author:
STOKER, Judge.
      SWIFT, J., CULPEPPER, Judge,

text:
    Edward J. ALLOR, Plaintiff-Appellant, v. BELDEN CORPORATION, Defendant-Appellee.
    No. 7330.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.

      Broussard, Bolton & Halcomb, Roy S. Halcomb, Jr., Alexandria, for plaintiff-appellant.
    Gaharen & Wilson, Joseph Wilson, Jena, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX, SWIFT, STOKER and DOUCET, JJ.
   STOKER, Judge.

This is a workmen’s compensation case in which the plaintiff-appellant, Edward J. Al-lor, seeks a judgment for total and permanent disability together with penalties and attorney fees. There is no dispute that plaintiff injured his back in the employment of the defendant-appellee, Beldon Corporation. Plaintiff sustained a lumbo-sacral strain. Plaintiff contends he should be paid at the rate of $130.00 per week, the maximum rate of compensation applicable under LSA-R.S. 23:1202. His injury occurred on March 16, 1978.

The trial court awarded compensation in the amount of $99.28 per week. However, instead of awarding permanent total disability, the trial court concluded that plaintiff’s disability was only temporary. The award was made for a period to end June 27, 1979. Therefore, there is an issue as to whether the judgment should have awarded compensation for permanent total disability rather than temporary total disability.

A second major issue in this case concerns the formula by which plaintiff’s average weekly wage should be determined. The compensation statute provides for different formulas depending on the mode of payment of the injured worker. LSA-R.S. 23:1021(7). The method of compensation varies for workers according to whether they are paid on an hourly basis, monthly basis, annual basis, or whether they are paid on a unit, piecework, commission or other basis.

From the nature of plaintiff’s work as a wire-drawer, the trial court concluded that plaintiff should be paid in the same manner as a pieceworker. Therefore, the trial court awarded compensation in the amount of $99.28 weekly on the authority of the piecework provision under the workmen’s compensation statute, LSA-R.S. 23:1021(7)(d). Plaintiff contends this was error and he should be paid the maximum of $130.00 weekly as a worker paid on an hourly basis. LSA-R.S. 23:1021(7)(a). Consequently, an issue brought up by this appeal is whether or not plaintiff was employed as a pieceworker (or on a similar basis) or as an hourly paid worker.

Irrespective of how the pieceworker issue is decided, plaintiff contends he has not been paid regularly and timely the compensation due him. Plaintiff claims there were unwarranted delays in the payment of compensation for certain weeks. Further, plaintiff claims he has not been paid all medical and travel expenses due him.

Defendant-appellee contends it has overpaid plaintiff in the past and is entitled to a credit for such overpayment.

Finally, we have before us the question of whether or not defendant was arbitrary and capricious so as to justify the imposition of penalties and attorney fees. The trial court held the defendant was not arbitrary and capricious.

DURATION OF DISABILITY

We are unable to perceive any disputed issues in the medical testimony concerning plaintiff’s condition. Plaintiff was seen by four physicians all of whom diagnosed plaintiff’s condition as being a lumbosacral strain. Plaintiff was seen until March 23, 1978, by a general practitioner, Dr. Sanit Sirikul, when Dr. Sirikul referred plaintiff to an orthopaedist, Dr. Douglas L. Gam-burg. Dr. Gamburg saw and treated plaintiff until July 19, 1979, when he recommended that plaintiff see another orthopae-dist. Plaintiff then consulted Dr. John T. Weiss, an orthopaedist. At one point while Dr. Gamburg was the treating physician, plaintiff was seen in consultation with Dr. Gamburg by a neurosurgeon, Dr. John Patton.

We do not deem it necessary to give a detailed recitation of the medical testimony. We have concluded that the medical testimony supports the trial judge’s conclusion that “It is more probable than not that plaintiff will be restored to the physical condition he was in prior to his accident by June 27, 1979, which is three months from the taking of the testimony [which was by deposition] of Dr. Weiss.” For plaintiff it is strenuously argued that Dr. Weiss predicted that plaintiff would reinjure his back if he went back to his duties as a wire-drawer. However, Dr. Weiss did not testify that plaintiff had become predisposed to reinju-ry because of his lumbosacral strain on March 16, 1978. What Dr. Weiss said, and explained several times, was that plaintiff was simply too small in physical stature to do the kind of heavy and strenuous work involved in being a wire-drawer. The job was just too big for plaintiff to handle. The trial court was justified in limiting compensation to the period of disability indicated by Dr. Weiss, and we affirm that portion of its findings and judgment.

PLAINTIFF’S COMPENSATION RATE

In determining plaintiff’s proper compensation rate, the basic issue is whether plaintiff was employed on a “unit, piecework, commission or other basis” or was an employee paid by the hour.

At the time of plaintiff’s accident he was paid at a rate of $3,325 per hour plus a production percentage amount. P-4 (Tr. 42 and Tr. 121) It appears that the latter amount is an incentive payment designed to encourage a greater rate of production per hour. The more a wire worker produces in a given hour the greater will be his pay. Plaintiff contends that for the four-week period immediately preceding this accident his production percentage averaged 40%. Therefore, according to plaintiff, his hourly rate should be determined by adding to the base rate ($3,325) a sum equal to 40% of $3,325 ($1.33) which would result in an hourly rate of $4,655. In this connection, plaintiff contends his compensation should be calculated under the provisions of LSA-R.S. 23:1021(7Xa), which is the provision applicable to workers paid on an hourly basis. Under that provision the wage is determined by multiplying the hourly wage rate times the average actual hours worked in the four full weeks preceding the date of the injury. Plaintiff claims he averaged 47 hours weekly. Thus, his average weekly wage would exceed the maximum rate of $130.00. Therefore, plaintiff urges he should be paid the maximum rate.

Defendant contends that plaintiff was a pieceworker and was entitled to only $99.28 per week as compensation. Pieceworkers are paid a weekly compensation as prescribed by LSA-R.S. 23:1021(7)(d). The trial court held that plaintiff’s compensation rate was governed by this portion of the compensation statute and awarded $99.28 per week through June 27, 1979.

Benefits payable to injured workmen are prescribed by LSA-R.S. 23:1221(1). For a worker totally disabled, whether permanently or temporarily, the amount payable is 66% of wages during the period of disability. The term “wages” is defined in the compensation statute in LSA-R.S. 23:1021(7) which provides as follows:

(7) “Wages” means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows: (a) If the employee is paid on an hourly basis, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury or forty hours, whichever is greater; . . . and (d) If the employee is employed on a unit, piecework, commission, or other basis, his gross earnings from the employer for the twenty-six week period immediately preceding the accident divided by the number of days the employee actually worked for the employer during said twenty-six week period and multiplied by four; (Emphasis added.)

It will be noted that if plaintiff’s method of computing the wage is adopted (47 hours X $4.655), his weekly wage would amount to $218.79. Sixty-six and two-thirds of that amount equals $145.85, which exceeds the maximum of $130.00 per week. Therefore, whether plaintiff’s compensation rate is $99.28 per week, as found by the trial court, or $130.00, as urged by plaintiff, depends upon the resolution of the question stated at the beginning of this section of this opinion: Was plaintiff paid on a “unit, piecework, commission, or other basis” or was plaintiff an employee paid on an hourly basis?

A quite similar issue was very recently considered by this court in a case involving the same employer-defendant which is defendant here and the same incentive scheme, i. e. payment of a “production percentage amount,” sometimes referred to as a “bonus”. McElhaney v. Belden Corporation, 376 So.2d 539 (La.App. 3rd Cir. 1979). The only difference is that in McElhaney the employee was a trainee. As such, his bonus was 20% and was guaranteed. It did not have to be earned. The testimony in the case before us is consistent with the facts as reported in McElhaney. Once a worker goes beyond his training period, he then must earn any bonus or production percentage amount. Plaintiff Edward J. Allor was in this latter category, was no longer a trainee, and had not been a trainee for approximately 30 weeks. In McElha-ney, this court held that McElhaney was not employed on a “unit, piecework, commission, or other basis” as described in LSA-R.S. 23:1021(7)(d). In McElhaney the plaintiff was receiving a guaranteed sum per hour regardless of his output. Hence, he was held to have been paid on an hourly basis, and it was held that his compensation should be computed by employing the provisions of LSA-R.S. 23:1021(7)(a).

Consequently, the issue here, although similar to the McElhaney case, is different in that plaintiff Allor’s wage did vary with his production. Does this make a difference?

On behalf of plaintiff it is urged that we should take numerous factors into account. Some of these factors are:

(1) Conceding that the hourly pay was variable, it was nevertheless paid on an hourly basis and not on a piecework basis. Plaintiff and other employees similarly situated were given time cards and were required to punch in and out. Accurate time records were kept. (Tr. 190)

(2) Plaintiff was required to work a specific number of hours on an assigned schedule of days and was not at liberty to pick his own times to work.

(3) Periodic raises were given in the form of increases in the base pay. (Tr. 190-191)

(4) If plaintiff was on duty he was paid his basic pay even if he did not work. [Presumably this could occur, for example, if plaintiff’s machine broke down, or if materials were temporarily out of supply.] (Tr. 189A-190)

(5) Plaintiff was paid overtime pay for any hours worked over forty hours per week. (Tr. 190)

Conceding the persuasiveness of plaintiff’s arguments, we are not convinced that plaintiff should be paid on an hourly basis in the manner he contends he should be. Actually the “pieceworker” provision is not solely applicable to pieceworkers. Subsection 7(d) in question applies to workers “employed on a unit, piecework, commission, or other basis.” It may be seen that the Legislature provided in Subsection 7(d), not for pieceworkers alone, but rather provided for a general class of workers who were not on a fixed, unvariable, hourly wage. A commission worker works on a percentage basis but might conceivably be on a guaranteed salary plus commission. We do not know what might have been contemplated in the term, “or other basis”. However, the term does .indicate the Legislature did not intend for the provision to be given restrictive meaning. Rather, the Legislature intended the term to be susceptible of broad application.

