author: CUTRER, Judge.

text:
    Chester JOSEPH, Plaintiff-Appellee, v. MARTIN MILLS, INC., et al., Defendants-Appellants.
    No. 8021.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.

      Douglas C. Longman, Jr., of Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, for defendants-appellants.
    Glenn J. Armentor, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

Plaintiff, Chester Joseph, filed suit against his employer, Martin Mills, Inc., and its workmen’s compensation carrier, The Travelers Insurance Company, alleging that he sustained a back injury in the course and scope of his employment. The trial court found that the plaintiff did suffer such an injury and was disabled. The trial court awarded one hundred weeks of compensation at $130.00 per week for the permanent impairment of a physical function under the provisions of LSA-R.S. 23:1221(4)(p). The judgment included an award of medical expenses but this portion of the judgment is not at issue in this appeal.

Defendants’ appeal presented two issues:

(1) The trial court erred in finding that the plaintiff sustained an injury in the course and scope of his employment; and
(2) Alternatively, defendants contend that plaintiff is only entitled to temporary total disability from the date of the accident, April 1978, until December 18, 1978. Defendants contend that plaintiff was fully recovered on the latter date.

WHETHER PLAINTIFF WAS INJURED IN THE COURSE AND SCOPE OF HIS EMPLOYMENT

Plaintiff was employed by Martin Mills as a dryer operator in the bleach and dye department. Plaintiff testified that during the month of April 1978, he was pushing a heavy cart filled with cloth when some of the cloth became entangled in one of the wheels. As he attempted to push the cart under these conditions he stated that he twisted his back, causing the injury in question. He further stated that he reported the injury to a supervisor who asked him to work for the remainder of the day, which he did. Plaintiff further testified that, due to pain, he went to see his family physician, Dr. Louis Weinstein, the day following the accident. He told the physician that he had hurt his back at his place of employment.

Plaintiff’s testimony as to the occurrence of the accident was corroborated by his brother, Linton Joseph, who was employed at Martin Mills at the time of the accident. Also, plaintiff’s wife and daughter testified that plaintiff came home from work in pain and had to be taken to the physician the following morning.

The defense relies heavily on the fact that plaintiff’s time cards, introduced into evidence, show that the last day he worked at Martin Mills was Saturday. While plaintiff worked the day shift, he alleged the accident took place on his last day of work at Martin Mills at about 10:00 P.M. The trial court recognized this discrepancy but was not greatly disturbed by it. The court was, no doubt, cognizant of the fact that the time cards have been in the custody of the defendants since the time of the accident in April 1978 until the time of trial in March 1980. Also, the custodian of such personnel records has only been employed in that position for some three months before the trial. The circumstances under which these were introduced do not lead us to believe they were especially reliable. In any case, the exact date of the accident is not so crucial so long as it occurred in the course and scope of plaintiff’s employment.

Defendants further contend that since the supervisor, Gerald Caulk, neither filed an accident report nor remembered the accident, the trial court was clearly erroneous in accepting plaintiff’s testimony. The testimony of plaintiff and his brother, Linton, as well as some defense witnesses, indicated that Martin Mills is an extremely noisy and fast moving place. It is logical to conclude that, where one continues working until the end of his shift after such an accident, only those looking directly at him at the time of the accident, or those informed by him of the accident, would know about it. It is also possible that a busy supervisor would fail in his duty to fill out an accident report, especially where the worker finishes his shift. Plaintiff and his brother both testified that he reported the accident.

In its reasons for judgment, the trial court made the following findings:

"... In court Joseph’s testimony showed that he is 51 years of age, has always been a common laborer, he is illiterate, uneducated and lacks sufficient wile or wisdom to fabricate his story. In fact, I find him to be a truthful witness.
“There is an admitted discrepancy about the time of the accident. Joseph testifies that it occurred on the night shift and that he did not do any work at the plant after the accident occurred, yet the company’s records show that the last day that Joseph worked was on a Saturday in the morning and slightly into the afternoon. I have considered this discrepancy and cannot explain it, yet I accept the fact that the accident did occur; whether it was on the night shift or the morning shift is something I consider to be of no great significance. What is true and corroborated is that the day follow ing the accident or the day after that Joseph was taken to his physician, Dr. Weinstein, in Arnaudville for treatment and that his back was in such a condition that Dr. Weinstein had to go to the car to administer to him.”

Great weight is given to the findings of the trial court with regard to the credibility of the plaintiff in a workmen’s compensation proceeding. Knight v. Southeastern Chemical Corp., 344 So.2d 67 (La.App. 4th Cir. 1977). We find no error in the trial court’s acceptance of plaintiff’s version of the facts of this case and the conclusion that plaintiff was injured during the course and scope of his employment.

DISABILITY

The defendants contend that, in the event that the court should find that plaintiff was injured in the course and scope of his employment, he was only entitled to temporary total disability from the date of the accident until December 18, 1978.

In its reasons for judgment the trial court, after finding a compensable injury and disability, commented as follows:

“The recovery in this case is governed by R.S. 23:1211 [sic], which was the last amendment to the compensation statute in 1975. This accident happened in 1978, therefore its provisions are pertinent.
“Subsection (1) provides the formula for an accident that has produced ‘temporary total disability', and I find that although Joseph was temporarily totally disabled, the evidence is insufficient to determine that period between the time of the accident and the time that he went to work for Mr. Angelle.....
“Subsection (2) provides for compensation for an injury producing permanent total disability to an employee and this Court finds that Joseph is not permanently totally disabled.
“Subsection (3) provides for an injury-producing partial disability of an employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, et cetera. Joseph is in fact performing lighter work for Mr. Angelle compared to the work that he did with Martin Mills. This section would seem to apply but using the formula in the section for computation he would receive 66Vs% of the difference between the wages he was earning at the time of the injury and any lesser wages which he actually earned thereafter. In fact, he is receiving more wages now than he was at the time of his employment with Martin Mills, so, it would seem that he would have no recovery at all under this section; however, I cannot believe that this was the intention of the legislature. It is obvious that the compensation act was amended to provide additional benefits to the employees, not to detract from them. Lopez v. Comm. Union. 353 So.2d 431 (1977).
“I have to conclude that Joseph’s recovery should be under Subsection (4)(P), which provides that:
‘In cases not falling within any of the provisions already made ... where the usefulness of physical function is seriously permanently impaired, the Court may allow such compensation as is reasonable and in proportion to the compensation herein above specifically provided in the cases of specific disability, not to exceed 662/s% of wages during 100 weeks.’
“The Court will apply that section and award Joseph compensation payments not to exceed 662/s% of wages during 100 weeks.”

We must note that neither the issue of partial disability nor permanent total disability is before this court. The plaintiff did not appeal the award of one hundred weeks of compensation. Since partial disability (450 weeks) or permanent total disability could have the effect of increasing the award, we are not called upon to decide the issues of partial or permanent disability.

This brings us to the issue of whether the recovery should be awarded for temporary total disability or for the loss of a function under LSA-R.S. 23:1221(4)(p).

As we approach this issue, we will first review the basic facts in this regard:

Immediately following the accident in April 1978, plaintiff consulted Dr. Louis Weinstein, a general practitioner. This physician saw plaintiff for the first time on April 17, 1978, complaining of back pain. The doctor diagnosed it as a back strain and he was treated conservatively with medication. Plaintiff developed a stomach ulcer problem as of April 21, 1978, which was conservatively treated by Dr. Seldon J. Deshotels, a general surgeon. Dr. Wein-stein continued to see plaintiff intermittently for his back complaints, treating same with heat treatments and medication.

Dr. Deshotels operated on plaintiff in August 1978 for the ulcer condition. Plaintiff’s recovery from the ulcer problem was uneventful and, according to Drs. Weinstein and Deshotels, did not create any permanent loss of function. Dr. Weinstein stated that the ulcer condition could have been brought on by the medication given for the back injury.

Dr. Weinstein continued to see plaintiff thereafter. On January 4, 1979 he discharged plaintiff to return to work. The plaintiff went back to Martin Mills to go to work but was informed that they had nothing available at the time. Plaintiff began drawing unemployment compensation during the first part of 1979. Thereafter, in May 1979, plaintiff obtained employment with Lennie Angelle Backhoe Rentals, a heavy equipment concern. Plaintiff performed the job of greasing the equipment, fueling same and various other odd jobs. Plaintiff continued in this job until the time of trial. Plaintiff earned $4.50 per hour as an employee with Angelle. This was slightly more than he was earning at the time of the accident at Martin Mills.

Plaintiff was hospitalized for a short time, beginning on May 26,1979, for lumbo-sacral strain. Plaintiff testified that his hospitalization was a result of back problems that had persisted since the original accident. The hospital records report differently, however. They state that plaintiff reported that about a week before the admittance he “wrenched his back” as he reached back for a shovel. This would have been during his employment with Angelle.

Dr. William Louis Meuleman, an orthopedic surgeon, examined plaintiff on September 5, 1979, and found no disability of the lower back. Plaintiff was referred to Dr. Frederick L. Mayer by plaintiff’s and defendants’ attorneys for examination. Such examination was made January 7,1980 and his conclusion was the same as that of Dr. Meuleman. Both physicians concluded that they could find nothing that would interfere with plaintiff’s employment.

