Lucas v. Deville (385 So. 2d 804, 1979)

STOKER, Judge.

This is a suit by plaintiff-appellant, B. J. Lucas, for personal injuries sustained in an industrial accident. The accident occurred on August 6, 1976, while Lucas was performing services for his employer, Pelican Truck Lines, Inc. There are two defendants in this case. One of the defendants is W. E. “Coon” Deville, also an employee of Pelican Truck Lines, Inc. and who plaintiff alleges is an executive officer of Pelican Truck Lines, Inc. The other defendant is Market Insurance Company, the comprehensive general liability insurer of Pelican Truck Lines, Inc. The petition alleges that plaintiff’s injuries resulted from negligence on the part of W. E. “Coon” Deville; therefore, this is an “executive officer” suit, so called.

The issues are (1) was Deville negligent so as to be liable to plaintiff, and if so, (2) was Deville an executive officer of Pelican Truck Lines, Inc., so as to be within the liability coverage of the policy of Market Insurance Company, and if so, (3) did Market’s policy contain exclusions of coverage under the circumstances, and (4) if plaintiff is entitled to recover from one or both defendants, what amount will compensate plaintiff for his damages?

We avail ourselves of the statement of facts contained in the trial court’s reasons for judgment. We also set forth its holding relative to the liability issue. We quote in part therefrom as follows:

FACTS

Sometime before August 6, 1976, Mr. A. D. Chisum of Sicily Island, who was in the sand, gravel and cement business, decided to sell a cement hopper and agreed with an unidentified buyer to dismantle the hopper and put it in transportable condition. Around August 4, 1976, Chis-um telephoned the Pelican Truck Lines, Inc. office in Jena and asked for help in getting the hopper down and onto a set of wheels. On August 5, 1976 Chisum met with W. E. Deville, a truck pusher for Pelican, and showed him the hopper and the site from which it was to be removed. In the telephone call and during the on site inspection, Chisum represented to Deville that the hopper was empty.

The hopper involved was a large rectangular box standing upright on four legs. The box portion was eight feet square on the top and bottom and twelve feet tall with a cone or pyramid shaped bottom fitted with a gate valve at the lower end through which dry cement could be emptied by gravity into a truck below. Including the four steel legs, the overall height was approximately forty feet. The empty weight of the structure was in the ten to fifteen thousand pound range. The hopper was equipped with a vibrator that could shake the cement enough to cause it to flow if it became packed inside. On the top there was a manhole cover which was by design water tight and which could be unbolted and removed to permit access to the interior of the bin.

The bin was as indicated, 8 X 8 X 12 feet. It thus could contain 768 cubic feet of material. The bottom part of the bin below the 12 foot tall “box”, was cone or pyramid shaped with an 8 X 8 foot base. The “height” of the cone or pyramid was not given and thus its cubic capacity cannot be exactly computed. It can reasonably be estimated however that the total capacity was probably in the neighborhood of 800 cubic feet.

This particular bin was being used to store and load dry cement. Such material weighs 94 pounds per cubic foot. Thus, the contents of this bin could weigh up to about 75,200 pounds. At 27 cubic feet per cubic yard, one yard of dry cement would weigh 2,468 pounds. There may be some variation in the weight of cement as Mr. Chisum testified a yard might weigh between 2,500 and 3,800 pounds.

Pelican Truck Lines generally moves oil field equipment. It had in the past moved one cement hopper and had on other occasions moved similar hoppers used by oil drilling operators to hold drilling mud compounds. The method used to move the drilling mud hoppers is the same as used in this case. These other hoppers were similar in design but were usually smaller or mounted lower than Mr. Chisum’s hopper.

The procedure envisioned by Deville was one using two gin pole trucks and drivers, including plaintiff, who were familiar with the procedure. Mr. Lucas was to place his truck, which was Pelican’s largest gin pole truck, on one side of the hopper and reel out a length of cable from a winch through the upright gin poles. The cable was attached to the cement bin. Another gin pole truck was positioned on the other side of the cement bin and rigged up on similar fashion. Somehow the legs on one side of the bin were hinged and the legs on the side opposite from the hinges were unbolted or cut. The smaller of the two trucks was to pull the bin over from the hinged side. The larger truck, driven by plaintiff, was to be used to gradually let the bin down so it would end up laying on its side. Mr. Lucas was to operate the powered winch on his truck from inside the cab and gradually let cable out to control the downward movement of the hopper.

The operation commenced as planned on the morning of August 6, 1976. Mr. Chisum was present and the bottom gate of the hopper was open. No cement was coming out of the bin. Mr. Lucas was in the position assigned to him by Mr. De-ville. The other truck pulled the hopper over as planned while Lucas gradually released cable from his side. Suddenly as the hopper reached the point where it would tip over, gravity and the weight of the hopper overwhelmed Mr. Lucas’s equipment. His truck was tipped up on its back wheels. The cable disengaged or broke and the truck dropped back into its normal upright position. The up and down motions were forceful enough to break the seat from which Mr. Lucas was operating the winch. He sustained a facial laceration and immediately complained of severe back pain. He needed assistance to get out of the truck and was immediately transported to the LaSalle General Hospital near Jena, Louisiana.

After the accident Mr. Chisum’s employees removed approximately five cubic yards of unmixed dry portland cement from the bin which purportedly had been empty, but which in fact was not. The load on the cable of Mr. Lucas’s truck was thus underestimated by between 12,-340 and 19,000 pounds. In effect, the bin being lowered weighed about twice what was expected. Instead of 10,000 to 15,000 pounds, there were up to about 34,000 pounds of load being lowered. The overload was at least 12,340 pounds.

Pelican owned a large mobile crane which was not employed in the August 6th attempt that resulted in this litigation. Its lifting capacity was not established in this case. Mr. Deville was authorized to select what equipment was needed for a given job. He elected to use the procedure described above to dismantle or lower Chisum’s cement hopper.

# * # * * *

W. E. Deville was authorized by Pelican Truck Lines to supervise any job assigned to one of his crews. He was employed as a “truck pusher” by Pelican. He could select what equipment would be used. He could call a crew off a job or stop work or direct that work not be started if in his opinion the equipment was not in good working order or not suitable for a given task or if other unsatisfactory conditions were encountered. On this job, he could have directed that the equipment movement not be undertaken if the cement bin had still been connected to an electrical power source. He could have done the same thing had he noticed or had been informed the bin contained a significant quantity of cement. He was empowered to call out Pelican’s crane if he determined it was needed. He was a member of Pelican’s board of directors.