Clearly the scheme of payment under which plaintiff was employed was geared to individual productivity. The wage for compensation purposes determined by the trial court was related to plaintiff’s productivity. The same would be true of any employee who might be paid on a strict unit, piecework or commission basis. As we read the record, the productivity factor for each worker under the same bonus plan as plaintiff was measured by the amount of wire produced in a given time, the factor being determined by the total length of wire manufactured per period. By contrast it is clear that Subsection 7(a) contemplates a fixed, definite and unvaria-ble rate of pay. Therefore, we conclude that the method of computing compensation in plaintiff’s situation properly called for applying Subsection 7(d) as an “other basis” arrangement. We affirm the trial court in this regard. Cf. Deason v. Travelers Insurance Company, 242 So.2d 906 (La.App. 3rd Cir. 1971) [tips earned by waitress included in wage] and Richmond v. Weiss & Goldring, Inc., 124 So.2d 601 (La.App. 3rd Cir. 1960) [annual bonus included in wage].

OTHER BENEFITS DUE AND DEFENDANT’S CLAIM FOR CREDIT

In addition to claiming permanent disability and penalties and attorney’s fees for the non-payment of the maximum amount of compensation, plaintiff makes other claims. Also, defendant-appellee claims that it has overpaid plaintiff in compensation and claims a credit for the overpayment.

The defendant-appellee in this case is a self insurer. With respect to payments of compensation and other benefits, the defendant company, Belden Corporation, was represented at the trial by Mr. Guy Campbell, safety director at defendant’s Jena plant where plaintiff worked. Gross data as to plaintiff’s earnings and work record were forwarded to the company’s Geneva, Illinois office. There, Mr. Bob Nelson, supervisor of insurance and workmen’s compensation, calculated compensation payments due and apparently directed issuance of checks and reimbursement of expenses. The record reflects considerable confusion and inefficiency in payments of compensation and other benefits.

Defendant’s Claim For Overpayment Of Compensation

The defendant alleges that it has overpaid plaintiff in compensation in the amount of $786.83. It claims a credit for this amount. See paragraph 17 of defendant’s answer. The claim is based on the following facts. Defendant began payments of compensation to plaintiff at the rate of $114.45 per week. (Tr. 182) At some point thereafter, the company reduced compensation payments to $113.60 per seek. (Tr. 184) At a later point compensation was raised to $130.00 per week. (Tr. 185) Compensation at $130.00 per week was paid until September 12, 1978, when compensation was reduced to $99.28. (Tr. 185) Defendant continued thereafter to pay at the rate of $99.28 which is the rate fixed by the trial court. The trial court denied the credit claimed by defendant. We think this was correct. It is the established law of this state that amounts paid in excess of the compensation due cannot be credited as payment for future weeks. Futrell v. Hartford Accident & Indemnity Co., 276 So.2d 271 (La.1973); Thomas v. Holland, 345 So.2d 1000 (La.App. 2nd Cir. 1977) and Cain v. St. Paul Fire & Marine Insurance Company, 201 So.2d 286 (La.App.,3rd Cir. 1967).

Defendant’s Tardiness In Making Payments

It appears that defendant was behind with three weekly compensation checks on September 12, 1978. At that time the company made two payments, leaving one outstanding. (Tr. 124-125 and 239-240) This one overdue compensation payment was not made up until March, 1979, after a hearing on an exception of prematurity. (Tr. 240) This payment remained overdue for over 60 days, and no adequate explanation was given for the company’s lapse in this respect. Under the circumstances, the company was arbitrary and capricious in this regard. Plaintiff alleged this deficiency in his petition filed on December 5,1978, but the payment was not made until 60 days after this date. Plaintiff is entitled to 12% in penalties on the amount of $98.28 and attorney’s fees.

Defendant’s Failure To Make Payment Of Medical And Travel Expenses Promptly

The trial court awarded defendant the sum of $30.00 for unpaid travel expense incidental to medical treatment. Mr. Campbell, the company’s representative, admitted that the sum was due. (Tr. 188) The trial court denied penalties and attorney’s fees for failure to make the payment on the ground that defendant was entitled to verification that travel claims were for medical purposes. However, on cross-examination, Mr. Campbell testified that there was some confusion on the company’s part. His answers to counsel’s questions convinces us that the reason for the nonpayment of the $30.00 item was not because of lack of verification furnished by plaintiff or failure to be given reasonable opportunity to verify the connection between the travel expense and medical purpose. (Tr. 198-199) We are of the opinion that the failure to pay was because of the company’s neglect and lack of diligence in processing claims. Therefore, we find manifest error in this respect and will award penalties of this $30.00 amount together with appropriate attorney’s fees. Hale v. Republic Drilling Company, 109 So.2d 268 (La.App. 1st Cir. 1959).

Additional Unpaid Travel Expenses

The trial record seems to indicate that the only dispute as to the unpaid travel expense for medical purposes was the $30.00 mentioned above. However, before this court, counsel for plaintiff points out certain stipulations and evidence which indicate that a greater sum was due. A stipulation appearing on pages 123 and 124 of the transcript (see amendment on page 254) establishes that plaintiff traveled to meet appointments with the physicians or medical service units as follows:

Dr. Sirikul 2 trips 60 miles
Dr. Gamburg 9 trips Dr. Weiss 6 trips 900 miles 600 miles
Snell’s Limbs & Braces 1 trip 100 miles
TOTAL 1,660 miles

In addition to the stipulated travel, the record reflects plaintiff’s hospitalization at Rapides General Hospital which is the same distance from plaintiff’s house as Doctors Gamburg and Weiss, 100 miles. Hence, the total mileage was 1,760 miles. Plaintiff urges he should be compensated for his travel expense at the rate of 15 cents per mile, which is reasonable. Therefore, his total mileage was $264.00. Defendant paid plaintiff a total of $181.50 in travel expenses as of April 19, 1979. (Tr. 194 and D-4 at Tr. 117) Therefore, the actual amount of unpaid expense for medical purposes at the time of trial was $82.50. This amount instead of only $30.00 should be awarded. However, we will apply the 12% penalty to the amount of $30.00 only. (It was stipulated at the February 20, 1979, hearing that the $30.00 item was not paid, and it still was not paid at the time of trial. Tr. 240. No evidence is before us as to the untimeliness of the amount over $30.00.)

Other Unpaid Medical Expenses

Apparently, as a matter of oversight, the trial court failed to award the amount unpaid at the time of trial on the bill for medical services of Dr. Weiss of $69.50. A statement showing a balance of this amount unpaid was introduced in evidence, Tr. 240, and appears in the record as exhibit P-5 at Tr. 43. Plaintiff should have judgment for this amount. We do not apply any penalty for non-payment of this item.

PENALTY ATTORNEY’S FEES

The principal objectives of plaintiff’s appeal were to overturn the trial court’s determinations that plaintiff was only temporarily, totally disabled and to show that his compensation rate should be $99.28 rather than the weekly maximum of $130.00 he would receive if he was an hourly paid worker. Plaintiff has been unsuccessful in both of these objectives. We have allowed 12% penalties on relatively small amounts, one compensation payment of $99.28 which was not paid for over 60 days and a $30.00 medical travel expense item overdue more than 60 days at the time of trial. Despite the modesty of the amounts upon which the penalties are to be assessed, the jurisprudence establishes that penalty attorney fees are due in such cases none the less. It is clear that they are due for arbitrary and capricious failure to pay medical expenses. Bryant v. New Orleans Public Service, Inc., 367 So.2d 100 (La.App. 4th Cir. 1979); Dupre v. Sterling Plate Glass & Paint Company, Inc., 344 So.2d 1060 (La.App. 1st Cir. 1977), writ denied 347 So.2d 246 (La.1977); Payne v. Travelers Insurance Company, 299 So.2d 913 (La.App. 3rd Cir. 1974) and Pennywell v. Crawford, 262 So.2d 830 (La.App. 2nd Cir. 1972).

Under the circumstances of this case we will award penalty attorney fees in the sum of $1,000.00.

DECREE

For the reasons assigned, the judgment appealed from is reversed insofar as it denies penalties and attorney fees, denies travel expenses in an amount less than $82.50 and fails to award medical expenses unpaid in the sum of $69.50. It is now ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Edward J. Allor, and against defendant, Belden Corporation, for penalties and as provided in LSA-R.S. 22:658 in the amount of 12% on the sum of the amounts of $99.28 and $30.00.

It is further ordered, adjudged, and decreed that there be judgment in favor of plaintiff and against defendant in the sum of $1,000.00 as attorney’s fees.

It is further ordered, adjudged, and decreed that there be judgment in favor of plaintiff and against defendant in the sum of $82.50 representing unpaid medical travel expenses, and the sum of $69.50, representing unpaid amounts due for medical treatment, together with legal interest thereon from date of judicial demand until paid, subject to a credit for a sum paid thereon.

In all other respects, the judgment appealed is affirmed. All costs of this appeal are assessed against defendant, Belden Corporation.

REVERSED IN PART, AMENDED AND RENDERED AND AFFIRMED IN PART.

SWIFT, J.,

concurs.

CULPEPPER, J., dissents as to penalties and attorneys fees and assigns reasons.

CULPEPPER, Judge,

dissenting in part.

I dissent from that portion of the majority opinion which reverses the trial judge’s denial of penalties and attorney’s fees.

The grounds on which the majority awards penalties and attorney’s fees are: (1) That at the time this suit was filed the defendant was behind one weekly payment of $98.20; (2) That at the time suit was filed defendant had failed to pay $30 for travel expense incurred by plaintiff to see one of the doctors.

As to the one weekly payment allegedly past due, the trial judge held in written reasons that the defendant was making timely payments from the week after the accident until the time of trial, and that defendant was not a week behind. The majority concludes the trial judge was in error on this finding of fact. I think there is a serious question as to whether defendant was a week behind at the time suit was filed. The record shows that the week after the accident on March 16, 1978, defendant commenced weekly payments in the sum of $130, which was in excess, as found by the trial judge and affirmed by the majority, of the amount of $99.28 which was actually due each week. For some reason, not clear in the record and not relevant to the issue of penalties and attorney’s fees, the defendant was behind at least two payments in September of 1978. Pursuant to letters of demand by plaintiff’s attorney, defendant paid two payments during September of 1978, but did not pay the third. As I understand the record, the problem was that the Belden employees were generally paid by check from the home office in another state on Friday of each week for the period of employment which had ended on Friday of the preceding week. After his accident, plaintiff was paid weekly compensation in this same manner. This complies with LSA-R.S. 23:1201 which states that “Payments of compensation under this chapter shall be paid as near as may be, at the time and places as wages were payable to the injured employee before the accident;”. Thus, under the facts, as I understand them, defendant was not behind one week at the time suit was filed.