Plaintiff continued to see Dr. Weinstein during 1979, the last visit being December 29, 1979, complaining of back pain. Dr. Weinstein testified that he could not explain plaintiff’s protracted complaints since a back sprain does not usually produce pain after approximately two months.

Other than during the brief hospitalization in May 1979, plaintiff has worked continuously for Angelle, up to the time of trial. Plaintiff stated that he still had pain when he does heavy work. He further stated as follows, however:

“Q. You think you could do that same job you were doing at Martin Mills if they gave you a chance?
“A. Yeah, if they give me a chance, yeah.
“Q. Would you be willing to try?
“A. Yeah.”

He further stated that he had not worn any back brace but had only been treated with medication since the accident.

We particularize the above facts for the purpose of showing the evidence fails to meet the requirements of LSA-R.S. 23:1221(4)(p). That provision only allows recovery “where the usefulness of a physical function is seriously permanently impaired.”

As we evaluate the medical testimony, plaintiff’s testimony and work history, we conclude that plaintiff has not proven that his back strain has produced such a loss of a physical function. We have concluded, however, that plaintiff is entitled to compensation based upon temporary total disability. We find that plaintiff’s disability continued from the time of the accident, April 15, 1978, until he went to work for Angelle. Any subsequent pain he may have had was not shown to be of a substantial or disabling nature. This is in accord with the trial court whose reason for not awarding temporary total disability was that the court could not determine from the testimony as to when plaintiff began working for Angelle.

The testimony does not reflect the time of plaintiff’s employment with Angelle, but we have examined the record and find that, in the answers to the interrogatories propounded by the defendants, the plaintiff stated that he had received $80.00 per week unemployment compensation beginning in late March 1979, and he received such compensation for approximately six weeks. Compensation was discontinued at the end of the six-week period as he went to work for Angelle.

This information is definitive enough that we can fix the date of plaintiff’s employment with Angelle to be May 7, 1979. We therefore hold that plaintiff is entitled to temporary total disability at the rate of $130.00 per week beginning April 15, 1978, and ending on May 7, 1979, the time he went to work for Angelle. The judgment of the trial court shall be amended accordingly.

For the reasons set forth above, the judgment of the trial court is amended by fixing the workmen’s compensation award at $130.00 per week for the period beginning April 15, 1978, and ending May 7, 1979. In all other respects the judgment of the trial court is affirmed. Costs of this appeal are assessed one-half to plaintiff-appellee and one-half to defendants-appellants.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    Jean MORRIS, Plaintiff-Appellee, v. M/V CREOLE BELLE, Defendant-Appellant.
    No. 8030.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.

      Plauche, Smith, Hebert & Nieset, Reid K. Hebert, Lake Charles, for defendant-appellant.
    Baggett, McCall, Singleton & Ranier, Drew A. Ranier, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

Plaintiff, Jean Morris, brought suit against the M/V Creole Belle. He alleges that he was employed by the vessel. He further alleges that while working as a deck hand on that vessel he sustained injuries, primarily to his legs and back, when the outrigger on which he was sitting was dropped fifteen feet. He contends this was caused by the defective design, maintenance or operation of the facilities of the M/V Creole Belle and by the negligence of the vessel, its agents, officers, employees or representatives. The plaintiff also seeks maintenance and cure. The plaintiff amended his petition by adding the following paragraph:

“Also made defendant herein is PHILLIP CANTRELLE, who may be served at 712 Arthur Avenue, Lake Arthur, Louisiana..

The prayer of the original petition was amended requesting judgment against the vessel and Cantrelle. The plaintiff made no allegations that defendant, Cantrelle, was either his employer or that Cantrelle owned the vessel.

The defendant did not answer or appear. A preliminary default was entered and same was confirmed and a final judgment in the amount of $35,000.00 was rendered against the two defendants, in solido, and signed on January 19, 1980. Each of the defendants appeals separately. We will first discuss the position of Cantrelle.

Counsel for Phillip Cantrelle argues that under Louisiana procedural law there was insufficient evidence in the record to support the default judgment and, also, that the trial court erroneously considered evidence beyond the scope of the pleadings.

On the other hand, the plaintiff’s counsel argues that the procedure of federal notice pleading applies and that confirmation of default judgment is valid thereunder. The question then becomes whether state or federal procedural requirements for confirmation of a default in state courts are applicable in a maritime case.

It is well established that substantive maritime law controls in state court. Also, the state cannot, by its procedural practice, substantially alter the right of the litigants. Garrett v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239 (1942). Consequently, federal procedural law, in some instances, controls in state court. Federal procedural law applies as to the standards of appellate review. Benoit v. Fireman’s Fund Ins. Co., 361 So.2d 1332 (La.App. 3rd Cir. 1978). Further, the maritime doctrine of laches, rather than the state prescriptive period, applies in actions brought in state court under the general maritime law. Guidry v. Chevron Oil Co., 366 So.2d 979 (La.App. 1st Cir. 1978); Edwards v. Hartzman, 362 So.2d 1188 (La.App. 4th Cir. 1978); Sewerage & Water Board of New Orleans v. Sanders, 264 So.2d 270 (La. App. 4th Cir. 1978), writ ref’d, 262 La. 1157, 266 So.2d 443 (La.1972). The Jones Act three year prescriptive period also applies in actions under the Jones Act.

We conclude, however, that state procedural law applies to the procedural requirements for the confirmation of defaults in maritime suits as such does not substantially alter the substantive rights of the parties. Thus, we examine this default judgment applying state procedural law.

Under Louisiana procedural law, if a necessary fact is not alleged in the petition, evidence of such can neither be admitted nor considered by the trial court in a confirmation of default. The pleadings cannot be enlarged by the introduction of evidence in a confirmation of a default proceeding. This rule was recently reaffirmed and explained in the case of Skye v. White, et al., 391 So.2d 553 (La.App. 3rd Cir. 1980), Docket No. 7928:

“Generally, failure to plead the essential elements of a claim presents no problem because of the rule that so long as the essential facts constituting the claim are proved, the plaintiff may be granted any relief to which he is entitled under the evidence. This is because the opposing party, by failing to object to evidence not pertinent to any of the issues raised by the pleadings, is deemed to impliedly consent to enlargement of the pleadings by that evidence. However, this presumption is unavailable when confirming a default judgment. The very nature of a default judgment dictates this as no opposing party is present, and hence there is no basis to presume the pleadings were enlarged by that party’s failure to timely object. The result is that in confirming a default, plaintiff must not only prove every essential element of his cause of action, he must also plead every essential element as a prerequisite to that proof.’’

Applying these requirements to the present case, we find that the judgment was improvidently granted.

By the express terms of the Jones Act an employer/employee relationship is essential to recovery. Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692 (1949), rehearing den., 338 U.S. 839, 70 S.Ct. 32, 94 L.Ed. 513 (1949); Guidry v. South Louisiana Contractors, Inc., 614 F.2d 447 (5th Cir. 1980); Spinks v. Chevron Oil Company, 507 F.2d 216 (5th Cir. 1975). No employer/employee relationship between the plaintiff and Cant-relle was alleged. The evidence pertaining to an employer/employee relationship between these parties could not be considered by the trial court.

The same failing prohibits a judgment against Cantrelle for maintenance and cure. Maintenance and cure is owed by the employer. Smith v. Dale Hart, Inc., 313 F.Supp. 1164 (W.D.La.1970). No in person-am judgment against the owner of a vessel for maintenance and cure can be had where such owner is not the plaintiff’s employer. Solet v. M/V Capt. H. V. Dufrene, 303 F.Supp. 980 (E.D.La.1969).

There was also a lack of any allegation that the defendant, Cantrelle, owned or controlled the M/V Creole Belle. Evidence of such cannot be considered by the trial court as this would enlarge the pleadings. Thus, the judgment cannot be based on the doctrine of unseaworthiness, under which an owner or owner pro hac vice can incur liability for injuries resulting from an un-seaworthy condition of the vessel.

Without an allegation of an employer/employee relationship, or that Cantrelle was owner or had control of the vessel, evidence of such relationships cannot be admitted or considered by the trial judge. Thus, the judgment against Cantrelle must be reversed and set aside, and this case must be remanded to the district court for further proceedings against Cantrelle in accordance with law and the views expressed herein.

Counsel for the defendants argues that the proceedings against the vessel are null. He contends that citation and service of process upon the M/V Creole Belle were insufficient. He further states that this is an in rem proceeding and, as such, the proceedings are defective as a seizure of the vessel is a prerequisite to a suit in rem.

We do not need to pass on either of these issues for the reasons hereinafter set forth; the trial court did not have jurisdiction of the suit against the vessel. We raise this issue on our own motion. Louisiana Power and Light Company v. City of Houma, 229 So.2d 202 (La.App. 1st Cir. 1969), writs ref’d, 254 La. 1165, 229 So.2d 350 (1969).

As stated heretofore, plaintiff makes neither allegations of the ownership of the vessel nor of any employer/employee relationship between Cantrelle and plaintiff. He does allege that the vessel is his employer, but this allegation creates a legal impossibility. A vessel, standing alone, cannot be a seaman’s employer.

