In Hall v. Hartford Accident Indemnity Co., above, a similar situation was presented. There the court amended the judgment to allow a continuing credit against the judgment received by the plaintiff against the tort feasor to include the period of time that lapsed between the date of the trial and the conclusion of the matter on appeal. The same was done in Barrios v. Service Drayage Company, 250 So.2d 135 (4th La.App., 1971). The judgment in the instant matter should be similarly amended.
"No one is required to foresee the negligence of his employer or any third person." Hall v. Safeco Ins. Co., 374 So.2d 715, 718 (La.App. 1st Cir.), writ denied, 378 So.2d 431 (La. 1979); see Barrois v. Service Drayage Co., 250 So.2d 135, 141 (La.App. 4th Cir.), writ denied, 259 La. 806, 253 So.2d 66 (La. 1971); Bailey v. Trinity Universal Ins. Co., 124 So.2d 575, 577, 578 (La.App. 3d Cir. 1960). Indeed, Hovanec testified that when he went across the beam and palmed the wire rope it was beyond his "wildest dreams" that Everett would signal the crane operator and a load would be sent up. Rec.Vol. V at 44.
Other courts have construed the word "use" as including loading and unloading of the vehicle. The court in Barrios v Service Drayage Co., Inc., 250 So.2d 135 (La.App. 4th Cir. 1971) recognized that: There have been several cases in Louisiana interpreting the loading and unloading provisions of insurance policies such as this. Our courts have declared that such provisions expand the coverage afforded beyond the actual driving or parking of the vehicle insured so as to cover some acts in which the vehicle does not itself play any part; that is, the vehicle is not moving but at rest, and some objects are being moved onto or off of the vehicle.
Plaintiff relies on the following cases from the jurisprudence. Barrios v. Service Drayage Co., 250 So.2d 135 (La.App. 4th Cir., 1971); Hall v. Hartford Accident Indemnity Co., 278 So.2d 795 (La.App. 4th Cir., 1973), writ refused 281 So.2d 753 (La.) and Burley v. Louisiana Power and Light Co., 327 So.2d 585 (La.App. 4th Cir., 1976), writs refused 332 So.2d 278 (La.). The intervenor relied on the Hall and Barrios cases in its application for new trial or amendment of the judgment.
Those cases applying the "borrowed servant" doctrine include: Commercial Union Ins. Co. v. Bringol, 262 So.2d 532 (La.App. 4th Cir. 1972); Brown v. B G Crane Service, Inc., 194 So.2d 746 (La.App. 4th Cir. 1966), writ refused 250 La. 534, 197 So.2d 79 (1967); Truitt v. B G Crane Service, Inc., 165 So.2d 874 (La.App. 4th Cir. 1964); Miller v. B. Lewis Contractors, Inc., 103 So.2d 592 (La.App. 1st Cir. 1958). Those finding the doctrine inapplicable include: Pagitt Well Service, Inc. v. Sam Broussard, Inc., 293 So.2d 631 (La.App. 3rd Cir. 1974); Barrois v. Service Drayage Co., 250 So.2d 135 (La.App. 4th Cir. 1971); Universal Engineers and Builders, Inc. v. Lafayette Steel Erec. Corp., 235 So.2d 612 (La.App. 3rd Cir. 1970); Kezerle v. Hardware Mutual Casualty Co., 198 So.2d 119 (La.App. 3rd Cir. 1967). As pointed out by this court in Kezerle v. Hardware Mutual Casualty Co., 198 So.2d 119 (La.App. 3rd Cir. 1967), writ refused 250 La. 918, 199 So.2d 921 (1967):
Even though a workman may be aware of the existence of electrical power lines, it is not an assumption of the risk per se, nor is it negligence per se to work in the vicinity of those lines. Barrois v. Service Drayage Co., 250 So.2d 135 (La.App. 4th Cir. 1971). There was no evidence that either Harper or Blady were engaging in any practice that was unusual, careless or exceptionally dangerous.
We think that, if proven, a successful plaintiff is entitled to such special damages under Louisiana law as itemized. Barrois v. Service Drayage Company, 250 So.2d 135, 148 (La.App. 4th Cir. 1971), loss of past and future earnings, actual medical and related expenses; Nichols v. Hodges, 385 So.2d 298 (La.App. 1st Cir. 1980), physical therapy, licensed practical nurses; Dupas v. City of New Orleans, 361 So.2d 911, 915 (La.App. 4th Cir. 1978), rehabilitation expenses, therapy; Cobb v. Insured Lloyds, 387 So.2d 13, 19-20 (La.App. 3d Cir. 1980), future medical expense. Generally, an injured party should be able to recover for damages which resulted directly from defendant's wrongful act so long as they are not speculative. Caron v. United States, 410 F. Supp. 378, 392 (D.R.I. 1976).
Kiff v. Travelers Insurance Company, 402 F.2d 129 (5 Cir., 1969); Jurisich v. Louisiana Southern Oil & Gas Company, 284 So.2d 173 (La.App. 4 Cir., 1973); Barrois v. Service Drayage Company, 250 So.2d 135 (La.App. 4 Cir., 1971); Universal Engineers & Builders, Inc. v. Lafayette Steel Erector Corp., 235 So.2d 612 (La.App. 3 Cir., 1970); Kezerle v. Hardware Mutual Casualty Company, 198 So.2d 119 (La.App. 3 Cir., 1967); Blunt v. Lunsford, 126 So.2d 379 (La.App. 2 Cir., 1960); Thompson v. National Surety Corp., 124 So.2d 227 (La.App. 2 Cir., 1960); Fontenot v. National Transfer Company, 99 So.2d 795 (La.App. 1 Cir., 1957).
Coop, mired in negligent mud, cannot ooze and create solid legal ground to stand upon, when it is begotten from its own negligent conduct. Working in the vicinity of high-voltage electricity is not negligence per se nor assumption of the risk per se. Barrois v. Service Drayage Co., 250 So.2d 135, 141 (La.App. 1971). Testimony reveals that an engineer, testifying for the Coop, stated that the Coop envisioned and planned that the Lovells would only have to pull the well up to 18 feet, and to no higher distance up to within 6 feet of the high-voltage line. It is undisputed that the well could not be pulled in 18-foot sections.
Our statutory provision on damages has been broadly construed to include such items as physical and mental pain and suffering, loss of wages, permanent disfigurements and disabilities and actual medical and related expenses. La.Civ. Code art. 1934(3); Fontenot v. Magnolia Petroleum Co., 227 La. 866, 80 So.2d 845 (1955); Reeves v. Louisiana and Arkansas Railway Co., 304 So.2d 370 (La.App. 1st Cir. 1974); Barrois v. Service Drayage Co., 250 So.2d 135 (La.App. 4th Cir. 1971). See also Baskin v. Parker, 602 F.2d 1205 (5th Cir. 1979).