The corporate president, David Deville, was generally regarded by W. E. Deville and the other truck pushers as being the only corporate officer who could agree on behalf of Pelican that Pelican would enter into a contract to perform a given job. David Deville controlled hiring of personnel. Pelican is a closely held corporation that in fact is operated by David Deville alone. The board of directors seldom or never meets.

In the trial court’s conclusions, it stated the following:

This Court is of the opinion this accident was most unfortunate and the reason for it is readily apparent now. Nevertheless, the question of whether or not W. E. Deville was negligent turns on the facts and information available to him before the accident. As related above, Pelican regularly moves heavy objects but does not do so often for customers in the cement business. Here, W. E. Deville was dealing with someone he knew had been engaged in the cement business for some time. Thus, it is my belief Deville was reasonable in accepting Chisum’s verbal assurance the hopper was empty. Furthermore, the door at the bottom of the hopper was open and no product was coming out. The conclusion, that the hopper was empty was erroneous but in this case Deville had ample and reasonable cause to believe it was true. Under such circumstances, I believe it would be unreasonable to conclude he had a duty to look further. The evidence reflects he had no reason to suspect Chi-sum was in error and thus was not on any notice this object was likely to be so much heavier than it appeared to be. It is my view the equipment employed on this job was adequate to handle the empty hopper easily.

Mr. Deville had a duty to provide reasonably safe equipment that was adequate to handle the job to be done. He was not, however, obligated to guard against every possible risk or to use extraordinary caution or care in these circumstances which provided no warning or notice that the object was substantially heavier than it appeared to be.

For the reasons stated above, the demands of Mr. Lucas must be rejected at his costs.

NEGLIGENCE OF W. E. DEVILLE

As the trial court couched it, the issue of whether Deville was negligent or not “turned on facts and information available to him before the accident.” In this respect the trial court was of the opinion that De-ville “was reasonable in accepting Chisum’s verbal assurance the hopper was empty.” Although the conclusion that the hopper was empty was erroneous, the trial court was of the opinion that “Deville had ample and reasonable cause to believe it was true.” Therefore, it would have been “unreasonable to conclude he had a duty to look farther.”

A case quite analogous to this case is the Louisiana Supreme Court case of Canter v. Koehring Company, 283 So.2d 716 (La.1973). In that case Jesse Canter was employed by Industrial Construction Company. He was killed as Industrial Construction Company was attempting to lift a weighty “vessel” or tower. Industrial contracted with Pittsburgh Glass Company to build a chemical plant. Pittsburgh, the owner, agreed to furnish all engineering services, specifications, and instruction necessary for the proper execution of the work. In an attempt to lift the vessel furnished by Pittsburgh, Industrial selected a crane which it considered sufficient to do the job based on information as to the weight of the vessel. Pittsburgh advised that the vessel weighed 46 tons (92,500 pounds). However, the vessel included appurtenances weighing about 7 tons (14,000 pounds) consisting of insula-tions, ladders, piping, catwalks, and other items affixed to the vessel. The extra weight caused the pendant arm link to break, and the crane collapsed. Jesse Canter was killed as a result.

In Canter the Supreme Court held Pittsburgh was obligated to furnish the correct weight of the vessel to be moved, including the weight added by the appurtenances. Several of Pittsburgh’s engineers were held to have been negligent in not supplying the correct weight. Industrial’s job superintendent, Frenzel, was also found negligent. The Supreme Court discussed the negligence of all parties including Frenzel, on pages 726 and 727 as follows:

Some after-the-fact testimony is to the effect that Industrial’s job superintendent knew that extra weight had been added, as did the engineers, but nevertheless proceeded because of an eyeball estimate that it was safe to do so. However, Frenzel, the job superintendent, himself admitted that if he had known the vessel with appurtenances had weighed 106,000 pounds he would have stopped and verified the lifting capacity more closely. Tr. 757-58. He in fact thought the equipment weighed 92,500 pounds, Tr. 710-711, based on the prints furnished by Pittsburgh, Tr. 718.

The standard of care due by the job superintendent and by the Pittsburgh engineers must be viewed in its factual context. They were involved in a lifting operation of unusual magnitude. The particular crane employed was, at best, operating near capacity. Frenzel and the construction engineers were all aware of these facts, as well as of the importance of generally accurate weight estimate in utilizing the crane involved.

Despite this, the engineers and Frenzel proceeded on the basis of the 92,500 pound weight shown by the equipment list, even though they knew some weight had been added by the appurtenances— seven tons’ worth, it turned out, or more than the crane involved could safely lift.

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Frenzel failed in his duty, as delegated by his employer Industrial, to exercise due care in his supervision over the lift. We find that he was under such notice as to the possible inaccuracy of the weight furnished as to have required him in ordinary prudence to have checked further before undertaking a lift of the magnitude involved.

Thus, Frenzel was one of the five joint tortfeasors solidarily obligated to the plaintiffs.

Defendants urge that Canter is distinguishable on the ground that Frenzel, Industrial’s job superintendent, was on notice of the possible inaccuracy of the weight furnished to him and Deville had no such notice.

In both cases an unusual lifting operation was involved and each required adequate lifting equipment. In Canter the owner, Pittsburgh, was obligated to furnish instructions and engineering services. Four of the Pittsburgh engineers were found to have failed in their duty to provide the correct total weight of the vessel and its appurtenances. By implication, at least, the Supreme Court would have exonerated Frenzel, Industrial’s job superintendent, except for its finding that Frenzel was on notice of the possibility that the weight given his company was inaccurate. It held that under these circumstances he owed a duty to have checked further before undertaking the lift of the magnitude involved.

As we see the case before us, the responsibilities of W. E. “Coon” Deville and those of the superintendent Frenzel in the Canter case, are not precisely analagous.

