MARLER v. STATE

AYRES, Judge.

Plaintiff instituted this action in tort against the State of Louisiana, pursuant to authority granted by Act 153 of the 1952 session of the Legislature, as the result of an automobile and truck collision occurring July 31, 1949, at the intersection of State Highway 24 and U. S. Highway No. 165 in the Village of Forest Hill, Rapides Parish, Louisiana. The vehicles involved were a Chrysler automobile owned and driven by plaintiff's husband, Dave S. Marler, who was accompanied by plaintiff and her sister, who were sitting in the rear seat, and a wrecker truck, one of about 20 military vehicles of the Louisiana National Guard, proceeding from New Orleans to Camp Polk, near Leesville, Louisiana. In the accident Marler was killed, dying immediately following the impact; Mrs. Marler was seriously and severely injured; Miss Weaver, her sister, also received injuries and has since died; and the automobile, for all practical purposes, was destroyed.

After filing and urging an exception of no cause or right of action, which was overruled, the matter was placed at issue by defendant's answer. After trial on the merits, a judgment was rendered in plaintiff's favor for $67,684.19, less a credit of $10,000 received by plaintiff from her husband's insurer. From the judgment thus rendered, the State appealed. The inadequacy of the award is asserted in plaintiff's answer to the appeal, wherein it is prayed that the judgment be increased to $298,153.71, as originally sued for. The State reurged its exception of no cause or right of action.

The statutory enactment authorizing this proceeding reads as follows:

It is contended under this Act that it not only does not create a cause of action in favor of the plaintiff but, since the adoption of Act 385 of 1946 amending Section 35 of Art. III of the LSA-Constitution, the Legislature is prohibited from doing more than to provide a remedy for enforcing a pre-existing right and authorizing a suit against the State. In other words, the State contends that the statute only waived the State's immunity from suit and that the State's immunity from liability for tort was not waived—that the purpose of the Act was merely to waive the State's immunity from suit. Reference has been made to the constitutional provision under which the statute was enacted, which formerly read as follows:

It is argued that, by the amendment of 1946, a very substantial and material change was effected in the constitutional provision, which, by such amendment, reads as follows:

By virtue of the language of the amendment, it is submitted by defendant that Act 153 of 1952, merely confers jurisdiction to entertain the suit and does not mean that the State's immunity from liability for the torts of its agents is waived. With this contention and position of the State we are unable to agree. The constitutional provision clearly authorized the statute as enacted and the statute not only waived the State's immunity against suit against it but also its immunity from suit for the negligence of its agents and employees and its immunity from liability for such torts. A construction of the statute as contended for by the State would render the statute a nullity, meaningless, and without any force or effect. If the statute merely permitted plaintiff to physically file a suit in the district court and nothing more, then it did nothing and no purpose was served or accomplished, as she, without authority of the statute, could have done as much. Should she have filed this suit without the statute, the State could and, no doubt, would have filed the same exception, based on its non-liability for the tortious acts of its agents and employees. Such exception would have been meritorious and, no doubt, would have been sustained. The State is contending as much now even in the face of the statute authorizing the suit.

Plainly, it was the intention of the Legislature by its adoption of the statute to waive the State's immunity against the suit in its entirety and to place its defense on the same plane as an ordinary defendant, in the absence of an express reservation to the contrary. The statute, necessarily, was a waiver of the State's immunity as a sovereign in its entirety and does not reserve the right to rely upon its exemption from liability for damages by reason of the negligence of its agents and employees in pursuing the course and in committing the acts wherein plaintiff was seriously and permanently injured and her husband lost his life, in the absence of an express reservation to the contrary.

The Act itself authorizes the suit to be filed and prosecuted to judgment by plaintiff upon her claim for damages on account of the wrongful death of her husband and on account of the personal injuries, mental and physical anguish, permanent disability, loss of earnings, medical expenses and property damages sustained by her as a result of the negligence of the members of the National Guard of the State of Louisiana. The Adjutant General of the State of Louisiana, in conjunction with the Attorney General, was authorized to settle the claims by compromise, and the statute provided that, except as otherwise expressly provided therein, the procedure would be the same as in suits between private litigants. It was, therefore, clearly the intention and purpose of the Legislature to waive the State's immunity from liability for torts of its agents. It is apparent that the Legislature intended to provide for compensation for injury done by waiving the State's sovereign immunity to suit, since to hold otherwise would virtually give the plaintiff a mere right to sue on a non-existent cause, and that such construction would amount to a total destruction of the obvious intent and purposes contemplated by the Act.