It is true, as the majority opinion states, that defendant’s insurance adjuster, Mr. Campbell, testified he advised the home office to pay the one week’s compensation which was in dispute. However, this testimony can be construed to mean that Campbell so advised the home office out of an abundance of precaution to avoid penalties and attorney’s fees, and not because he was of the opinion that the payment was actually due.

The record also shows that after plaintiff filed this suit in December of 1978, the defendant first filed an exception of prematurity on the basis that they were not delinquent in any payments. The trial judge overruled this exception. Immediately after the judge’s ruling on the exception of prematurity, the defendant paid the one week’s compensation in dispute, and was current at the time of trial.

As to the $30 for travel expense to see one of the doctors, the defendant admits that through some oversight in the records in their office, this was not paid. The record shows they received many claims from plaintiff for travel expenses, and defendant insisted on verification from the physician, which was reasonable. This claim for $30 was overlooked.

The jurisprudence is clear that the penalty statute for workmen’s compensation, as well as all other penalty statutes, must be strictly construed. Crawford v. A1 Smith P. H. Service, Inc., 352 So.2d 669 (La.1977). Plaintiff has the burden of proving that the defendant was arbitrary or capricious in failing to pay. If the failure to pay was the result of a reasonable bookkeeping error, as in this case, penalties are not allowed.

Viewing the record as a whole, I think defendant acted in good faith and was trying to pay what it was legally obligated to pay. As held in the majority opinion, defendant actually paid $786 more in weekly compensation than was due this being the result of its paying too high a rate for the first five or six months. Of course, the jurisprudence holds, as the majority states, that defendant cannot receive credit for this overpayment. However, I think it should be considered in determining whether defendant was arbitrary or capricious.

I do not think the defendant should be held arbitrary and capricious because it may have been behind one payment or because it failed, through oversight, to pay a $30 travel expense item. In this case we have the added factor that the trial judge found as a fact that defendant was not arbitrary and capricious. Under the rules of appellate review, I cannot agree that he was clearly wrong.

For the reasons assigned, I respectfully dissent in part.

      . It was stipulated that, if defendant-appellee is correct, the proper weekly compensation should be $98.20, but if plaintiff-appellant is correct, the amount should be the maximum rate then applicable, which was $130.00 weekly. (Tr. 256)

      . For the four weeks which ended prior to plaintiffs accident the “bonus” or production percentage for plaintiff is shown by Exhibit D-4 to be quite variable, and, in fact varied considerably for the entire period of employment shown which runs from the week ending July 17, 1977, through the week of the accident which ended on March 19, 1978, plus two later weeks after the accident (in April and August) when plaintiff attempted to work.

      . The trial court stated, “It is my view that the defendant was making timely payments and that they were not a week behind as argued.” It is true that the one delinquent payment had been made up at the time of trial. It is also true that defendant generally was current with its payments. However, the defendant did get behind, and as to the one payment in question, the company did not pay it until after suit was filed and a hearing was held on the exception of prematurity.

      . It was stipulated at the trial that the evidence and stipulations received at the hearing on the exception of prematurity held February 20, 1979, should be incorporated into the record and be considered as evidence on the trial on the merits. Written stipulation, P-6 at Tr. 44, admitted in evidence at Tr. 253-254 with verbal amendments of the February 20, 1979, stipulation.

      .The stipulation was entered into at the hearing on the exception of prematurity held on February 20, 1979. At the time it was stipulated that five trips had been made to Dr. Weiss’ office. Dr. Weiss testified he saw plaintiff again on March 6, 1979. Dr. Weiss’ deposition, Tr. 59. See also Dr. Weiss’ bill, P-5.


source: Caselaw Access Project

author: FORET, Judge.

license: Public Domain

text:
    ASSOCIATES FINANCIAL SERVICES COMPANY, INC., Plaintiff-Appellee, v. William J. RYAN, Defendant-Third Party Plaintiff-Appellee, Huffman Motor Company, Third Party Defendant-Appellant.
    No. 7437.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.

      William P. Polk, Alexandria, for defendant-appellant.
    George Griffing, Jonesville, Sanders, Downing, Kean & Cazedessus, Robert A. Hawthorne, Jr., Baton Rouge, Virgil Purvis, Jr., Jonesville, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and SWIFT, JJ.
   FORET, Judge.

Associates Financial Services Company, Inc. (hereinafter Associates) brought suit against the defendant, William J. Ryan, to enforce payment of a note secured by a chattel mortgage, in favor of Associates, on a 1973 Mack truck, as a result of Ryan’s failure to pay an installment. Ryan answered the suit, reconvened against Associates, and third partied the seller of the truck, Huffman Motor Company, Inc. (hereinafter Huffman), alleging that the truck had redhibitory vices at the time of the sale. Huffman denied these allegations and reconvened against Ryan on a separate claim alleging that Ryan owed it $4,348.44 for repairs made to certain other vehicles owned by Ryan.

Associates moved for and was granted a summary judgment recognizing their chattel mortgage and ordering that the vehicle in question be sold at a sheriff’s sale, at which Associates acquired the vehicle, being the highest bidder at $2,5Q0.00. This judgment is final and is not presently before us.

The trial court rendered judgment as follows:

1. Rescinding the sale from Huffman to Ryan of the Mack truck and returning the truck to Huffman;
2. Ordering Huffman to pay to Associates on behalf of Ryan the sum of $20,482.16, thereby discharging Ryan’s obligation to Associates;
3. Granting judgment in favor of Ryan on his reconventional demand against Huffman in the sum of $14,994.99, together with legal interest from date of judicial demand;
4. Granting judgment in favor of Huffman on its reconventional demand against Ryan in the sum of $4,348.44, together with legal interest thereon from date of judicial demand, until paid;
5.Ordering that the cost of the proceedings be borne equally by Ryan and Huffman.

From this judgment, Huffman has appealed, seeking a reversal of that part of the trial court’s judgment rescinding the sale, granting judgment in favor of Ryan on his reconventional demand, and ordering Huffman to discharge Ryan’s obligation to Associates.

The first issue raised is whether or not evidence dealing with the history of the subject vehicle prior to its acquisition by Huffman is relevant. Counsel for Huffman argues that it is not. We disagree.

For evidence to be relevant, it must have some probative value and be reasonably connected to the transaction in question. Vignes-Bombet Company, Inc. v. Rowe, 288 So.2d 889 (La.App. 1 Cir. 1973). We are of the opinion that the evidence of the history of the Mack truck in question prior to its acquisition by Huffman in a used condition is relevant to the issue sub judice and is admissible. Surely the history of a thing is relevant in an action in redhi-bition, especially when the buyer is attempting to prove that the seller knew of the vice or vices and was in bad faith. Evidence should not be excluded where it is admissible to prove any hypothesis included in plaintiff’s alleged cause of action. Goltzman v. Goltzman, 372 So.2d 1262 (La.App. 3 Cir. 1979).

On February 9, 1976, William J. Ryan purchased from Huffman Motor Company, Inc., located in Alexandria, Louisiana, a used 1973 Mack truck. This truck was acquired by Huffman from the Roy O. Martin Lumber Company as a trade-in on a new GMC truck purchased by the lumber company.

The truck had been overhauled twice, once by Shreveport Mack Sales, Inc. in March of 1975, and once by Huffman in November of 1975. The truck was overhauled a third time in May of 1976, four months after it had been purchased by Ryan. Additional maintenance and repair work was necessitated throughout the life of the truck, some of which included the following, which we take the liberty of copying from counsel for defendant-appel-lee’s brief:

WHILE THE TRUCK WAS OWNED BY ROY 0. MARTIN LUMBER COMPANY
PLAINTIFF’S EXHIBIT NO.
DATE
NAME OF SHOP
COMPLAINT
6 10-23-73 Monroe Mack Sales Oil seal on ax.drive
5 12-26-73 Shreveport Mack Sales Check for oil leak at front of truck
5 1-10-74 Shreveport Mack Sales Stop fuel leak
2 10-12-74 ' Shreveport Mack Sales Check for bad oil leak and repair; tighten oil dipstick tube at bottom for leaking oil; check for getting water in oil
4 11-19-74 Shreveport Mack Sales Replace rear main seal
10 1-21-75 Jackson Mack Sales Repair oil leak and oil filter
11 2-11-75 Jackson Mack Sales Replace U joint behind front rear end
1 3-10-75 Shreveport Mack Sales Check for getting water in oil; overhaul engine complete
8 7-18-75 Monroe Mack Sales Oil leak
3 9-30-75 Shreveport Mack Sales Check for oil leak
7 10-24-75 Monroe Mack Sales Wheels locked up south of Tallulah
WHILE TRUCK WAS OWNED BY HUFFMAN MOTOR COMPANY
17 11-26-75 Huffman Motor Co., Check oil leaks Inc.
17 12-20-75 Huffman Motor Co., Check for fuel leak Inc.
WHILE TRUCK WAS OWNED BY WILLIAM J. RYAN
13 2-9-76 Huffman Motor Co., Inc. Service call to check for no power
14 4-7-76 Huffman Motor Co., Inc. Replace fan, fan hub and repair radiator
WHILE TRUCK WAS OWNED BY WILLIAM J. RYAN
PLAINTIFF’S DATE NAME OF SHOP COMPLAINT
EXHIBIT NO.
15 5-12-76 Natchez Equip. Co. Repair oil light
9 5-28-76 Monroe Mack Sales Complete engine overhaul costing $5,295.59

Mr. A. M. Tomlinson, a former employee of Ryan, testified that he had trouble with the truck in Mississippi. As a result of this trouble, he had to call Ryan, who in turn informed Huffman Motors about the difficulties. Huffman Motors sent a wrecker to Mississippi to retrieve the truck and bring it back for repairs. Tomlinson testified that it was necessary to put oil in the truck both when going to Hattiesburg, Mississippi from DeRidder, Louisiana, and when returning from Hattiesburg to DeRidder. He also said that it was necessary to return the truck to Huffman on six or seven occasions due to problems that arose with the operation of the truck. Tomlinson relates that on a trip he made to Brooklyn, New York, that it was necessary to put one gallon of oil in the truck for every three hundred to three hundred fifty miles that the truck was driven. A universal joint twisted out on a trip to Pennsylvania, which necessitated repairs.

