author: REDMANN, Judge. PER CURIAM.

text:
    Mrs. Margaret HOLLOWAY, wife of and Robert E. Holloway v. SOUTHERN BAPTIST HOSPITAL, Commercial Union Insurance Company of New York, the Continental Insurance Company and James M. Freeman.
    No. 8797.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 30, 1978.
    Per Curiam On Denial of Rehearing Jan. 16, 1979.

      Lawrence J. Smith, Michael A. Villa, Levy & Smith, New Orleans, for plaintiffs.
    Monte J. Ducote, New Orleans, for defendant Southern Baptist Hospital.
    Charles A. Boggs, Montgomery, Barnett, Brown & Read, New Orleans, for defendant Commercial Union Ins. Co.
    Lawrence D. Wiedemann, New Orleans, for defendants Dr. James M. Freeman and Dr. Leslie Guidry.
    Lilian M. Cohen, Charles R. Maloney, New Orleans, for defendant Mrs. Earline Karl.
    Conrad Meyer, IV, Baldwin & Haspel, New Orleans, for defendant Mrs. Lola Breedlove Moore.
    H. Martin Hunley, Jr., Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants Dr. James A. Rogers, Dr. Der-mit L. Roux, New Orleans Anesthesia Associates and St. Paul Fire & Marine Ins. Co.
    Before REDMANN, STOULIG and SCHOTT, JJ.
   REDMANN, Judge.

Plaintiff wife had healthy arms when she entered an operating room for heart surgery. By the time she returned to her room after a week’s stay in recovery room and surgical intensive care unit, she was experiencing left arm pain which heralded a left ulnar neuropathy with causalgia. Despite major surgical efforts at ulnar nerve relocation and autonomic nerve system excisions (including removal of her uppermost rib), she remains afflicted today with the neuro-pathy and causalgia which have caused atrophy and disability of the left arm.

Plaintiff husband and wife now appeal from the rejection on the merits of their action for damages against hospital, surgeons, anesthesiologists and nurses.

The ultimate question is whether plaintiffs have borne their burden of proving that some fault within La.C.C. 2815 by some defendant caused the injury. Because no direct evidence established causative fault (as plaintiffs concede), the question becomes whether circumstantial evidence establishes causative fault as, more probably than not, the source of the injury. As plaintiffs phrase it, the question is whether res ipsa loquitur applies.

McCann v. Baton Rouge Gen. Hosp., La.1973, 276 So.2d 259, 262, establishes that a cause of action is stated by a petition alleging that “the body of the injured [plaintiff] was in the exclusive custody of the several defendants . . . [and] while under anesthesia [or heavy sedation] received injuries to a part . . . not involved in the surgery [in the nature of] untoward or unusual occurrences during the time of medical supervision.” At trial, unless other evidence exculpates them, proof of the cited circumstances will support the res ipsa loquitur inference that the medical custodians were somehow at fault; see Larkin v. State Farm M. A. Ins. Co., 1957, 233 La. 544, 97 So.2d 389.

The trial judge’s reasons for judgment expressly found “that all of the parties [defendant] involved used the highest degree of care and standard necessary for the protection of the patient.” The reasons lamented, however, Meyer v. St. Paul-Mercury Indem. Co., 1954, 225 La. 618, 73 So.2d 781, “and its doctrine as to the inapplicability of res ipsa loquitur to most malpractice cases”. We reverse because the trial judge erred in founding his judgment on the belief that the circumstantial evidence rule of res ipsa loquitur is inapplicable. The rule applies here.

Meyer’s “interpretation of the law as to a physician’s duty to his patient”, already weakened by McCann, was overruled subsequent to the judgment appealed from, in Ardoin v. Hartford Acc. & Indem. Co., La. 1978, 360 So.2d 1331. Ardoin expressly condemned the “locality rule” which prevented liability in Meyer. The present case is unconcerned with the locality rule (save as to nurses, a question we pretermit). There is no dispute over the duty owed by hospital and other medical personnel not to so pull the arm of an anesthetized or sedated patient as to damage the ulnar nerve by stretching, or not to allow the sedated patient to remain for several hours in one position, as to damage the ulnar nerve by prolonged compression. Disputed is whether plaintiffs proved that duty was breached, and by whom. We conclude that the evidence legally establishes that some breach of that duty was the mechanism of plaintiff wife’s injury.

The test of proof is stated by Boudreaux v. American Ins. Co., 1972, 262 La. 721, 264 So.2d 621, 636:

It suffices if the circumstantial proof excludes other reasonable hypotheses only with a fair amount of certainty, so that it be more probable than not that the harm was caused by the tortious conduct of the defendant. . . . [By] the principle of “res ipsa loquitur” (the thing speaks for itself) . . . where properly applied, the circumstantial evidence indicates that the injury was caused by some negligence on the part of the defendant, without necessarily proving just what negligent act caused the injury.

That test is met by this record. Perhaps the strongest evidence for plaintiff is that from Dr. Richard W. Levy, a neurosurgeon, while that for defendants is from Dr. Robert J. Schramel, a thoracic and cardiovascular surgeon. Even Dr. Schramel agrees that the most probable explanation of plaintiff wife’s problem is a stretching or compression of the ulnar nerve. Although 15% of all similar cases are from other, undetected causes, cases arising during hospitalization are not often from undetected cause. Dr. Schramel, however, would not rule out as a cause a stretching or compression of the brachial plexus (which includes the ulnar nerve) at the thoracic outlet — an uncommon but not necessarily fault-implying result of spreading the ribs apart after cutting through the sternum vertically to allow access for heart surgery. Dr. Schramel, who never examined the patient, discounts her causalgia as causalgia-like symptoms, while Dr. Levy relies on his clinical diagnosis of causalgia from its objective signs, and especially upon the limitation of problems to the area served by the ulnar nerve branch (distal to the thoracic outlet) rather than all areas served by the brachial plexus, (a) to practically eliminate as a cause thoracic outlet syndrome, (b) to define a stretching injury as statistically much more probable than a compression injury, and (c) to place the situs of the ulnar nerve injury along the nerve between elbow and armpit (rather than at the elbow, making improbable as a cause some prolonged compression at the elbow groove, as during the six-hour surgery).

The 3000-page transcript and the depositions contain many medical opinions, usually questioned and explained in depth. We eliminate discussion of other possible causes such as a severe blow, which would have caused bruising not present, and declare that the great bulk if not the unanimity of the medical evidence supports the conclusion that, more probably than not, plaintiff wife’s injury was caused by a severe stretching or prolonged compression of the ulnar nerve.

We may here note the distinction between ulnar neuritis and ulnar neuropathy with causalgia. The neuritis is a transitory, inflammatory condition which occurs with some frequency as a result of even moderately prolonged compression of the nerve. The neuropathy is a permanent degenerative condition, far more seldom seen. Much testimony (including some by Dr. Schramel) spoke of a neuritis, and assigned innocent causes, such as lying in bed with one’s arms folded over the abdomen. We find the clear preponderance of the evidence is that these innocent possibilities would not explain plaintiff wife’s condition of neuropa-thy with causalgia.

Surgeons and anesthesiologists are eliminated as possible causes because their work and positioning of plaintiff wife on the operating table with arms at her sides did not affect the left ulnar nerve. (Even blood pressure cuff and intravenous injection were on the right arm.) Although an anesthesiologist probably assisted in lifting the patient post-operatively from the table to the roller-bed for the trip to the recovery room, he would have lifted the patient’s head, and not her side. It is thus not established as more probable than not that surgeons or anesthesiologists severely stretched or compressed plaintiff wife’s ulnar nerve.

Damage-causing stretching or compression of the nerve can most easily occur while one is anesthetized (or sedated) and the body’s muscles are relaxed and protective reactions to pain are eliminated (or reduced). The unsedated person whose arm is pulled pulls back, preventing stretching; one whose arm is compressed (to the point that fingers tingle) moves his arm, relieving the compression. Plaintiff wife was anesthetized when moved from operating room to recovery room, and then heavily sedated by 36 (sic) doses of morphine during the next 44 hours before her removal to the intensive care unit, where morphine usage was tapered off but she was markedly disoriented much of the time during her five-day stay. After that time, within an hour of her return to her room, her complaint of arm pain is first recorded in the nurses’ notes. (Relatives’ testimony of earlier complaints, and of rubbing left arm and little finger, may not have been noted by the nurses or may have been deemed referred pain from the incision; there is, however, one earlier note of arm and chest pain.) During that eight-day aftercare period, doctors did visit and prescribe medications, but the physical custody of plaintiff wife was in the nurses and orderlies employed by defendant hospital.