The statute included negligence in its terms. That was the object and concern of the statute, and an absurd result is not to be imputed to the Legislature in the enactment, which would result in holding that the intent and purpose of the Legislature was to grant Mrs. Marler only an ineffective and unenforcible right to file a suit, contrary to the obvious purpose to permit her to file and prosecute a suit to judgment in view of the express language authorizing the same and permitting a compromise of her claims and providing for the procedure as in suits between private individuals. The statute did not create a cause of action against the State nor admit that plaintiff had a cause of action or was entitled to recover; it was a waiver of the State's immunity as a sovereign in its entirety, without any reservation of its exemption from liability for damages.

In Varnado v. State, La.App., 136 So. 771, 773, the plaintiff was injured by exploding dynamite caps, poured out of a wastebasket into a fire, which caps had been placed in the wastebasket without his knowledge by employees of the Louisiana Highway Commission. Plaintiff, acting pursuant to Act 25 of 1930, instituted action for damages against the State and the Highway Commission, both of which filed exceptions of no cause and no right of action. It was urged by the Commission that, inasmuch as it was an integral part of the State government and, as such, was as exempt as the State itself from liability for damages caused by negligent acts and torts committed ex delicto by its agents and employees in the construction of the highways of the State. The Court of Appeal for the First Circuit overruled the exceptions, and, with reference to the purpose of the Legislature in passing the authorizing Act, stated:

* * * * * *

* * * * * *

Where the Legislature enacted Act 341 of 1944, authorizing an action by W. Edmond Crain against the State of Louisiana through the Department of Highways upon his claim for damages resulting from accident for personal injuries, fixing a forum for such suit to be instituted, and denying to the defendant the benefit of a plea of prescription, the court overruled an exception of no cause or right of action, wherein it was contended, first, that plaintiff's cause of action, if any, arose out of an accident occurring while he was employed by the Commission and that his action therefore was governed exclusively by the Workmen's Compensation Statute, and, second, that defendant could not be held liable in an action for tort under the fellow servant rule. It was there held that the Legislature had the supreme power to authorize the injured employee of the Highway Department to sue either in tort or for workmen's compensation and authorization of a tort action was a matter of legislative policy with which the courts are not concerned.

The Supreme Court, in Lewis v. State, 207 La. 194, 20 So.2d 917, 920, overruled exceptions to the jurisdiction ratione personae and ratione materiae and a plea of unconstitutionality to a suit brought pursuant to Act 273 of 1942, which authorized the plaintiff there to institute suit against the State of Louisiana upon her claim for damages resulting from the personal and permanent injuries sustained by her while she was confined in a hospital operated by the State at Pineville, Louisiana, which injuries she alleged resulted from "maltreatment" of the employees and the malpractice and negligence of the superintendent of said State hospital. It was further held that the State can waive its immunity to suit and liability. The court stated:

* * * * * *

The court further held that no other meaning or effect could be attributed to the statute other than what is plainly apparent on its face, and that when the title and the body of the Act are compared and construed jointly and the purpose of the Legislature in enacting the law is considered, it was clear that only one object was in view, the authorization of Miss Lewis to file suit against the State of Louisiana for personal injuries sustained by her. In this regard the court stated:

The decision in Angelle v. State, 212 La. 1069, 34 So.2d 321, 324, 2 A.L.R.2d 666, cited by the defendant, does not support the State's contention but rather that of the plaintiff. That suit was instituted without legislative consent. In the absence of such authority, plaintiffs proceeded on the theory that the destruction of their property by fire while it was being subjected to disinfection by State agents was an appropriation of the property for public purpose, violative of Article 1, Section 2 of the Constitution, for which suit for compensation will lie against the State without its consent. In disposing of this contention, the court stated:

That case is, therefore, distinguishable from the case presently before us in that, in the cited case, the suit was instituted without the benefit of a legislative enactment authorizing the same, whereas here the special consent prescribed as a requisite to the suit was given by special legislative act.