Leo Ryan, the plaintiff’s brother, testified that it was necessary to put from one gallon to ten quarts of oil in the truck when it would stop at his service station in Jones-ville in route to Hattiesburg from DeRid-der. Additionally, he noted that the truck did not have enough power to pull the loads which it was supposedly designed to pull. He stated that on a trip that he had made with Mr. Tomlinson to Memphis, Tennessee; Pennsylvania; and New York, that it was necessary that they stop on several occasions and buy oil in order to keep the truck operating.

William Ryan, plaintiff, took the truck back to Huffman for repairs more than five times. He testified that some of these repairs were made without cost to him, the truck still being under warranty. Ryan testified, as did Tomlinson, that the truck broke down in Mississippi while it was being driven by Tomlinson. Tomlinson had called Ryan and told him that the truck was making unusual noises and that he did not feel that it was safe to drive the truck. Huffman was notified about this and subsequently went and got the truck and brought it back to their shop where they made valve adjustments on it. A Mr. Rudd, an employee of one of the lessees of the truck, called Ryan from Florida and stated that there was a knock in the motor. Ryan had to hire a wrecker to drive to Florida and pull the truck back to Huffman Motors. Some months later the truck broke down again while it was being operated by a driver of another lessee, Pine Belt.

The redhibitory action is one which comes squarely within the scheme of our Civil Code, in particular, Civil Code Article 2520, which provides:

“Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”

To prevail in an action for redhibition, the purchaser must establish that the thing sold is absolutely useless for its intended purpose or that its use is so inconvenient that it must be supposed that the purchaser would not have made the purchase had he known of the defects. He must also prove that the defects existed at the time of the purchase, but were neither known nor apparent to him, and that seller could not, or would not, correct the defects when given the opportunity to do so. LSA-C.C. Articles 2520, 2521, 2530, 2531; Purvis v. Statewide Trailer Sales, Inc., 339 So.2d 403 (La.App. 1 Cir. 1976).

When a seller is in good faith, he must be given an opportunity to repair the thing before a redhibitory action can be brought. LSA-C.C. Article 2531; Jordan v. LeBlanc and Broussard Ford, Inc., 332 So.2d 534 (La.App. 3 Cir. 1976). If a seller is in bad faith, LSA-C.C. Article 2545 applies. A buyer is not required to tender the defective product to a manufacturer before instituting suit. Laughlin v. Fiat Distributors, Inc., 368 So.2d 742 (La.App. 3 Cir. 1979); Bernard v. Bradley Automotive, 365 So.2d 1382 (La.App. 2 Cir. 1978). The logic of this is that LSA-C.C. Article 2531 requires that a tender be made prior to the institution of a suit in redhibition if the seller is in good faith. A seller is in good faith if he did not know of the vices of the thing. Since a manufacturer is presumed to know the vices of the thing he sells, he can never be in good faith if a defect in fact exists. Burns v. Lamar-Lane Chevrolet, Inc., 354 So.2d 620 (La.App. 1 Cir. 1977). For this reason, our courts have held that a tender is not a necessary prerequisite to a suit in redhibition against a manufacturer. The same reasoning applies to a bad-faith seller, i. e., one who knows of the vice of the thing he sold but who failed to declare it. Therefore, a tender need not be made to a bad-faith seller prior to bringing a suit in redhibition.

The issue which now arises is, was Huffman a bad-faith seller. We think it was. A. M. Tomlinson testified that the truck was leaking oil when he and Ryan first picked it up at Huffman’s lot. He stated that he told a salesman about the leak and was assured that the leak would be repaired. Tomlinson also testified that it was necessary to add oil to the crank case of the truck after having driven it approximately one hundred seventy-five miles. We are convinced that this testimony, in conjunction with the fact that numerous repairs were made to the truck both before and after Huffman acquired it, shows that Huffman was in bad faith. We are therefore of the opinion that a tender by Ryan was not necessary. In deciding as we do, however, we make the following observations.

Ryan was put in the unfortunate position of having to pay the note on the truck, pay for repairs done to the truck, pay for a driver’s salary, and tender the truck to the seller for numerous repairs. It had been repeatedly tendered for repair, but to no avail. Obviously Ryan became unable to meet the' payments on the truck, and it was subsequently seized, thereby making a formal tender impossible. Undoubtedly Ryan’s inability to meet the payments on the truck resulted in part from the cost of repairs and the substantial amount of down time which was needed to make these repairs. It is not necessary to make a formal tender where such would be futile. Wilts v. Dixie Auto Sales, Incorporated, 315 So.2d 811 (La.App. 3 Cir. 1975); Purvis v. Statewide Trailer Sales, Inc., supra.

After a full review of the record, we conclude that the defendant-third party plaintiff, Ryan, carried his burden of proof, and accordingly affirm the portion of the trial court’s judgment rescinding the sale and ordering Huffman to discharge Ryan’s obligation to Associates. Also, that portion ordering that the truck be returned to Huffman is affirmed.

We next address the question of Ryan’s reconventional demand against Associates. We find this claim totally without merit. Associates did nothing but finance the purchase of the truck. They are neither the seller nor manufacturer. For this reason Ryan’s reconventional demand is dismissed.

The trial judge awarded the sum of $4,348.44 to Huffman as per their reconven-tional demand against Ryan. Ryan offered no defense to this claim, and we find that the record shows that none existed. Therefore, we hold that the granting of judgment in favor of Huffman and against Ryan in the sum of $4,348.44 is proper.

The next matter to be dealt with is the amount, if any, to be awarded to Huffman for the use of the truck. Ryan had the use of the truck from February 9, 1976, until approximately January 10,1977. The truck was driven in excess of 15,000 miles during that time.

The seller of a thing is entitled to reimbursement from the purchaser for the latter’s use prior to the rescission of the sale. LSA-C.C. Article 2531; Smith v. Max Thieme Chevrolet Company, Inc., 315 So.2d 82 (La.App. 2 Cir. 1975); Gour v. Daray Motor Co., Inc., 373 So.2d 571 (La.App. 3 Cir. 1979). The purpose for allowing a credit to the seller for the buyer’s use of a vehicle is to return the parties as nearly as possible to the status quo. Nugent v. Stanley, 336 So.2d 1058 (La.App. 3 Cir. 1976); Gour v. Daray Motor Co., Inc., supra.

Our Supreme Court, in Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978), stated:

“Compensation for the buyer’s use, however, ought not be granted automatically by the courts; even the value of an extensive use may be overridden by great inconveniences incurred because of the defective nature of the thing and constant interruptions in service caused by the seller’s attempts to repair.”

Ryan did derive a certain amount of use from the truck. However, our determination of this issue must be made in light of the numerous repairs and corresponding down time which were necessitated throughout the time Ryan had possession of the truck. In the past, this Court has calculated the amount due the seller for the buyer’s use of a vehicle by multiplying $.08 times the number of miles driven before rescission of the sale. See Gour v. Daray Motor Company, Inc., supra, and Robertson v. Jimmy Walker Chrysler-Plymouth, Inc., 368 So.2d 747 (La.App. 3 Cir. 1979), writs denied, 371 So.2d 833 (La.1979). In this case, however, the exact number of miles the truck was driven prior to seizure and rescission of the sale is unknown. Mr. Ryan testified that the truck had been driven approximately 15,000 miles before it was overhauled in May of 1976. Plaintiff’s exhibits No. 12 and 13 show that the odometer reading of the truck at the time of purchase was 341,671 miles. Plaintiff’s exhibit No. 14 shows that on April 7, 1976, the odometer reading was 357,024 miles, for a distance of 15,353 miles. There is no other evidence in the record with regard to the total number of miles the truck was driven while Ryan had use of it. For this reason, we rely on the Supreme Court’s language in Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (La.1971) which states:

“Where there is a legal right to recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess same based upon all the facts and circumstances of the case.”

This reasoning was followed by the Fourth Circuit in Brouillette v. National Remodelers and Rebuilders, Inc., 321 So.2d 525 (La. App. 4 Cir. 1975), and by the Second Circuit in Hardie v. Pylant, 375 So.2d 189 (La.App. 2 Cir. 1979).

We can assume that between April 7, and November, 1976, the truck was driven for a considerable number of miles in addition to the 15,000 miles mentioned above. Accordingly, in view of the cited jurisprudence, we feel that an award to Huffman for use of the vehicle by Ryan of $2,500.00 is justified.

We next address the issue of the amount of damages due to the third party plaintiff, Ryan.

Civil Code Article 2545 declares that a seller who knows the vice of the thing he sells and omits to declare it, is Hable for attorney’s fees, damages, restitution of the price and repayment of the expenses of the sale. We are of the opinion that the record shows that Huffman was aware of the vices of the truck and failed to declare them. Ryan is therefore entitled to the following damages:

1. Payment for repairs done by Huffman $ 842.01
2. Natchez Equipment Company_ 94.53
3. Monroe Mack - overhaul_ 2,863.16
4. Wrecker service_ 575.00
5. Attorney’s fees _ 3,000.00

Also, Ryan is entitled to recover the amount he paid on the note owed to Associates; $2,720.92. Likewise, he is entitled to compensation for Huffman’s use of that part of the purchase money which was not borrowed. See Smith v. Max Thieme Chevrolet Co., Inc., supra. Ryan is therefore entitled to the return of his down payment of $4,500.00, plus 7% interest thereon from the date of the sale until the date of seizure, January 10,1977, which we determine to be $295.68. We do not feel that Ryan is entitled to reimbursement for the $400.00 he expended on new tires to replace the original ones.