Even if we do not accept Dr. Levy’s testimony (relying on the causalgia) that stretching is far more probable than compression as the cause of the injury, we cannot escape concluding that, more probably than not, one or the other occurred while plaintiff was unconscious or sedated, in the custody of the employees of defendant hospital. The more probable (according to Dr. Levy), a stretching, could have occurred only if, e. g., the patient were lifted by the arm when unable or virtually unable to sense and react to pain, and it would have breached the hospital’s duty of reasonable nursing care to so pull on a patient’s arm to lift her or for any other reason. The other possibility, a prolonged compression, could only have occurred if the hospital had similarly breached its duty of reasonable nursing care by placing the patient in a position in which compression could occur and leaving her in that position for several hours, rather than turning with a reasonable frequency (such as that reflected by the intensive care unit nurses’ notes).

Because certain family members did visit plaintiff wife in recovery and intensive care, the possibility exists that one of them could have pulled her arm while she was heavily sedated. However, the testimony is that they were only allowed to visit a few minutes at a time and that they were not permitted to be close to the patient. This testimony makes this possibility so remote that we conclude that, more probably than not, no family member caused plaintiffs nerve injury.

Under all of the evidence including the circumstantial evidence in this record, the res ipsa loquitur inference is available against the hospital that one (or more) of its employees caused the injury to plaintiff wife. The evidence withstands the test of Boudreaux, supra.

Quantum of damages includes past medical expenses of $12,654.62, future medical expenses we estimate at $10,000, and general damages for all phases of disability and pain and suffering we fix at $50,000.

Reversed as to Southern Baptist Hospital against whom there is judgment for the plaintiff husband for $12,654.62 with interest from judicial demand and all costs (save those expended against or by other defendants) and for the plaintiff wife for $60,000, with interest from judicial demand; otherwise affirmed.

ON APPLICATION FOR REHEARING

PER CURIAM.

Granting limited rehearing on the omitted issue of liability of the hospital’s two insurers, we cast only Underwriters at Lloyd’s of London, the hospital’s professional liability insurer against negligence in rendering or failing to render professional services.

Lloyd’s argues from Grant v. Touro Infirmary, 1969, 254 La. 204, 223 So.2d 148, that the nurses’ acts or failure to act was not negligence in professional services. Grant held that an operating room nurse’s counting of sponges (to assure none remained inside the patient) was not a “nursing service” nor a “service or treatment conducive to health or of a professional nature” and was therefore not excluded from coverage by a general liability policy’s exclusory clauses. The same exclusory clause is present in the general liability policy issued by Commercial. Whatever one’s view of Grant, Grant does not control here because here the services were performed or to be performed upon the body of the patient. Lloyd’s is liable and Commercial’s exclusion applies.

Amended to cast Underwriters at Lloyd’s of London in solido with its insured.


source: Caselaw Access Project

author: CHIASSON, Judge. EDWARDS, Judge,

license: Public Domain

text:
    Joseph COUSIN v. Michael D. PAGE, Shedrick J. Keys, and Travelers Insurance Company. Mr. and Mrs. George LAURENT v. Michael D. PAGE, Shedrick J. Keys, and Travelers Insurance Company.
    Nos. 12188, 12189.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Rehearings Denied Jan. 16, 1979.

      Walter F. Gemeinhardt, New Orleans, for plaintiff, appellant.
    France W. Watts, III, Franklinton, for the Travelers Insurance Company, defendant, third party plaintiff.
    Dale E. Branch, Bogalusa, for defendant, appellee State Farm Mutual Automobile Ins. Co.
    Lawrence J. Duplass, New Orleans, for Michael D. Page, Fireman’s Fund American Ins. Co., defendants, appellees (third party defendants).
    A. Michael Dufilho, Baton Rouge, for defendants, appellees Michael D. Page and Shedrick J. Keys.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

These cases arise from an automobile accident that occurred on May 25, 1975. Sam Laurent was the driver of one vehicle and his guest passenger was Joseph Cousin. Michael D. Page was the driver of the other vehicle and his passenger was Shedrick J. Keys. Sam Laurent died as a result of the accident and Joseph Cousin was injured.

The only question before the trial court was whether or not Travelers Insurance Company afforded coverage. The liability issue was stipulated by the parties and the damages were limited to the policy limits of a Fireman’s Fund American Insurance Company policy insuring Michael Page and, if applicable, the Travelers’ Insurance Company policy insuring Mrs. Shedrick Keys. The question of coverage under the Travelers’ policy arises from the following facts: Shedrick Keys and Janice Batiste were cohabiting and during that time an automobile was purchased in the name of Shedrick Keys. Janice Batiste purchased liability insurance on the automobile and a Travelers’ policy was issued in the name of “Mrs. Sheddrick J. Keys.” Shortly thereafter the accident of May 25,1975 occurred. Michael Page was driving Shedrick Keys’ automobile at the time of the accident and She-drick Keys was a passenger therein.

In its Reasons for Judgment the trial court held:

“ . . . Janice Batiste and Mr. Keys were never married and in fact Mrs. Batiste was separated from her husband at the time that she was living with Mr. Keys. At the time that she applied for the liability insurance she gave the impression to the insurance agent that she was married to Mr. Keys. He wrote the policy on the basis that she would be driving the car and that no one else would be driving the automobile. The agent testified that he did not know of Mr. Keys. The court finds from the evidence there was such a material misrepresentation on the part of Mrs. Batiste that the insurance policy issued by Travelers Insurance Company is null and void and therefore has no coverage on the Keys vehicle or his driver.”

All claims against Travelers Insurance Company were dismissed and this devolu-tive appeal by plaintiffs followed.

The testimony of the selling agent for Travelers and the application for insurance supports the trial court’s conclusions and we find no manifest error therein.

Plaintiffs-appellants contend there was no specific finding by the trial court of an intent to deceive on the part of the applicant for insurance. While this is true, the trial judge had before him testimony that the insurance company was insuring a separated female who would be the sole driver of the automobile and, accordingly, applied the lower premium rate; that Travelers would not have issued the policy for the premiums charged if it had been aware that a young male driver, nineteen (19) years of age, would be driving the automobile; and that a copy of the application was mailed to Janice Batiste and no action was taken by her to correct or change anything contained therein. There are enough facts of record from which the trial court could have concluded that there was an intent to deceive, as he apparently did by holding the contract null and void.

So finding, there is no necessity for us to discuss whether or not, under the particular facts of this case, Janice E. Batiste had an “insurable interest.”

The judgment of the trial court is therefore affirmed at appellants’ cost.

AFFIRMED.

EDWARDS, Judge,

dissenting.

I dissent from the opinion and holding of the majority because I believe that the Travelers policy afforded coverage in this instance.

The critical issues presented are: 1) whether or not Janice Batiste, who applied for the policy, gave false statements to the insurance agent; 2) whether or not the false statements (if any) were made with an intent to deceive and were material to the risk assumed; 3) whether or not Janice possessed an insurable interest; and 4) whether or not Janice gave Shedrick Keys permission to use the insured vehicle so as to afford coverage to the “second permit-tee” driver of the vehicle under the omnibus insured clause of the policy. I would respond in the negative to the first two issues and in the affirmative to the latter two issues.

MISREPRESENTATIONS

The majority quotes approvingly the trial judge’s Reasons for Judgment in which the trial judge stated:

“ . . .At the time that she (Janice Batiste) applied for the liability insurance she gave the impression to the insurance agent that she was married to Mr. Keys. He wrote the policy on the basis that she would be driving the car and that no one else would be driving the automobile. The agent testified that he did not know of Mr. Keys. The court finds from the evidence there was such a material misrepresentation on the part of Mrs. Batiste that the insurance policy issued by Travelers Insurance Company is null and void and therefore has no coverage on the Keys vehicle or his driver.”

Admittedly, such a holding is based upon an evaluation of the credibility of the various witnesses, and is afforded great weight on review so that the appellate court should not disturb the trial court’s factual findings in the absence of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973). The conclusions of the trial court with respect to the false statements attributed to Janice in this case present, in my opinion, such an instance of manifest error.

Three persons were present when Janice applied for the liability insurance, namely Janice, her sister Phyllis Penn, and the insurance agent, Tom Sheppard. Two of these individuals, Janice and Sheppard, testified at trial, with each giving contradictory accounts concerning the statements and information given by Janice for the insurance policy.

Janice maintains that she informed the agent that: she was married to Batiste, but legally separated; she was living with Keys; the car was registered in Keys’ name; Keys was driving the car; and she would be using the car to go to and from work. Janice testified that she neither filled out the application nor did she sign the application.

Sheppard, the agent, testified that he was the one who filled out the information on the application. He further testified that he was “led to believe” that Janice was married to Keys, but legally separated.

The following is the pertinent testimony given by Sheppard regarding the misrepresentations:

Direct examination at TR p. 182 et seq.