The contention that the 1946 amendment to Section 35 of Article III of the Constitution effected a change, so far as actions ex delicto against the State are concerned, is without merit. In Goodwin v. Department of Highways, La.App. 1950, 53 So.2d 161, 164, a suit was brought pursuant to Act 332 of 1948 by a widow for damages for the death of her husband caused by the negligence of the employees of the Department of Highways. That Act provided:

In Rosier v. State, supra, which was an action for damages brought by the three surviving children for the death of their father and mother and three other minor children when the car in which they were riding, driven by their father, was swept from the highway by flooding waters, which waters had covered the highway for a period of four days preceding the accident to the knowledge of the Department of Highways, which had failed and neglected to place warning signals, signs, flares or lights to warn motorists of the presence of the water over the highway and the dangers of the situation, this court held [50 So.2d 35]:

The fateful accident involved in that case occurred Easter Sunday, April 13, 1947, and the act authorizing the suit against the State was No. 226 of 1948.

In construing a statute of a similar nature, the Court of Appeals of Kentucky, in Commonwealth v. Masden, 295 Ky. 861, 175 S.W.2d 1004, 1007, 169 A.L.R. 101, 103-104, stated:

The State has cited and quoted from authorities of other jurisdictions, some of which apparently and, no doubt, support its position. We are not informed of the constitutional provisions under which the legislative consent was given for the institution of those actions. At least, they are not controlling here in view of the jurisprudence of this State and the pronouncements of our courts to the contrary.

Our conclusion, therefore, is that the State has effectively waived its immunity to suit and liability for damages for the tortious acts committed by its agents, servants and employees. The statute involved did not create any liability on the part of the State of Louisiana but waived the State's immunity to suit and judgment. Plaintiff had the right to establish, if she could, upon the trial of the case there was liability on the part of the State and that its agents, servants and employees were negligent in the performance of their duties.

It was next urged that the members of the Louisiana National Guard are not liable for their torts while on duty and that, accordingly, the State is also free from liability. The basis of this contention is LSA-R.S. 29:31, reading as follows:

This section absolves members of the National Guard from liability for their acts when they have been ordered by the Governor into active service in the event of insurrection, invasion, riot, or imminent danger thereof, or in the event of public disaster or danger from floods, fire, storm or earthquake, or to assist the civil authorities in guarding prisoners. It has no application otherwise to members of the National Guard, such as while on two weeks' training tour, as was Sergeant Busurelo at the time of this accident.

In State v. Josephson, 120 La. 433, 45 So. 381, the defendant was charged with, prosecuted and found guilty of assault and battery. The victim of the offense was a private in a company of the National Guard of which the defendant was captain. The question was whether or not that case was cognizable by the civil courts or only by a military tribunal. It was contended that the defendant was in active service although his company had not been ordered into active service by the Governor. That is the situation here. The National Guard had not been ordered into active service by the Governor. The court stated:

Even though granting that Sergeant Busurelo could not be held civilly liable for his acts of negligence in this case, such exemption and grant of immunity would be a personal defense which he, and he alone, could set up against any action instituted against him. This would afford no relief to the State of its liability. This contention is likewise without merit and the State's position is untenable.

It was also contended that a member of the Louisiana National Guard is not an employee of the State of Louisiana. Cited as authority is Lind v. Nebraska National Guard, 144 Neb. 122, 12 N.W.2d 652, 655, 150 A.L.R. 1449. It does not appear that this case is authority for the proposition for which it was cited, in that it was held that a member of the National Guard was an employee of the State. The court passed on the question of whether a member of the National Guard was an employee of the State of Nebraska within the contemplation of the Workmen's Compensation Act. The court stated:

The exception of no cause or right of action was, therefore, properly overruled.

The sole and proximate cause of the accident was alleged to be negligence, lack of circumspection and want of requisite skill on the part of Sergeant Busurelo, the driver of the Louisiana National Guard vehicle, such negligence specifically consisting of the following acts:

After denying any negligence on the part of Sergeant Busurelo, the State alleged that the plaintiff and her deceased husband could have avoided the accident by the exercise of ordinary care on their part and after actual discovery of the driver's peril or after they should have discovered such peril; that they had the last clear chance to avoid the accident; and, in the alternative, plead contributory negligence on their part in these respects:

The record establishes than on Sunday, July 31, 1949, Dave S. Marler was driving his new Chrysler 4-door automobile southerly on U. S. Highway 165. The other occupants were his wife, Lois Weaver Marler, plaintiff in this action, and the latter's sister, Miss Willie Weaver of Florida. The ladies were sitting on the rear seat. The trio had been to Alexandria where they attended church services and were returning during the early afternoon to the Marler home in Oakdale.

