status of members of the Guard. However, the vast majority of located decisions on the state and federal militia relationship hold that National Guardsmen of the several states are employees of the state except when in actual service of the United States.

In the landmark case of State v. Johnson, 186 Wis. 1, 202 N.W. 191 (Wis.1925) the Wisconsin Supreme Court held that the National Guard is part of the Army only while in service of the United States, and at other times is a state organization, and hence a member of the National Guard injured while at target practice was entitled to workmen’s compensation from the state. The court therein recognized that from the time of the framing of the United States Constitution two distinct military organizations were expressly recognized: the National Army, consisting of professional soldiers in continuous service; and the Militia, a state organization primarily in the service of the state and subject to the call of the country in the event of national emergency. The Second Amendment to the Constitution expressly recognizes the Militia and their right to bear arms: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” When the National Defense Act was enacted, the need for greater unification of the National Guard with the federal army was recognized, nonetheless it still retains its essential feature as part of the Militia in times of peace. Although the name connotes a federal unit, the National Guard remains only a potential part of the federal army.

Similarly, in Baker v. State, 200 N.C. 232, 156 S.E. 919, it was held in the following language that members of the National Guard were employees within the meaning of workmen’s compensation law:

“The record shows, in any event, that the plaintiff was voluntarily in the service of the state and subject to its direction and control. This is one of the tests of employment; and under the liberal interpretation given to the Compensation Law we should hesitate to hold that there can be no employment within the meaning of the act unless there happens to exist the technical relation of master and servant.”

The law appears well settled that members of the National Guard of the various states are state employees except when in actual service of the United States. Williams v. United States, 10th Cir., 189 F.2d 607; Storer Broadcasting v. United States, 5th Cir., 251 F.2d 268, cert. denied 356 U.S. 951, 78 S.Ct. 916, 2 L.Ed.2d 844.

Accordingly, the United States was not an indispensable party to the action.

SUMMARY JUDGMENT

Closely related to the issue of status of the National Guardsmen is the Guard's argument that the trial judge erred in not sustaining their Motion for Summary Judgment, citing in support thereof LSA.R.S. 23:1211, which provides:

§ 1211. Special compensation benefits for injury or death of member of national guard
A. Every member of the national guard who is accidentally injured, or his dependents if hé is accidentally killed, while on active duty during a state of emergency declared by the governor and for the duration of such emergency as declared by the governor, shall be compensated by the state in accordance with the workmen’s compensation law, including but not limited to such medical, surgical and hospital services and medicines and such disability and death benefits as are authorized by said workmen’s compensation law.
B. No compensation shall be paid by the state for injury or death occurring while in the service of the United States of America or while going to or returning from this service.
C. No compensation shall be paid unless the injury or death arose out of and in the course of the service. Before any claim is certified for payment, proof that the applicant is entitled to payment shall be made in accordance with regulations prescribed by the adjutant general. The amount payable as compensation may be commuted to a lump sum settlement by agreement of the parties. In computing the weekly benefit hereunder, either the weekly wages from the member’s principal civilian employment or his weekly military wages, whichever is larger, will be used. Otherwise, the provisions of the workmen’s compensation law apply.
D. Except as provided in Subsection C hereof, the provisions of this section and of no other law shall govern the compensation benefits payable to members of the national guard.

Attached to the motion was an affidavit which stated that Mr. Chapman was not on duty under a state of emergency declared by the governor. The Guard interprets this statute as limiting their liability to those situations where the governor has declared an emergency and has called the Guard into service. Plaintiff argues that the provisions of R.S. 23:1211 are intended to expand coverage under the Louisiana Workmen’s Compensation Act to include situations arising during a state of emergency. Alternatively, plaintiff argues that 32 U.S.C. § 318, et seq. establishes minimum benefits, therefore, consistent with the supremacy clause, the state can provide no less.