Since there is neither allegation of ownership of the vessel, nor allegation of an employer/employee relationship between Cantrelle and the plaintiff, the proceeding against the vessel stands alone and, as such, is an in rem proceeding. As this portion of the suit is an in rem proceeding, the state court lacks jurisdiction of the subject matter.

A state may not provide a remedy in rem for any cause of action within the admiralty jurisdiction. Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582 (1924). Regarding such in rem actions, Norris’ Treatise, The Law of Seamen, 3rd Ed., Vol. I § 4 states:

“The right to proceed in civil causes in rem is the exclusive remedy of the courts of admiralty and no State can confer jurisdiction upon its court to proceed in rem. ... Neither can Congress give such power to a State since it would be contrary to the constitutional grant of such power to the Federal Government.”

Consequently, the in rem judgment against the vessel must be reversed.

For the reasons assigned, the judgment, against the M/V Creole Belle is reversed and set aside, and plaintiff’s claim against this vessel is dismissed with prejudice. The judgment against Phillip Cantrelle is reversed and set aside and this case is remanded to the district court for further proceedings against Phillip Cantrelle in accordance with law and the views expressed herein. All costs of this appeal are assessed against the plaintiff-appellee. Assessment of costs in the trial court must await a final judgment there.

REVERSED AND RENDERED IN PART; REVERSED AND REMANDED IN PART.


author: CULPEPPER, Judge.

text:
    Nancy Howig PALMATIER, Plaintiff-Appellee, v. Robert Allen PALMATIER, Defendant-Appellant.
    No. 8032.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for defendant-appellant.
    James E. Beal, Natchitoches, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and CUTRER, JJ.
   CULPEPPER, Judge.

Plaintiff, Robert Allen Palmatier, filed this action for divorce against his wife, Nancy Howig Palmatier, on the grounds of one year living separate and apart. The judgment of divorce in favor of the husband also awarded to him custody of the two minor children, boys ages 10 and 14 respectively. The judgment further ordered plaintiff to pay his wife $200 per month as permanent alimony, plus $500 for her attorney’s fees. The husband appeals the awards of alimony and attorney’s fees. The wife answered the appeal, seeking an increase in the award of permanent alimony from $200 to $750 per month.

The issues presented are (1) whether the husband is liable for attorney’s fees incurred by the wife in these divorce proceedings filed after the dissolution of the community in a previous separation suit, (2) whether the trial court erred in awarding Mrs. Palmatier permanent alimony in the amount of $200 per month, and (3) whether the wife’s alimony should be increased.

Plaintiff and defendant legally separated by judgment signed March 13, 1979, pursuant to a petition for separation filed by the wife on February 16, 1979. Under the judgment, Mrs. Palmatier received custody of the two minor children. Plaintiff was ordered to make child support payments of $900 per month. In her petition for separation, the wife stated that she did not desire the payment of any alimony from her husband, nor did she pray for attorney’s fees.

Less than one year following the judgment of separation, the husband sued for final divorce and by amended petition sought custody of the children. The wife answered plaintiff’s petition and by reeon-ventional demand prayed for a divorce on the grounds of one year having elapsed without reconciliation after the judgment of separation. She also prayed for permanent alimony in the amount of $200 per month, but she did not pray for attorney’s fees. The district judge, finding neither party to be at fault, first stated in reasons dictated at the conclusion of the trial that Mrs. Palmatier was entitled to permanent alimony in the amount of $700 per month. However, upon advice by counsel for plaintiff that the wife had prayed for only $200 per month in her reconventional demand, the judge awarded only this amount in the judgment.

ATTORNEY’S FEES

In Malone v. Malone, 260 La. 759, 257 So.2d 397 (1972) our Supreme Court reviews the statutory and jurisprudential history of the problem of attorney’s fees of the wife and of the husband in separation and divorce proceedings. In Tanner v. Tanner, 229 La. 399, 86 So.2d 80 (La.1955), the court had allowed the wife attorney’s fees in a divorce proceeding by overruling prior jurisprudence to the contrary and holding that under LSA-C.C. Article 155 the community was dissolved, not as of the date of filing the petition, but only as of the date of the divorce judgment. Then in 1962, Article 155 was amended to provide that a judgment of separation dissolves the community retroactive to the date on which the original petition was filed but “without prejudice ... to the liability of the community for the attorney’s fees and costs incurred by the wife in the action in which the judgment is rendered.” In Malone, the Supreme Court construed the 1962 amendment to Article 155 to mean that the judgment of separation dissolves the community as of the date the petition is filed, but that nevertheless both the wife’s and the husband’s attorney’s fees are charges against the community.

We find no Supreme Court cases addressing the precise issue of whether the wife’s or the husband’s attorney’s fees incurred in a divorce action are obligations of the community where the community had been dissolved by a prior judgment of separation before the petition for divorce was filed. However, in Moseley v. Moseley, 216 So.2d 852 (La.App. 2d Cir. 1968), the court held that in a divorce action the attorney’s fees of the wife could not be a community obligation where the community had been dissolved by a judgment of separation prior to the filing of the petition in the suit for divorce. Also, in Schiro v. Perkins, 240 So.2d 920 (La.App. 4th Cir. 1970), writ of certiorari refused 257 La. 458, 242 So.2d 578, the court rejected a claim by an attorney against the wife for a fee to represent her in the divorce, where there had been a prior judgment of separation dissolving the community, and no community existed at the time the wife contracted with the attorney.

In Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975), the 16-year old wife had entered into a prenuptial agreement that there be no community. In a suit for divorce by the husband, the wife claimed her attorney’s fees. The substantial issue was the validity of the prenuptial agreement. The Court of Appeal held the agreement valid, that no community existed at the time the suit for divorce was filed, and that therefore the community was not liable for the wife’s attorney’s fees. The Supreme Court reversed, 323 So.2d 120, holding that the prenuptial agreement was null, that the community did exist at the time the suit for divorce was filed, and therefore the community was liable for the wife’s attorney’s fees. The Wilkinson case is persuasive in that the Court of Appeal and the Supreme Court appear to have assumed that if no community existed at the time the suit for divorce was filed, there could have been no liability by the community for the wife’s attorney’s fees.

In its most recent form, LSA-C.C. Article 159, controlling the effect of a judgment of a divorce, provides as follows:

“Art. 159. Effects of divorce
Art. 159. The effects of a divorce shall not only be the same as are determined in the case of a separation from bed and board, but it shall also dissolve forever the bonds of matrimony, between the parties, and place them in the same situation with respect to each other as if no marriage had ever been contracted between them.
If a community property regime exists on the date of filing of the original petition in the action in which the judgment of divorce is rendered, the judgment of divorce carries with it the dissolution of the community, which dissolution is retroactive to the date on which the original petition in the action was filed, but such retroactive effect shall be without prejudice (a) to the liability of the community for the attorney fees and costs incurred by a spouse in the action in which the judgment is rendered, or (b) to rights validly acquired in the interim between commencement of the action and recordation of the judgment.
(Amended by Acts 1977, No. 483, § 2; Acts 1979, No. 711, § 1, eff. Jan. 1,1980.)”

The second paragraph of Article 159, quoted above, makes it clear that if a community exists on the date the petition for divorce is filed, the judgment of divorce dissolves the community retroactive to the date the petition was filed, but without prejudice to the rights of either the wife or the husband to claim from the community attorney’s fees incurred in the divorce action. In light of the above discussed jurisprudence and statutory history, we think the legislature intended Article 159 as amended in 1977 to mean that if no community existed on the date of filing the petition for divorce there could be no community liability for the attorney’s fees of either the wife or the husband incurred in the divorce action.

Applying this construction of LSA-C.C. Article 159 to the present case, the community was dissolved by the judgment of separation signed on March 13, 1979, retroactive to the date suit for separation was filed on February 16, 1979. The husband filed his petition for divorce on the grounds of one year voluntary separation on February 15,1980. Thus, no community existed on the date of filing of the petition for divorce in the action in which the divorce was granted. Therefore, there was no community which could be liable for the attorney’s fees of the wife incurred in the divorce proceeding. That portion of the judgment of the district court awarding the wife’s attorney’s fees must be reversed.

On appeal, the wife argues the reasoning in Gauthreaux v. Gauthreaux, 315 So.2d 402 (La.App. 3rd Cir. 1975) would permit the court, in its discretion, to award the wife attorney’s fees incurred in the divorce, even though the community had been dissolved before the petition for divorce was filed. In Gauthreaux, the wife sued the husband for $215 in delinquent child support payments and for attorney’s fees for prosecuting this claim on behalf of the minor children. Citing Newson v. Newson, 176 La. 694, 146 So. 472 (1933), where the court awarded the wife attorney’s fees in her rule for child support, although the community had formerly been dissolved, the court held the father personally liable for the mother’s attorney’s fees. The rationale of the courts in Newsom and in Gauthreaux was that if payment of child support is refused by the father, thereby requiring the mother to file suit, the child support should not be consumed by attorney’s fees, and that the same reasoning should be even more applicable to the claim for past due child support. Under this rationale, the wife in the present case argues that to deny attorney’s fees to the wife in a divorce action, where her need for alimony is proven, as in the present case, would effectively deny her the right to seek such alimony in the courts.