The New Orleans contingent of the Louisiana National Guard had been mobilized and was then moving in a convoy towards Camp Polk near Leesville, Louisiana, via Louisiana Highway 24, which joins Highway 165 at Forest Hill, Louisiana, forming a "T" junction. Highway 24 is a state highway and Highway 165 is a federal and state highway. The uncontradicted fact is that Highway 165 is a superior highway and has the right of way. When a weapons carrier in this convoy developed engine trouble between Lecompte and Forest Hill, the vehicle driven by Sergeant Busurelo referred to in the record as a wrecker vehicle stopped so that Busurelo, a mechanic, might make such repairs as were necessary and remedy the trouble so that the vehicles might rejoin the convoy. Lt. Antoine Burguieres returned to the disabled vehicle to ascertain the cause of the delay. After probably an hour or more, the three vehicles, the Jeep, weapons carrier and the Army wrecker truck, in that order, proceeded to Camp Polk. The two lead vehicles turned right or northerly from Highway 24 on U. S. Highway 165; the third vehicle, driven by Sergeant Busurelo, proceeded around another automobile, stopped at the junction waiting for traffic to clear, and also turned right by crossing over the center line of Highway 165 and collided with the oncoming Chrysler.

From the testimony, inconsistent with regard to speeds, times, distances and positions, viewed realistically and fairly, with the application of the fundamentals of physics, of simple mathematics and of common sense, the material facts can be determined. The speed of the Marler car was estimated by defense witnesses to be as much as 50 to 60 miles per hour. The police report contained an estimation of 40 miles per hour.

It can reasonably be concluded that as he approached the junction of Highway 24, Marler saw the two lead Army vehicles come upon Highway 165 toward him, saw another automobile stopped at the junction as if awaiting his passage, whereupon the Army wrecker truck suddenly came around the parked vehicle onto and over the center line of Highway 165 in front of the approaching Chrysler, the driver of which immediately applied his brakes and skidded his car 49 feet before crashing into the left front of the Army truck, which was partially in his lane of traffic. The evidence shows that the skid marks were 22 inches to the right or west side of the center line of Highway 165.

This highway junction, as Highway 24, joins Highway 165, has a width of 135 feet and there was no obstruction to the view northerly on Highway 165 from the junction other than probably from the parked vehicle which he passed and the two Army vehicles preceding him. Otherwise, there were no obstructions that would have prevented Busurelo from looking to his right on Highway 165 and seeing the approach of the Chrysler automobile. His duty as to caution was nonetheless prevalent and even to a greater degree.

After reaching the Village of Forest Hill, the rear vehicle driven by Busurelo became separated and behind the other two. The car of Dallas Clark came in ahead of the Busurelo truck and reached the intersection first, following the two lead vehicles which completed a right turn into the highway. Clark stopped about 40 feet from the intersection, specifically for the purpose of awaiting the passage of a car approaching on Highway 165 from his left, traveling north, and, while so waiting, the Marler car came into sight. Notwithstanding that Clark had stopped, awaiting the passage of traffic on Highway 165, Busurelo passed to the left of the Clark car, made a wide sweep in turning into Highway 165, and crossed over the center line of the highway, after which he saw the Marler car approaching at what he said was at a fast rate, at which moment, due to his slow speed and the application of his brakes, he was able to stop instantly. The brakes on the Marler car were applied and the car skidded 49 feet, striking the front end of the truck. As heretofore noted, the intersection was wide, with the flare of Highway No. 24 extending to a width of 135 feet; consequently, there was no need or necessity of Busurelo making such a wide, sweeping turn, requiring that the truck pass beyond the center line of the highway. Busurelo, it appears from the evidence, although some distance behind the two forward vehicles, on reaching the intersection, made no independent observation of his own as to the traffic conditions or as to the traffic approaching on Highway 165 from either direction. Apparently, he was content and felt justified in following the signal of his Lieutenant, given as the Lieutenant entered the highway in the lead in his Jeep. The conditions were no doubt such as it was safe for the Lieutenant and the second vehicle to enter the highway; but, after their entry upon the intersection and after the turn was completed by them, the situation had changed. Dallas Clark had reached the intersection and, as heretofore stated, had stopped to await traffic on U. S. Highway 165 approaching the intersection at that time. Nevertheless, Busurelo drove by the Clark car and entered the intersection, driving the front end of his vehicle beyond the center line, stopping and partially blocking the lane of traffic of the Marler car.

