Opinion
No. 1443.
July 1, 1965.
APPEAL FROM THIRTEENTH JUDICIAL DISTRICT COURT, PARISH OF EVANGELINE, JOE R. VIDRINE, J.
Lewis Lewis, by Seth Lewis, Sr., Opelousas, for defendant-appellant.
Daniel J. McGee, Mamou, for plaintiff-appellee.
Before TATE, HOOD and CULPEPPER, JJ.
This is a suit for damages for personal injuries. Defendant's tank truck was unloading creosote when a hose pulled loose and sprayed plaintiff with creosote, allegedly causing cataracts in his eyes. The district judge awarded plaintiff $52,814.83. Defendant appealed. Plaintiff answered the appeal, seeking an increase in the award.
The essential issues are: (1) Was Burnell Ardoin, who closed a valve, while the pump was still operating, and caused the hose to pull loose, a borrowed servant of defendant? (2) Did the creosote cause the cataracts in plaintiff's eyes? (3) Is the award excessive or inadequate?
The facts show that Reddell Creosote Company is in the business of treating pine posts, etc. with creosote. Reddell contracted with the defendant, Hearin Tank Lines, to haul creosote from Baton Rouge to Reddell's 20-acre plant site near Reddell, Louisiana.
On the day in question, November 15, 1962, one of Hearin's trucks arrived and parked 12 or 15 feet from Reddell's large storage tank. A pump is mounted on the right-hand side of the truck, just below and to the rear of the cab. This pump is run by the truck's engine.
The unloading procedure consists of connecting pieces of hose, which are part of the truck's equipment, from the truck's tank to the pump and from the pump to Reddell's storage tank; valves at the pump and at the storage tank are opened; the truck's engine is started and it takes about 45 minutes to completely unload.
The driver can unload his truck alone, but if a man is available, Reddell sends him to assist. On this particular occasion, Reddell sent Burnell Ardoin, with instructions to assist the truck driver in any way requested. Ardoin had never done this before. There is some question as to whether Ardoin actually assisted in hooking up the hoses, but it is clear that after the pumping started, Ardoin stood by the cut-off valve at Reddell's storage tank to await instructions from the truck driver as to when to close it. The truck driver either stood near the pump, or sat in the right-hand side of the cab with the door open, while the pumping proceeded.
While this unloading was in progress, the plaintiff, Rovelia Young, a delivery truck driver for Reddell, returned to the plant and reported to the manager, Mr. Horace Ardoin. Since there was no work to which Young could be assigned in the short interval before lunch time, the plant manager instructed Young to go see if any help was needed in unloading the tank truck. Young went and stood between the truck and the storage tank watching the pumping operation.
When the truck tank was almost empty, the pump began to "suck air" and the engine started "changing tune" or "racing". The driver left his position near the pump and went around to the driver's side of the cab, where he adjusted the throttle to idle the truck motor. As he returned, or after he had returned, to his position near the pump, he shouted, over the noise of the pump and motor, either the words "empty" or "almost empty". Burnell Ardoin mistook this as a signal to close the valve at the storage tank, even though the pump was still operating. When Burnell Ardoin shut the valve, the increased pressure caused the rubber hose from the pump to the storage tank to pull away from its metal coupling, at the pump. Creosote, under pressure, was sprayed from both the pump and the hose into plaintiff's face, covering him from head to foot.
Under these facts, the district judge held the truck driver was negligent in shouting to Burnell Ardoin, over the noise of the pump and engine, that the truck was empty, or almost empty, causing Ardoin to understand that he should close the valve. The trial judge also found the truck driver negligent in that he saw or should have seen Ardoin closing the valve in time to stop him. The valve was of a wheel-type which took 10 or 11 turns, and about 10 seconds, to close. Furthermore, the district judge found that Hearin's equipment was defective in that it was not so constructed that the hose could withstand the pressure, and there was no by-pass hose back to the truck's tank to serve as a safety device. The lower court found it unnecessary to rule on plaintiff's additional arguments that the doctrine of res ipsa loquitur is applicable and that Ardoin was a borrowed servant of Hearin. But, the court did state both of these arguments had merit.