In Canter the representatives of Pittsburgh, including the defendant engineers, acknowledged that it is an engineering function to furnish the contractor the weight of the equipment. Four of the five engineers who had been delegated Pittsburgh engineering responsibilities were found negligent in failing to furnish correct information. In the case before us the engineering duties which were necessary should have been performed by Pelican Truck Lines, Inc. As it undertook to do the job of lowering the hopper and its supporting structure, it owed a duty to plaintiff and all others involved in the operation. That duty was to perform the work without subjecting them to unreasonable risk. That duty would include assessment of the factors necessary to determine, from an engineering point of view, a feasible and safe method of accomplishing the operation. This would include providing equipment which was adequate and proper and which would not subject anyone to undue risk of harm.

We do not suggest that the engineering problems in this case were as complex as those in Canter. What we do hold is that since Pelican Truck Lines, Inc., undertook to do the job in question, it was required to furnish all the expertise required. This responsibility was delegated to W. E. “Coon” Deville. However, when viewed realistically, it is apparent that Pelican and Deville applied very little expertise to this job. All that Deville did was to rely on his experience and some sort of “sixth sense” developed in his trade.

It is our opinion that the duties owed by Pelican required more than the functions Deville apparently performed. In undertaking the operation, Deville owed a duty to understand fully what he was about.

In undertaking the operation of the highly dangerous nature which he undertook, Deville owed a duty to all who were exposed to the risk of the operation, to perform all reasonable functions to insure an uneventful operation. In short, in the case before us, Deville was to perform not only the duties required in Canter by Frenzel but also the duties required of the Pittsburgh engineers. There is no evidence in the case before us that Deville did anything but make an intuitive guess.

In our view the negligence of Deville does not turn on the question of whether it was reasonable for him to rely on the representation of Chisum that the hopper or bin was empty. Rather, the question is whether Deville adequately performed the duties of informing himself of the nature, intricacies, weight and other pertinent factors relative to the thing he undertook to lower from its upright standing position. An adequate and proper performance of those duties, in our opinion, would have required an inspection, inside and out, of the cement hopper. A proper performance of that duty would have required that Deville discover the caked cement adhering to the inside of the hopper. At that point, then, it would have been necessary for Deville to re-estimate the weight and probable propensity of the hopper. Had he done so, he should then have concluded that different and more adequate measures or equipment, or both, were needed. As stated above, Deville engaged in no sophisticated assessment of the lowering operation; he simply looked at what he saw from the outside and made a guess. As an alternative operations might have been halted until the cement was completely removed or nearly so.

We are mindful that the expert testimony established that Deville’s solution would have been adequate had the build-up of caked cement not been present on the inside of the apparatus. However, his failure to discover the cement build-up caused Deville to make an inaccurate assessment, just as the failure to include the extra weight of the appurtenances in Canter caused the provision of inadequate lifting equipment.

For the foregoing reasons, we are of the opinion that Deville breached a duty which was the legal cause of plaintiff’s injuries.

WAS W. E. DEVILLE AN AGENT OR EMPLOYEE LIABLE TO B. J. LUCAS FOR BREACH OF DUTIES DELEGATED BY THE EMPLOYER?

Under the facts as found by the trial court, W. E. Deville was an agent and employee of Pelican Truck Lines, Inc., to whom certain duties had been delegated. Those duties included the duties which were breached by Deville discussed above. They were personal duties owed by Deville to plaintiff, B. J. Lucas, and the breach of them specifically caused his damages. Canter v. Koehring Co., supra, at pages 718 through 723 (particularly page 721) and Coco v. Winston Industries, Inc., 330 So.2d 649 (La.App. 3rd Cir. 1976), reversed on other grounds, 341 So.2d 332 (La.1976). The duties owed to Lucas breached by De-ville were, without question, duties owed by Pelican Truck Lines, Inc., which had been delegated to Deville. The facts as found by the trial court, well supported by the record, so indicate. Therefore, the tort liability of an agent or employee for a breach of delegated duties owed by an employer, spelled out in Canter v. Koehring Co., supra, applies here to make Deville liable to Lucas.

WAS MARKET INSURANCE COMPANY THE INSURER OF DEVILLE’S LIABILITY?

Having found that W. E. “Coon” Deville was liable in damages, it is necessary that we determine whether there was liability under the comprehensive general liability insurance policy of Market Insurance Company. The question of whether or not De-ville bore such relationship to Pelican Truck Lines, Inc., so as to come within any coverage afforded “executive officers” and others under the policy, is not actually reached. It is clear under the policy that, assuming Deville was an executive officer, or within any classification afforded coverage, a policy exclusion eliminates any such coverage under the circumstances.

The policy specifically provides for an exclusion, worded as follows:

(b) to bodily injury or property damage out of the ownership, maintenance, operation, use, loading or unloading of

(1) any automobile or aircraft owned or operated by or rented or loaned to any insured, or

(2) any other automobile or aircraft operated by any person in the course of his employment by any insured .

Also, under the section on “definitions,” an “automobile” is defined as “. . .a land motor vehicle, trailer, or semi-trailer designed for travel on the public roads

The policy exclusion is clearly applicable and operates to exclude coverage in favor of Deville. Heiser v. Gibson, 386 F.Supp. 901 (E.D.La.1974); Credeur v. Luke, 362 So.2d 1175 (La.App. 3rd Cir. 1978) reversed 368 So.2d 1030 (La.1979) and Mauterer v. Associated Indemnity Corp., 332 So.2d 570 (La.App. 4th Cir. 1976).

Therefore, we hold that Market Insurance Company is not liable to plaintiff under its insurance policy under the circumstances of this case.

PLAINTIFF’S DAMAGES

The plaintiff in this case makes claim for elements of damages consisting of general damages for his pain and suffering and special damages for medical expenses, past and future, and lost wages, both past and future.

Following the accident of August 6, 1976, B. J. Lucas was seen by Dr. Sanit Sirikul of Jena, Louisiana, and was hospitalized at the LaSalle General Hospital. At the time Lucas was complaining of pain in the lower back and a laceration of the right side of the face. Dr. Sirikul found tenderness in the area of the upper lumbar spine with bruises over the area. There was some weakness in the left side of the left leg. Dr. Sirikul had x-rays made which disclosed a compression type fracture of lumbar vertebra one. It was a serious injury. Dr. Sirikul put Lucas to bed with instructions for strict bed rest. Also, he was placed in traction. Plaintiff was closely observed for spinal cord damages, but nothing indicative of such damage showed up except for the possibility that the weakness in the left leg might have resulted from some cord damage.