For the above and foregoing reasons, the judgment of the trial court is recast to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff-defendant-in-recon-vention, Associates Financial Services Company, Inc. and against the defendant, William J. Ryan, dismissing Ryan’s reconven-tional demand.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of third party defendant, Huffman Motor Company, Inc., and against William J. Ryan on its recon-ventional demand in the sum of $4,348.44, together with legal interest thereon from date of judicial demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the third party plaintiff, William J. Ryan, and against Huffman Motor Company, Inc., rescinding the sale from Huffman Motor Company, Inc. to William J. Ryan on February 9,1976, of a used 1973 Mack truck, Serial # FA795LST, and that said truck be returned to Huffman.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Huffman pay and discharge the remaining obligation of William J. Ryan to Associates Financial Services Company, Inc., originally in the amount of $20,482.16, payable in twenty-nine monthly installments of $682.73 each, and a final installment of $682.99, contingent that upon payment of said sum, Associates Financial Services Company, Inc. deliver the subject truck to Huffman Motor Company, Inc.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of third party plaintiff, William J. Ryan, and against Huffman Motor Company, Inc. in the amount of $11,891.30 as damages and expenses occasioned by the sale, together with legal interest thereon from the date of the third party demand until paid.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Huffman Motor Company, Inc. and against William J. Ryan in the amount of $2,500.00 as compensation for the use of the subject truck.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of William J. Ryan and against Huffman Motor Company, Inc. for $3,000.00 as attorney’s fees, with judicial interest thereon from June 27, 1979.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the costs of these proceedings be borne equally by William J. Ryan and Huffman Motor Company, Inc.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . The Sheriffs Sale of the truck was with benefit of appraisement.

      . This amount can be broken down as follows: $4,500.00 being the amount as down payment; $2,720.92, being the amount paid on the promissory note to Associates; $842.01, the amount paid to Huffman for repairs on the truck; $94.53, the amount paid to Natchez Equipment Co. for repairs on the truck; $2,863.16, the amount paid to Monroe Mack Sales for overhaul to the truck; $575.00, the amount paid to Plunk’s Wrecking Service, West Monroe, La., for wrecker service to Florida and back; $400.00, the amount paid for tires on the truck; $3,000.00, attorney’s fees.
      These figures total $14,995.62; obviously a typographical error or an error in addition was made.

      . “Art. 2531. The seller who knew not the vices of the thing is only bound to repair, remedy or correct the vices as provided in Article 2521, or if he be unable or fails to repair, remedy or correct the vice, then he must restore the purchase price, and reimburse the reasonable expenses occasioned by the sale, as well as those incurred for the preservation of the thing, subject to credit for the value of any fruits or use which the purchaser has drawn from it.
      In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any loses sustained by. the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect.”


author: DOMENGEAUX, Judge.

text:
    Ronald JACKSON, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Defendant-Appellee.
    No. 7445.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    Rehearing Denied April 25, 1980.

      Guillory, McGee & Mayeux by Donald Mayeux, Eunice, for plaintiff-appellant.
    Caffery, Oubre, Gibbens & Blackwell, John Blackwell, New Iberia, for defendant-appellee.
    Before DOMENGEAUX, FORET, and SWIFT, JJ.
   DOMENGEAUX, Judge.

This suit results from an intersectional collision which occurred on September 24, 1976, near New Iberia, Louisiana. Ronald Jackson, driver of one of the automobiles, sustained injuries as a result of the accident and sued Wilbert J. Leblanc, driver of the other automobile; Frank Minvielle, owner of the vehicle Leblanc was driving; and United States Fidelity & Guaranty Company (U.S.F. & G. Co.), the insurer of the defendant vehicle.

At the conclusion of the trial held on March 15, 1979, the trial court found that defendants were at fault in causing the accident. This finding by the Court has not been appealed and is not at issue.

The Court took under advisement the question of quantum and subsequently issued reasons for judgment on April 23, 1979, in which it found that the plaintiff had sustained pain, suffering, and anguish in the amount of $5,500.00. The Court also awarded loss of wages at the rate of $600.00 per month for four months, totalling $2,400.00, and found that plaintiff had sustained medical expenses in the amount of $2,492.78. Thus, the award totalled $10,-392.78.

The Court refused to award as medical expenses the cost of services rendered by Dr. A. John Tassin in the amount of $245.00, and also refused to allow the cost of physical therapy in the amount of $566.00, which was prescribed by Doctor Tassin. Finally, the trial court assessed all costs against defendants except the expert fee of Doctor Tassin for his testimony in Court. This last fee was assessed against plaintiff. Judgment was signed May 16, 1979. From this judgment plaintiff has appealed.

Plaintiff alleges that the trial court erred in allowing only $10,392.78 for pain and suffering, loss of wages, and medical expenses, and in assessing plaintiff with some expert fees.

OBJECTIVE MEDICAL EVIDENCE

Plaintiff’s vehicle was struck on the left, or driver’s side, and his injuries were sustained on essentially the left side of his body. In his reasons for judgment, the trial judge found that plaintiff sustained the following injuries:

“The medical evidence is clear that plaintiff received a moderate cerebral concussion and a very mild cervical sprain. He also suffered bruises and lacerations, particularly a laceration below the rear of the left shoulder, which left two or three unsightly keloid formations, each approximately two inches long, in an area usually not exposed to view; a laceration in the left temporal area approximately two inches long which is within the hairline and consequently hidden; and multiple small lacerations of the left arm which have left small, barely noticeable scars.”

These injuries are substantiated by the final report of Dr. A. C. Terrence, plaintiff’s personal physician, who hospitalized plaintiff for nine days following the accident and treated him from September 27th through November 20th of 1976, before referring Mr. Jackson to an orthopedic surgeon. Dr. J. Frazer Gaar, the orthopedist, examined plaintiff on November 29, 1976, and again on November 22, 1977. Doctor Gaar performed a complete and thorough physical examination during each visit and could find no objective basis to support plaintiff’s persistent complaints of headaches and pain to the left side of his body. Doctor Gaar did not think Mr. Jackson had any permanent disability and did not put any limitations on his activities.

After Mr. Jackson’s initial visit to Doctor Gaar, his attorney referred him to Dr. Emile Ventre, a general practitioner in Opelou-sas. Doctor Ventre first saw plaintiff on December 7, 1976. During this visit x-rays of the plaintiff’s neck were taken and a general physical examination was conducted by Doctor Ventre. Neither the x-rays nor the examination yielded any objective signs of injury.

Due to Mr. Jackson’s continued complaints of headaches and pain to his left side, however, Doctor Ventre suggested that plaintiff undergo a complete workup. Mr. Jackson’s attorney agreed. Many tests were performed, including an electroencephalogram, a nuclear brain scan, and an echoencephalogram, or sound wave test. All test results were negative. Plaintiff was discharged from Doctor Ventre’s care on January 25, 1977. At that time Mr. Jackson was “feeling very good” according to Doctor Ventre, and had been feeling good for the previous three weeks. On that date plaintiff complained of other pains which Doctor Ventre felt were not related to the accident. Doctor Ventre’s final diagnosis was that plaintiff suffered a mild to moderate cerebral concussion with a mild whiplash.

The foregoing medical evidence amply supports the award for actual physical pain and suffering from the date of the accident through January 25, 1977, when Mr. Jackson was discharged by Doctor Ventre. The substantial issue is whether plaintiff suffered a compensable “traumatic neurosis”, a functional nervous disorder without demonstrable physical basis, attributable to the accident of September 24, 1976, the effects of which may have continued beyond January 25, 1977. The trial court held that plaintiff’s proof was insufficient to establish that a traumatic neurosis occurred as a result of the accident. We reverse that part of the judge’s conclusions.

TRAUMATIC NEUROSIS

The trial court correctly observed the well-settled rule that a traumatic neurosis is compensable under our law. However, due to the nebulous character of a traumatic neurosis, courts must proceed with the utmost caution and scrutinize carefully evidence in support of such a claim. Boutte v. Mudd Separators, Inc., 236 So.2d 906 (La.App. 3rd Cir. 1970); Royer v. Cant- relie, 267 So.2d 601 (La.App. 3rd Cir. 1972); Miller v. United States Fidelity & Guaranty Company, 99 So.2d 511 (La.App. 2nd Cir. 1957).

However, it is likewise well-settled that the danger of denying recovery to a deserving claimant must be guarded against with equal enthusiasm. Jackson v. International Paper Company, 163 So.2d 362 (La.App. 3rd Cir. 1964), writ refused 246 La. 591, 165 So.2d 484 (1964).

PLAINTIFF’S EVIDENCE OF TRAUMATIC NEUROSIS

In support of his claim for mental injuries caused by the accident, plaintiff offers the expert medical testimony of Dr. A. John Tassin, a general practitioner in Ville Platte, and Dr. James Blackburn, a psychiatrist, as well as the lay testimony of his (plaintiffs) wife, his father-in-law, and a companion who was with him when the accident occurred.

Doctor Tassin saw and treated plaintiff more than twenty times between May of 1977 and March of 1979. Plaintiff complained to Doctor Tassin of the same pains that had plagued him since his accident. During this entire period, Doctor Tassin treated plaintiff symptomatically, that is, he would prescribe medication to treat plaintiff’s complaints, even though he could find no objective physical basis for the complaints. Doctor Tassin opined that plaintiff’s condition, while more mental than physical, was a result of the accident, even though some of the complaints were not attributable to the accident. Doctor Tassin also felt that the plaintiff was disabled by the accident until at least September 15, 1978, when he allowed plaintiff to return to light work.

Doctor Blackburn examined plaintiff on two occasions, September 5, 1978, and March 6,1979 (the date on which his deposition, which was used at the trial, was taken). On each occasion, he met with the plaintiff for at least one hour, perhaps longer.

In his testimony Doctor Blackburn recounted at great length the history supplied to him by the plaintiff during the initial visit of September 5, 1978. During the interview, plaintiff had thoroughly familiarized Doctor Blackburn with his pre-acci-dent physical condition (said by plaintiff to be excellent), the accident, and most importantly, the post-accident events. Plaintiff’s account of his extensive treatment by numerous doctors (and their subsequent negative findings of any physical injury), as related by him to Doctor Blackburn, was very accurate.

According to Doctor Blackburn, plaintiff felt that by the time he was evaluated by Doctor Blackburn:

“ . . .he had been to so many doctors, had so many tests and a lot of different messages about what might or might not be wrong with him that he no longer knew whether he was injured in certain areas or to what extent he was injured. He just, in his mind, was still hurting particularly with the headaches. He was willing within reason to undergo any treatment, diagnostic procedure or whatever to alleviate the symptoms. He was going to return to the Mental Health Clinic in Ville Platte for follow-up treat-mentl! His most severe complaint in terms of what was disabling him or caused him the most concern was his degree of tension and anxiety under driving situation and his recurrent headaches which hurt him a lot more if he was under stress, whether there was actual stress or whether he was just worried about his future or his current situation or marriage problems, et cetera.”