We prefer to base Hearin's liability on the conclusion that Burnell Ardoin was its borrowed servant, for whose negligence it is liable. It is clear that Ardoin was negligent in closing the value without being instructed to do so and in not foreseeing the danger of closing the valve while the pump was still operating. Guidelines for deciding the borrowed servant issue have been established by our Supreme Court in the landmark case of Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137 (1951). In that case an oil well drilling company contracted with a welding company to repair a rig for a consideration of $5.50 per hour of the time of the welders. The welding crew went to the job site where they were instructed as to what to weld. One of the welders caused a fuel tank to explode, injuring plaintiff. Under these facts the court held that the welder remained the employee of the welding company and did not become the borrowed servant of the drilling company. In the course of its opinion, the court pointed out that the two general tests of the borrowed servant doctrine are: (1) Whose business was the employee engaged in and (2) Who had authoritative control of the employee. The court pointed out that either test, used alone, is not infallible, but said: "Where, however, it is clear that control by the defendant was coupled with performance for the defendant and in the defendant's business, the result is certain."
In the Benoit case the court held that the welder was performing work which was part of the business of the welding company and that although the drilling company had pointed out the welding to be done, this did not constitute a change of control, i. e., it did not constitute "authoritative direction and control but was merely suggestion as to details and constituted necessary cooperation in the work being furnished in the larger undertaking."
In the recent case of Hebert v. Hartford Accident Indemnity Co., La. App., 140 So.2d 755 (3rd Cir. 1962) a road construction company furnished its bulldozer and operator to the State Police to clear highways in Cameron Parish following Hurricane Audrey. Plaintiff's boat was pushed from the highway and damaged. We held the bulldozer operator was a borrowed servant of the State Police. He was engaged in the business of the State Police, not the business of the road contractor, and he was under the authoritative control of the State Police as to where, when and how to clear the highways.
In Benoit v. Hunt Tool Co., supra, the court discusses, as follows, Denton v. Yazoo Mississippi Valley Railroad Co., et al., 284 U.S. 305, 52 S.Ct. 141, 76 L.Ed. 310, a case apparently very similar to the one at bar:
"* * * the plaintiff was injured by a general employee of the railroad, who at the time was engaged in loading United States mail into a mail car under the direction of a United States postal transfer clerk. The court found that the negligent employee was under the control of the government and that the work he was doing was that of the government. After reviewing numerous cases cited by petitioner, the court said: 'In each of these cases, the facts plainly demonstrated that the work was that of the general master, and that in doing it, the servant had not passed under the direction and control of the person for whom the immediate work was being done; the latter being looked to not for commands, but for information. * * *' "
In C. W. Greeson Co. v. Harnischfeger Corp., 231 La. 934, 93 So.2d 221 (1957) the plaintiff purchased from defendant a large dragline to be delivered in Arkansas. An employee of defendant unloaded and assembled the dragline, but then, on the purchaser's request, he was driving the dragline to a job site when the machine was damaged. The court held the operator was a borrowed servant of the purchaser, i. e., that he was engaged in the business of the purchaser and was under its control.
Under these decisions, we think it is clear that Burnell Ardoin was a borrowed servant of Hearin Tank Lines. The unloading of the tank truck was the business of Hearin, this being the responsibility of the truck driver. Furthermore, Reddell's instructions to Burnell Ardoin were to assist the truck driver in any way requested. The truck driver accepted this assistance and he, being the only one who knew the unloading procedure, assumed full authoritative direction and control over Ardoin.
The next issue is whether plaintiff's principal injury, which was the formation of cataracts in both eyes, requiring surgical removal of the lenses and resulting in serious permanent impairment of vision, was caused by the accident.
As stated above, plaintiff was standing between the truck and the storage tank when the hose pulled out of its coupling at the pump, causing creosote to be sprayed under pressure into plaintiff's face. The creosote was in plaintiff's eyes, nose, mouth, ears and generally all over his body. He was immediately laid under a water faucet to wash off as much of the creosote as possible. After about an hour he was able to open his eyes. He went home and changed clothes and returned to work, but his eyes remained red. The next day his skin began to peel, as if from sunburn.