Q. Who was the named insured on the policy, Mr. Sheppard?
A. Mrs. Shedrick J. Keys.
Q. Do you recall the time that Mrs. — the woman who purported to be Mrs. Keys came to your office, when she came to your office and applied for the policy?
A. I do.
Q. Tell me what the circumstances were surrounding the filling out of the application.
A. Well, the way it was presented to me at the time, that the owner of the vehicle was Mrs. Shedrick Keys.
Q. Mrs. Shedrick Keys was the owner?
A. And used the car to go to work, you know, some five or six miles to work.
Q. Did she indicate to you that she owned the car?
A. Yes, she presented herself for insurance on the car.
Q. Did she tell you whether or not she was married to a Shedrick Keys or whether she was living with a man named Shedrick Keys or whether she was separated—
MR. GEMEINHARDT:
Your Honor, I object to the leading questions. I think this is counsel’s witness and I believe that he should be re-directed.
THE COURT:
Don’t lead, Mr. Watts.
EXAMINATION BY MR. WATTS.
Q. What did she tell you about her marital status, Mr. Sheppard?
A. The figuring of the premium for the automobile was based on a married lady. When I asked — for a married lady, not — with no male, no male drivers, no males in contention, there’s a different rate, as there would be on an eighteen year old male, whether he be married or not. Then when I asked Mrs. Keys — Mrs. Batiste for her driver’s license number, which is customary to get the date of birth and the driver’s license number off of it, it had Janice E. Batiste.
As so often happens a lot of time with young people, they are married and have not had the time to change it to the married name, you know, from the driver’s license. I asked her where is, like, Shedrick Keys or the male in this and she said that she was separated.
Q. She told you that?
A. She told me they was separated. So, as far as I was concerned, I thought her name was Janice Edgerson Batiste Keys.
Now, I don’t know if I can add this. I knew Miss Batiste, you know, her grandfather Edgerson had died, and Leon, his son, and several members of the Edgerson family.
* * * * * *

Cross examination by Mr. Gemeinhardt at TR p. 200 et seq.

Q. Did you ask, since you were so familiar with the Edgerson family and you knew—
A. I knew of them, sir.
Q. All rights, sir. You knew that she was Janet Edgerson; who did you think Janet Edgerson Batiste was?
A. I had no idea.
Q. Didn’t you believe that Janet Edger-son was separated from Batiste?
A. Her mother could have been an Edg-erson and married a Batiste and her name could be Janet Edgerson Batiste and when she married, she was a Keys. That’s what I thought.
Q. In other words, you could have thought the Batiste, though, couldn’t you, that Janice Batiste, Janet Edg-erson was married to Batiste and she was separated from Batiste?
A. If the name of the insurance would have requested the name of the Mrs. Shedrick Keys. I wouldn’t have thought of Batiste if the name insured is to be Mrs. Shedrick Keys. As I explained before, so often happens with young people, they get married and you have up to two years to change your driver’s license.
Q. You’re taking the application, sir, and you’re asking whether she’s separated and you have her name to be Janice Batiste, yet you knew she was an Edgerson, so what I’m saying, isn’t it fair for you to have believed that Janice Edgerson was separated from Batiste and that Batiste was the man—
A. I didn’t find this out until after all of it happened, sir.
Q. You found that out later; she didn’t misrepresent to you that she was not married to — that she wasn’t married to Jan — to Batiste, did she?
A. That she wasn’t married to — I didn’t even know who Batiste was.
Q. Why didn’t you ask her?
A. For the simple reason I didn’t think it was relevant.
Q. You found out the lady was separated and you knew she was an Edger-son?
A. And she was purportedly married to Keys, John Batiste Keys.
* * * * * *
Q. I’m asking you when you wrote down that the lady was separated, wouldn’t it be fair for you to conclude or for her to conclude that she was saying that she was separated from a man by the name of Batiste, particularly since she was a Janet Edgerson?
A. It never so occurred to me, sir, because if you’re separated from a Batiste, how can you be a Mrs. Keys and buy an automobile policy?
Q. All right.
A. I mean, along that line of reasoning, if you’re separated from Batiste, then you can not buy — you’re not a Mrs. Keys. I mean, you know, my mind does not work that way.
It’s sort of Monday morning, I think, you’re asking me the question; it’s not Saturday afternoon.
Q. I don’t see in the application you prepared that she states she was separated from Keys.
Do you see that on the application that she says she was separated from Keys?
A. She told me that she was separated, sir.
* * * * * *
Q. The application that you prepared does not state that Janice misrepresented to you that she was separated from Keys, does it?
A. It says she was legally separated.
Q. But it doesn’t say she was legally separated from Keys?
A. It does not say from whom, no, sir.
Q. As far as you know, you didn’t ask her specifically whether she was separated from Keys or whether she was separated from Batiste?
A. I couldn’t have asked her if she was separated from Batiste. I didn’t even know she was married to him. I thought she was married to Keys and I thought she was separated from Keys.
* * * * *

Re-direct examination by Mr. Watts at TR p. 210 et seq.

Q. Were you led to believe this lady was married to Shedrick Keys?
A. Yes, sir.
Q. Did you have any reason to believe she was not married to Shedrick Keys?
A. No, sir.

While the above testimony (comprised as it is of inferences and assumptions reached by the agent) might be accepted as conflicting with Janice’s straightforward testimony regarding her marital status, it does not in any sense dispute Janice’s testimony that she told Sheppard that Keys would be driving the car.

In the final analysis, the sole relevant allegation of falsehood is that Janice misrepresented that she alone would be driving the car. There is nothing in the record to contradict Janice’s testimony that Keys, as well, would be driving the car.

Indeed, the application itself provides an opportunity to inquire with regard to others who will drive the insured vehicle under item No. 6, “We Need to Know These Things About People Living In Your Household (including students and military personnel) Who Operate Any Vehicle.” The only listing made by the agent who filled out the application was “Janice Batiste E. Keys.” Had the agent written “no others” or “none”, it would have indicated that he had asked her this question. However, from the record, I cannot find that this question was ever asked of Janice. The record indicates that the agent listed no other drivers, a fact he assumed because the woman was legally separated. Under the rule stated in Fruge v. Woodmen of World Life Insurance Society, 170 So.2d 539 (La.App. 3rd Cir. 1965), this error is binding on the insurer and does not bind the insured.

Consequently, I find that the trial court’s holding that Janice had made material misrepresentations is manifestly erroneous.

Additionally, I do not find that the insurance company has satisfied its burden of proving an intent to deceive. LSA-R.S. 22:619.

In Gay v. United Benefit Life Insurance Co. 233 La. 226, 96 So.2d 497 (1957), our Supreme Court stated that a material misrepresentation by an insured will not defeat coverage unless such misstatement was made fraudulently or with intent to deceive. To avoid liability based on misrepresentations, a defendant-insurer must show, both, that the misrepresentations were material to the risk and that they were made with an intent to deceive. Brown v. National Old LIfe Ins. Co., 345 So.2d 1023 (La.App. 2nd Cir. 1977); Pendarvis v. Continental Service Life and Health Ins. Co., 339 So.2d 367 (La.App. 1st Cir. 1976); Reed v. American Casualty Company, 317 So.2d 648 (La.App. 1st Cir. 1975); and Knight v. Jefferson Standard Life Ins. Co., 205 So.2d 485 (La.App. 1st Cir. 1967).

Travelers has not met its burden of proving an intent to deceive. The information required by an insurance company to process an application is not always apparent to a layman. I do not believe that an intent to deceive has been shown in this case or can be inferred from the evidence in the record.

I would hold that the policy was valid and enforceable.

INSURABLE INTEREST

The general rule with regard to insurance policies is that a person obtaining a policy of insurance must possess an “insurable interest” in the subject matter of the insurance, otherwise the policy is unenforceable. LSA-R.S. 22:614(A). The term “insurable interest” is defined in LSA-R.S. 22:614(B) as “any lawful and substantial economic interest in the safety or preservation of the subject of the insurance free from loss, destruction, or pecuniary damage.”

The mere fact that the title to the car and the registration were in Keys’ name is not conclusive on the question of Janice’s insurable interest in the car.

The record reveals: that Janice supplied the $600 down payment for the car; that this down payment was not a loan from Janice to Keys, and that Keys did not repay the $600 to Janice; that both Janice and Keys paid the installment notes to GMAC; and, even after Janice and Keys split up, they both continued to pay the car notes and both shared the use of the car.

Such evidence, I believe, overwhelmingly preponderates in favor of the conclusion that Janice was a co-owner of the car and, as such, had an insurable interest within the context of LSA-R.S. 22:614(B) to procure liability insurance. Consequently, the policy was enforceable.

PERSONS INSURED

At the time of the accident, Keys had possession and use of the ear, had permitted Michael Page to drive the car, and was a passenger in the car in the front seat.