Based on plaintiff’s account of his history before and after the accident, and being fully aware that other doctors could find nothing organically wrong with the plaintiff, Doctor Blackburn stated “ . my impression would be that he had a significant degree of disability throughout that particular time.” At no time did Doctor Blackburn ascribe this disability to a physical injury. To the contrary, he testified that he would have diagnosed plaintiff as an anxiety reaction in September of 1978. Although this diagnosis was made two years after the accident, Doctor Blackburn did not feel that two years was an unusual length of time for such anxiety to continue.

Mr. Jackson, the plaintiff, testified that he continued to experience pain in the left side of his body, severe headaches, and frequent nosebleeds. He also testified that, except for a one and one-half month period between September of 1978 (when Doctor Tassin allowed him to return to work) and March of 1979, he had been unemployed since the accident, although he was regularly employed by T. L. James as an ironwork-er before the accident.

Plaintiff further testified that, due to his anxiety, he was very reluctant to operate a motor vehicle. Also, his once harmonious relationship with his wife and child had been disrupted due to his irritability, which was brought on by the accident.

Plaintiff’s wife, his father-in-law, and his friend, John J. Batiste (the passenger in Mr. Jackson’s car at the time of the accident), all corroborated plaintiff’s testimony to the extent they were able to do so. None of the testimony of these lay witnesses was refuted, contradicted, or impeached.

DISTRICT COURT’S OPINION

a. Doctor Tassin

In its reasons for judgment, the trial court found Doctor Tassin’s testimony unpersuasive. His testimony was given little weight because the first reference to headaches (a primary complaint of plaintiff’s) in the doctor’s records was on August 23,1977, more than three months after Mr. Jackson’s initial visit, and he first noted spasms in the back on September 13, 1978. Doctor Tassin could not say that either symptom was related to the accident. Still, he felt that many of plaintiff’s complaints were attributable to the accident.

The trial court was more impressed by the testimony of Doctors Gaar and Ventre. Doctor Gaar found nothing wrong with Mr. Jackson and, as the trial court noted, he “came close to suggesting that plaintiff may be a fabricator and malingerer.” Dr. Ventre had released plaintiff from his care on January 25, 1977, after Mr. Jackson had been “feeling very good” for the previous three weeks.

Clearly the testimony of Doctors Gaar and Ventre was more persuasive in deciding whether or not plaintiff was physically injured. However, we feel that the testimony of Doctor Tassin should have been given more weight by the trial court in deciding whether or not plaintiff was suffering from a neurosis caused by the accident. Doctor Tassin treated plaintiff over a longer period of time — 22 months— than any other doctor, and saw him on more than twenty occasions during that time. Although he prescribed many medications during .that time to combat the numerous symptoms of which plaintiff complained, he recognized that many of plaintiff’s complaints were of a psychological nature and urged Mr. Jackson to seek psychiatric treatment. Doctor Tassin also testified that he was competent to make psychiatric evaluations since he was a former director of the Ville Platte Mental Health Clinic. Although Doctor Tassin’s testimony was accorded little weight by the trial judge, it nevertheless was corroborated by Doctor Blackburn, the psychiatrist.

b. Doctor Blackburn

However, the trial court was unpersuaded by Doctor Blackburn’s testimony because (1) his opinion was based on “speculation as to why other doctors did as they did, and not on his own personal medical findings”; (2) he saw Mr. Jackson on only two occasions, one to two hours each time; and (3) he deferred to Doctor Gaar’s opinion that a large percentage of plaintiff’s complaints were hysterical.

Doctor Blackburn stated that if plaintiff had had the symptoms to get the doctors to do the tests which they did and to prescribe the medication which they did, then his impressions would be that plaintiff had a significant degree of disability, presumably during the entire two year period from the accident to the examination date (September 5,1978). We feel that the trial court erred in finding that this opinion was based on mere speculation.

Our appreciation of Doctor Blackburn’s testimony is that his medical finding that plaintiff was suffering from anxiety reaction was not based on his “speculation as to why other doctors did as they did” but, rather, was based on the fact that plaintiff had, for two years, continuously sought medical treatment from a host of doctors for the pain he was experiencing, despite an absence of objective physical basis for the complaints. As the trial court noted, “Doctor Blackburn testified that if plaintiff thinks he has pain it is the same as if he has it; that when he perceives pain, it is real pain.” The fact that other doctors conducted tests and prescribed medication is only • evidence that plaintiff felt he was in pain. Consequently, we find that Doctor Blackburn’s opinion that plaintiff was disabled for at least two years after the accident is soundly based, and is not mere speculation.

The trial court cited Boutte v. Mudd, supra, for the proposition that a one hour examination is “simply too short to be used for such a conclusive diagnosis” of traumatic neurosis. In Boutte, this court affirmed the trial judge’s rejection of a diagnosis of traumatic neurosis because the psychiatrist had seen the plaintiff only one time for about an hour.

The trial court’s reliance upon Boutte is misplaced. The court in Boutte had already found plaintiff to- be totally and permanently disabled due to diplopia when it considered the issue of traumatic neurosis. After its finding, the court noted in passing that, under the circumstances, the trial court committed no error by finding the psychiatric evidence insufficient.

The rule is well-settled in our jurisprudence that the uncontradicted testimony of one psychiatrist based upon a single psychiatric interview is a sufficient basis to establish the existence of a traumatic neurosis. Royer v. Gantrelle, supra; Muse v. Sentry Insurance Company, 269 So.2d 609 (La.App. 3rd Cir. 1972); Guidry v. Michigan Mutual Liability Company, 130 So.2d 513 (La.App. 3rd Cir. 1961). Doctor Blackburn’s diagnosis of anxiety reaction was based upon his first psychiatric interview with plaintiff of one to two hours in length. His testimony was uncontradicted and should have been given greater weight.

We come now to the final reason that the lower court gave for rejecting Doctor Blackburn’s testimony. Doctor Blackburn was read the following portion of Doctor Gaar’s deposition:

“Q. Generally he complained of pain, Doctor, didn’t he, over the whole left neck, left shoulder, left hip and even down to the left leg?
A. Yes. I believe so. Just sort of left body pain. And that’s really unusual.
Q. And did you detect — is it your field to attempt to detect any psychological overlay a man might have?
A. No.
Q. It is not in your field. Is that what you’re saying?
A. Well, sure it is. I see it all the time.
Q. I’m sorry. I misinterpreted the answer.
A. I can tell psychological overlay or hysterical people. Why, this man wasn’t hysterical. I don’t — if he had paid, either he was lying to me or maybe he is hysterical and really feels that he has pain. However, I’d be willing to say that he does not have the pain rather that he’s hysterical and thinks he has it.
Q. I’m not sure exactly what all that—
A. Well, you’re — either you’re saying the man’s malingering or he has a conversion hysteria, and I don’t want to say he has either because I’m not qualified and this is quite a burden to put on a man for you to tell him he’s a liar or not. All I can say is I could not find anything wrong to substantiate his claim of pain, and I’d like to stay away from the psychological aspects. However, I can sit here and discuss it, you know, fully. But I’m afraid I would lean towards the not believ- ' ing anything that he said and that’s not going to be good for him.”

After hearing Doctor Gaar’s comments, Doctor Blackburn commented that Doctor Gaar was a good orthopedic surgeon with a well-developed psychological perspective, and stated that if Doctor Gaar “felt that a large percentage of his complaints were hysterical, I would tend to go along with that . . . .”

Evidently misconstruing Doctor Blackburn’s testimony as a complete agreement with Doctor Gaar’s findings, the trial court observed:

“Finally, despite his own opinion, Doctor Blackburn recognizes Doctor Gaar as a good orthopedic surgeon with a well-developed psychological perspective. He would tend to defer to him in such matters.”

After carefully reading the testimony, we find that Doctor Blackburn agreed with Doctor Gaar only to the extent that Doctor Gaar thought plaintiff was hysterical. Doctor Blackburn defined hysteria as “an increased level of anxiety or concern.” The term “conversion hysteria” has been used synonymously with the term “traumatic neurosis” by this Court. See Royer v. Cant-relle, supra.

To the extent the expert medical testimony of Doctors Gaar and Blackburn may conflict, we will defer to the testimony of Doctor Blackburn, using the same rationale that this Court used in the Muse case and later approved of in the Royer case. The pertinent facts of Muse, as summarized in Royer, are as follows:

“In the case of Muse v. Sentry Insurance Company, 269 So.2d 609 (La.App. 3rd Cir., 1972), we found that the plaintiff should be awarded permanent disability benefits on the basis of traumatic neurosis. The plaintiff had been examined by Dr. Texada, a psychiatrist, who testified that there had never been any indication of traumatic illness, but the court noted that Dr. Texada had never conducted any psychiatric examinations; all of his tests were of a neurological nature designed to discover objective symptoms. His testimony was contradicted by Dr. Phillips, a psychiatrist, who found that Mr. Muse did suffer from traumatic neurosis. The defendant maintained that there was some conflict in expert medical testimony between Doctors Texada and Phillips. We differed with defendant’s contention and stated the following:
‘Dr. Texada never performed a psychiatric examination on the plaintiff. All of the examinations conducted by Dr. Texada were of a neurological variety designed solely to detect objective findings * * * having conducted no psychiatric examination, we find that Dr. Texada was not in a position to have accurately evaluated plaintiff’s condition. * * * Therefore, we find Dr. Phillips’ testimony uncontradicted.’ (Emphasis ours).”

At several points during his testimony, Doctor Garr admitted that he was not qualified to psychologically evaluate Mr. Jackson; that he wanted to stay away from the psychological aspects of this case; and that his opinion was based only on anatomical or physiological reasons for pain. Further, Doctor Garr conducted no psychological examinations. Consequently, we find that he was not in a position to have accurately evaluated plaintiff’s mental condition.

Having first concluded that the testimony of Doctors Tassin and Blackburn should have been given greater weight by the District Court, we now conclude that the preponderance of the evidence is in the plaintiff’s favor and that he did suffer a com-pensable traumatic neurosis.

Doctor Blackburn was the only psychiatrist who testified. He diagnosed plaintiff’s condition as an anxiety reaction, a form of traumatic neurosis. The only expert testimony possibly conflicting with the testimony of Doctor Blackburn is that of Doctor Gaar. As demonstrated above, however, the testimony of Doctor Blackburn is more persuasive than that of Doctor Gaar in determining whether plaintiff suffered a traumatic neurosis as a result of the accident.