The appropriate traffic regulations are provided in LSA-R.S. 32:235 subd. B:

Busurelo did not comply with this provision of the law, but, in the manner as hereinabove shown, entered the intersection, drove beyond the center of Highway 165 in front of the oncoming Marler automobile at a time and under circumstances that it was impossible for Marler to avoid the impending collision. Neither did Busurelo comply with the stop sign against traffic entering Highway 165. Marler had the right to assume that Busurelo would exercise reasonable care and caution and obey the stop sign or at least would not come over into his lane of traffic. See Leforte v. Gorum, La.App., 7 So.2d 733; Teche Lines, Inc., v. Gorum, 202 La. 993, 13 So.2d 291; Termini v. Aetna Life Ins. Co., La.App., 19 So.2d 286.

In Willis v. Standard Oil Co. of Louisiana, La.App., 135 So. 777, 780, which is a case involving facts similar to the instant case, the court there appropriately stated:

Marler had the right to assume, until the contrary appeared in time for him to stop, that Busurelo would be able to control his vehicle and keep it on his side of the highway and in his own lane of traffic. Marler's failure to anticipate that Busurelo would not do so does not render him negligent in any way. This court, in New Hampshire Fire Ins. Co. v. Bush, 68 So.2d 254, held that where a motorist, upon approaching an intersection with a less favored street, slowed her automobile in accordance with blinking yellow traffic light and, although observing rapidly approaching truck one-half block distant from the intersection on less favored street, entered the intersection, where collision with truck occurred, motorist was justified in believing approaching truck would obey the stop sign and would stop at intersection, and that her failure to realize that truck would run stop sign was not proximate cause of the collision.

It was held by the Supreme Court in Kientz v. Charles Dennery, Inc., 209 La. 144, 24 So.2d 292, 294, and by the Orleans Court of Appeal in Terrebonne v. Toye Bros. Yellow Cab Co., 64 So.2d 868, that a driver, knowing that a motorist on an intersecting street is required to stop before entering intersection, may assume that motorist will do so unless it is obvious that speed of motorist is so great that motorist can not stop or does not intend to do so.

Therefore, by his grossly negligent acts, Busurelo placed Marler in grave peril, with insufficient time or opportunity to extricate himself, and, being so placed in such position, Marler can not be regarded as having been negligent. It was not essential to his exercise of ordinary care by Marler that he anticipate that Busurelo would not stop or would drive on his side of the superior highway. See Firemen's Ins. Co. v. Boggs, La. App., 23 So.2d 630, and Lively v. State, La. App., 15 So.2d 617, 619. The latter case was instituted against the State under the authority of a special act authorizing suit for damages occasioned by the negligence of a truck driver of the Department of Highways and involved in an intersectional collision on Highway 165 at Columbia, Louisiana. The court stated:

Busurelo claimed that his truck had been stopped by the application of full brakes for a second or two when the Chrysler collided with it. The conclusion is inescapable that the acts of Busurelo in driving his truck in a wide, sweeping curve and heedlessly proceeding across the center line in the path of an oncoming automobile and then stopping, constitutes nothing less than the grossest kind of negligence.