The specific question, then, is whether the omnibus clause of the Travelers policy provided coverage for Michael Page in the circumstances. The pertinent clause in the policy provided in part:

“Each of the following is an insured under Part I;
(a) With respect to the owned automobile,
(2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission . . ”

The application of this clause should be in harmony with the strong legislative policy provided in LSA-R.S. 22:655, which states in pertinent part:

“It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all insured persons, his or her survivors or heirs, to whom the insured is liable; and that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tort-feasor within the terms and limits of said policy.” (emphasis supplied).

Janice testified that she and Keys were sharing the use of the car and, at the time of the accident, that she was using the car during the week to go to and from work and Keys was driving the car on the weekends. Keys testified similarly.

Under these circumstances and in view of the nature of the relationship between Janice and Keys (cohabitation and co-ownership of the car), the conclusion is inescapable that Janice gave Keys permission to use the car at the time of the accident. This permission contained no restrictions since, in truth and in fact, the permission was for Keys to use the car as his own. The permission was of the broadest possible scope (i. e. co-ownership) and included the possibility that Keys might allow someone else to drive the car. See Hurdle v. State Farm Mutual Automobile Insurance Co., 135 So.2d 63 (La.App. 2d Cir. 1961).

Therefore, the Travelers policy afforded coverage to the second permittee, Michael Page, in the instant case. Hughes v. Southeastern Fidelity Insurance Co., 340 So.2d 293 (La.1976). Compare American Home Assurance Co. v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969).

I would reverse the judgment of the trial court and render judgment against Travelers on the policy.

      . Phyllis Penn was hospitalized at the time of trial and did not testify.
      Counsel for both sides stipulated that “if she were called, she would testify to the same words that Mrs. Batiste testified to.”


author: CHIASSON, Judge.

text:
    Mr. and Mrs. George LAURENT v. Michael D. PAGE, Shedrick J. Keys, and Travelers Insurance Company.
    No. 12189.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1978.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

For the reasons set forth in our opinion in “Joseph Cousin v. Michael D. Page, Shedrick J. Keys, and Travelers Insurance Company,” No. 12,188, 367 So.2d 875, the judgment of the trial court herein is affirmed at appellants’ cost.

AFFIRMED.

EDWARDS, J., dissented for reasons set forth in 367 So.2d 875.


author: HALL, Judge.

text:
    Miguel MARCELENO, Sr., et al. v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS, et al. David HOGAN and Kathleen Diane Hogan v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS, et al.
    Nos. 13714, 13715.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 1978.
    En Banc. Rehearings Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.

      Robert P. McLeod, Barbara Danos, Monroe, for Miguel Marceleno, Sr., individually and as natural tutor of Miguel Marceleno, Jr., Rodney Inez Marceleno, Ineosenta Marie Marceleno, Sondra Elita Marceleno, Pla-cida Maria Marceleno and as administrator of the Succession of Glenda Jean Jeffers Mareeleno-plaintiffs-defendants-third party plaintiffs-third party defendants-appellants-appellees.
    Rankin & Yeldell, A Professional Law Corp. by James E. Yeldell and Charles E. Herring, Jr., Bastrop, for David Hogan and Kathleen Diane Hogan-plaintiffs-appellants-appellees.
    Philip K. Jones, Marshall W. Wroten, Robert J. Jones, Doran & Kivett by William J. Doran, Jr., Baton Rouge, for State of Louisiana, Dept, of Transp. and Development (formerly State of Louisiana, Dept, of Highways)-defendant-third party plaintiff-third party defendant-defendant in intervention-appellant-appellee.
    Hayes, Harkey, Smith & Cascio by Thomas M. Hayes, Jr., Monroe, for Raymond C. Roberts and Northwestern Nat. Ins. Co.-defendants-third party plaintiffs-third party defendants-plaintiffs in reconvention-inter-venors-appellees.
    Before BOLIN, HALL and JONES, JJ.
   HALL, Judge.

These suits for damages arose out of an intersectional collision between two vehicles which occurred while the malfunctioning traffic light at the intersection was green for traffic on both intersecting streets. After trial of the multiple claims and defenses of the parties involved, the trial court held that the drivers of the two vehicles were free from fault and that the sole legal cause of the accident was the negligence of the Department of Highways which had responsibility for the maintenance and operation of the traffic light.

From judgments rendered against it the Department of Highways appealed, specifying as error the trial court’s finding of negligence on its part, the failure of the trial court to find negligence on the part of the drivers of the vehicles, the excessiveness of the awards for damages, and the assessment of all costs against the Department. The plaintiffs, survivors of the driver of one of the vehicles and passengers in that vehicle, also appealed, specifying as error the failure of the trial court to find the driver of the other vehicle negligent and the inadequacy of the awards. ’We affirm the judgments of the district court in all respects.

The accident occurred in Bastrop on November 18, 1974 at approximately 11:30 a. m., at the intersection of North Washington Street (a state highway) and Haynie Street. The vehicles involved were a large 1967 Chevrolet milk truck owned and driven by Raymond C. Roberts and a 1967 Buick automobile owned by Miguel Mareeleno and driven by his wife, Glenda Mareeleno. Riding as a passenger in the Roberts truck was Sammie Peoples. Passengers in the Marcel-eno vehicle were Mrs. Kathleen Hogan and three of the Marcelenos’ children, Placida, Sondra and Ineosenta. Prior to the accident the Roberts vehicle was proceeding south on North Washington Street and the Mareeleno vehicle was proceeding east on Haynie Street.

Traffic at the intersection was normally controlled by a semaphore-type traffic signal which remains green for North Washington Street, as the major artery, until traffic on the intersecting streets activates the mechanism to change the light to green for those streets by running over a pressure pad in the roadway. Prior to the occurrence of the accident the traffic signal had malfunctioned. The malfunction was reported to city authorities and two days pri- or to the accident the city had deactivated the signal and placed “stop” signs at the intersection facing traffic on the nonfa-vored streets. The stop signs remained in place through the occurrence of this accident.

Approximately one hour before the accident occurred a highway crew arrived at the intersection for the purpose of repairing the traffic signal. They performed some repairs, reactivated the signal light, and were still at the intersection observing and working on the light at the time of the accident.

As Roberts approached the intersection traveling south on North Washington Street, the light changed from red to green and he proceeded into the intersection. Mrs. Mareeleno, traveling east on Haynie Street, had been stopped for the red light and when the light turned green she proceeded into the intersection. The vehicles collided near the middle of the intersection. As a result of the collision Mrs. Mareeleno was killed. The passengers in her automobile suffered personal injuries. The Roberts truck was damaged.

These suits were filed by Mr. Mareeleno, individually and as tutor of his five minor children, and by Mr. and Mrs. Hogan. Named defendants in both suits were the State of Louisiana, Department of Highways, Raymond C. Roberts, and Roberts’ insurer, Northwestern National Insurance Company. In the Hogan suit Mr. Mareele-no and the Estate of Mrs. Mareeleno were also named defendants. The defendants denied negligence, pled contributory negligence of Mrs. Mareeleno, and, alternatively, filed third party demands against each other seeking indemnity or contribution. Roberts and his insurer also intervened for property damage to the truck.

In the Mareeleno case judgment was rendered against the Highway Department as follows:

(1) In favor of Mr. Mareeleno in the sum of $115,473, representing $60,000 for loss of love and affection as a result of Mrs. Mar-celeno’s death, $53,000 for loss of his wife’s services and $2,473 special damages;

(2) In favor of Mr. Mareeleno as tutor of his five minor children in the sum of $35,-000 each for loss of love and affection, plus $750 for Placida’s personal injuries, $350 for Sondra’s personal injuries and $2,500 for Ineosenta’s personal injuries;

(3) In favor of Mr. Mareeleno, individually and as tutor of his minor children, in the sum of $10,000 for Mrs. Marceleno’s pain and suffering prior to her death; and

(4) In favor of Roberts and his insurer in the sum of $1,660.51 for damage to the truck.

In the Hogan suit judgment was rendered in favor of Mr. and Mrs. Hogan in the sum of $22,433.85, representing $12,500 for Mrs. Hogan’s pain and suffering, $6,000 for lost wages, and $3,933.85 for medical expenses.

The third party demands were rejected. All costs were assessed against the Highway Department, including expert witness fees.

Negligence

As found by the trial judge, the evidence overwhelmingly established that the traffic light was malfunctioning at the time of the accident in that it was showing green simultaneously for both North Washington Street and Haynie Street. The Highway Department takes no issue with this finding. The Highway Department contends, however, that at the time of the accident it was making a reasonable effort to repair the traffic signal and to restore its function. The evidence is to the contrary and supports the trial court’s finding that the Highway Department was negligent in several respects.