We have discovered no jurisprudence interpreting the above statute. As we construe it, the act was intended to allocate the liability for workmen’s compensation benefits between the state and federal governments, depending upon in whose service the member was acting at the time of the injury, and to expand state coverage to those situations where a state of emergency has been declared by the governor. In reaching this result we rely particularly on the last section of sub-section (c) which provides that “Otherwise, the provisions of the workmen’s compensation law apply.” Affording R.S. 23:1211 a liberal construction, as is proper with all remedial statutes, requires us to conclude that the trial court’s action in this respect was appropriate.

TRIAL FIXING

LSA-C.C.P. Art. 1571 provides:

Art. 1571. Assignment by court rule
The district courts shall prescribe the procedure for assigning cases for trial, by rules which shall:
(1) Require adequate notice of trial to all parties; and
(2) Prescribe the order of preference in accordance with law.
These rules shall not allow the assignment of ordinary proceedings for trial except after answer filed.

Plaintiff and Belden argue that Art. 1571 is inapplicable insofar as a workmen’s compensation action is not an ordinary proceeding; that trial is required by law to be expedited, that the rules of procedure are sui generis, and additionally argue that the Guard failed to contemporaneously object to the fixing of trial before answer. The Guard correctly notes that the language of the last paragraph is mandatory. Inasmuch as the trial was set before the answers of the Guard were filed, the Guard claims the judgment must be declared a nullity. Such a result was obtained in Jackson v. Hannie, 225 So.2d 385 (La.App. 3rd Cir. 1969), wherein we stated:

“In the present case, we hold that the judgment appealed is null and void because this is an ordinary proceeding which was assigned for trial before an answer was filed, in violation of the mandatory requirements of LSA-CCP Article 1571, and because this irregularity was not waived." (emphasis added)

The record discloses that plaintiff’s counsel requested a trial fixing, and pursuant thereto, on April 23, 1981, trial on the merits was fixed by the trial judge for May 26, 1981. As heretofore mentioned, the third party claims against the Guard were filed by defendant and plaintiff respectively, on May 9 and 27, 1980. The record further discloses that copies of the trial fixing order were sent to all counsel of record, although the trial judge did note that someone from the Attorney General’s office had called his house and spoken with his daughter alleging they (the state) had not received notice of the trial being set. Furthermore, the record discloses that the case had been continued three times, twice at the request of the Guard. In deciding to proceed with trial, the district judge noted that the plaintiff was in precarious health and further delays could prove prejudicial. The trial judge observed, “There is a risk that his testimony might not be available if we delayed too long.” In view of all of the above, we find that the Guard waived any irregularity in this regard; thus the trial judge did not abuse his discretion in proceeding with trial. For the same reasons, the trial judge did not err in denying the Guard’s application for a new trial.

PRESCRIPTION

Plaintiff suffered his myocardial infarction on August 12, 1978. He filed suit against his employer, Belden Corporation, on May 25, 1979. On May 9, 1980, Belden filed a third party demand against the Guard. The Guard responded by filing an Exception of Prescription based upon LSA-R.S. 23:1209, which provides:

§ 1209. Prescription
In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of partial disability this limitation shall not take effect until three years from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.

A hearing was held in the matter on March 17, 1981. Evidence introduced included plaintiffs pay records with the Guard which revealed that he was paid for drills on August 13,1978 and a later drill in September, neither of which plaintiff attended. The trial court concluded that, inasmuch as plaintiff received compensation for days he did not work, the three year prescriptive rule applied. In reaching this result the trial judge relied upon Miller v. Belden Corp., 386 So.2d 974 (La.App. 3rd Cir. 1980), wherein we held that in the absence of an agreement between the parties that compensation payments were made by defendant for total disability, benefits were presumed to have been paid for partial disability, and plaintiff had three years from last payment to bring her suit notwithstanding the contrary two year prescriptive provision, as the former provision was the latest expression of legislative will and furthered the objectives of the workmen’s compensation act.