Except for the redness of the eyes, his vision did not appear to be affected until about six weeks after the accident, he was trying to look up a telephone number at his employer's plant and noticed that he couldn't read the words. His vision then rapidly became worse.
On March 9, 1963, plaintiff went to Dr. R. V. St. Divier, an ophthalmologist in Lafayette. He found plaintiff had bilateral posterior sub-capsular cataracts, but he did not think there was any causal connection between the cataracts and the creosote accident.
Plaintiff's vision continued to worsen and on March 29, 1963 he went to see Dr. Phillip W. LaHaye, an ophthalmologist in Eunice. Dr. LaHaye found the cataracts and thereafter was plaintiff's attending physician. He thought it was possible that the cataracts were caused by the creosote accident, and so reported to Reddell, whose insurer started paying workmen's compensation benefits to plaintiff.
In April of 1963, Dr. George H. Jones, an ophthalmologist from Baton Rouge, who performs eye surgery, was seeing patients in Dr. LaHaye's office in Eunice and examined plaintiff. Both doctors were of the opinion that surgical removal of the lenses would eventually be necessary and hence they continued to follow the case. By January of 1964 the cataracts had matured to the point that plaintiff was practically blind in both eyes. On March 6, 1964, a lense extraction was performed on plaintiff's left eye by Dr. Jones, assisted by Dr. LaHaye, at the hospital in Mamou, Louisiana. A similar operation was performed on the right eye on June 20, 1964.
At the time of the trial, October 13, 1964, plaintiff had already been fitted with special cataract glasses for the left eye and it was anticipated that within a few months a similar corrective lense would be made for the right eye. These corrective lenses will correct plaintiff's vision to about 20-25. But, the expert medical testimony is to the effect that he will have "tunnel vision", i. e., a considerable loss of peripheral vision in both eyes. Furthermore, due to the loss of the natural lenses in the eyes, and their light-filtering abilities, plaintiff will be very susceptible to the effects of glare from the sun or bright lights. Also, his vision will be distorted, i. e., objects will appear much larger than natural size.
The expert medical witnesses for both plaintiff and defendant are in general agreement that the phenol substance in creosote can cause cataracts. These doctors said the medical literature relates many case histories of patients who developed cataracts after orally taking drugs containing phenol over a period of time. But, defendant's doctors say the creosote could not have penetrated the outside of plaintiff's eyes and reached the lenses without burning and leaving scars and damage to the outsides of the eyes. No doctor found such scars. On the other hand, plaintiff's doctors say the creosote could have penetrated to the lenses without leaving outside scarring.
Both Dr. LaHaye and Dr. Jones expressed the considered opinion that as a result of the accident creosote penetrated through the outsides of the eyes to the lenses. There the phenol substances in the creosote altered the metabolism, or use of oxygen by the lenses, thereby causing them to become cloudy or opaque. Dr. Jones quoted most persuasively from a standard textbook of ophthalmology, Textbook of Ophthalmology, Vol. 6, Injuries, by Stewart Duke — Elder, which relates may case histories and experiments, where phenol in the bloodstream caused cataracts in both man and animals.
In addition to Dr. LaHaye and Dr. Jones, plaintiff relies on the testimony of Dr. Merrick Wyble, an ophthalmologist in Opelousas, who examined plaintiff on July 24, 1963. Dr. Wyble was a very cautious witness. He stated that he was not sure of the exact chemical components of creosote, but he did know from the above mentioned standard textbook and other literature that certain phenol substances, when taken orally, or entering the bloodstream in some way, could cause cataracts in some individuals. He further stated that if other possible causes, such as diabetes or inflammatory diseases of the eyes, could be ruled out, as they were in this case, and if plaintiff had perfect vision before the accident, it would be most unusual for the cataracts to progress as rapidly as they did without stimulation from some toxic products, which could have reached the lenses as a result of this accident.