Dr. Sirikul stitched a laceration over Lucas’ right eye which apparently healed without complication. Lucas was rendered temporarily unconscious by the accident, and Dr. Sirikul testified concerning this. He stated, on the assumption that plaintiff was thrown about the cab of the truck so as to strike his head, that the unconsciousness was the result of a mild concussion. Lucas apparently suffered no significant or lasting effects from temporarily loosing consciousness.

Lucas’ hospital stay at LaSalle General Hospital lasted from August 6, to August 25, 1976. At some time during this stay Lucas was transported to Alexandria from Jena to the office of Dr. T. E. Banks, an orthopaedic specialist, for the fitting of a back brace. Lucas was then returned to the LaSalle General Hospital.

Dr. Sirikul found that plaintiff was handicapped by a hemiparesis on his right side. This was a partial paralysis which had existed from childhood. It had nothing to do with plaintiff’s accident of August 6, 1976, and plaintiff had overcome the handicap so as to be able to work. Previous to the accident of August 6, 1976, plaintiff had sustained a hand injury which he had overcome so as to be able to function as a truck driver.

Dr. Sirikul discharged Lucas from La-Salle General Hospital on August 25, 1976, although he could not be considered cured. Lucas was suffering from pain and weakness of the left leg. Dr. Sirikul prescribed muscle relaxants and medication for a slightly elevated blood pressure. Plaintiff left the hospital with a brace on his back, but he was able to sit up. According to the plaintiff himself, he could only stand or lie down and had to be assisted in changing from one position to the other. Dr. Sirikul advised Lucas to see Dr. Banks, which Lucas did. Dr. Sirikul saw plaintiff again on September 3, 1976, and many more times after that. On September 3, plaintiff was complaining of pain in his back and legs and of cramping of the legs. Dr. Sirikul prescribed Fiorinal, a pain killing drug and a mild tranquilizer. At this time Dr. Siri-kul noted no depression on the part of plaintiff. The doctor’s final diagnosis was laceration of the right eye, which had been surgically repaired and apparently healed, and a herniated disk at the T12-L1 levels. Dr. Sirikul considered plaintiff disabled from working as a truck driver. The cut over the eye was characterized as a minor cut.

Dr. T. E. Banks, an orthopaedic surgeon, first saw plaintiff on October 6, 1976, upon referral from Dr. Sirikul. (Dr. John T. Weiss, Dr. Banks’ associate, had seen plaintiff for the fitting of the brace before plaintiff was discharged from LaSalle General Hospital.) Dr. Banks’ findings on October 6, 1976, were the following: (1) soreness in the back; (2) numbness in the left leg; (3) soreness in the left thigh and (4) approximately a fifty percent compression of the body of the first lumbar vertebra as disclosed by x-ray. At this time plaintiff was wearing a hyperextention back brace. Dr. Banks stated plaintiff had a history of having been affected by cerebral palsy, with right-sided weakness and spastic paralysis from birth. He had been previously seen by Dr. Bank’s office for the hand injury mentioned above. The hemiparesis, or right-sided paralysis, had affected the right lower extremity so that comparisons of the lower extremities were not very accurate from the standpoint of atrophy and muscle tone.

Dr. Banks advised plaintiff to wean himself from the back brace and to try to strengthen the musculature in his back. The fracture at LI had healed in a position of deformity with approximately fifty percent compression. Lucas was told to return in a month for further evaluation. He returned to Dr. Banks on November 1, 1976, at which time Dr. Banks advised Lucas to discontinue his back support as it was not doing him much good. In December, plaintiff was still complaining of pain in his back with some complaint of pain in the left thigh and occasional radiation down the mid-calf. Plaintiff still had some back tenderness and tenderness of the lumbo-sacral area. Dr. Banks suggested the use of a shoe-lift because the legs were of different lengths as a result of the congenital condition of paralysis. The purpose was to eliminate abnormal strain in an attempt to correct the back pain.

Dr. Banks did a myelogram on plaintiff on March 4, 1977, to see if he could determine the reason for the weakness in the left leg. The myelogram disclosed a complete block of spinal fluid at the level of the fracture between T12 and LI. This established the reason for the thigh pain. Banks said it was referred pain from the area of the blockage. From the myelogram finding Dr. Banks concluded that surgery was needed to relieve- the nerve root pressure but recommended that the surgery be done by a neurosurgeon. However, he indicated that a combination procedure might be needed, one to handle the decompression of the nerve and another to do a spinal fusion, the latter being an orthopaedic matter. Dr. Banks referred plaintiff to a Dr. Dodson, a neurosurgeon, and plaintiff was posted for surgery on March 10, 1975.

After conferring with Dr. Dodson, plaintiff cancelled the surgery on March 9 and has declined since to undergo the recommended surgery. Decompression type surgery is major surgery and requires a general anesthetic. A fusion would be done in addition, if it was found that the area was unstable. Dr. Banks testified that there is no assurance that decompression surgery will relieve plaintiff’s pain, but the doctor was of the opinion that the prospects were favorable. If he does have the surgery, the prognosis is good that it will make plaintiff productive. He would be able to again drive a truck, as long as he is not subjected to extreme trauma, but Dr. Banks would recommend that plaintiff not do any lifting repeatedly of objects weighing over fifty pounds. Doing so would put too much strain on plaintiff’s back, whether or not the fusion surgery was done. On the negative side, Dr. Banks pointed out that this might cause plaintiff some trouble. On the other hand, if plaintiff does not undergo the surgery, he will not get any better. Dr. Banks linked plaintiff’s disability and his pain to the accident of August 6, 1978. He was of the opinion that there would be only a minimal or slight risk of paralysis if plaintiff submits to surgery.

Dr. Banks discounted the effect of any depression plaintiff may be experiencing as a factor in successful surgery. His testimony in this regard was as follows:

Q. Doctor, if the evidence in this case demonstrates that, in addition to your treatment, Dr. Paul Ware, who is a psychiatrist and neurologist in Shreveport, Louisiana, examined Mr. Lucas and found both sometime ago and today during the course of the trial, and found that Mr. Lucas was suffering from a moderate depressive reaction, would, would that make him less of a candidate for a successful, pain-free operation?