Defendant charges Marler with fault in failing to take to the shoulder of the highway to his right. Aside from the fact that with his brakes applied in an effort to stop and avoid the collision, this would have been a maneuver of questionable outcome and benefit, and the further fact that while the shoulder was sufficient north of the intersection, it was not so south of the intersection because of a culvert and "jump-off". Moreover, it is a rule of law that, when faced with a sudden emergency not of his own creation, a motorist need not exercise the wisest judgment possible or make the best choice of alternatives. Human reaction in emergencies is taken into account, and the person acting in an emergency is not held to the same degree of care and caution that would be expected of him in the absence of an emergency. When faced with such a situation, one is bound to exercise only that caution and judgment which could reasonably be expected of an ordinarily prudent person under the circumstances. In Home Ins. Co. v. Warren, La.App., 29 So.2d 551, 554, it was stated, with reference to a motorist in an attempt to avoid a collision:

See also Peltier v. Travelers Ins. Co., La. App., 49 So.2d 346.

The State further contends that Marler was guilty of both negligence proximately causing the accident and contributory negligence barring recovery herein in that he was traveling at an excessive rate of speed in the corporate limits of the village in violation of a municipal ordinance fixing a speed limit of 25 miles per hour. That Marler was driving at a speed greatly in excess of the aforesaid limit was established beyond question. The violation of a statute or an ordinance, unless such violation constitutes a proximate cause of an accident, is insufficient to prevent recovery of damages sustained therein. A permissible speed depends on conditions prevailing at the time. Teche Lines, Inc., v. Gorum, supra. A speed of 50 miles an hour by an automobile on a boulevard in the City of Baton Rouge was held not excessive and driver was therefore not contributorily negligent so as to preclude recovery for damages to automobile in collision with an overtaken truck making a left turn at intersection without giving proper signal or driver observing traffic approaching from the rear. Ball v. Home Oil Co., Inc., La. App., 4 So.2d 579.

Whether Busurelo stopped, as he claimed, before entering Highway 165, is unimportant with respect to his responsibility for the collision, for, if we consider that he stopped and looked for traffic, he could and should have seen and is charged with having seen the approaching Marler automobile. In this regard an expression of the court in Firemen's Ins. Co. v. Boggs, 23 So.2d 630, 632, is appropriate:

The situation at the intersection required at the time a greater degree of care and caution on the part of Busurelo than was exercised by him. He should have respected Marler's right of way, and had he used patience and hesitated before entering the intersection with the superior highway, as Dallas Clark did, the accident would have been prevented. Marler, after being placed in a perilous position of grave danger at a time when it was too late and impossible for him to avoid the collision, could not have been reasonably expected to exercise the same calm judgment of one who had a reasonable opportunity to deliberate and calculate before acting. The last clear chance to prevent the accident was with Busurelo and not Marler. When Marler realized the perilous situation in which he had been placed, he applied his brakes most effectively but failed to stop short of the collision. On the other hand, Busurelo had an opportunity to avoid the accident; he could have stopped his truck behind the Clark automobile, which did stop for the oncoming traffic to clear, and he had sufficient space to make a right-hand turn and remain in his lane of traffic. Regardless of his speed, the Marler automobile had reached a point where, so far as its driver was concerned, the collision could no longer be avoided. Such speed, if excessive and exceeding the lawful limit, was only a condition and not a proximate cause of the collision.

An expression of this court in the recent case of Cone v. Smith, 76 So.2d 46, 49, is very appropriate here:

Our conclusion is that Marler was not negligent and, as a consequence, it follows that Mrs. Marler could not have been. She had neither the right nor the power to control the driving of the car; there is no showing of any need of concern or alarm on her part in regard to her husband's driving. There is no legal duty for a guest to maintain a better or a more constant lookout than is required of the driver. If she had kept a constant lookout, it is not shown or suggested how she could have seen more than did her husband. From a most thorough and careful study of the entire record, consideration of which has been given to every part thereof, we are led and impelled to the conclusion that the sole and proximate cause of the accident and the damages sustained and the injuries suffered therefrom were due to the fault of Busurelo, the driver of the National Guard truck, by his failure to stop before entering the intersection or to keep a proper lookout and to observe the approaching traffic, and in heedlessly and recklessly making a wide and sweeping turn, in not keeping in his lane and to the right side of the intersection, and in projecting his truck into the opposite lane of traffic in front of an oncoming car. Marler, confronted with a sudden emergency, not of his making or creation, lacked both time and opportunity to avoid the collision, although, under the facts and circumstances, attempted all that could be reasonably expected of him. It, therefore, follows that defendant should respond in compensation for the damages sustained and the injuries suffered.

Defendant complains that the award of the trial court was excessive, whereas plaintiff alleges the award was inadequate.