Defendant introduced the testimony of three ophthalmologists who expressed the opinion that the creosote accident did not cause the cataracts. Dr. Phillip Laborde, of Alexandria, examined plaintiff six months after the accident; Dr. Robert E. Schoel, of New Orleans, examined plaintiff sixteen months after the accident; and Dr. R. V. St. Divier, of Lafayette, as noted above, examined plaintiff about six weeks after the accident. The essence of the testimony of these three expert medical witnesses is that the creosote could not have penetrated to the lenses of the eyes, which are beneath the cornea, without leaving some external scarring or damage.
We agree with the trial judge that this conflict between two bodies of respectable expert medical opinion must be resolved in plaintiff's favor. At the outset, we note that a few weeks before the accident plaintiff's eyes were examined for a driver's license, and his, vision was 20-20 in both eyes. In Normand v. Bankers Fidelity Life Ins. Co., 148 So.2d 154 (3rd Cir. 1962) we stated the general rule that:
"A medical condition producing disability or death is presumed to have resulted from an accident, if before the accident the injured person was in good health or affected only with latent symptoms, but shortly after the accident the disabling or death-causing condition manifested itself; provided that the medical evidence shows that there is a reasonable possibility of a causal connection between the accident and the disability or death." (citations omitted)
Furthermore, Dr. LaHaye was the treating physician and Dr. Jones was the surgeon who removed the lenses from plaintiff's eyes. Both of these doctors saw plaintiff on many more occasions, apparently researched the medical literature more thoroughly and gave more careful consideration to the cause of these cataracts, than did the defendant's medical witnesses who saw plaintiff on only one or two occasions.
The next issue is the quantum of damages. The award of $52,814.83 consists of (1) $45,000 in general damages for physical pain and suffering, mental anguish, a period of about 1 year of almost total blindness, permanent loss of and distortion of vision, future medical expenses and loss of future earnings; (2) $6,370 for actual loss of wages and (3) $1,444.83 for medical expenses already incurred.
One of the principal items of damage is the loss of future earnings. The evidence shows that at the time of the accident, plaintiff was 41 years of age and had previously worked as a roughneck for an oil company, as a truck driver, and with a seismograph crew, earning about $4,000 to $7,800 a year. We think the medical testimony shows that plaintiff will now be unable to work as a truck driver or as a roughneck or in any similar job around dangerous machinery. Not only are his eyes abnormally affected by glare, but the lack of peripheral vision would be an undue hazard. Plaintiff has only a ninth grade education and undoubtedly will suffer a considerable loss in earnings. At the time of the trial he was working only as a bartender.
Defendant has cited: Johnson v. Louisiana Coca-Cola Bottling Co., La. App., 63 So.2d 459, where an employee of an electrical supply company, with a life expectancy of 40 years, was awarded $12,500 for the complete loss of his left eye, but the opinion is not clear as to what consideration was given to loss of future earnings; Kennedy v. Frierson, La. App., 142 So.2d 838, in which a 24 year old man was awarded $5,000 for damage to one eye, reducing his vision to 20-40, correctible with glasses; and Johnson v. Pickering Land Lumber Co., 132 La. 425, 61 So.2d 514 in which a minor who lost an eye was awarded $6,000.
We agree with counsel for the plaintiff that the loss of one eye is not as disabling, nor perhaps does it cause as much physical pain and mental anguish as plaintiff's loss of the lenses in both eyes. A man left with one good eye can function fairly well, but a man like the plaintiff, who can't see anything without glasses, and who has to wear very thick special cataract glasses, referred to by one of the doctors as "milk bottle bottoms", and who will be highly sensitive to glare, and have only "tunnel vision", will be very seriously handicapped in his work and in his personal pursuits for the rest of his life.
Counsel have not cited any cases where the damage was to both eyes, but our attention is called to Pierrotti v. La. Department of Highways, 146 So.2d 455, La. App. (3rd Cir. 1962) where plaintiff lost his ability to speak and this court approved a total award by the trial court in the sum of $50,000. The facts showed that plaintiff was a 23 year old man whose larynx was pierced, causing permanent paralysis of the vocal cords, permanent difficulty in breathing and loss of earning capacity as a barber.