A. Now, my response will not be as a psychiatrist, you realize that?

Q. I understand.

A. Because he is an individual who’s worked with people for many years in that particular specialty.

Q. Yes, sir.

A. This man has been depressed to some degree since I’ve known him. This man was a working man. The man has had a handicap since he was young, young of age, and he had overcome this handicap to be a productive citizen. This man was depressed because he wasn’t able to work. He was unhappy because of the mechanism of injury. So, he had — I don’t know, I don’t see where his depression now would be any different than it has been all along. I think if we can get rid of this man’s pain and make him productive, it’s just common sense to say that’s he’s going to get rid of his depression.

From the standpoint of cost, Dr. Banks estimated that surgery for decompression and a fusion would cost about $6,000. The surgeon’s fees (for both) would run about $2,500. Hospitalization, to extend to ten to twelve days, would run about $3,000, and the anesthetist would charge approximately $200.

If a fusion was necessary it would take about eight months before plaintiff would recover to be a productive person. Therefore, if plaintiff had had the surgery in March of 1977 with a successful result, he would have been back in condition to be a productive person by the time of trial, October 31, 1978.

Dr. Dodson no longer lived in the Alexandria area at the time of the trial and did not testify. Plaintiff testified that when Dr. Banks recommended surgery he was ready to have Dr. Banks do it. However, after conferring with Dr. Dodson, he changed his mind. According to Lucas, Dr. Dodson discouraged him by telling him that whether or not Lucas underwent the surgery, he (Dr. Dodson) did not believe Lucas would ever again be able to do the kind of work he was doing when injured. Dr. Dodson allegedly stressed the fact that nothing could be guaranteed. It might not relieve the pain. Moreover, it was possible that the operation would leave Lucas paralyzed. In view of Dr. Dodson’s alleged attitude, Lucas stated that he developed doubts and fear about the operation and cancelled the surgery. He apparently still thinks about submitting to surgery but vacillates and cannot bring himself to face it.

After plaintiff engaged counsel, the latter had plaintiff evaluated by Dr. Paul D. Ware, a specialist in psychiatry and neurology. Dr. Ware saw plaintiff on October 4, 1977, and did a complete psychological and neurological evaluation in which he reviewed all plaintiff’s medical records and hospitalizations. Dr. Ware was of the opinion that plaintiff was suffering from a depression neurosis brought on by the events which had rendered him disabled, unproductive and which had caused him to suffer pain.

Plaintiff testified his sex life was affected by the pain he experienced. Dr. Ware confirmed the fact that a manifestation of depression neurosis is a decrease in, or almost total absence of, sexual desire. Peo-pie suffering from depression neurosis tend to develop fear of the future, and they develop primary symptoms such as sleep disturbance and appetite disturbance, as well as marked lack of energy. They exhibit some somatic or physical complaints associated with the depression. One of the cardinal results of symptoms is the development of thoughts of suicide. Plaintiff “demonstrated all these symptoms in a rather classical, textbook way”. Plaintiff was reduced to tears in the interview. Dr. Ware was of the opinion that the depression neurosis was caused by the accident of August 6, 1976, and would not attribute any part of the cause to his previous physical problems. The doctor gave as his reason the fact that, in his opinion, if plaintiff had been suffering from a depression neurosis of the quality exhibited when he interviewed him, he could not have performed his work. He also did not believe prior events in plaintiff’s life contributed to the depression neurosis.

Dr. Ware saw plaintiff on only the one occasion until he again interviewed him during the trial. Dr. Ware had not been treating plaintiff and made no recommendation to him. The depression neurosis was characterized as moderate in nature in the scale of mild, moderate and severe. Depression neurosis interferes with one’s functioning, and the interference will continue until the condition of depression improves. Dr. Ware’s testimony was interrupted to permit Dr. Ware to re-examine plaintiff. He found the moderate depression persisting and was of the opinion that it would persist unless plaintiff gets some relief from pain. Pain is the main source of the depression. Dr. Ware felt that plaintiff’s fear of surgery was genuine.

The testimony of an expert in the field of economics, Dr. John W. Chisholm, was produced. Dr. Chisholm is a Professor Emeritus of Louisiana State University where he taught in the field of economics. Dr. Chisholm made a study of plaintiff’s situation and estimated his income losses, assuming that plaintiff would never be able to return to work. Plaintiff was born December 15, 1929, and Dr. Chisholm stated plaintiff had a work life expectancy of 18.1 years which would bring him to the age of 64.1 years. He testified that the Monthly Labor Review published computations of the Department of Labor which show that worker output increases at the rate of 2.8 per annum. He also stated that price level increases, his term for inflation, had been 4 percent per annum, although it was apt to go much higher in future years. He was provided with data as to plaintiff’s income from his income tax returns for the years 1973 through 1975 and for the period of 1976 ending August 6, 1976. He analyzed these earnings and concluded that annual income of $15,293.79 was indicated.

Based upon the above, Dr. Chisholm stated that it was his opinion that the estimated income loss by plaintiff from the date of the accident to October 30, 1978, was $34,-038.44. Dr. Chisholm also made an estimate as to future loss of earnings. Until age 64.1 years plaintiff’s gross income would have been $262,641.46. He derived the present value of this amount discounted at 5 percent and 6 percent. He made a second calculation reflecting a 2.8 percent annual productivity wage increase and a third calculation reflecting an additional factor consisting of a 4 percent annual price level increase. His figures appear as follows:

AGE GROSS INCOME PRESENT VALUE AT 5% PRESENT VALUE AT 6%

NO WAGE INCREASES DURING REST OF WORK LIFE

64.1 $262,641.46 $166,859.60 $153,814.02

2.8% ANNUAL PRODUCTIVITY WAGE INCREASE

64.1 $339,057.18 $208,398.67 $190,894.61

2,8% ANNUAL PRODUCTIVITY WAGE INCREASE PLUS 4% ANNUAL

PRICE LEVEL INCREASE

64.1 $497,446.95 $292,192.62 $265,275.16

We have recounted plaintiff’s post accident history at some length because of the defense which has been raised that plaintiff has failed to minimize his damages. The charge is that plaintiff’s recovery should be limited because of his refusal to submit to surgery recommended by Dr. Banks. Defendants rely on Welch v. Ratts, 235 So.2d 422 (La.App. 2nd Cir. 1970); Reeves v. Louisiana & Arkansas Railway Company, 304 So.2d 370 (La.App. 1st Cir. 1974) and Reeves v. Travelers Insurance Company, 329 So.2d 876 (La.App. 2nd Cir. 1976).