Although we recognize the equity of the argument that where a suit for divorce is filed after the community has been previously dissolved, the wife who has insufficient funds to employ an attorney to present her claim for alimony in the divorce proceedings may be effectively denied her claim for alimony after divorce. Nevertheless, this case is controlled by the above cited jurisprudence, and by LSA-C.C. Article 159, as amended. There is no statute which permits an award of attorney’s fees to either spouse in the present situation. Any modification or exception to Article 159 should come from the legislature.

PERMANENT ALIMONY

The next issue is whether the trial judge erred in awarding Mrs. Palmatier alimony after divorce in the sum of $200 per month. The husband contends the wife has failed to prove a need for this amount. In her answer to the appeal, the wife contends the award should be increased to $750 per month.

Following the judgment of separation, Mr. and Mrs. Palmatier entered into a community property settlement in which Mrs. Palmatier purchased her husband’s one-half interest in the family home, valued at $65,-000 and assumed the mortgage balance of $40,000. She owns a car which is fully paid for and testified that, with the exception of the house note, she presently has no outstanding debts. Employed as an elementary school teacher, Mrs. Palmatier receives a net income of $840 per month. The house note she must pay is $360 per month. Other monthly expenses which she itemized were calculated on the basis of her having custody of the two children. Now that she will have only herself to support, these figures will be substantially less. However, considering the non-liquidity of her assets and her foreseeable expenses, we agree with the trial court that she had insufficient means for her support and is in need of $200 per month alimony.

Mr. Palmatier has a net monthly income of $1850.58. He is a professor of elementary education at Northwestern State University. He also receives some additional income from consulting fees as an expert on reading. Recently, he purchased a new home which will have to be furnished. He will now have the additional expense of raising two children.

We find no manifest error by the district judge in concluding $200 per month conforms reasonably with the needs of the wife and the ability of the husband to pay. Accordingly, we will not disturb the award of permanent alimony.

For the reasons assigned, that portion of the judgment of the trial court awarding the wife’s attorney’s fees is reversed and set aside. In all other respects, the judgment appealed is affirmed. Costs of this appeal are assessed one-half to each party.

AFFIRMED IN PART, REVERSED IN PART.


author: STOKER, Judge.

text:
    Priscilla Pitre JOLIVETTE, Plaintiff-Appellee, v. Dallas JOLIVETTE, Defendant-Appellant, Jewel Paulette Jolivette, Intervenor-Appellee.
    No. 8035.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.

      William H. Whitaker, Lafayette, for defendant-appellant.
    Peter C. Piccione, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and LABORDE, JJ.
   STOKER, Judge.

This case presents the question of whether a major daughter, Jewel Paulette Joli-vette, is entitled to alimentary support from her father, Paul Dallas Jolivette. Jewel was born of the marriage of Paul Dallas Jolivette and Priscilla Pitre Jolivette, who were judicially separated on April 5, 1976. On June 15,1979, Paul Dallas Jolivette petitioned for a divorce and Jewel intervened in the case.

As intervenor, Jewel Jolivette alleges that she “has now reached the age of majority, but is still in need of support from plaintiff due to the fact that intervenor is still attending school in order to further her education.”

Following trial the trial court awarded Jewel P. Jolivette support of $25.00 per month from Paul Dallas Jolivette. In a minute entry the court indicated it was “satisfied with the intervenor’s showing of need for this support” and accordingly granted judgment in favor of the interve-nor.

The only evidence offered at trial to establish Jewel Jolivette’s claim for alimentary support was an affidavit purporting to set forth a detailed income and expense list for the intervenor. The affidavit lists $193.00 per month as living expenses for intervenor. This total includes $83.00 per month for college tuition. No income is indicated.

We do not believe the evidence supports the court’s finding that Jewel P. Jolivette showed a need for support from her father Paul Dallas Jolivette. We conclude that the trial judge was clearly wrong in awarding the intervenor $25.00 per month in support.

Irrespective of any equities which might exist in this case, we are compelled to reverse the trial court with respect to its ruling on the intervention. The intervenor has failed in her burden of proof to establish that she is entitled to alimentary support. Under the circumstances her father owes no duty to support her. Demarie v. Demarie, 295 So.2d 229 (La.App. 3rd Cir. 1974) and Phillips v. Phillips, 339 So.2d 1299 (La.App. 1st Cir. 1976). Cf. Suire v. Miller, 363 So.2d 945 (La.App. 3rd Cir. 1978).

For the foregoing reasons assigned, so much of the judgment of the trial court in this matter dated November 28,1979, which orders Paul Dallas Jolivette to pay the in-tervenor, Jewel P. Jolivette, support in the amount of $25.00 per month beginning from the date of judicial demand and continuing for the duration of intervenor’s need is reversed. That portion of the costs of this matter in the trial court attributable to the intervention and the costs of this appeal shall be assessed to the intervenor-appellee, Jewel P. Jolivette.

REVERSED.

      . The transcript of the record forwarded from the trial court lists proceedings beginning with the petition for separation from bed and board filed by Priscilla Pitre Jolivette against Dallas Jolivette under docket number 63138E of the Fifteenth Judicial District Court for the Parish of Lafayette, Louisiana. The petition for separation from bed and board is captioned “Priscilla Pitre Jolivette versus Dallas Jolivette”. The petition for divorce brought by Paul Dallas Joli-vette is brought in the same suit but the caption was changed to read “Paul Dallas Jolivette versus Priscilla Pitre Jolivette.”

      . This claim for alimony is based upon LSA-C.C. art. 229.


author: DOMENGEAUX, Judge.

text:
    Joseph LUTE, Jr., Plaintiff-Appellee, v. The CITY OF LAKE CHARLES, Belafonte Insurance, and William J. Rogers et al., Defendants-Appellants.
    No. 8039.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.

      Raggio, Cappel, Chozen & Berniard, Stephen A. Berniard, Jr., Lake Charles, for defendants-appellants.
    Francis E. Mire, Lake Charles, for inter-venor-appellee.
    McClain, Morgan & Greenwald, Joseph W. Greenwald, Lake Charles, for plaintiff-appellee.
    Woodley, Barnett, Cox, Williams & Fen-et, Robert W. Fenet, Lake Charles, for defendant-appellee.
    Before DOMENGEAUX, STOKER and LABORDE, JJ.
   DOMENGEAUX, Judge.

At the age of fifty-one Joseph Lute, Jr. (hereinafter referred to as Lute) was employed by Pendleton Guard and Security Service, Inc. (hereinafter referred to as Pendleton) as a security guard working a forty-hour week. The initial date of his employment was November 30, 1977. He was assigned to work at the plant of Hercules, Inc. in Lake Charles, Louisiana.

As part of its services provided to Hercules, Pendleton’s employees would use Hercules’ vehicles to take Hercules’ employees home if the latter were without transportation. In the early morning hours of January 21, 1978, Lute had performed such a service, delivering a Hercules employee to his personal vehicle in the Oak Park area of Lake Charles. Within minutes thereafter, as he was returning to the Hercules plant, the southbound 1975 Ford owned by Hercules and being driven by Lute was struck by an eastbound 1975 Dodge truck being driven by its owner, William J. Rogers (hereinafter referred to as Rogers) at the intersection of Eighteenth Street and Fifth Avenue in Lake Charles. The collision was caused by Rogers’ disregard of a stop sign facing him on Eighteenth Street at the intersection.

Lute suffered a fractured cervical spine in the accident. His injury required extensive medical treatment, hospitalization and several surgical procedures.

On January 10, 1979, Lute instituted suit for his injuries and damages, naming the City of Lake Charles and its insurer, Bela-fonte Insurance Company, and Rogers as defendants. On January 16, 1979, Continental Insurance Company (hereinafter referred to as Continental) filed a petition of intervention for weekly benefits and medical expenses it has paid as the workmen’s compensation carrier for Lute’s employer, Pendleton.

On January 19, 1979, Lute filed a supplemental and amending petition naming Aet-na Life & Casualty Company (hereinafter referred to as Aetna) as a party defendant, alleging that company provided underin-sured motorist coverage on the Hercules vehicle being driven by Lute.

Subsequent thereto, Aetna filed a third party demand against Pendleton and its insurer, Continental, alleging that a contract between Hercules and Pendleton required Pendleton to indemnify Aetna for the full amount of any judgment that might be rendered against Aetna in favor of Lute.

By April 14,1980, the day of trial, Aetna was the only defendant remaining in the main demand; three other defendants, the City of Lake Charles, Belafonte Insurance Company, and Jerome Southerland, had been released outright, and the tort-feasor, Rogers, and his insurer, Dairyland Insurance Company, had settled with Lute for Dairyland’s policy limits of $5,000.00.

At the conclusion of the trial on April 16, 1980, the jury awarded Lute the sum of $693,750.00 for his injuries and damages. The third party demand of Aetna and the intervention of Continental were taken under advisement by the trial judge.

On May 14, 1980, the trial judge issued written reasons holding that Aetna was entitled to judgment in the amount of $50,-000.00 on its third party demand against Pendleton and Continental, and that Continental’s recovery on its intervention would be limited to $5,000.00, or the proceeds of the policy coverage afforded Rogers by Dairyland. A formal judgment incorporating the decisions of the trial judge and the jury was signed on June 4, 1980. An order for appeal of that judgment was filed by Aetna on June 13, 1980.