The plaintiff and her deceased husband had been married for a period of 25 years at the time of the accident and his death; they had no children; they lived together alone for this period of time; they were devoted to each other and spent considerable time together. There was no history of marital difficulty or tension but, on the contrary, their marriage was shown to have been harmonious. At the time of his death, Marler was 60 years, 8 months and 23 days of age. His income for the year preceding his death was $5,012.48. He had a life expectancy, based on the age of 61 of 13.47 years.

Plaintiff and her husband lived under a regime of community of acquets and gains. During the period of his life expectancy, at his rate of earning, he could have been reasonably expected to earn approximately $67,500.00. Under the community existing between them, one-half of those earnings would have become the property of plaintiff. A calculation of the present value of what would have been her interest in such earnings, by adding legal interest on such sums as would have been earned by the husband from his death to the present time and by discounting at the same rate what would have been his earnings for the balance of his life expectancy as somewhat in the manner calculated on rehearing by the Supreme Court in Jones v. Kansas City Southern Ry. Co., 143 La. 307, 314, 78 So. 568, it would be concluded that the present value of plaintiff's share in her husband's prospective and expected earnings during his life expectancy would be no less than $30,000, which could well be the extent of the loss of her husband's earnings and support.

Plaintiff is likewise entitled to compensation for the loss of her husband's love, affection and companionship, so far as possible to compensate therefor. The sum of $10,000 appears adequate and in line with similar awards.

There is a stipulation in the record as to the actual expenses incurred and for damage done to the automobile, including medical, hospital, nursing, doctors' and drug bills, funeral expenses of the husband and otherwise, aggregating $7,684.19.

Mrs. Marler at the time of the accident was 50 years of age and was gainfully employed in a permanent position and receiving from $200.00 to $250 per month. She could have reasonably been expected to pursue her work for an additional period of several years. At this time, five and one-half years after she was injured, on the basis of her average rate of pay, she would have earned $14,850. This is an item of actual damage. On account of her condition, permanent in character, which will be hereinafter referred to, it is very problematical and doubtful whether she will ever be able to engage again in any work whereby she might earn a substantial income. An award for loss of her earnings, past and future, in the amount of $17,500 appears justifiable in this case.

It would be difficult indeed to find a medical case history in which a patient suffered more severely or for a longer period of time, only to realize that she will continue to suffer to a great extent for the rest of her natural life. Mrs. Marler suffered excruciating pain for years before her partial maximum recovery. Because her back compensates for the lack of motion in her hip, she suffers chronic back pain and will continue to so suffer for life. Mrs. Marler suffered a fracture and dislocation of the left hip and a fracture of the external malleolus of the right ankle. After the accident, she was taken to Oakdale Infirmary and placed in traction so as to immobilize her leg, pull the broken fragments of the femur back into place and reduce the pain. This was effected by drilling a hole in her heel for the insertion of a steel pin to which was attached a weight suspended by a cord over a pulley. She was kept in traction for two weeks in an attempt to bring these bone fragments back into place. This procedure was a failure.

Dr. Daniel M. Kingsley, an orthopedic surgeon, of Alexandria, testifying relative to the injury to Mrs. Marler's hip, stated the shaft of the femur, the biggest bone in the body, was thrown across the body; that the knob of the bone fitting into the socket of her hip was completely broken off and into four pieces and that the whole thing was dislocated. Also, that an extreme pull and twisting was put on the shaft to try to pull it and the broken pieces of the knob or head of the femur back into the socket in place. This procedure, called a "closed reduction", was carried out August 13, 1949, 14 days following the accident.

On August 17, she was removed to the Baptist Hospital at Alexandria, from where she was transported the following day by ambulance to Foundation Hospital in New Orleans, where Dr. Guy A. Caldwell, orthopedic surgeon of Ochsner Clinic, on August 23 performed an operation for removal of the broken fragments of the knob or head of the femur and arthrodesis or stiffening of the hip joint. Dr. Caldwell described her condition when he first examined her thus:

and in describing her pain during the early postoperative period, he said:

Following the operation performed by Dr. Caldwell, Mrs. Marler was encased in a plaster cast from the toes on the right side to the chest extending to the knee on the left side; the upper part of her chest and arms and head, other than from her left knee down, were the only parts not in this cast. Mrs. Marler returned in this cast to her home in Oakdale on September 10, 1949, where she was a bed patient under the care of a full-time nurse, who had even to attend to her personal bodily functions for her. She was re-admitted to Foundation Hospital December 19, 1949, and re-encased in plaster and permitted to again return home. She was again re-admitted to Foundation Hospital February 15, 1950, where it was again determined that the healing was incomplete and the plaster cast was again applied in much the same fashion as before. Other than for the periods of examination referred to, the large plaster cast was removed for the first time when she was re-admitted to Foundation Hospital on March 20, 1950.