Belden, asserting independent grounds for affirmation, contends that its action against the State for restitution of money paid in error to Chapman is governed by the omnibus 10-year prescriptive period of LSA-C.C. Art. 3544 applicable to personal actions not otherwise provided for. In support of their position Belden brings to our attention the ease of Employers Liability Assurance Corporation v. General Accident Fire and Life Assurance Corporation, 125 So.2d 689 (La.App. 1st Cir. 1960), wherein a dispute arose as to whether the insurer at the time of the accident or the insurer at the time a disability developed was required to pay benefits and the latter party paid in order to avoid possible penalties. Thereafter, in a suit for recovery of benefits paid, defendant insurer sought to interject prescription of one year. The appellate court held that the relief sought by the insurer at the time of the employee’s disability was for restitution, therefore the applicable prescriptive period was ten years.

The intent of the 1975 amendment to LSA-R.S. 23:1209, adding the three year prescriptive period, was to protect the worker from an unscrupulous employer who would lull the injured worker into a false sense of security causing him to withhold suit until after the period was expired. Where the employer has lulled the employee into a false sense of security, he will be estopped from invoking prescription. Dupaquier v. City of New Orleans, 260 La. 728, 257 So.2d 385 (1972); Johnson v. Morton Salt Co., 377 So.2d 549 (La.App. 3rd Cir. 1979). In the present case the plaintiff absented himself from the Guard’s drill camp and was hospitalized, never to return. His regular employer, Belden, began payments and provided for his medical expenses. The Guard contented itself with disregarding plaintiff’s absence from the militia, making no inquiries, providing no benefits except for payments for drills in September and November of 1978 not attended, and providing insurance through August 1979. Under these circumstances, and for the reasons assigned by the trial judge, we find that the action against the Guard was not prescribed.

CAUSATION

The Guard asks us to reverse the trial judge’s factual finding that the petitioner established a connection between the attack and employment activity.

Heart attacks have been held to be accidents within the purview of our workmen’s compensation laws. Bertrand v. Coal Operators Casualty Co., 253 La. 1115, 221 So.2d 816 (1969) (on rehearing); Roussel v. Colonial Sugars Co., 318 So.2d 37 (La.1975); Adams v. New Orleans Public Service, Inc., (La.1981), Docket No. 81-C-0784. Where there is proof of an accident and of a following disability without any intervening cause, it is presumed that the accident caused the disability. Adams v. New Orleans Public Service, Inc., supra.

The trial judge made the following observations relative to causation:

“I find that effective approximately 7:00 a. m. on August 12,1978 the plaintiff started to work for the Louisiana National Guard as an enlisted man, rated E-5, and that his duties on that date were those of an enlisted cook. Between 7:00 a. m. and 2:00 p. m. on August 12, 1978, plaintiff worked as a cook at the Louisiana National Guard Armory situated near the airport in LaSalle Parish, Louisiana. I find that after a full day of labor in the kitchen of the Louisiana National Guard Armory that the plaintiff went home and shortly thereafter suffered an acute myocardial infarction which required his immediate hospitalization and as a result of which he was totally and permanently disabled.
Through counsel, plaintiff contends that he has been totally and permanently disabled as a result of both accidents being the accident of April 28,1978 and the accident of August 12, 1978. It is my view and I find that the most probable cause of his total and permanent disability is the physical aftermath of the myocardial infarction sustained on August 12, 1978. I further find that plaintiff was able to endure all of the stress, strain and exertion required of him by the Belden Corporation at his employment by them as a supervisor in their manufacturing facility after his first accident, which disabled him for only 15 days. I find that he was unable to endure the extra exertion, stress and strain imposed on him by service in the Louisiana National Guard and by preformance [sic] of his assigned duties as an enlisted cook. I find that his work place for the Louisiana National Guard was hot and his duties were strenuous and that within the meaning of the Louisiana Workman’s [sic] Compensation Act, that his duties and the preformance [sic] of those duties as enlisted cook for the Louisiana National Guard were the cause in fact of the myocardial infartion [sic] suffered during the afternoon or early evening of August 12, 1978 by this plaintiff.”

The trial judge was of the opinion that the plaintiff’s strenuous work in the hot kitchen created a strain on the heart. The Guard elicited testimony that plaintiff was slightly obese and smoked, and sought to show that this coupled with work-related anxieties at Belden caused the heart attack. In such cases involving heart conditions benefits are due, whether or not the condition is pre-existing, when the accidental injury is caused or precipitated by the usual and customary actions, exertions, and other factors directly connected with the employment. Roussel v. Colonial Sugars Co., supra. The trial judge’s factual determination as to causation is entitled to great weight and will not be disturbed absent manifest error. Roussel v. Colonial Sugars Co., supra; Canter v. Koehring, 283 So.2d 716 (La.1973). We affirm in this regard.