The light at this intersection had an extensive history of malfunctioning and had been worked on by Highway Department employees on several occasions. The usual maintenance procedure was to remove the existing controller and replace it with another. On the Saturday night prior to the accident the light malfunctioned, hanging up on red for North Washington Street. A city employee went to the scene and being unable to correct the problem, secured two portable stop signs and placed one on Hay-nie (the street that intersects North Washington from the west) and one on Louisiana (the street which intersects North Washington on the east side). After placing the stop signs, he cut the light off, leaving traffic on the main thoroughfare of North Washington to proceed uncontrolled through the intersection. On the Monday morning of the accident he called the Highway Department and informed them that the light had malfunctioned.

A Highway Department engineer and another employee got to the scene about an hour prior to the accident. The Highway Department truck was parked on the north side of Haynie Street near the intersection. The Department employees tried to turn on a flashing light on top of the truck to help warn traffic but the light did not work. One of the Department employees directed his attention to the light on the truck, attempting to repair it.

The engineer, who had never before worked on this particular model or type controller, opened the control box located on a utility pole at the northwest corner of the intersection and taped some wires that appeared to have had the insulation burned off of them. He then turned the light on and he thought it commenced to cycle properly. The engineer removed the controller from its position, took the top off of it, and was holding it in his hand observing the relays operating when the accident occurred. The Highway Department employees did nothing to warn traffic while they were working with the light.

The trial court found that the malfunction of the light was due to defective maintenance of its equipment by the Highway Department. The court further found that the Highway Department was negligent in sending an inexperienced engineer to work on the light at a busy intersection, in failing to have the truck’s flashing lights working, in parking the truck in a location that impeded the view of traffic, in positioning the door of the control box in such a manner as to impede view, in commencing operation of the light while it was still malfunctioning, in removing the protective cover of the controller followed by tilting and manipulating of it by an inexperienced engineer, and in doing the work without providing adequate signs, flagmen, or other warning devices for traffic at the intersection. The evidence fully supports the trial court’s accurate analysis of evidence, findings of fact, and conclusions of negligence on the part of the Highway Department.

Both the Highway Department and the Marceleno and Hogan plaintiffs urge that the trial court erred in failing to find Roberts was negligent. Their arguments are principally that Roberts was driving at an excessive rate of speed, that Mrs. Mar-celeno preempted the intersection, and most particularly, that Roberts was familiar with the fact that the light had previously malfunctioned and should have taken precautions before entering the intersection.

There is no evidence of excessive speed by Roberts, who was traveling well within the speed limit. He observed the light when he was approximately 400 to 500 feet north of the intersection, observed it to be red, and reduced his speed. When he reached a distance of approximately 50 feet from the light it changed to green and Roberts accelerated to proceed through the intersection. When he got almost to the intersection he observed the Marceleno car entering the intersection from his right. He hit his brakes, turned to the left in an attempt to avoid the collision, but to no avail.

When the light turned green, Roberts was entitled to assume that the light was red for traffic on the intersecting streets. He was entitled to assume that traffic on the intersecting streets would not enter the intersection against a red light. Having a green light, Roberts had no duty to look for traffic not yet within the intersection. The Marceleno automobile did not enter the intersection until Roberts was almost into it himself.

Roberts had knowledge that the light had malfunctioned on previous occasions. Bourgeois v. State, Through Dept. of Highways, 255 So.2d 861 (La.App. 4th Cir. 1971), writ refused 260 La. 1114, 258 So.2d 373 (1972) is cited as authority for the position that Roberts had a duty to exercise a high degree of caution as he approached the light. Bourgeois held that a motorist who passed under a malfunctioning light three hours before the accident was under an obligation to exercise diligent caution “ . . .in recrossing this intersection in the absence of affirmative knowledge that the necessary repairs had been effected.” Roberts had passed through the light on the same morning the accident occurred at which time it was cut off and not functioning. At the time of the accident Roberts observed the light red as he approached it and observed it turn to green. Under these circumstances he was entitled to believe that the necessary repairs had been made to the light and that it was in a proper functioning condition, as distinguished from its earlier totally nonfunctioning condition. The facts of this case are distinguishable from those found in Bourgeois. Faced with an apparently properly functioning green light, Roberts had no duty to look for traffic not yet within the intersection.

Roberts was not negligent and, as noted by the trial court, was the victim of the trap caused by the malfunctioning light.

The Highway Department and Roberts and his insurer urge that Mrs. Marcele-no was contributorily negligent, particularly in failing to observe the truck before starting into the intersection and also because of her previous familiarity with the malfunctioning of the light. There is no significant evidence in the record to establish any prior knowledge on the part of Mrs. Marceleno concerning malfunction of the light, and that contention is without merit. When the light turned green for Mrs. Mar-celeno she proceeded into the intersection in a normal fashion. She had no duty to look for or discover approaching traffic not yet in the intersection and the evidence shows the truck was not yet in the intersection when she started out. She was entitled to assume that traffic approaching on the other street would stop. There was no negligence on her part.

Quantum

The Department contends the trial court erred in awarding Mr. Marceleno the sum of $53,000 for loss of services of his wife aside from and in addition to the award for $60,000 for loss of love and affection. It is argued that there is no precedent in Louisiana for such an award for loss of services, that services rendered by a wife to husband and children are part of and outward manifestations of love and affection and are not separately compensable, and that there is no evidence in this case that Mr. Marceleno has actually incurred any expense to replace these services.

Plaintiff Marceleno contends that the husband’s loss of his wife’s services is a real and substantial loss, and that based on the testimony of expert economists who testified for both plaintiff and defendant the award should be increased. Several eases are cited as supporting such an award.

The trial court held:

“Another aspect of damages sought by Mr. Marceleno as a result of the death of his wife is the loss of her services aside from love and affection, i. e., cooking, cleaning, laundering, child care, etc. All of these things Mrs. Marceleno was doing prior to her death and they must still be done, but by someone else. .
“The Court is indeed mindful of the fact that an award in this area is speculative in nature and not calculable with mathematical certainty. However, the Court feels that there is no doubt that such vital services have been lost because of Mrs. Marceleno’s death and a value award should be provided based on the evidence. The experts have given the Court definite factors and guides to consider in making an award based on common sense and good judgment. Therefore, the Court awards to Mr. Marceleno the sum of $53,000 for the loss of services of his wife aside from love and affection, which award the Court considers conservative and not unreasonable based on all the evidence. . . . ”

The cases relied on by plaintiff are Ayala v. Bailey Electric Company, Inc., 318 So.2d 645 (La.App. 4th Cir. 1975); Davis v. Powell, 141 So.2d 679 (La.App. 1st Cir. 1962); Little v. State Farm Mutual Automobile Ins. Co., 136 So.2d 457 (La.App. 1st Cir. 1962); Lively v. State, 15 So.2d 617 (La.App. 1st Cir. 1943).

In Ayala, a widow recovered for the loss of her husband’s services in managing and maintaining rental property which was their only source of income. There was evidence that she performed some of these services and was required to pay for some of these services after his death. The court held she was “entitled to damages for loss of her husband’s services based on the pecuniary value of the benefits she would reasonably have expected, had her husband not died as a result of negligence. A method of measuring the value of this loss is by determining the cost of replacing the services.” The court reduced an award of $25,200 for this item to $8,500, based on its analysis of the testimony of a real estate management expert as to the usual fees charged for these services and the decedent’s life expectancy.

In Davis, the husband hired his wife’s mother to perform domestic services during his wife’s incapacity as the result of an accident. There was no payment prior to trial but the mother testified she expected to be paid $100 and the husband testified he was obligated to pay her. The court granted recovery. In Little, the court awarded the husband $693 for amounts paid to his wife’s mother and their children while the wife was in the hospital. In Lively, the husband recovered $10 per month paid to a servant to replace the wife’s household services during her incapacity.

The cited cases lend some support to plaintiff’s position, but are distinguishable to some extent from the case before us. In all of the cited cases, there was evidence of actual payment for the replaced services. It should be noted that numerous cases have denied recovery where there was no evidence of such payment. In Ayala, the only wrongful death case cited, the services lost and replaced related directly to production of the family’s sole source of income.

Many out-of-state and federal cases recognize loss of a wife’s services as a distinct category of compensable pecuniary loss and have awarded damages to a husband based at least to some extent on expert evidence as to the value of or cost of replacing such services. Admissibility And Sufficiency Of Proof Of Value Of Housewife’s Services, In Wrongful Death Action, 77 A.L.R.3d 1175 (1977); Excessiveness Or Adequacy Of Damages Awarded For Personal Injuries Resulting In Death Of Woman Engaged In Homemaking, 47 A.L.R.3d 971 (1973). It should be noted, however, that in many of those jurisdictions, recovery in wrongful death actions of nonpecuniary losses such as loss of love, affection, companionship, society and consortium are not allowed. The classification of loss of services as a separate category of pecuniary loss is, therefore, of significant importance in those jurisdictions.