Under all of the circumstances, and in view of the "much discretion" allowed the trial court as to the amounts of awards, Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149; Ballard v. National Indemnity Company, 246 La. 963, 169 So.2d 64 (1964), we do not find this award to be an abuse of the trial judge's discretion.
For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendants.
Affirmed.
I am unable to agree with the majority that Burnel Ardoin was a "borrowed servant" of Hearin Tank Lines, and thus that his negligence renders the defendant liable in damages to plaintiff.
The evidence shows that Ardoin was a regular employee of Reddell Creosote Company. This company was engaged in creosoting lumber, and in connection with that business it acquired creosote and stored it in tanks on the company premises until needed. The defendant, Hearin Tank Lines, is a trucking company, and as a part of its business it transports and makes deliveries of liquids, including creosote, by means of tank trucks.
The tank truck used by defendant's driver in delivering creosote to Reddell in this instance was equipped with a fifteen-foot hose, one end of which hose remained attached to the truck. In making this delivery, the truck was parked within a few feet of Reddell's storage tank, and the loose end of the fifteen-foot hose was then attached by means of clamps to a valve which formed a part of the storage tank. After that had been done and the valve on the storage tank had been opened, the pump on the truck was started and creosote was pumped from the container on the truck into Reddell's storage tank.
It is true, as pointed out by the majority, that when defendant's truck arrived at the creosote company's premises, Ardoin was instructed by his employer, Reddell, to assist the driver of defendant's truck in any way requested. Pursuant to those instructions, Ardoin went to a place near the truck and storage tank, but, as pointed out by the majority, there is some question as to whether he did anything at all after he arrived at that point until about forty-five minutes later and immediately before the accident occurred. The evidence is clear, however, that the driver of defendant's truck did not need or request any assistance from Ardoin or from any one else, he did not instruct or tell Ardoin to do anything in connection with making this delivery, and he did not assume or exercise any control over Ardoin. During the entire forty-five minute period while the creosote was being pumped into the storage tank, Ardoin stood by his employer's storage tank, but he did nothing in connection with the delivery of the creosote. He states that he did not remember even opening the valve on the storage tank before the pumping operations began. After most of the creosote had been pumped into the storage tank, Ardoin understood the truck driver to use the word "empty," and he then proceeded to shut off the valve on the storage tank, being under the mistaken impression that that was the proper thing to do at that time. The majority correctly observes that Ardoin closed the valve "without being instructed to do so." The only act which Ardoin performed in connection with this operation, therefore, was a voluntary act, without any request or instructions from defendant's agents, and contrary to the wishes of the driver of defendant's truck.
I agree with the majority that the two general tests to be applied in determining whether the borrowed servant doctrine is applicable are: (1) Whose business was the employee engaged in, and (2) who had authoritative control of the employee. I also agree that either test, used alone, is not infallible, but that the doctrine is applicable where "it is clear that control by the defendant was coupled with performance for the defendant and in the defendant's business." Benoit, et al. v. Hunt Tool Company, et al., 219 La. 380, 53 So.2d 137. See also Humphreys, et al. v. Marquette Casualty Company, et al., 235 La. 355, 103 So.2d 895; Spanja v. Thibodaux Boiler Works, La. App.Orls., 33 So.2d 146; Blunt v. Lunsford, La. App. 2 Cir., 126 So.2d 379; and Malone, Louisiana Workmen's Compensation Law Practice, Sec. 57, pp. 12-16 (1964 P.P.). In applying those tests to the facts in the instant case, however, I can come to no other conclusion but that Ardoin was not an employee "pro hac vice" of defendant.