COMPENSATION AWARD

Plaintiff was awarded benefits from Bel-den. The trial court also awarded Chapman benefits at the rate of $961.31 per month to be paid by the Guard, pursuant to 32 U.S.C. § 318:

318. Compensation for disablement during training. — A member of the National Guard is entitled to the hospital benefits, pay and allowances, pensions, and other compensation provided by law or regulation for a member of the Regular Army or the Regular Air Force, as the case may be, of corresponding grade and length of service, whenever he is called or ordered to perform training under section 502, 503, 504, or 505 of this title—
(1) for a period of more than 30 days, and is disabled in line of duty from disease while so employed; or
(2) for any period of time, and is disabled in line of duty from injury while so employed.

The Guard appeals this award, contending that plaintiff is entitled to benefits only as provided by Louisiana law, citing in support thereof LSA-R.S. 23:1211, supra. No party has cited any jurisprudence in support of their respective positions and our research has revealed none.

As we construe the conflicting statutes, federal law controls the computation of benefits owing to an injured guardsman. It is the opinion of this court that in participating in federal funds for the Guard, the state foregoes the right to limit workmen’s compensation recovery and consents to the uniform formula for recovery set forth in 32 U.S.C. § 318. Whether the State of Louisiana has a claim for reimbursement from the United States is not before this court. Therefore, the trial judge’s ruling in this respect is affirmed.

ATTORNEY’S FEES

The trial court found that the Guard “acted without probable cause” in failing to provide medical treatment and benefits to plaintiff and, accordingly, awarded $4,000.00 in attorney’s fees pursuant to LSA-R.S. 23:1201.2. The Guard contends that genuine factual and legal disputes existed such as to justify their refusal to pay. We agree that attorney’s fees are not warranted in this case as the Guard’s actions were not “arbitrary, capricious, or without probable cause.” No notice nor demand was served on the Guard prior to filing of Belden’s third party demand. No information was given to the Guard that should have alerted it that plaintiff was absent, not from a non-occupational illness, but from a job-related accident. Furthermore, a valid dispute existed as to whether plaintiff’s claim was barred by prescription, as well as to the applicability of LSA-R.S. 23:1211. Under these circumstances the award of attorney’s fees was clearly wrong. Accordingly, we amend the judgment to strike the award of attorney’s fees.

PLAINTIFF’S ASSIGNMENT OF ERRORS

Plaintiff-appellant’s assignment of errors are without merit. He contends that the trial court erred in not finding plaintiff totally and permanently disabled as the result of the back injury, in addition to the total and permanent disability occasioned by the heart attack. The trial judge was of the view that the most probable cause of plaintiff’s total and permanent disability was the physical aftermath of the myocardial infarction sustained on August 12, 1978. We will not disturb reasonable inferences of fact simply because another result might be just as reasonable, absent manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973). We find no manifest error.

Plaintiff further complains that the trial judge erred in not holding Belden liable for penalties and attorney’s fees. However, the trial court’s determination as to whether a refusal to pay benefits is arbitrary, capricious or without probable cause is partially a factual determination which will not be disturbed in the absence of manifest error. Lofton v. Louisiana Pacific Corp., 410 So.2d 1171 (La.App. 3rd Cir. 1982); Cullivan v. Fish Engineering and Construction Co., 354 So.2d 597 (La.App. 3rd Cir. 1977). We find no manifest error in the trial judge’s finding.

For the above and foregoing reasons, the judgment of the trial court is amended to delete the award of attorney’s fees and in all other respects the judgment is affirmed. Costs of this appeal are to be bom equally between appellants.

AFFIRMED AS AMENDED.

       Plaintiff failed to brief any of the issues presented on appeal, nonetheless rather than deeming any errors waived, we dispose of same herein-above.