The rule requiring the mitigation of damages is stated in Reeves v. Travelers Insurance Company, supra, as follows:

Our courts have espoused a rule in varying terminology to the effect that an injured party is obligated to submit to reasonable medical treatment, including surgery, to minimize his damages against a tort-feasor. Donovan v. New Orleans Ry. & Light Co., 132 La. 239, 61 So. 216 (1913); Dark v. Brinkman, 136 So.2d 463 (La.App. 3d Cir. 1962); Bowers v. Lumbermens Mutual Casualty Company, 131 So.2d 70 (La.App. 2d Cir. 1961); Reeves v. Louisiana and Arkansas Railway Co., 304 So.2d 370 (La.App. 1st Cir. 1974), writs refused.

As related to an award for pain and suffering, the above rule must be applied with extreme caution. The burden is on a tort-feasor to show to what extent the damages should be mitigated. If an otherwise successful surgical operation would leave an injured party with residual permanent pain and disability, his refusal to undergo surgery should only mitigate the damage award proportionately. In the instant case defendants have not borne this burden of proof.

Some of the subjective factors to be considered in applying this doctrine were discussed in Jenkins v. American Automobile Insurance Co., 111 So.2d 837 (La.App. 2nd Cir. 1959). The doctrine, also known as the doctrine of avoidable consequences appears to have been recognized in numerous jurisdictions. An annotation on this subject appears in 62 A.L.R.3d 9 entitled “Duty to Minimize Tort Damages by Surgery”. The summary and comment at the beginning of the discussion in the annotation treat some of the subjective factors to be considered at page 13 as follows:

When the doctrine of avoidable consequences is invoked to support a limitation of recovery on the ground that plaintiff should have undergone surgery to avert the consequences of defendant’s tort, a difficult balancing of interests is required. Since all surgery involves a more or less violent assault on the organism, it seems, superficially at least, somewhat incongruous to say to one who has been injured by another’s fault that he must suffer an additional invasion of his physical integrity in order to protect the wrongdoer from the full consequences of the wrong. On the other hand, it seems unfair and socially undesirable to permit, or even encourage, the tort victim to voluntarily extend or aggravate his pain or disability, and so enhance his damages, when surgery could readily correct the situation.

Faced with this problem, the courts have resorted to the standard of the ordinarily reasonable man, holding that there can be no recovery for elements of damages which would have been avoided by surgery to which an ordinarily reasonable man, under all the circumstances, would have submitted.

It needs to be emphasized that the injured party is in no way compelled to go to surgery — the only consequence of the failure to do so is to relieve the defendant of liability for those consequences which surgery would have averted.

In determining whether a reasonable man in plaintiff’s circumstances would have resorted to corrective surgery the courts have regarded a large number of factors as relevant, and have accordingly admitted evidence concerning these factors. Pre-eminent among these factors appear to be the degree to which the recommended surgery involves a threat of further injury or death, and the strength of the probability that the operation will be successful in alleviating the condition or effecting a cure. Both of these are obviously questions upon which medical testimony will be controlling.

Other factors to which the courts have looked as having some weight in determining the reasonableness of the plaintiff’s choice against surgery are the pain involved in the operation, and the expense, effort, or inconvenience involved.

The weight of these factors must, of course, be balanced against the consequences of not having surgery, since clearly a plaintiff should not have to undergo a seriously dangerous and painful operation in order to avert a trivial continuing injury, nor should defendant be compelled to pay for total and permanent disability which could with strong probability be averted by a trivial operation. Few cases in the real world are, however, so clear-cut, and typically the issue of the reasonableness of plaintiff’s choice has been held for the trier of fact, in the light of the conflicting medical and other evidence.

Section 16, beginning on page 53 of the annotation referred to above, discusses a number of cases involving injuries to the back or spine. None are precisely anala-gous to the facts of this case.

This case presents several unusual circumstances in connection with the obligation to mitigate damages. Of exceptional significance is the inability of defendants to produce the testimony of Dr. Dodson. Also, we are confronted with the fact that plaintiff’s pain is a major cause of his depression, and the depression undoubtedly affects plaintiff’s attitude toward submitting to surgery.

In resolving this case, it must be borne in mind that the defense has the burden of showing that the plaintiff should mitigate the damages. It must rely on the testimony of Dr. Banks. In lieu of having the testimony of Dr. Dodson, the defense might have had plaintiff examined by another neurosurgeon. While his testimony would not have any bearing on what Dr. Dodson actually told plaintiff concerning the scheduled surgery, it would have at least presented the opinion of a surgeon in the same field of expertise as Dr. Dodson. Dr. Banks regarded the surgery as reasonably safe and pointed out that the procedure was neither new nor novel. The type of surgery contemplated has been done for almost twenty years. Nevertheless, it is a surgical procedure of sufficient complexity to be outside Dr. Banks’ field of orthopaedics. Dr. Banks could give no absolute assurance that the operation would be successful, although the tenor of his testimony was that prospects were quite favorable. It is not questioned that the proposed surgery is quite serious and may require a fusion of vertebrae.

From plaintiff’s standpoint we have no reason to disbelieve him concerning the counsel which he says Dr. Dodson gave him. We think the reasonableness of his refusal to submit to the back surgery should be judged to a large extent based on what he reasonably believes to be involved, rather than what might actually be involved, as represented by the more sanguine views of Dr. Banks. A major factor in plaintiff’s thinking is the alleged opinion of Dr. Dodson that, irrespective of any benefits he might derive from the surgery, it is improbable that the surgery would enable him to work again.

On the whole we are of the opinion that defendants have failed to carry the burden of proof on the mitigation issue. For that reason we are not inclined to penalize plaintiff for refusing to undergo the projected surgery. It may be that Dr. Dodson, mindful of the obligation of a surgeon to obtain informed consent before performing surgery, unintentionally overemphasized, in plaintiff’s mind at least, the risks of surgery and the inability to predict with certainty that surgery would render plaintiff an effective and productive employee again. However, as noted above, we think defendants have the burden to produce testimony to establish a clear duty to undergo the surgery.