Additionally, Doctor Blackburn’s diagnosis was corroborated by Doctor Tassin and was consistent with the testimony of plaintiff and his lay witnesses. None of this testimony was impeached or contradicted, but was disregarded by the trial court only because none of these witnesses could be said to be completely disinterested, not because he felt as trier of fact that their testimony was not credible.

In many respects this case is similar to Royer v. Cantrelle, supra, and Manshack v. Employers Mutual Liability Insurance Company of Wisconsin, 199 So.2d 579 (La.App. 3rd Cir. 1967). In both cases the psychiatric conclusions that plaintiffs therein suffered traumatic neuroses were supported by un-contradicted lay testimony. This evidence preponderated in plaintiffs’ favor and their compensation claims were upheld. The evidence in this case mandates the same result.

QUANTUM

Having determined that the evidence establishes that the accident caused plaintiff to have a traumatic neurosis, we now turn to the issue of quantum. The amount awarded by the trial court must be increased to compensate plaintiff for pain and suffering, lost wages, and medical expenses incurred subsequent to January 25, 1977, the original cutoff date established by the trial judge. Our increase in the amount of the award is not violative of the principles set forth in Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977), and Schexnayder v. Carpenter, 346 So.2d 196 (La.1977) since the increase is made to compensate plaintiff for damages at first not believed to be causally related to the accident, not to correct a trial court’s abuse of discretion in making an award.

Plaintiff should be awarded an additional $3,000.00 for pain and suffering he experienced from January 25,1977, through September of 1978. The record shows that plaintiff’s pain and suffering was more acute and intense during the four months following the accident, hence his compensation for that time period, as fixed by the trial court, should be greater. After his discharge by Doctor Ventre, plaintiff continued to experience pain which was oftentimes alleviated by prescription medication. We think the $3,000.00 sufficiently compensates plaintiff for his pain and suffering and inconvenience from January 25, 1977, through September, 1978, when Doctor Tas-sin released plaintiff to return to work.

Plaintiff will be awarded $12,000.00 as loss of wages. This amount is in addition to the $2,400.00 awarded by the trial court. The additional award is arrived at by multiplying $600.00 (plaintiff’s average monthly wage as correctly found by the trial judge) by twenty months (the number of months plaintiff was incapacitated by the traumatic neurosis).

Plaintiff is further awarded, as medical expenses, the $240.00 charged by Doctor Tassin in connection with his medical services. Also, the expert witness fee of Doctor Tassin will be taxed as costs payable by the defendant.

The physical therapy bill will not be allowed. Although the physical treatment was prescribed by Doctor Tassin, this Court is not convinced that the atrophy in plaintiff’s left leg was caused by the accident.

DECREE

For the above and foregoing reasons, the judgment of the District Court is amended to increase the amount awarded plaintiff to the sum of $25,632.78 and to assess the expert fee of Doctor Tassin against defendants. In all other respects the judgment is affirmed. All costs of this appeal are assessed against defendants.

AFFIRMED AS AMENDED.

SWIFT, J., concurs.

      . Plaintiff also alleged that the Court awarded an insufficient amount for attorney’s fees. However, counsel for plaintiff has not briefed this point. Furthermore, there has been no showing that plaintiff is entitled to attorney’s fees or that the trial court intended to award attorney’s fees. The signed judgment of the Court below was silent as to attorney’s fees and this Court, feeling that the allegation was inadvertent, will consider it no further.

      . Footnote by the Court of Appeal. Before being evaluated by Doctor Blackburn plaintiff had been referred to the Mental Health Clinic in Ville Platte by either Doctor Tassin or by plaintiffs attorney.

      . Anxiety reactions have been recognized as a type of traumatic neurosis. See Butterworth, THE NEUROSES 1967.

      . Doctor Tassin remembered that plaintiff’s complaints of headaches began when he first saw plaintiff, even though his recollection is not confirmed by his notes.

      . Doctor Blackburn testified that he would have diagnosed plaintiff as an anxiety reaction after the first interview on September 5, 1978. At the second interview, Doctor Blackburn again saw plaintiff for about an hour and had him undergo 3’/z hours of psychiatric examinations which revealed no evidence of psychosis or neurosis at that time.


text:
    Robert CLEMENT, Plaintiff-Appellant, v. Don TAYLOR et al., Defendants-Appellees.
    No. 7453.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.
    Rehearing Denied April 25, 1980.

      Keller & Goliwas, William J. Goliwas and John S. Keller, New Orleans, for plaintiff-appellant.
    Olivier & Brinkhaus, John L. Olivier, Sunset, W. Paul Hawley, Lafayette, Bien-venu, Foster, Ryan & O’Bannon, H. F. Foster, III, New Orleans, for defendants-appel-lees.
    Before DOMENGEAUX, FORET and SWIFT, JJ.
   FORET, Judge.

This is a tort suit. Plaintiff, Robert Clement, instituted this action to recover damages for personal injury sustained in a gas explosion. Made defendants were Marcus Cruse and Syble Cruse, executive officers of plaintiff’s employer, Cruse Fabricators. In defendants’ answer, third party demands were filed against Sun Oil Company and Northwest Insurance Company, the liability insurer of Cruse Fabricators.

Prior to trial, defendants, Marcus and Syble Cruse, filed a motion for summary judgment seeking dismissal of plaintiff’s suit. Defendants also filed a motion for summary judgment requesting the court to declare that the liability policy issued by Northwest to Cruse Fabricators provided coverage to defendants. Sun Oil filed a motion for summary judgment seeking dismissal of the third party demand filed against it.

Following a hearing, the trial court sustained defendants’ motion for summary judgment on the principal demand, dismissing plaintiff’s suit. The defendants’ motion for summary judgment requesting a declaration that the insurance policy issued by Northwest provided coverage to defendants was also granted. The third party demand filed against Sun Oil was dismissed.

From the judgment dismissing plaintiff’s suit, plaintiff has perfected this appeal. Third party defendant, Northwest Insurance, perfected an appeal to the court’s ruling that the liability policy issued to Cruse Fabricators provided coverage to defendants.

The record reveals that plaintiff, Robert Clement, was employed by Cruse Fabricators. Cruse Fabricators had contracted with Sun Oil Company to repair a section of pipeline at Sun Oil Company’s Bell Isle plant in St. Mary Parish. On July 1, 1976, plaintiff, with several other employees, was engaged in the repair of a pipeline at Bell Isle. After a corroded section of pipe had been replaced, plaintiff was ordered to place a protective wrap around the repaired section of pipe. The wrapping was required to be heated before being placed on the pipe. When plaintiff attempted to light a butane torch, a gas explosion occurred, causing plaintiff to suffer serious injuries. This suit was instituted as a result of the injuries sustained by plaintiff.

Plaintiff contends that the trial court erred in sustaining defendants’ motion for summary judgment on the main demand. Third party defendants contend that the trial court erred in sustaining the defendants’ motion for summary judgment on the issue of insurance coverage.

SUMMARY JUDGMENT

C.C.P. Article 966 provides that a motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.

Only when reasonable minds must inevitably concur, as a matter of law, on the facts before the court is á summary judgment warranted. Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).

Thus, the issue presented in the present case is whether defendants proved that no genuine issue of material fact existed and that they were entitled to judgment as a matter of law.

Defendants moved for summary judgment on the main demand on the grounds that defendants and Sun Oil were joint tort-feasors, and that the release of Sun Oil by plaintiff without reservation of rights discharged defendants.

In Harvey v. Travelers Insurance Company, 163 So.2d 915 (La.App. 3 Cir. 1964), the court stated that “where the negligence of two persons combines to produce injury to a third, the parties at fault are joint tort-fea-sors . . . .” Civil Code Article 2324 provides that joint tort-feasors are bound in solido for the damage occasioned by their act. It is well settled that the conventional discharge in favor of one of the debtors in solido discharges all others, unless the creditor has expressly reserved the right against the remaining debtors in solido. C.C. Article 2203, Hemphill v. Strain, 341 So.2d 1186 (La.App. 1 Cir. 1976), writ ref., 343 So.2d 1072 (La.1977).

In support of their contention that Sun Oil and defendants were joint tort-feasors, defendants introduced into the record the release granted by plaintiff to Sun Oil without reservation of rights. However, the release does not establish that Sun Oil was a tort-feasor, since Sun Oil specifically denies, in the release, any liability for the damages sustained by plaintiff.

Defendants also allege that the petition filed by plaintiff in the present case together with a petition filed by plaintiff against Sun Oil in federal court establishes that defendants and Sun Oil were joint tort-fea-sors. Plaintiff, in both cases, seeks recovery for damages sustained in the gas explosion.

However, plaintiff, in the petition filed in federal court, stated that the negligence of Sun Oil was the “sole and proximate cause” . of his injuries. In the petition filed in state court, plaintiff alleges that the negligence of defendants was the “sole and proximate cause” of his injuries. Clearly, the petitions do not establish that Sun Oil and defendants were joint tort-feasors.

The depositions, written interrogatories, and pleadings in the record do not establish that the negligence of defendants and Sun Oil combined to produce the injury sustained by plaintiff. Since a dispute exists as to whether Sun Oil and defendants were joint tort-feasors, the trial court erred in granting summary judgment on the main demand, dismissing plaintiff’s suit.

The trial judge sustained defendants’ motion for summary judgment declaring that the policy issued by Northwest provided coverage to defendants. Northwest contends that the court erred in finding that the policy provided coverage.

The insurance policy provides:

“. . . the company will pay on behalf of the insured all sums which the insured shall become legally obliged to pay as damages because of A) bodily injury . . caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.”

The policy also contains the following provision.

“II. PERSONS INSURED.

Each of the following is an insured under this insurance to the extent set forth below:
* * * * * *
(c) if the named insured is designated in the declarations as other than an individual, partnership or joint venture, the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such;”

Clearly, the insurance provisions above provide coverage to defendants. Plaintiff sustained bodily injury in an accident, an occurrence. The named insured is a corporation; therefore, the insurance policy provides coverage to defendants, executive officers of Cruse Fabricators. However, Northwest insurance contends that the defendants are not provided coverage because an exclusionary clause in the insurance policy is applicable.