On appeal, Aetna argues (1) that the jury award to plaintiff of $693,750.00 is excessive; (2) that it is entitled to indemnification from Pendleton and Continental in the full amount of the judgment rendered in favor of Lute; and (3) the trial court erred in failing to render judgment in favor of Aetna and against Pendleton and Continental in an amount of not less than $56,190.00.

Pendleton and Continental have answered Aetna’s appeal and argue that Aetna enjoys no right of indemnification against them. Pendleton and Continental urge therefore that the trial court erred in granting judgment in favor of Aetna and against them in the amount of $50,000.00. Further, Pendleton and Continental argue that the trial court erred in refusing their claim for reimbursement against Aetna for workmen’s compensation benefits and medical expenses paid to plaintiff.

Plaintiff, Lute, opposes Aetna’s claim that the award is excessive and Pendleton and Continental’s claim that they should be reimbursed by Aetna from the proceeds of his award for workmen’s compensation benefits and medical expenses paid by them to plaintiff.

We will discuss these issues in the following order:

(1) Is the jury award excessive?;

(2) Is Aetna entitled to indemnification from Pendleton and Continental?; and

(3) Are Pendleton and Continental entitled to recover from Aetna for workmen’s compensation benefits and medical expenses paid to plaintiff?

I. IS THE JURY AWARD EXCESSIVE?

The jury awarded plaintiff $693,750.00. The award was not itemized so we do not know how much of the award is attributable to special damages and how much is attributable to general damages intended to compensate the plaintiff for pain and other damages which may not be calculated with precision.

The record establishes that plaintiff lost $23,467.16 in wages from January 21, 1978 (which was the date of the injury) to April 14,1980, the beginning of trial. Also, his medical bills to the date of trial totalled $20,802.04. Thus, the jury must have awarded plaintiff the balance, $649,480.80, for loss of future wages and general damages, including future medical expenses and past and future pain and suffering.

The court recognized Dr. John W. Chisholm, a retired economics jprofessor, as an expert economic consultant. Dr. Chisholm testified that his job is to take the work life expectancy of an individual who has been injured or killed, the occupation of that individual, and the wages of that individual, and to project the wages into the future upon certain assumptions, and then to discount them back to present value.

Dr. Chisholm calculated the undiscounted value of plaintiff’s lost wages, from April 14, 1980, through December 31, 1991 (when plaintiff will be 65 years old), to be $206,-235.05. He arrived at this figure by using plaintiff’s gross annual income of $10,642.08 (based on plaintiff’s monthly salary of $886.84). To this gross annual salary, Dr. Chisholm added 8.6% each year. Of this amount, 2.6% represented the average annual increase in productivity in the United States derived from figures published by the Department of Labor. The remaining 6% annual increase represented the inflation factor, which Dr. Chisholm acknowledged was a conservative figure, since the annual rate of inflation at trial exceeded 13%.

Then, Dr. Chisholm discounted the value of plaintiff’s lost wages of $206,235.05 to $144,830.32 by assuming that this amount was invested on April 14, 1980, and yielded 5% annually. As an alternative, he also calculated the discounted value of plaintiff’s lost wages based on an annual investment yield of 7% to be $127,298.65.

Aetna argues that Dr. Chisholm should have used plaintiff’s net wages, rather than his gross wages, to determine his loss of future income. The Supreme Court has observed that the future loss of earnings cannot be calculated with absolute certainty; these damages are somewhat speculative in nature. Robinson v. Graves, 343 So.2d 147 (La.1977); Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968). Accordingly, there is no “right” formula for establishing the loss. While net wages are sometimes used, the use of gross income is also appropriate. Duplechin v. Pittsburgh Plate Glass Company, 265 So.2d 787 (La.App. 3rd Cir. 1972); Greene v. Wright, 365 So.2d 551 (La.App. 1st Cir. 1978). We note also that Aetna did not call an expert to rebut the manner in which Dr. Chisholm calculated plaintiff’s future wage loss, nor was any other method used.

Aetna contends that the jury awarded plaintiff the sum of $250,000.00 as compensation for his future wage loss. Such a contention is sheer speculation on Aetna’s part since the jury’s award was not itemized. We believe the jury probably awarded Dr. Chisholm’s highest discounted figure of $144,830.32 for this loss. However, we find that even if the jury awarded plaintiff the amount of $127,298.65, Dr. Chisholm’s lowest discounted figure, it still would not have abused its discretion in awarding plaintiff the balance of $522,182.15 in general damages to compensate the plaintiff, Joseph Lute, for his permanent disability and for the pain and suffering he has endured since the accident, and which he will continue to suffer for the rest of his life. The brief filed on behalf of Aetna, the defendant that is trying to diminish plaintiff’s award, contains an excellent account of the plaintiff’s injuries and extensive medical care, and we quote it at length:

“As a result of the collision, Lute sustained an injury to his cervical spine. He was taken to Lake Charles Memorial Hospital and admitted by Dr. William G. Akins, Jr., an orthopedic surgeon. Lute was seen in consultation by Dr. Gerald Litel, a neurosurgeon practicing in Lake Charles, and a diagnosis was made of a broken neck, or specifically, a fracture located at the C4, 5 level with scattered, diffuse nerve damage.
A Barton Tong Brace was attached to Lute’s skull in order to effect traction at the point of the fracture. Lute remained at Lake Charles Memorial Hospital under such traction until February 24, 1978, when the Barton Tong Brace was removed.
During that hospitalization, Lute developed painful, abnormal sensations in both upper extremities, with the greatest pain being localized on the right side. He was unable to use his arms at the time in a useful or normal fashion. It was the opinion of Drs. Litel and Akins that the abnormal sensations were being caused by swelling or edema surrounding the nerves injured as a result of the fractured cervical spine.
At the time of his discharge from Memorial on March 14, Lute was fitted with a neck brace and was instructed to wear that brace at all times except when eating and shaving.
Ten days later, Lute returned to Dr. Akins’ office complaining of gradually increasing pain in both arms and shoulders. He was re-admitted to the hospital, and a cervical myelogram was carried out in April of 1978. The diagnosis was made of cervical spondylosis at the C5, 6 and 6, 7 levels. Subsequently, a foraminotomy, a laminectomy and a fusion were performed on Lute by Drs. Akins and Litel. The purpose of the operation was to fuse the fractured vertebra and free the pinched nerves.
After recovering from that procedure, Lute was discharged from the hospital, but he continued to complain of loss of motion of the neck and pain radiating into the upper extremities, with the greatest complaints of pain being on the right extremities. An electromilogram was conducted by a local neurologist, Dr. Samieh, and it was his opinion that Lute had evidence of a bilateral carpal tunnel syndrome, which is compression of the medial nerve at the wrist. Thereafter, another surgical procedure was performed to release the nerves at the wrist to reduce the pain in Lute’s hands.
It was the consensus of all medical experts testifying at the trial that Lute has reached maximum medical recovery and that he probably will suffer almost constant pain in his shoulders and upper arms from the nerve root damage. In addition, he has limited range of motion in his shoulders and neck. There is no further medical treatment that can be rendered to Lute to relieve or improve any of those residuals.
There also was testimony at the trial by Lute and his wife that he had been rendered sexually impotent by the injuries which he had received in the accident. Because of those complaints, Lute had been referred by Dr. Akins to Dr. Logan P. Perkins, Jr., a local urologist, for evaluation of the alleged sexual dysfunction.
Dr. Perkins’ examination of Lute revealed nothing of an organic nature to substantiate the existance of impoteney. Thereafter, Dr. Perkins referred Lute to a sleep lab in Houston in an attempt to differentiate between an organic or psychological aspect of the dysfunction. Tests performed at the sleep lab revealed that Lute was capable, in the sleeping state, of attaining an erection. However, those findings did not confirm whether the cause of the alleged impoteney was psychological or social, which were factors that could prevent the appropriate arousal. Dr. Perkins stated that the arousal factor is very significant and that pain could interfere with the ability to attain an erection. The testimony of the other medical experts at the trial was in agreement with Dr. Perkins’ statements on pain and the arousal factor.
* s|« * if; jfc
There is no question that Lute suffered serious injuries in the January 21, 1978 accident. He was admitted to Lake Charles Memorial Hospital on ten occasions for those injuries and was hospitalized a total of eighty days at that institution. The sole question at this time is whether the jury’s general damage award ... was within a reasonable limit.” (Emphasis added)

We conclude that the jury’s general damage award was supported by the evidence. The record demonstrates and Aetna acknowledges that plaintiff will live in pain for the remainder of his life. Aetna lamely argues that plaintiff’s constant pain is not substantial enough to support the jury’s award. We think the measuring of another’s constant pain is usually more difficult than calculating that person’s loss of future wages. Hence, we feel more inclined to accept the verdict of the jury, which enjoys the distinct advantage of observing the plaintiff firsthand, weighing his credibility, and weighing the credibility of the other witnesses before determining what the plaintiff’s pain is worth. Under this set of circumstances, we do not think the jury abused the “much discretion” the law has given it in assessing a plaintiff’s general damages. La.C.C. Art. 1934(3); Reck v. Stevens, 373 So.2d 498 (1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (1976).