In Louisiana, under LSA-C.C. Art. 2315, the survivors are entitled to recover “the damages which they sustained through the wrongful death of the deceased.” Non-pecuniary loss, variously described in many cases as loss of love, affection, companionship, care, attention, nuture, guidance, society, consortium and like terms, is recoverable. Additionally, loss of support by a husband-father or a wife-mother, a pecuniary loss often times but not always' categorized separately from nonpecuniary loss, is recoverable. Defendant is quite correct that recovery of loss of services of a wife-mother, as a separate and distinct item of damages, has never been discussed and either granted or rejected in a Louisiana wrongful death case.

We have no doubt that the loss of a wife-mother’s services such as cooking, cleaning, housekeeping, and the like is a very real and substantial loss to the survivors and is a significant part of “the damages which they sustained through the wrongful death of the deceased”; hence, such damages are recoverable. We also recognize that the testimony of experts such as economists as to the value or cost of replacement of such services has value to the trier of fact, judge or jury, in the almost imponderable task of assigning a dollar amount to the survivors’ loss.

We do not decide, and find it unnecessary to decide in this case, whether loss of services is properly a distinct category of damages; separate, apart and in addition to damages customarily described as loss of love and affection in Louisiana cases. The loss of such services does not necessarily result in direct financial and pecuniary loss to the survivors as does loss of a decedent’s earnings and support, and in that respect is different from loss of support. Certainly, as argued by defendant, services performed by a wife, and by a husband for that matter, are manifestations of love and affection. Our view is that loss of such services has always been a consideration in determining damages in wrongful death cases in Louisiana, but has not heretofore been separately categorized as a pecuniary loss and assigned a separate dollar value.

The reason we do not find it necessary to specifically approve or disapprove the award as categorized by the trial court is because we find the total award to the husband of $113,000 for damages, in addition to certain special damages, to be within the range of the trial court’s discretion. The facts of this case call for a maximum award to Mr. Marceleno for the wrongful death of his wife.

At the time of her death, Mrs. Marceleno was 25 years old and her husband was 31. They had five small children, ages one, three, four, five and six. Mr. Marceleno worked as a boner in a meat packing plant earning a moderate income. The trial court found: “Mike and Glenda Marceleno had been married almost seven years when she was killed. Glenda Marceleno did not work at an outside job, but was, according to the evidence, a ‘full-time’, devoted wife and mother. The uncontradicted evidence is that Mrs. Marceleno was a loving, tender and thoughtful wife as well as a deeply affectionate, considerate and earing mother. The record reveals that Mr. and Mrs. Mar-celeno had a most special relationship and her loving relationship with her children was quite evident throughout the testimony. Although not wealthy in a material sense, the Marceleno family was indeed wealthy because of its closeness of relationship. No doubt much of the credit for this special relationship was due to the seemingly untiring efforts of Glenda Marceleno. The loss of Mrs. Marceleno to her husband and children was extremely traumatic and devastating. Mike was deprived of an openly affectionate wife who seemed to cater to his every need. The children were deprived in their formative years of a mother who loved them deeply and cared for them physically and emotionally extremely well.”

The record also reflects Glenda kept their modest trailer home immaculate. She did all the cooking, laundry, and other household duties for the family of seven. She was constantly with her children, taking them with her whenever possible. Mike and Glenda seldom went out at night because she did not want to leave their children. Neighbors and friends described Mike and Glenda’s relationship with each other as like “newlyweds”. As Mike Mar-celeno said, he lost his entire life when she died. The total damage, whether described as pecuniary or nonpecuniary, sustained by this husband with limited education, moderate income, and with five small children to care for, is probably greater than it would be had he been in better financial circumstances and in a position to have many of the services provided by the wife done by others.

Recent awards to a spouse for loss of love and affection include: Lofton v. Cade, 359 So.2d 1074 (La.App. 3d Cir. 1978), writ refused 360 So.2d 1177 (1978) ($55,000 to a widow); Fowler v. Western U. Tel. Co., 357 So.2d 1305 (La.App. 3d Cir. 1978), writ denied 359 So.2d 196 (1978) ($90,000 to a 70-year-old husband for the death of his 69-year-old wife); Robertson v. Handy, 354 So.2d 626 (La.App. 1st Cir. 1977), writ refused 356 So.2d 434 (1978) ($40,000 to a surviving husband); Blancher v. Samuels, 354 So.2d 213 (La.App. 4th Cir. 1977), writs refused 355 So.2d 257 and 263 (1978) ($25,-000, the lowest adequate award, to a widow); Graham v. Rudison, 348 So.2d 711 (La.App. 1st Cir. 1977) ($60,000, which included an unspecified amount for loss of support, to the husband for the death of his 37-year-old wife); Jerry Joseph Fontenot, Ind. v. State, Through Department of Highways, 346 So.2d 849 (La.App. 1st Cir. 1977), writ granted 349 So.2d 1270 (1978), reversed on other grounds 355 So.2d 1324 (1978) ($115,000, including $75,000 loss of material assistance, to a surviving husband, approved but reduced to amount prayed for); Smith v. Taylor, 343 So.2d 313 (La.App. 2d Cir. 1977) ($32,000 to a widow); Foster v. Marshall, 341 So.2d 1354 (La.App. 2d Cir. 1977), writ refused 343 So.2d 1067 and 1077 (1977) ($45,000, including unspecified amount for loss of support, for death of 47-year-old wife); Aymond v. State, Department of Highways, 333 So.2d 383 (La.App. 3d Cir. 1976), writ refused 337 So.2d 875 (1976) ($80,000 to a wife for the death of her 37-year-old husband). In all of the cases arising out of the wrongful death of a husband, there was an additional award for loss of support.

The award in this case is higher than the award, exclusive of loss of support, in any of the previous reported Louisiana cases, but considering the maximal circumstances presented we conclude the $113,000 award is within the range of discretion. We are mindful of the “leapfrog” effect of approving increasingly larger awards on the basis of the latest award not being so much more than the previous highest award as to amount to an abuse of discretion. The particular facts of this case, however, justify the amount. It may also be that previous awards to survivors for the wrongful death of a wife-mother (which may not have adequately taken into account loss of services) have been generally on the low side as compared to awards to survivors for the death of a husband-father (which have usually adequately taken into account loss of support).

The Department also contends that the award of $10,000 to Mr. Marceleno and the children for Mrs. Marceleno’s pain and suffering prior to her death is excessive. It is argued that the evidence shows Mrs. Marceleno was rendered unconscious at the moment of impact and never experienced any pain.

Mrs. Marceleno lived for 36 hours following the accident. Witnesses at the scene heard her moaning and making gurgling noises prior to her removal to the hospital. Although she never regained consciousness, hospital records and the doctor’s testimony show she had arm and leg movements and that her eyes responded to light while under treatment at the hospital. The doctor testified at one point that he did not believe she felt pain but later testified it was possible that she experienced pain while in a semico-matose condition.

Damages for a decedent’s pain and suffering are not precluded when there is “a scintilla of evidence of any suffering or pain on the part of the deceased by his actions or otherwise during his unconscious hours from the time he was injured until his death” and when “there is evidence that the decedent made noises and movements indicating that he was sensitive to and aware of pain.” Temple v. Liberty Mutual Ins. Co., 330 So.2d 891 (La.1976). On remand from the Supreme Court, the Court of Appeal in Temple, 336 So.2d 299 (La.App. 1st Cir. 1976), writ denied 339 So.2d 23 (1976), awarded $10,000 for the decedent’s pain and suffering where the decedent made gagging sounds and showed signs of life at the scene of the accident and was pronounced dead on arrival at the hospital. In Walker v. St. Paul Insurance Companies, 343 So.2d 251 (La.App. 1st Cir. 1977), writ denied 345 So.2d 61 (1977), an award of $10,000 was made to the survivors where the severely injured decedent moaned and groaned intermittently and died about one hour after the accident.

This court has difficulty in justifying a $10,000 award on the basis of a possibility of some pain experienced over a period of hours by an unconscious person who dies without regaining consciousness as compared to awards of similar amounts to injured persons who experience conscious pain over an extended period of time. However, in view of the awards in the cited cases where the evidence of pain and suffering of the decedent was probably less than in this case, we cannot say the trial court abused its discretion.

No complaint is made by the Department concerning the $35,000 awards to each child.

The Department contends that the $22,433.55 award to Mrs. Hogan is excessive, primarily because her complaints of continued headaches and neck and back pain were subjective and not supported by medical evidence. Mrs. Hogan testified she experienced pain from the time of the accident through trial and she was treated by medical doctors and a chiropractor during that time. The trial court specifically found Mrs. Hogan’s testimony to be credible and that she was disabled from working for about a year and a half. The award of $12,500 for pain and suffering, $6,000 for loss of earnings, and $3,933.85 for medical expenses is supported by the evidence and is within the range of the trial court’s discretion.