All aspects of plaintiff’s situation considered, we are of the opinion that a fair award to plaintiff would be as follows:

Past lost wages $ 34,038.44

Future lost wages 150,000.00

Medical costs 1,183.71

Total special damages $185,222.15

General damages for pain suffering, depression, and anxiety $150,000.00

Total damages $335,222.15

We have not included any damages for future medical expenses. Inasmuch as plaintiff refuses to submit to surgery, and we have made liberal award for loss of wages, most of which is for the future, expenses of the surgery recommended to plaintiff are not in order. Moreover, $1,183.71, the amount we award, is all plaintiff has asked for in his brief.

For the foregoing reasons the judgment of the trial court is reversed. It is now ordered and decreed that there be judgment in favor of plaintiff, B. J. Lucas, and against defendant, W. E. “Coon” Deville in the full sum of $335,222.15 together with judicial interest from date of demand until paid and for all costs of these proceedings, including the cost of this appeal. Plaintiff’s demands against defendant, Market Insurance Company are dismissed at plaintiff’s costs.

REVERSED AND RENDERED.

CULPEPPER, J., dissents and assigns written reasons.

GUIDRY, J., dissents for the reasons assigned by CULPEPPER, J.

. Plaintiff-appellant’s cause of action arose August 6, 1976, which was prior to the effective date of Act 147 of the 1976 Regular Session of the Louisiana Legislature which amended LSA-R.S. 23:1032 and 23:1101. The statute is not retroactive. Bostic v. International Minerals & Chemical Corp., 360 So.2d 898 (La.App. 2nd Cir. 1978) and cases therein cited, including this circuit’s case of Billedeaux v. Adams, 355 So.2d 1345 (La.App. 3rd Cir. 1978).

. In Credeur v. Luke, supra, a single policy of insurance was involved. The one policy incorporated provisions for comprehensive general liability and comprehensive automobile liability insurance. The reversal of the Credeur case by the Louisiana Supreme Court was based solely on its interpretation of the automobile liability features of the policy. Therefore, the expressions of this Court of Appeal pertaining to the general liability provisions of the policy in question remain valid.

. This testimony was allowed by the trial court over objection by the defense that testimony by plaintiff as to what Dr. Dodson had said to him was hearsay. Counsel for plaintiff urged that the testimony offered was to counter the argument of the defense that plaintiff should mitigate his damages by undergoing the surgery. In this regard, it was urged that the testimony was necessary to show plaintiff’s state of mind and the circumstances supporting his state of mind. Therefore, so it was urged, the testimony was not hearsay because it was not offered to prove the truth of the statements attributed to Dr. Dodson. On the basis of this argument, the trial court permitted plaintiff to testify. Tr. 471-472.

CULPEPPER, Judge,

dissenting.

I dissent from the finding of the majority that Deville was negligent. The trial judge carefully reviewed all the evidence and found as a fact that Deville’s actions were reasonable under the circumstances. Under the applicable rules of appellate review as stated in Canter v. Koehring Company, 283 So.2d 716 (La.1973) and Arceneaux v. Domingue 365 So.2d 1330 (La.1978), I can see no basis for finding that the trial judge was clearly wrong.

Where reasonable minds can differ, the issue of whether a person has acted reasonably under the circumstances is a question of fact, not of law. This is explained in Prosser, Law of Torts, 4th Ed. at page 207, as follows:

“Since it is impossible to prescribe definite rules in advance for every combination of circumstances which may arise, the details of the standard must be filled in in each particular case. The question then is what the reasonable man would have done under the circumstances. Under our system of procedure, this question is to be determined in all doubtful cases by the jury, because the public insists that its conduct be judged in part by the man in the street rather than by lawyers, and the jury serves as a shock-absorber to cushion the impact of the law. The question usually is said to be one of fact, but it should be apparent that the function of the jury in fixing the standard differs from that of the judge only in that it cannot be reduced to anything approaching a definite rule.

“In many cases, however, the court may be required to remove the issue of the particular standard from the jury. It is possible to say, in many cases, that the conduct of the individual clearly has or has not conformed to what the community requires, and that no reasonable judgment could reach a contrary conclusion. The court must then direct a verdict for the plaintiff or for the defendant, or even set aside a verdict once rendered; or, if the evidence as to the facts is in conflict, instruct the jury as to the conclusion it must draw from a particular version of the facts.”

In the case of Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976) our Supreme Court followed the above rationale. Under the facts of Cates, the court held that since reasonable minds could not differ as to the plaintiff’s contributory negligence the question was one of law, and summary judgment was appropriate. If the court had concluded that reasonable minds could have differed, it would have rejected summary judgment and remanded the case for trial.

In Canter, supra, at page 724, the court explained the rule of appellate review of fact as follows:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.”

In Arceneaux, supra, at page 1333, the court further explained:

As an aid to the exercise of the appellate function of review of facts in civil cases, we attempted to explain, in Canter v. Koehring, supra, without great detail, the appropriate standard. We said that ‘even though the appellate court may feel that its own evaluations and inferences are as reasonable,’ it should not disturb reasonable findings of the trial court when there is conflict in the testimony. We prefaced this observation: ‘When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.’ 283 So.2d 716, 724 (Emphasis added). “We did not foresee that this explanation would be misunderstood to mean that: ‘There is no manifest error when the evidence before the the trier of fact furnishes a reasonable basis for its finding.’ We said the appellate court should not disturb this factual finding in the absence of manifest error. The difference is important. ‘Manifestly erroneous,’ in its simplest terms, means ‘clearly wrong.’ We said, then, that the appellate court should not disturb such a finding of fact unless it is clearly wrong.”

The majority opinion quotes large portions of the trial judge’s detailed discussion of the evidence and his careful analysis of his reasons for concluding under this evidence that Deville acted reasonably under the circumstances. The only thing which I might add is in answer to a contention by the plaintiff that Deville should have used the air vibrators on the sides of the cement bin or should have banged on the sides of the bin with sledge hammers to force out any remaining cement. Mr. Chisum testified that his employees had already used the vibrators and had also banged on the sides of the bin with sledge hammers, but no cement came out. I find no express testimony by Chisum that he told Deville this, but the point is that, under the evidence, even if Deville had used the vibrators or banged on the bin with sledge hammers, no more cement would have come out.