II. IS AETNA ENTITLED TO INDEMNIFICATION FROM PENDLETON AND CONTINENTAL?

By agreement between the parties, this issue was tried by the court, rather than by the jury. The trial court discussed and resolved the issue in the following manner:

“... Lute, at the time of the accident, was an employee of Pendleton. A contract was in existence between Hercules and Pendleton, whereby Pendleton agreed to indemnify and hold harmless Hercules for any loss, damage or injury to any of its employees, unless such damage or injury resulted from the actionable negligence of Hercules. Continental insured Pendleton’s obligation under the indemnity agreement. Hercules is not a party to this suit. A jury verdict was rendered in favor of Lute for his damages against Aetna as the UM carrier. Aetna seeks by its third party demand to recover the amount it has been cast in judgment from Pendleton and Continental by virtue of the indemnification agreement between Pendleton and Hercules.
The controlling principles are enunciated in Nieman v. Travelers Insurance Company, 368 So.2d 1003.
Under Nieman, Aetna, the UM carrier, is entitled to the rights granted specifically by R.S. 22:1406. If that statute affords rights to Aetna against Pendleton and Continental, then Aetna would be entitled to recovery on its third party demand. However, the statute does not specifically grant such rights to Aetna. Nieman further says that in the event the claim attempted to be asserted by the UM carrier is not covered by the statute, then the principles of subrogation come into effect. In such a case, the UM carrier is placed in the shoes of the creditor, which may or may not be the insured. In this instance, the creditor is Lute, not Hercules. Accordingly, since Lute has no rights under the indemnification agreement between Pendleton and Hercules, Aetna, in being placed in the shoes of Lute, acquires no rights against Pendle-ton and Continental.
Aetna, however, is entitled to judgment in the amount of $50,000.00 on its third party demand against Pendleton and Continental because of the indemnity agreement between Pendleton and Hercules. The contract of insurance between Aetna ad Hercules provides for a $50,-000.00 deductible to be paid by Hercules. This deductible amount should be paid by Pendleton since under the indemnity agreement Pendleton agreed to indemnify Hercules from any such losses. Continental is the insurer of Pendleton’s obligation under the indemnification agreement. To hold otherwise would produce the following result. Hercules, under its contract with Aetna, would be obligated to reimburse Aetna the $50,000.00 deductible amount. Yet, under the indemnification agreement with Pendleton, this amount should be paid by Pendleton instead of Hercules. Another unnecessary lawsuit would be precipitated involving the claim of Aetna against Hercules for the $50,000.00, and, in turn, the claim of Hercules against Pendleton and Continental for the $50,000.00 under the indemnification agreement. The present third party demand by Aetna against Pendleton and Continental for the full amount of the judgment is sufficiently broad to include this claim for partial reimbursement in the sum of $50,000.00.
As for the suggestion that this $50,-000.00 be deducted from Lute’s judgment, Lute cannot be prejudiced by the contractual rights and obligations existing between Aetna, Hercules, Pendleton, and Continental. He is entitled to the full amount of his judgment without any deduction therefrom.”

When the trial court decided the issue, he correctly determined that Aetna did not enjoy any subrogation rights against Pendleton and Continental because any right it did have would be acquired from the insured plaintiff (or creditor), Joseph Lute, rather than the insured Hercules. Since Lute can have no claim against Pen-dleton, his employer, or Continental, the insurer, other than his workmen’s compensation claim, Aetna can have no claim against Pendleton or Continental.

The trial court’s effort to avoid unnecessary lawsuits is laudable, but we believe the court erred in granting judgment in favor of Aetna and against Pendleton and Continental in the amount of $50,000.00 based on the indemnity agreement between Pendleton and Hercules. The important paragraphs of that indemnity agreement, paragraphs 9, 10, and 11, read as follows:

“9. The Service shall indemnify and hold harmless Hercules for any loss, damage or injury to the person or property of the Service and any of its employees or agents unless such loss, damage or injury which result from the actionable negligence of Hercules, its employees or agents, [sic]
10. The Service shall also indemnify and hold harmless Hercules from and against any claim for injury to any person, including loss of life, occasioned directly or indirectly, either wilfully or negligently by any person employed by the Service while engaged in the performance of work hereunder, unless said injury, including loss of life, shall result from the actionable negligence of Hercules, its employees or agents.
11. In the event of its liability under paragraphs 9 and 10 hereinabove set forth, the Service shall, at its own cost and expense, defend any action or proceeding brought against Hercules, and promptly pay or cause to be paid any judgment or other recovery against Hercules in any such action or proceeding, including damages, cost and allowances, and further shall pay to Hercules any cost and expense incurred by it in connection with any such claim, action or suit.”

Pursuant to paragraphs 9 and 10 of the agreement, which the parties have agreed was in force at the time of the accident, Pendleton has agreed to hold Hercules harmless for the injuries sustained by Lute or from and against any claim for Lute’s injuries.

Pursuant to paragraph 11, in the event its liability in paragraphs 9 and 10 is triggered, Pendleton has agreed to defend any action or proceeding brought against Hercules, to promptly pay any judgment or other recovery against Hercules in any suit, action, or proceeding, and to pay to Hercules any cost and expense incurred by it (Hercules) in connection with any such claim, action, or suit.

Since no action or proceeding has been instituted against Hercules by any party to this lawsuit, and since there has been no judgment or other recovery against Hercules in any suit, action, or proceeding, Pen-dleton and Continental have incurred no liability under their indemnity agreement with Hercules. The judgment rendered against them on account of the indemnity agreement is therefore premature and cannot survive.

The progression of lawsuits envisioned by the trial court may occur as a result of this judgment. However, that is not the fault of the trial court or of this Court. The parties had ample time in which to add Hercules as a party plaintiff or defendant to this suit to fully resolve the issues of indemnity between Aetna and Hercules and between Hercules and Pendleton. They chose not to do so. If we were to affirm the trial court’s judgment in favor of Aetna and against Pendleton and Continental, we would in effect be recognizing that Hercules is liable to Aetna for $50,000.00 under its contract of insurance with Aetna and that Pendleton would then be liable to Hercules for the $50,000.00 based upon its indemnity agreement with Hercules. We decline to make such conclusions when those issues were not fully tried and are not before the Court at this time. We only hold that since no action was brought nor judgment rendered against Hercules, Pendleton and Continental have incurred no liability based upon their indemnity agreement with Hercules.

III. ARE PENDLETON AND CONTINENTAL ENTITLED TO RECOVER FROM AETNA FOR WORKMEN’S COMPENSATION BENEFITS AND MEDICAL EXPENSES PAID TO PLAINTIFF?

The trial court answered this question as follows:

“The intervention of Continental seeking recovery of workmen’s compensation benefits has also been presented to the court for determination.
Continental is restricted in its recovery to the proceeds of the policy coverage afforded Rogers by Dairyland in the sum of $5,000.00. It is not entitled to any of the proceeds owned by Aetna to Lute under its UM coverage: Gentry v. Pugh, 362 So.2d 1154 [(La.App. 2nd Cir. 1978), writ denied 363 So.2d 922].”

The Gentry case is exactly on point with the instant case insofar as this issue is concerned. Gentry held that an uninsured motorist carrier is not the type of “third person” from whom the workmen’s compensation insurer can recover, under La.R.S. 23:1101-1103 (the workmen’s compensation reimbursement statute), the amount it has paid in compensation to an employee who was injured by a third party tortfeasor. We will follow the Gentry case and affirm the trial court’s judgment on this issue.

DECREE

For the above and foregoing reasons, the judgment of the district court which granted judgment in favor of Aetna and against Pendleton and Continental in the amount of $50,000.00 is reversed; it is hereby Ordered, Adjudged, and Decreed that the third party demand of Aetna against Pendleton and Continental be dismissed. The judgment is affirmed in all other respects. Costs are assessed one-half to Aetna and one-half to Pendleton and Continental.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . Dr. Chisholm explained as follows:
      “Discounting back to present value simply answers this question: How much if awarded today and invested at a certain rate of interest would allow an individual each year to receive what they would have made had they not been injured, but at the end of work life expectancy there would be nothing left in the fund .... ”

      . He further predicted that the rate of inflation would not be reduced to the 6% range for many years but he continued to use that figure because he was conservative.

      . In his brief, counsel for Aetna suggests a formula utilized by this Court in Lanclos v. Hartford Acddent & Indemnity Company, 366 So.2d 621 (La.App. 3rd Cir. 1978). There, at footnote 4, we observed that there are other ways to calculate the loss of future wages. Aetna offers us no reason to accept the Landos method over Dr. Chisholm’s approach. Since Dr. Chisholm’s method was apparently used by the jury, we will use it too, to determine whether the jury abused its discretion.

      .We feel the jury might have awarded an even higher amount based on the evidence. Dr. Chisholm testified that a man at age 65 has a work-life expectancy of 5.7 years. Thus, the jury could have made a higher award based on plaintiff working until age of 70 or 71. While work past age 65 is speculative, Landos, supra (footnote 3), the Supreme Court has noted that any future loss is speculative, Robinson v.