The exclusionary clause provides as follows;

“It is agreed that, if with respect to operations described in this endorsement there is a discharge, dispersal, release or escape of oil or other petroleum substance or derivative (including any oil refuse or oil mixed with wastes) into or upon any watercourse or body of water, the insurance does not apply to bodily injury or property damage arising out of such discharge, dispersal, release or escape whether or not sudden or accidental.
Description of Operations
Gasoline Recovery — from casing head or
natural gas
Non-operating working interests
Oil or Gas Well Shooting
Oil or Gas Wells — acidizing
Oil or Gas Wells — cementing
Oil or Gas Wells — cleaning or swabbing— by contractors
Oil or Gas Wells — servicing—by contractors
Oil or Gas Wells — drilling or redrilling, installation or recovery of casing
Oil or Gas Wells — instrument logging or survey work in wells
Oil or Gas Wells — perforating of casing
Oil Lease Operators or Gas Lease Operators — natural gas
Oil Pipe Lines — operation, including maintenance
Oil Rig or Derrick Erecting or Dismantling — wood or metal — including construction of foundations or structure or installation of equipment.”

Plaintiff stated in his deposition that at the time of the accident he was engaged in the repair of a gas pipeline. (R., 94) The maintenance of gas lines does not appear as one of the listed operations to which the exclusionary clause applies. Since plaintiff was injured during the maintenance of a gas pipeline, third party defendants’ contention that the exclusionary clause applies is without merit. The trial court did not err in sustaining defendants’ motion for summary judgment on the issue of insurance coverage.

For the above and foregoing reasons, the judgment of the trial court sustaining the Cruses’ motion for summary judgment on the main demand is reversed. The court’s ruling sustaining the Cruses’ motion for summary judgment on the issue of insurance coverage is affirmed. The case is remanded for further consideration in accordance with law.

Costs of this appeal are assessed against the defendants; costs in the trial court will be assessed upon final judgment herein.

AFFIRMED IN PART; REVERSED IN PART, AND REMANDED.


author: CULPEPPER, Judge.

text:
    Erastus BRYANT, Plaintiff-Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Defendant-Appellee.
    No. 7466.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 1980.

      Rester, Van Norman & Wright, John L. Van Norman, III, Lake Charles, for plaintiff-appellant.
    Pugh & Boudreaux, Charles J. Bou-dreaux, Lafayette.
    Jones, Patín, Tete, Nolen & Hanchey, William M. Nolen, Lake Charles, for defendant-appellee.
    Before CULPEPPER, GUIDRY and DOUCET, JJ.
   CULPEPPER, Judge.

This is the second time this medical malpractice suit has been before us. Plaintiff, Erastus Bryant, sued St. Paul Fire and Marine Insurance Company, as the insurer of Lake Charles Memorial Hospital (hereinafter HOSPITAL). Plaintiff alleged that the HOSPITAL, through its employees, including one Dr. Arthur Rhoades, the emergency room physician, was negligent in the care rendered to plaintiff’s son, Elijah Bryant, causing the son’s death. A trial by jury was commenced. After the close of plaintiff’s evidence, the trial judge granted defendant’s motion for directed verdict, based on a lack of evidence as to the “community standards” of medical practice for hospitals and physicians. Plaintiff appealed. This court reversed and remanded, 365 So.2d 537 (3rd Cir. 1978). After remand, a second jury trial was held, and the jury returned a verdict for defendant, finding no negligence on the part of either the non-physician employees of the HOSPITAL or of Dr. Rhoades. Plaintiff again has appealed.

On this appeal, plaintiff contends the instructions given as to the duty of a physician practicing in a particular specialty confused the jury and increased plaintiffs burden of proof beyond that necessary to prove his case.

There is no dispute as to the facts. They are essentially as set forth in our previous opinion. The only thing we might add is that Dr. Avery Cook, coroner of Calcasieu Parish, performed his autopsy on the day following the death. Dr. Rhoades was present. These two were the only physicians who testified. Dr. Cook was quite positive in his testimony that the ambulance ride probably had no effect at all on the deceased’s condition or death. He also stated that the care provided at the hospital emergency room was good, adding the opinion that the injury to the two major blood vessels could not have been detected in an emergency room examination. Based on his experience as a pathologist, Dr. Cook expressed the belief that Bryant would not have survived “if you’d had him in Houston, with Dr. DeBaky and Cooley both operating.” When asked to explain this position, he stated:

“Well, first I think you would have had to made the diagnosis that the injury was in the area that it ultimately was found to be in. You would have to be prepared immediately to get in there and do something about it, a major procedure. You’d have to have the equipment and personnel ready to go, and it’s conceivable that something could be salvaged in one of these cases occasionally, but you’d have to have a lot of things working for you to turn out differently from this.”

Plaintiff’s only specification of error is that the trial court erred in failing to properly instruct the jury in accordance with our decision when the case was previously before us, 365 So.2d 541. In his brief, plaintiff states the trial judge correctly instructed the jury on the standard of care with respect to hospitals. The jury charges to which plaintiff objects are those concerning the duty of a physician who practices in a particular specialty. The charge in question reads as follows:

“It is the duty of a physician who practices in a particular specialty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same medical specialty, and to use reasonable care and diligence, along with his best judgment, in the application of his skill to the case.
“In judging the question of negligence, if you find that Dr. Rhoades did all that reasonably careful specialists, skilled in this specialty, could have done, you must find that the defendant is not negligent. “A medical specialist is not required to exercise the highest degree of skill and care possible. He is not an insurer or guarantor of results, in the absence of an express agreement to that effect. When he undertakes the treatment of a case, he undertakes to use that skill and care ordinarily exercised by physicians within the same medical specialty in which he practices.
“Louisiana law does not impute negligence to the physician who fails to follow that course of treatment which at a later date, may be proved to be the wiser course. The physician is only responsible for exercising his best judgment and administering reasonable care.
“It is not sufficient to show simply that an unfortunate result followed, and you cannot find in favor of plaintiff on the basis of Dr. Rhoades’ conduct unless you find negligence on the part of Dr. Rhoades.
“I charge you that the law accords physicians the presumption that they have done their duty, in the absence of any evidence to the contrary, and in a suit for injury caused by alleged malpractice of a physician the burden is on the plaintiff to prove the want of reasonable or ordinary care or skill.
“In summary, in order for you to find that Dr. Rhoades failed to meet the standard of care, you must find that the following has been proven:
“1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by those physicians practicing within the particular speciality.
“2) That the doctor either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill; and
“3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the decedent suffered injuries that would not otherwise have been incurred and that his death resulted therefrom.
“In determining whether or not a physician exercised the degree of skill and care ordinarily employed by other physicians, and whether he used reasonable care and diligence, along with his best judgment, in caring for the plaintiff, you must be guided by the testimony and the opinions of the experts who have testified in this case.”

Plaintiff contends these jury instructions erroneously placed upon him the burden of proving that Dr. Rhoades was an expert in the field of traumatic medicine, and that other experts in the field of traumatic medicine would have initiated different procedures. He argues that since this suit is not against Dr. Rhoades or his insurer, but is only against the HOSPITAL’S insurer, the effect of these charges is to require the plaintiff to prove a breach of duty either under the community standard for physicians or under the duty of medical specialists, “thereby insulating the hospital from any negligence of its employees when they are physicians.”

We have difficulty understanding plaintiff’s argument. It appears to be that although plaintiff could not recover if this suit were against Dr. Rhoades, since plaintiff has not shown a deviation by Dr. Rhoades below the standard of care expected of specialists in traumatic injuries, he may nevertheless recover from the HOSPITAL’S insurer, based on Dr. Rhoades’ negligence, without the necessity of proving either the standard of care of the medical specialty or that Dr. Rhoades breached that standard. This contention ignores the fundamental concept of respondeat superior that the liability of the master is only vicarious to the liability of the servant. The duty of care at issue is that of the servant, and it must be proved that this duty was breached before the master can be held liable. Thus, in the present case, the duty of care at issue is that of Dr. Rhoades.

There is no question that Dr. Rhoades was a specialist in traumatic injuries. This was a holding in our previous decision. This fact is also proved by the evidence in the record before us on this appeal. As such, Dr. Rhoades was subject to the higher standard of care as announced by our Supreme Court in Ardoin v. Hartford Accident & Indemnity Company, 360 So.2d 1331 (1978) and as provided by LSA-R.S. 9:2794, which reads as follows:

§ 2794. Physicians and dentists; malpractice; burden of proof; jury charge
A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., or a dentist licensed under R.S. 37:751 et seq., the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists practicing in the same community or locality to that in which the defendant practices; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty-
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
B. Any party to the action will have the right to subpoena any physician or dentist either for a deposition and/or testimony for trial to establish the degree of knowledge or skill possessed or degree of care ordinarily exercised as described above without obtaining the consent of the physician or dentist who is going to be subpoenaed. The fee of the physician or dentist called ■ for deposition and/or testimony under this Section will be set by the court.
C. In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence, the negligence of the physician or dentist. The jury shall be further instructed that injury alone does not raise a presumption of the physician’s or dentist’s negligence. The provisions of this Section shall not apply to situations where the doctrine of res ipsa loquitur is found by the court to be applicable.

As to physicians, this statute clearly imposes upon the plaintiff the burden of proving: (1) the applicable standard of care; (2) a breach of that standard; and (3) that the breach of that standard was a cause of the injuries. The trial judge correctly charged the jury on the duty of care of medical specialists, and that the plaintiff had the burden of proving that standard. We find no error in the charge questioned by plaintiff.

Looking at the record as a whole, the evidence clearly supports the jury’s finding of fact on the two interrogatories it answered. In answer to Interrogatory No. 1, as to whether any nurse, aide, technician or orderly employed by thé HOSPITAL was guilty of negligence, the jury stated “No.” In answer to Interrogatory No. 2, as to whether Dr. Rhoades was guilty of any negligence which caused Bryant’s death, the jury stated “No.” Having found no negligence on the part of either the non-physician employees of the HOSPITAL or of Dr. Rhoades, it was unnecessary for the jury to answer the interrogatories as whether Dr. Rhoades was an employee of the HOSPITAL or whether Bryant was guilty of contributory negligence.

We have no difficulty in concluding the jury was not manifestly erroneous or elear.ly wrong in its findings of fact.

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

Affirmed.