From an examination of Mrs. Marler on January 4, 1954, Dr. Caldwell stated:

The doctor's estimate was that Mrs. Marler has suffered a 35 percent permanent disability, with little possibility of further improvement. As of the time of his last examination in 1954, Mrs. Marler could stand and could walk with a limp, and for reasonable distances without pain, although with fatigue in her back. He thought she could probably perform her former duties as a newspaper woman but not entirely without difficulty but with some more fatigue and with somewhat more effort than she formerly did.

Concerning Mrs. Marler's condition while convalescing at her home and before the final cast was removed, Mrs. Melder, her full-time nurse, during the period of seven months, testified with reference to Mrs. Marler's pain that no one, unless they were there, could have realized what she went through, and stated:

Dr. Kingsley again examined Mrs. Marler on May 1, 1950, when he found that the left hip was ankylosed and there was a 3/4 inch shortening of that leg. One of the serious difficulties found was the stiffness in the left knee. Although she was on crutches, she was started on knee exercises, which exercises, however, failed to eliminate the stiffness. For further treatment of that condition Dr. Kingsley testified:

In answer to the question: "In other words, you were tearing and breaking loose the adhesions in her leg there?" Doctor Kingsley testified:

Later, however, on August 15, it became necessary to treat the knee again due to the fact that the patient was not retaining the motion obtained under anesthesia and the knee was becoming stiff again. After again performing the manipulation, Dr. Kingsley placed her in a cast from the upper thigh to the toes. It was not until October, 1950, that this last cast was removed.

For a period of approximately 15 months following the accident, Mrs. Marler was in one cast after another, completely or partially immobilized, requiring the constant care of nurses, either in hospitals or in her home. Dr. Kingsley was of the opinion that Mrs. Marler would be unable to perform her former newspaper work except with difficulty and pain. From a knowledge of her own condition, Mrs. Marler stated she could not perform her work.

Mrs. Marler has suffered a permanent disfigurement in that her left hip is stiff, necessarily made so in the removal of the fractured parts of the femur. It will not bend. She is prevented from assuming a normal sitting position, from which she not only suffers embarrassment from the disfigurement itself but greater inconveniences and embarrassments, particularly in the attempt at performing the usual bodily functions, at the risk of changing clothes frequently. Plaintiff experiences considerable difficulty in dressing herself. She has to use hooks and other mechanical devices to assist her in dressing.

The extent of Mrs. Marler's mental suffering is not inconsequential. Prior to the accident she enjoyed good health, lived in a comfortable home and lived the life of a typical married woman of her station in life, pursuing her profession as a newspaper woman. From such an environment to the state of an invalid, gradually improving to the state of a permanent cripple, has taken its toll and had its effect on Mrs. Marler's mental outlook.

For the aforesaid physical pain and suffering, for the disfigurement, scarring and permanent disability, and for the mental pain, suffering and embarrassment, an award of $25,000 appears appropriate and adequate in this case.

The State made special request that the damages allowed be itemized, which we have done hereinabove, and that the credit of $10,000 obtained from the husband's insurer be credited to some specific item, to the allowance of which it appears no objection was made and its allowance was not complained of in plaintiff's answer to the appeal. Sufficient evidence is not before the court to enable us to specify the particular item to which the credit should be applied. An allowance of the credit against the whole claim is deemed sufficient for all purposes, and clearly the State is not prejudiced thereby.

For the reasons assigned, the judgment appealed from is amended by increasing the net award to $80,184.19, and, as thus amended, is affirmed at the cost of the defendant of the stenographer's fees only as provided by law; plaintiff is cast for all other costs.

Amended and affirmed.