        Graves, supra, and this Court has recently approved the use of a work-life expectancy past age 65. Huval v. Sinitiere, 376 So.2d 548 (La. App. 3rd Cir. 1979). Furthermore, no evidence suggests that Pendleton required its employees to retire at age 65.

      . See 40 L.L.R. 748 for a critical discussion of the problem at issue here and in Gentry, the reimbursement of a compensation insurer by an uninsured motorist insurer. The discussion, authored by Professor Alston Johnson, agrees with the Second Circuit’s resolution of the problem as expressed in Gentry.


text:
    TENNECO, INC., Plaintiff-Appellee, v. The HAROLD STREAM INVESTMENT TRUST et al., Defendants-Appellants.
    No. 8060.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.

      Camp, Carmouche, Palmer, Barsh & Hunter, A. J. Gray, III, Lake Charles, for defendants-appellants.
    Shotwell, Brown & Sperry, George Wear, Jr., Monroe, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER, and LABORDE, JJ.
   DOMENGEAUX, Judge.

On March 10, 1980, plaintiff, Tenneco, Inc., filed expropriation petitions seeking a 30-foot wide right-of-way for an existing pipeline, which it operates across tracts of land located in Cameron Parish, Louisiana. These tracts of land are owned by the defendants in this suit, The Harold Stream Investment Trust, The Sandra Stream Investment Trust, and The Gray Stream Investment Trust, and the defendant in the consolidated suit, Matilda Gray Stream. (All the defendants are hereinafter referred to as landowners). The landowners filed numerous exceptions, all of which were dismissed by the trial court and are no longer at issue, and then answered the petition, denying most of Tenneco’s allegations.

Since Tenneco requested a jury trial on the issue of just compensation, the trial of all other issues was held before the trial judge on April 14, 1980. The matter was taken under advisement until April 18, 1980, when the court issued notice of its ruling in favor of the defendant-landowners. Judgment was signed on May 9, 1980, dismissing with prejudice Tenneco’s demands for expropriation. Tenneco then timely filed a motion for a new trial. A hearing on this motion was held on May 22, 1980, after which the trial court granted a new trial for the limited purpose of amending the judgment to be without prejudice. That same day, the court signed the amended judgment dismissing the cases without prejudice. The amended judgment specifically set aside the judgment signed in the consolidated cases on May 9, 1980.

On July 28, 1980, a petition for appeal was filed by the landowners and an order of appeal was granted on the same date. The landowners have appealed only from that portion of the amended judgment which dismissed the cases without prejudice. They argue that the cases should have been dismissed with prejudice.

On September 11, 1980, Tenneco filed a motion to dismiss the appeal, arguing that the appeal was not timely perfected within the delay authorized by law. In addition, Tenneco has answered the appeal and seeks to reverse the judgment dismissing its principal expropriation demands. Tenneco argues that the evidence it presented sufficiently proved that the taking of the requested right-of-way was necessary and served a public purpose.

We will first decide Tenneco’s motion to dismiss before determining (1) whether the evidence Tenneco produced was sufficient to prove its entitlement to a right-of-way, and (2) whether Tenneco’s demands should have been dismissed with or without prejudice.

MOTION TO DISMISS

Tenneco moves to dismiss the devolutive appeal of the landowners in these cases on the ground that the appeal was not timely perfected. Tenneco argues that since the landowners’ devolutive appeal was not perfected until some 67 days after the court’s judgment of May 22, 1980, which amended the original judgment to be without prejudice but which otherwise denied the motion for a new trial, their appeal should be dismissed.

The delay for perfecting a devolutive appeal is set out in La.C.C.P. Article 2087:

“Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of:
(1) The expiration of the delay for applying for a new trial, as provided by Article 1974, if no application has been filed timely;
(2) The court’s refusal to grant a timely application for a new trial, if the applicant is not entitled to notice of such refusal under Article 1914; or
(3) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial, if the applicant is entitled to such notice under Article 1914.
When a devolutive appeal has been taken timely, an appellee who seeks to have the judgment appealed from modified, revised, or reversed as to any party may take a devolutive appeal therefrom within the delays allowed in the first Paragraph of this Article or within ten days of the mailing by the clerk of the notice of the first devolutive appeal in the case, whichever is later.”

Tenneco argues that since a new trial was applied for, the sixty day period should begin to run from May 22,1980, the date of the court’s refusal to grant a new trial. However, the judgment of May 22, 1980, not only denied the motion for a new trial; it also vacated the May 9, 1980, judgment and rendered an amended judgment.

When an amended judgment is rendered, the parties have a new delay in which to apply for a new trial. Therefore, the delay for a devolutive appeal begins to run from the expiration of the delay for applying for a new trial, as provided by La.C.C.P. Article 1974, if no new application for a new trial has been filed timely. La.C.C.P. Article 2087(1).

An identical situation was presented to this Court in Quinney v. Maryland Casualty Co., 344 So.2d 1186 (La.App. 3rd Cir. 1977). In Quinney, judgment was rendered and a new trial was applied for timely. The trial court denied the motion for a new trial, but amended its previous judgment. This Court held that the delay for an appeal did not begin to run until the seven day delay period provided for applying for a new trial from the amended judgment had expired. For the same result, see Ware v. Wilson, 283 So.2d 813 (La.App. 2nd Cir. 1973).

In accordance with Quinney, supra, the landowners here had, under La.C.C.P. Articles 1974 and 2087(1), sixty days from June 2,1980, which is seven clear days from the amended judgment of May 22, 1980, in which to perfect their devolutive appeal. The landowners’ appeal, perfected on July 28, 1980, was thus timely and Tenneco’s motion to dismiss the appeal is denied.

DID THE TRIAL COURT ERR BY DISMISSING TENNECO’S EXPROPRIATION SUITS?

Tenneco, Inc. is a foreign corporation engaged in the business of transporting natural gas by way of pipeline to supply the public with natural gas. As such, it is entitled, under La.R.S. 19:2(5) to expropriate needed property. Pursuant to Article 1, Section 4 of the Louisiana Constitution of 1974, expropriation may not occur except for a public and necessary purpose and with just compensation paid to the owner. The expropriating authority bears the burden of proving that the taking serves a public and necessary purpose. The trial court in this instance concluded that Tenneco failed to carry its burden of proof that the taking was for a necessary public purpose. We agree for the reasons given by the trial court, which we quote as follows:

“... The feature of this expropriation suit that is somewhat unusual is that the pipeline is already in existence, having been constructed as a result of conventional agreements at an earlier time. The term of the earlier agreements expired, negotiations for a permanent right-of-way were not fruitful and the suits resulted.
On December 17, 1959, Matilda Ged-dings Gray, for herself and for others, granted a right-of-way to Socony Mobil Oil Company, Inc. traversing land in Cameron Parish, Louisiana. The purpose of the right-of-way was for construction of a pipeline. That conventional right-of-way agreement provided that it was effective for a ‘maximum period of twenty (20) years from the date hereof ... ’ In 1965 Socony Mobil Oil Company, Inc. transferred to Tennessee Gas Transmission Company twenty-four (24) miles of sixteen (16) inch pipeline together with all rights-of-way pertaining thereto. Included in that transfer was the right-of-way across the subject property. On April 8,1966 Tennessee Gas Transmission Company changed its name to Tenneco, Inc. Documentation of the change was filed with the Secretary of State of Louisiana on May 3, 1966.
The Federal Power Commission held a hearing on April 18, 1968 to approve the transfer to Tennessee Gas Pipeline Company (a division of Tenneco, Inc.) of the twenty-four (24) mile portion of the Cameron-Creole line then owned by Mobile Oil Corporation. The commission approved the transfer of ownership and came to these official conclusions:
‘1) Applicant, Tennessee Gas Pipeline, a division of Tenneco, Inc., is a "natural gas company” within the meaning of the natural gas act.
2) The facilities herein before described, as more fully described in the application, will be used in the transportation of natural gas in interstate commerce subject to the jurisdiction of the commission, and the acquisition and operation of the facilities by the applicant are subject to the requirements of Section 7(c) and (e) of the Natural Gas Act.
3) The acquisition and operation of the facilities are required by the public convenience and necessity, and the certificate should be issued as hereinafter ordered.’

The certificate from the FPC, now the Federal Energy Regulatory Commission, was introduced into evidence at the hearing. Because the pipeline is already constructed and is in service currently, the plaintiffs did not feel it was necessary to present the usual evidence regarding route selection. The plaintiffs explained their approach in a memorandum brief with the following language:

‘Therefore, many traditional questions such as selection of the route of the pipeline or the necessity of the taking of a servitude across a particular tract of land as opposed to the necessity of taking in general are not involved in these proceedings.’

The Court feels that this is an error and this approach has resulted in a failure of the plaintiff to carry the burden imposed upon it by appropriate law.

An expropriation proceeding is in derogation of the common right to own property. The laws attendant thereto and in furtherance thereof must be strictly construed. Each step in the proceeding must be carefully scrutinized. Texas Gas Transmission Corporation versus Soileau, [251] So.2nd 104 (La.App. 3rd Circuit, 1971).