Costs

The Department’s contention that it cannot be assessed for any costs other than stenographer’s fees under LSA-R.S. 13:4521 is without merit. Segura v. Louisiana Architects Selection Board, 362 So.2d 498 (La.1978) held that the statute has been superceded by Art. 12, § 10(A) of the 1974 Louisiana Constitution which provides that the state shall not be immune from suit or liability for injury to person or property. See also Act 467 of 1978, amending LSA-R.S. 13:4521 and adding LSA-R.S. 13:5112.

Decree

For the reasons assigned, the judgment of the district court is affirmed at the cost of the State of Louisiana, Department of Highways.

Affirmed.


author: BOLIN, Judge. MARVIN, Judge,

text:
    Mable WILSON, Plaintiff-Appellee, v. Timothy Lee ERNST, Defendant-Appellant.
    No. 13739.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.

      James D. Sparks, Jr., Monroe, for defendant-appellant.
    Dimos, Brown & Erskine by S. Andrew Shealy, Monroe, for plaintiff-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

In this paternity litigation the defendant appeals from a judgment declaring him to be the natural father of plaintiff’s minor son and ordering him to pay $120 per month for support of the child. We affirm.

Plaintiff and defendant met while both worked for the same employer. She testified they began having sexual relations in November 1975 and had such relations intermittently until February 1976 when he began dating someone else. She stated her relationship with defendant resumed in the latter part of April 1976, and that they had sexual relations almost every weekend until she was five months pregnant in the fall of 1976. According to her testimony, most of their encounters were at her apartment. She discovered she was pregnant in July 1976 and approximated the date of conception to be June 12, 1976. When she informed defendant of the pregnancy, she testified he offered to have his brother, a doctor, arrange for an abortion. She stated he never denied being the father until she requested financial assistance after the child was born in February 1977. However, she admitted that he never actually acknowledged being the father either. She testified she did not engage in sexual relations with anyone else during the time of her relationship with defendant.

Defendant’s version of the relationship differed. In answering the suit he contended his contacts with plaintiff from March through July 1976 were “infrequent” and that during this period of time plaintiff was dating other individuals. At trial, however, he denied having sexual relations with plaintiff after March of 1976. He maintained they only had sexual relations on three occasions but could not recollect when. He admitted on cross-examination, however, that it was possible he was the father. He stated that the plaintiff approached him about helping her arrange for an abortion and that his willingness to help was merely an act of friendship.

Blood tests ordered by the court proved inconclusive in that defendant could not be eliminated as the father. None of the other witnesses shed much light on the relationship between plaintiff and defendant at the time of the child’s conception.

In lengthy reasons for judgment the trial court observed that plaintiff testified in an open and forthright manner whereas defendant’s testimony was extremely vague and evasive. Considering the demeanor of the witnesses and the evidence as a whole, the trial court found that the relationship between plaintiff and defendant was much more extensive and of a longer duration than admitted by the defendant. The court held that defendant’s conduct upon learning of the pregnancy and his admitted efforts to arrange an abortion constituted an acknowledgment of paternity under La.Civil Code article 209. Alternatively, the trial court found plaintiff was not “dissolute” so as to preclude the application of La.Civil Code art. 210 to prove paternity.

At the outset we agree with defendant that the trial court erred in finding an acknowledgment under article 209 which provides in pertinent part:

In the case where the proof of paternal descent is authorized by the preceding article, the proof may be made in either of the following ways:
* * * * * *
2. When the father, either in public or in private, has acknowledged him as his child, or has called him so in conversation, or has caused him to be educated as such;
* * * * * *

We agree that the offer to arrange for an abortion does not constitute an acknowledgment of paternity under article 209.

Defendant’s main arguments on appeal deal with an evidentiary ruling made by the trial judge relative to La.C.C. art. 210, and whether or not the plaintiff was barred from using this method of establishing paternity. Article 210 provides:

The oath of the mother, supported by proof of the cohabitation of the reputed father with her, out of his house, is not sufficient to establish natural paternal descent, if the mother be known as a woman of dissolute manners, or as having had an unlawful connection with one or more men (other than the man whom she declares to be the father of the child) either before or since the birth of the child.

During the trial defendant attempted to question plaintiff about sexual conduct on her part prior to the time of her relationship with him. The trial judge prohibited defendant from asking her about sexual relations with others except during the time she was seeing the defendant and refused to allow an offer of proof. Defendant argues such evidence would be relevant under article 210.

We agree. In McConkey v. Pinto, 305 So.2d 469 (La.1975) the supreme court dealt with a situation in which it was shown that a woman engaged in sexual intercourse pri- or to marriage and conceived a child. This occurred a year after the birth of the child whose paternity was at issue in the lawsuit. The court stated:

* * * The conception of such a child a few days prior to marriage and over one year after the birth of the illegitimate child, in our opinion, does not constitute an unlawful connection, or commerce ii-licite, within the contemplation of Article 210. The purpose of this disqualifying provision is to prevent a dissolute mother from choosing as the father of her illegitimate child any one of several men with whom she had been intimate at the time of conception. Illicit relations after the birth of the child are relevant in that they support the premise that the mother was dissolute at the time of conception. * * * 305 So.2d 469, 471.

Accordingly, the trial court did err in limiting defendant’s cross-examination of plaintiff and disallowing the offer of proof. Evidence of sexual conduct on plaintiff’s part prior to the time she knew the defendant would be relevant to support the premise that plaintiff was a woman of “dissolute manners” at the time of conception.

In spite of the trial court’s erroneous ruling, however, evidence was elicited that plaintiff had engaged in sexual intercourse with a man she stopped dating in January 1975. Three other male acquaintances of plaintiff were alluded to at trial. One was a young man plaintiff dated once in April of 1976. She expressly denied having sexual relations with him. Another man was the husband of one of plaintiff’s friends and the record indicates they were only friends. The third was a man plaintiff dated in the summer of 1975. He was unable to attend the trial and the trial judge granted defendant twenty days after trial to submit this person’s deposition. No deposition was submitted. In the written reasons for judgment and in the denial of a motion for new trial the district judge recognized that he probably erred in curtailing the cross-examination of plaintiff. The court found the error nonprejudicial to the defendant because plaintiff admitted one affair and the defendant failed to submit the deposition which may have revealed one other affair. We agree with the trial court that the evidentiary ruling did not prejudice defendant. It appears that defendant, at best, could only have shown that plaintiff had sexual relations with two other men before she met the defendant. Under these circumstances any error on the trial court’s part does not mandate reversal.

In a related argument defendant contends that plaintiff is disqualified from using article 210 to establish paternity because of her admitted unlawful connection with another man. This argument is without merit. In McConkey v. Pinto, supra, sexual relations occurring a year after the birth of the child did not disqualify the mother from using article 210. In the case at bar plaintiff’s relations occurred two years prior to the birth of the child. Although, as discussed earlier, the trial judge did prohibit defendant from eliciting evidence of other possible affairs, it is apparent that defendant only intended to bring out that plaintiff had engaged in sexual relations with one other man. This relationship ended almost two years before the birth of the child. Under the rationale of McConkey these remote relations would not disqualify plaintiff from using article 210.

Defendant’s final argument is that the trial court’s factual determination that he is the father is erroneous. Defendant specifically argues that plaintiff testified that a contraceptive device was used on one occasion some time during the month of June, and that this makes it impossible for him to be the father because they only had intercourse once that month. As we appreciate the record, plaintiff testified she had sexual relations with defendant twice that month and that a contraceptive device was only used once. Accordingly, the trial court’s factual conclusions are not erroneous.

Judgment is affirmed at appellant’s cost.

MARVIN, J., dissents and assigns written reasons.

MARVIN, Judge,

dissents.

I agree with the majority that this case is to be decided solely on that part of CC Art. 210 relating to the mother of the child

“having had an unlawful connection with one or more men (other than the man whom she declares to be the father of the child) either before or since the birth of the child.”

Unlawful connection in Art. 210 means sexual intercourse without the benefit of marriage. See State v. Savant, 115 La. 226, 38 So. 974, 975 (1905); McConkey v. Pinto, 289 So.2d 540, 541 (La.App. 4th Cir. 1973), reversed on other grounds, 305 So.2d 469 (La.1974).

The policy of Art. 210 has remained unchanged since 1825 and is clear in its pronouncement:

“The oath of the mother, [even though] supported by proof of cohabitation of the reputed father with her, out of his house, is not sufficient to establish natural paternal descent, if the mother be known as a woman of dissolute manners, or as having had an unlawful connection with one or more men (other than the man she declares to be the father of the child) either before or since the birth of the child.” Bracketed material and emphasis supplied.

If the policy of 210 is to be changed to require the unlawful connection to occur during the period of time that the child could have been conceived, it is for the legislature to make the change and not the courts. This is especially true where the policy is of long standing. See Barnett v. Barnett, 339 So.2d 495 (La.App. 2d Cir. 1976).