In the first place, if it is to be assumed that Ardoin did assist in any way in making the delivery, then it seems to me that he was performing duties as much for his general employer, Reddell Creosote Company, as for Hearin Tank Lines, since it was the business of Reddell to receive delivery of and to store creosote in its storage tank. And I assume that it was of more interest and concern to Reddell than to the defendant trucking company that the valve of Reddell's storage tank be closed after the delivery had been made. In the second place, I find no evidence to the effect that the driver of defendant's truck ever exercised any authoritative control over Ardoin. The driver did not ask for or need any assistance in making the delivery, and he did not accept or make use of any assistance which may have been offered by Ardoin or by Ardoin's employer.
The facts and issues presented in this case are similar to those presented in Guillory v. Hartford Accident Indemnity Company, La. App. 3 Cir., 168 So.2d 360 (Writ Refused). There it was contended that plaintiff, Guillory, who was regularly employed by W. C. Fatjo, became an employee "pro hac vice" of defendant, Schlumberger, when he undertook to assist that defendant in running tests on an oil well, although the employees of Schlumberger did not request Guillory's assistance, nor did they assume control over him. We held that under those circumstances Guillory did not become a borrowed employee of that defendant, and in so holding, we said:
"* * * In like manner it is clear that, since no orders were given, or requests for assistance made, by the Schlumberger men to plaintiff or to other members of the well crew, Schlumberger did not assume control over plaintiff as an employee. Plaintiff's act in removing the hole cover was one he frequently performed for his own employer, and, factually, was no deviation from his regular duties. Consequently, plaintiff did not become an employee 'pro hac vice' of Schlumberger. * * *"
I also note the following language which was used by our Supreme Court in Benoit v. Hunt Tool Company, supra, and which I think is pertinent here:
"Since Guillory was in the general employ of Hunt Tool Company, it must appear from the evidence in order for it to be relieved from liability that the relation of master and servant which existed between them had been suspended, and that a new like relation between Guillory and Morris Meredith had been created and was in existence at the time of the accident.
Under the circumstances of this case we conclude that it was the work of Hunt Tool Company which was being performed, and that that company had not relinquished the right to control Guillory in the performance of it. The fact that the official of Morris Meredith suggested that Guillory use an electric torch in the welding of the tank, and that Morris Meredith pointed out the welding to be done, did not constitute authoritative direction and control but was merely suggestion as to details and constituted necessary cooperation in the work being furnished in the larger undertaking.
We therefore conclude that Guillory was not the borrowed servant of Morris Meredith but was the servant or employee of Hunt Tool Company at the time the accident occurred." (emphasis added)
In the instant suit defendant's driver did not give any orders to Ardoin, no request for assistance was made, and defendant's employee did not assume control over Ardoin at any time. There is nothing in the record to indicate that the relation of master and servant which existed between Reddell and Ardoin had been suspended, and that a new like relation between Ardoin and defendant had been created and was in existence at the time of the accident. I do not think the evidence justifies a conclusion that Reddell had relinquished his right to control Ardoin, or that the truck driver exercised or ever intended to exercise any authoritative direction or control over him. Under the rules applied in the Guillory and the Benoit cases, therefore, Ardoin did not become an employee "pro hac vice" of the defendant.
If the conclusion of the majority that Ardoin was a borrowed servant of Hearin Tank Lines does stand, however, then I think it necessarily follows that plaintiff, Rovelia Young, must also be considered to be a borrowed servant of the same defendant, and his remedy against this defendant must be limited to workmen's compensation benefits. Young was employed by Reddell, as was Ardoin, he received the same instructions as were received by Ardoin with reference to the delivery of creosote, and he did identically the same thing Ardoin did pursuant to those instructions, except for the one voluntary act of Ardoin in turning off the valve on the storage tank. I, of course, am convinced that neither Young nor Ardoin was a borrowed servant, but in any event the same rule should apply to both. I cannot agree with the majority that Ardoin became a borrowed servant of the defendant while Young did not.
Since I feel that Ardoin was not a borrowed servant of defendant, I think the majority erred in holding that the defendant is responsible in damages to plaintiff for the negligent acts of Ardoin. The evidence, in my opinion, fails to show any negligence on the part of the driver of defendant's truck.
For these reasons, I respectfully dissent.