Certain statements in the majority opinion indicate to me that they are requiring of Deville a greater duty than reasonable care under the circumstances. The majority states: “An adequate and proper performance of those duties, in our opinion, would have required an inspection, inside and out, of the cement hopper. A proper performance of that duty would have required that Deville discover the caked cement adhering to the inside of the hopper.” (Emphasis supplied) I think this language goes too far. I agree with the conclusion of the trial judge, quoted above, that Deville was not “obligated to guard against every possible risk or to use extraordinary caution or care in these circumstances which provided no warning or notice that the object was substantially heavier than it appeared to be.”

In another portion of the majority opinion, it is stated: “There is no evidence in the case before us that Deville did anything but make an intuitive guess.” I cannot agree with this statement. The detailed written reasons by the trial judge, quoted in the majority opinion, show that Deville made much more than an “intuitive” guess. As the trial judge states, Deville was dealing with Chisum, whom he knew had been engaged in the cement business for a long time. Chisum gave Deville his verbal assurance that the hopper was empty. Furthermore, the door at the bottom of the hopper was open and no cement was coming out. There is simply no evidence that De-ville had any reason to suspect that Chisum was in error in stating that the bin was empty.

If the majority means that Deville made only an “intuitive guess” as to the weight of the bin without cement, such a “guess” was correct. It is not disputed that if the bin had been empty the equipment and the procedure used by Deville would have been sufficient. The experts so testified, the trial judge so held, and the majority opinion does not question this.

Essentially, this case boils down to whether, under all of the circumstances, Deville was negligent in relying on the assurance by Chisum that the bin was empty. Furthermore, on appellate review, we should not reverse the trial judge’s finding of fact on this issue, unless he was clearly wrong. I cannot possibly conclude the trial judge was clearly wrong. To do so would, in my opinion, clearly be a substitution of our evaluation of the evidence for that of the trier of fact.

For the reasons assigned, I respectfully dissent.

ON REHEARING

STOKER, Judge.

We granted a limited rehearing in this case restricted to the question of insurance coverage. On the original hearing we held that Market Insurance Company was not liable to the plaintiff under its policy of comprehensive general liability under the circumstances of this case. We relied on the cases of Heiser v. Gibson, 386 F.Supp. 901 (E.D.La.1974); Credeur v. Luke, 362 So.2d 1175 (La.App. 3rd Cir. 1978) reversed 368 So.2d 1030 (La.1979) and Mauterer v. Associated Indemnity Corp., 332 So.2d 570 (La.App. 4th Cir. 1976). On rehearing, we have now concluded that the circumstances of this case call for the application of Sparkman v. Highway Insurance Company, 266 F.Supp. 197 (W.D.La.1967) and the cases which follow it, or independently espouse the same principle for which Spark-man stands. The court has been furnished excellent and exhaustive briefs by counsel relative to the subject. We will endeavor to make clear our reasons for the different conclusion arrived at on rehearing and analyze the applicability or non-applicability of the various cases cited to us.

In reconsidering the question in this rehearing we have kept in mind certain general principles relating to the interpretation of insurance contracts which we recently reiterated in Paret v. Louisiana Health Service & Indemnity, 366 So.2d 634 (La.App. 3rd Cir. 1978), writ denied, 369 So.2d 139 (La.1979). There we stated these general principles as follows:

In a suit to recover benefits under a policy, the insurer has the burden of proving facts which limit its liability. Massachusetts Protective Ass'n v. Ferguson, 168 La. 271, 121 So. 863 (1929). Construction of unambiguous terms in a policy is a matter of law rather than fact, and any exclusion from coverage must be clear and unmistakable. Jones v. Standard Life and Accident Insurance Co., 115 So.2d 630 (La.App. 2nd Cir. 1959) writ denied. If more than one interpretation of an exclusion is reasonable, the one affording coverage to the insured will be adopted.

Our holding on first hearing was primarily based on Heiser v. Gibson, supra, and particularly the language of the court which stated that applicability of the automobile exclusion provision of the comprehensive general liability policy involved there “turns on the source of the injury, not on the theory of legal liability.” In now finding that Sparkman rather than Heiser governs (as will be explained later in this opinion), we also conclude that the two cases are not in conflict but are in harmony. The different conclusions in the two cases result from the fact that each case presents different circumstances which are not at all parallel.

It is first appropriate to discuss the policy provisions. Market Insurance Company furnished to Pelican Truck Lines, Inc., a comprehensive general liability policy of insurance. Liability coverage was afforded by the policy to executive officers of Pelican which included defendant, W. E. “Coon” Deville. The pertinent and critical provisions of the policy are these:

Exclusions

This insurance does not apply:

$ * * * * *

(b) to bodily injury or property damage arising out of the ownership, maintenance, operation, use, loading or unloading of

(1) any automobile or aircraft owned or operated by or rented or loaned to any insured, or

(2) any other automobile or aircraft operated by any person in the course of his employment by any insured; . . .

Under the section on “Definitions,” and “automobile” is defined as

. a land motor vehicle, trailer or semi-trailer designed for travel on public roads (including any machinery or apparatus attached thereto), but does not include mobile equipment; .

In the section on “Definitions,” “mobile equipment” is defined as

a land vehicle (including any machinery or apparatus attached thereto), whether or not self-propelled,

(1) not subject to motor vehicle registration, or

(2) maintained for use exclusively on premises owned by or rented to the named insured, including the ways immediately adjoining, or

(3) designed for use principally off public roads, or

(4) designed or maintained for the sole purpose of affording mobility to equipment of the following types forming an integral part of or permanently attached to such vehicle: power cranes, shovels, loaders, diggers and drills; concrete mixers (other than the mix-in-transit type); graders, scrapers, rollers and other road construction or repair equipment; air-compressors, pumps and generators, including spraying, welding and building cleaning equipment; and geophysical exploration and well servicing equipment; .

HEISER v. GIBSON

In Heiser, the plaintiff (Frank Heiser) sued executive