Tenneco produced evidence to show that it is a business corporation involved in the transmission of natural gas by way of pipelines. It produced the Certificate of Public Convenience and Necessity referred to above, whereby it is identified as a “natural gas company” and wherein the pipeline system acquired from Mobil Oil Company was designated as one intended for use to transport natural gas in interstate commerce.

It is well settled in the State of Louisiana that the issuance of a Certificate of Public Convenience and Necessity cannot be attacked collaterally by a state court. Tennessee Gas Transmission Company versus Violet Trapping Company, 200 So.2nd 428 (La.App. 4th Circuit 1967). Sique [Sique] versus Texas Gas Transmission Company [D.C.], 235 Fed.Supp. 155. But, the fact that the use of this line has been approved by the FERC for transportation of natural gas in interstate commerce does not preclude the raising of the question in the state court as to whether or not Tenneco is fulfilling the purpose of the certificate.

Tenneco produced no evidence as to the origin of the natural gas; its destination; whether the prospective sales will benefit the public as contemplated in the certificate of 1968; and whether the ultimate destination would qualify the transactions regarding the natural gas as interstate in nature. The filing of a Certificate of Public Convenience and Necessity in an expropriation proceeding is not conclusive on the issue of the right to expropriate the property in question. [Texas Gas Transmission Company v. Soileau, 251 So.2d 104 (La.App. 3rd Cir. 1971)]. The plaintiff must produce some evidence that its particular expropriation will further the aid of the administrative action of the Federal Energy Regulatory Commission.

In order to exercise the power granted to condemnors in L.R.S. Title 19, the plaintiff holding a Certificate of Public Convenience and Necessity must demonstrate that this particular taking is pursuant to the certificate. It is said that the condemnor has considerable discretion in selecting one location over another and the condemnor will be supported absent fraud, bad faith, or abuse of the privilege. On the basis that the right-of-way being sought by the condemnor in these proceedings already has the condemnor’s pipe located thereon and is in operation, no evidence was presented at all on this question.

Because of the strict construction required in expropriation proceedings we cannot make assumptions, in the total absence of evidence, that the route selection is best simply because the condemnor has made its decision. Some evidence must be presented to the court for review to see whether or not its privilege has been abused.

It may be felt that the plaintiff here can rely on the presumption that the route selection and the selection of right-of-way widths and limiting conditions proposed by a condemnor for public purposes are made upon sound engineering principles. But, here the presumption should not be in effect because 1) the plaintiff has failed to show the court what the purpose of its taking will be (relying on a FERC Certificate stating that the line is intended for transmission of natural gas in interstate commerce to serve the public interest) and; 2) the certificate was issued twelve (12) years ago incidental to the transfer of an existing pipeline from Mobil to Tenneco. Whatever engineering principles were considered in the construction of the existing lines twenty years ago, the minimum burden which the plaintiff would have to shoulder would be to demonstrate that the considerations of twenty years ago are still pertinent. For instance, the width of the servitudes in the conventional rights-of-ways were agreed upon by consenting parties. Those agreements reflect that the right-of-way width would be one hundred (100) feet for construction and would revert to the size of the pipe except for purposes of entrance thereon to maintain or repair. The court cannot be left to speculate that this right-of-way width is still appropriate. Also, there may be present need for limiting conditions which did not exist twenty (20) years ago. Since the plaintiff did not present a plan on its use of the right-of-way, the court could not direct how the use would be limited to protect the rights of the defendant. The location of this line along with the attendant features was decided upon by Socony Mobil Oil Company more than twenty (20) years ago. For the condemnor to defer its engineering decisions to unidentified engineers who made the decision for a different company at a different time and, perhaps, for different purposes, simply on the basis that a pipeline is already in place, amounts to an abuse of the privileges of expropriation.

For the above reasons, with which we concur, the trial court held that Tenneco failed to prove its right to expropriate the particular property involved against all defendants.

SHOULD TENNECO’S SUITS BE DISMISSED WITH OR WITHOUT PREJUDICE?

Originally, the trial court dismissed Tenneco’s suits with prejudice. However, after a hearing on Tenneco’s motion for a new trial, the court reversed itself and ordered that Tenneco’s suits be dismissed without prejudice. We think the trial court was correct in doing so.

In acceding to Tenneco’s request that its demands be dismissed without prejudice, the trial court said, in pertinent part:

“... [H]ere Tenneco is clothed with the right and powers of the sovereign, and Tenneco cannot extinguish that by conventional means, and I think that this power cannot be lost by accident, either. I think the failure to ... what the Court has considered the failure of counsel to adequately or sufficiently present its case will not result in the loss of the sovereign power. Consequently, the dismissal should have been without prejudice.”

We agree.

The case of Tennessee Gas Transmission Company v. Violet Trapping Company, 200 So.2d 428 (La.App. 4th Cir. 1967), declared that a public utility which enjoys the right of expropriation by virtue of its serving public purposes cannot contract away that right granted to it by law for the public benefit. The Fourth Circuit based its assertion upon the legal principle found in La. C.C. Art. 2626, which Article states the basis of the right to expropriate in the following manner:

“The first law of society being that the general interest shall be preferred to that of individuals, every individual who possesses under the protection of the laws, any particular property, is tacitly subjected to the obligation of yielding it to the community, wherever it becomes necessary for the general use.”

We think that the trial court was correct in extending the rule of the Tennessee Gas Transmission case to the instant one in which an expropriating authority (Tenneco) faces the loss of its right to expropriate simply because evidence that was ostensibly available was not produced due to an erroneous belief that a certificate of public convenience and necessity and the fact that a pipeline was already constructed constituted sufficient evidence to prove the expropriator’s entitlement to a right-of-way. We do not believe the right to expropriate can be lost in such a manner.

Our decision is bolstered by the decision of Parish of Jefferson v. Harimaw, Inc., 297 So.2d 694 (La.App. 4th Cir. 1974). There, the expropriating authority, Parish of Jefferson, instituted an expropriation proceeding against the defendant. The defendant timely filed its answer. Thereafter, but before trial, the trial court, on Parish of Jefferson’s ex parte motion, dismissed the expropriation proceeding without prejudice, apparently in violation of La.C.C.P. Article 1671 which provides that if an application by plaintiff to dismiss his suit is made after the defendant makes a general appearance, the court may refuse to grant the judgment of dismissal except with prejudice. However, the Court of Appeal affirmed, reasoning as follows:

“... To dismiss this suit with prejudice would terminate forever the right of the plaintiff political subdivision to exercise its statutory right to expropriate the property. LSA-R.S. 19:2. A dismissal ‘other than without prejudice’ as urged by defendant would undeniably be an abuse of discretion.”

Although the Harimaw case was dismissed prior to trial, whereas the instant case was dismissed after trial, the rationale is the same in both: an expropriating authority’s right to expropriate should not be forever terminated by dismissing its suit with prejudice, especially under this set of circumstances.

From the evidence already before us, it appears likely that Tenneco will be able to supply evidence which proves that it is entitled to a right-of-way across the landowners’ tracts of land. Plaintiff has already proven to the trial court’s satisfaction that it purchased the 24 miles of pipeline in question from Socony Mobil Oil Company in 1965 and that it obtained a Certificate of Public Convenience and Necessity from the Federal Power Commission in 1968. It appears that that certificate is still valid. It also appears that the pipeline is still being used by Tenneco to transport oil, even though the twenty year conventional right of way granted by the landowners has expired. Only Tenneco’s reliance upon its certificate of public convenience and necessity caused it to neglect to produce other evidence proving its right to obtain a right-of-way along the existing pipeline route. Ten-neco claims that it can and will offer that evidence if given the chance. We believe it must be given that chance.

DECREE

For the above and foregoing reasons, the judgment of the district court which dismissed, without prejudice, the expropriation suit of plaintiff, Tenneco, Inc., which sought a right-of-way across tracts of Cameron Parish land belonging to the defendants herein, The Harold Stream Investment Trust, The Sandra Stream Investment Trust, and The Gray Stream Investment Trust, is affirmed. Costs of this appeal are assessed one-half to Tenneco, Inc., and one-half to the defendants.

AFFIRMED.

      . Since this case and the one which follows, Tenneco, Inc. v. Stream, La.App., 394 So.2d 750, involved substantially the same issues, they were consolidated at trial. Thus we will discuss the issues only in this case, # 8060, although a separate opinion is being handed down this day in # 8061.


text:
    TENNECO, INC., Plaintiff-Appellee, v. Matilda Gray STREAM, Defendant-Appellant.
    No. 8061.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1981.
    Camp, Carmouche, Palmer, Barsh & Hunter, A. J. Gray, III, Lake Charles, for defendant-appellant.
    Shotwell, Brown & Sperry, George Wear, Jr., Monroe, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER, and LABORDE, JJ.
   DOMENGEAUX, Judge.

For the reasons this day assigned in the consolidated case of Tenneco, Inc. v. The Harold Stream Investment Trust et al., 394 So.2d 744 (La.App. 3rd Cir. 1981) (# 8060), the judgment of the district court which dismissed, without prejudice, the expropriation suit of Tenneco, Inc. which sought a right-of-way across a tract of Cameron Parish land belonging to defendant Matilda Gray Stream, is affirmed. Costs of this appeal are assessed one-half to Tenneco, Inc., and one-half to Matilda Gray Stream.

AFFIRMED.