Here the mother admits to having had unlawful sexual intercourse with a man other than defendant whom she stopped dating in January 1975 and as the majority indicates, she may have had unlawful sexual intercourse with two other men sometime before she met defendant in November 1975. This child was conceived about June 12, 1976.

McConkey concerned a child born in February 1968. The Court of Appeal applied Art. 210 and barred the mother from proving paternity because she married one Jimmy Gray in April 1969 and gave birth to a child in November 1969, which was conceived, according to expert testimony, “at least four days prior to marriage.” The Court of Appeal held that because the mother had an unlawful connection with Jimmy Gray her proof of paternal descent was “insufficient.”

On a writ of review, the Supreme Court clearly held that Art. 210 was inapplicable and that the case would be decided as an acknowledgment case under Art. 209:

“We do conclude, however, that Article 210 is inapplicable for other reasons advanced by plaintiff.
* * * * * *
“. . . In effect, the defendant acknowledged or called the child as his. In our opinion, the proof fulfills the requirements of paragraph 2 of Article 209 ...” 305 So.2d 471

The paragraph of about two dozen lines omitted from the above McConkey quotation as indicated by the asterisks, did discuss broadly and loosely, and without definitiveness, why Art. 210 was perhaps inapplicable. McConkey in hazy dicta in the paragraph in question, stated only in my opinion

. . plaintiff’s child [though] conceived a few days prior to marriage . is conclusively presumed to be legitimate . The conception of such a child [conclusively presumed to be legitimate] does not constitute an unlawful connection . . . within the contemplation of Article 210 . . . Illicit relations after the birth of a child are relevant in that they support the premise that the mother was dissolute [within the meaning of Art. 210]. The showing . . .relating to the birth of a legitimate child, is insufficient to produce a disqualification [under the part of Art. 210 referring to the mother’s reputation as a dissolute woman].” Bracketed material and emphasis supplied.

McConkey apparently equated reputation as a dissolute woman as synonymous with her having had an unlawful connection. I view them differently because of the or in the article. In my view a woman may be indiscreet or somewhat promiscuous (having had more than one unlawful connection) without being known as a “dissolute woman” such as a call girl, a prostitute or an easy mark. The unlawful connection in my opinion can be proved only by facts while the dissoluteness can be proved only by reputation (“known as a dissolute woman”). In any event, however, if an unlawful connection after the birth of an illegitimate is relevant on the question of dissoluteness under McConkey, it should be equally relevant and not remote so as to trigger what I believe is the second bar of Art. 210. One unlawful connection, beside that with the alleged father, either before or after the birth of the child, even though the mother is not known as a dissolute woman, enervates the oath of the mother as to paternal descent in the express language of Art. 210.

Whether or not dicta with respect to Art. 210, McConkey did not hold that a true unlawful connection occurring after the birth of an illegitimate child was insufficient to produce a 210 disqualification. If so, why the statement that illicit relations after the birth are relevant as to dissoluteness? As to Art. 210, McConkey said only and nothing more than that an act of sexual intercourse, even before marriage, which produces a legitimate child because the mother marries her partner, does not constitute an unlawful connection within the meaning of 210.

Thus I respectfully, but strongly disagree with the majority’s statement that “under the rationale of McConkey these remote relations [of this plaintiff] would not disqualify plaintiff from using Article 210.” The rationale of McConkey does not change Art. 210 to add that the unlawful connection must be concurrent with the time in which the child could have been conceived before the disqualification is applicable. What could be more remote to the time of conception than intercourse after the birth of the illegitimate? This act is relevant according to McConkey on dissoluteness, McConkey does not change Art. 210 as the majority here has changed it.

I dissent because of this court’s misconstruction of the dicta in McConkey and because it is for the legislature and not this court to change the policy of Art. 210, if it is to be changed.

      . “. . [Art. 210] prohibits a judicial determination of paternity based solely on proof of cohabitation and the testimony of the mother, if she has been promiscuous ... it merely displays a legislative distrust of the oath-plus-cohabitation evidence by declaring that conclusive weight cannot be given to it standing alone. Cf. McConkey v. Pinto, 305 So.2d 469 (La., 1975); Ogborn v. Bush, 255 So.2d 199 (La.App. 4th Cir. 1974).” Succession of Washington, 308 So.2d 892, 896 (La.App. 2d Cir. 1974)

      . This paragraph expressly states that “[i]llicit relations after the birth of the child are relevant . . [to] the premise that the mother was dissolute at time of conception.” Bertrand v. Warren, 326 So.2d 505, 507 (La.App. 3d Cir. 1976), in attempting to gather meaning from this paragraph, said that McConkey held
      “[that] a single act of intercourse more than one year after the birth of the illegitimate child . . . was not relevant to ‘the premise that the mother was dissolute at the time of conception.’ ”
      Thus it is obvious that the McConkey paragraph requires some clarification or further treatment by our highest court.


text:
    Effie HUMPHREY, Plaintiff-Appellant, v. R. C. FEAZEL et al., Defendants-Appellees.
    No. 13760.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1979.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Writ Refused April 23, 1979.
    Donald R. Miller, Shreveport, for Effie Humphrey, plaintiff-appellant.
    Bodenheimer, Jones, Klotz & Simmons by J. W. Jones and Harry D. Simmons, Shreveport, for Rayburn Eugene Thomas, R. C. Feazel, Jackie Kelly Feazel, J. A. Martin, Debra J. Feazel, Ted Bounds, R. and Stephen C. Feazel and Jeanette King Tate, defendants-appellees.
    Cook, Clark, Egan, Yancey & King by Benjamin C. King, Edwin L. Blewer, Jr., Herschel E. Richard, Jr., Shreveport, for Mrs. Birdie Joffrion Feazel, Jack D. Cotton, Roger Dale Pender and Ruben Jean Jof-frion, defendants-appellees.
    Lunn, Irion, Switzer, Johnson & Salley by Harry A. Johnson, Jr., Charles W. Salley, Shreveport, for Floyd Montgomery, Charles Phagan, Donald Young, Jr., John Feazel, and John Hurst, defendants-appellees.
    Wilkinson, Carmody & Peatross by Samuel W. Caverlee, Shreveport, for Douglas F. Read, defendant-appellee-third party plaintiff-appellee.
    Nelson & Achee, Ltd. by Frank M. Dodson, Shreveport, for Allstate Ins. Co., third party defendant-appellee.
    W. Freeman Coleman, in pro. per.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

Plaintiff, Mrs. Effie Humphrey, appeals from a judgment rejecting her demands for damages against some twenty defendants, including primarily defendant R. C. Feazel, for false imprisonment and libel arising out of her commitment by the Coroner. The trial court held that defendants acted in good faith and under LSA-R.S. 28:52 E. were not subject to liability. Judgment was rendered accordingly. We affirm the judgment of the trial court.

On September 8, 1976, plaintiff was taken into custody and confined in the Confederate Memorial Hospital for examination pursuant to an order of the Caddo Parish Coroner under the then existing Mental Health Statute LSA-R.S. 28:52, as amended by Act 614 of 1976. The coroner’s actions were strictly in accordance with the statute and were based only in part on the information provided by defendants. Defendant Feazel, plaintiff’s next door neighbor, signed the necessary affidavit. He also presented a petition signed by other concerned citizens, mostly neighbors, enumerating several examples of plaintiff’s bizarre behavior including her threat to kill three children staying at the Feazel’s home, which provoked the defendants subsequent actions.

The initial forty-eight hour report to the coroner stated plaintiff had a mild organic brain syndrome, passive aggressive personality with paranoid traits, and was possibly dangerous. The report recommended she be confined for further testing and data gathering which was subsequently done. The final diagnosis concluded plaintiff was suffering from involutional paranoia and was possibly dangerous. It recommended plaintiff be discharged based on two conditions: (1) plaintiff surrender her pistol and shotgun to her sister and brother-in-law; (2) plaintiff submit to regular follow-up treatment from the Shreveport Mental Health Clinic. Plaintiff was discharged after six days of confinement on September 14, 1976 and has surrendered her guns.

Plaintiff initiated this action in June of 1977 against Feazel and others who signed the petition seeking recovery of damages for false imprisonment and libel. The trial judge found that the medical testimony and other evidence supported the commitment and that defendants were in good faith.

On appeal plaintiff specifies two errors: (1) the trial judge erred in rejecting plaintiff’s demands because the plaintiff proved her allegations by a preponderance of the evidence; and (2) the trial judge erred in construing LSA-R.S. 28:52 E as granting immunity to the defendants, who instituted the coroner commitment predicated on false or misleading information in the application and affidavit.

The plaintiff’s case fails in several respects. The evidence, including plaintiff’s own testimony to some extent, established that the statements contained in the petition were substantially true and not false. The evidence of plaintiff’s history of bizarre and threatening behavior established that defendants acted in good faith and without malice in instituting the legal process. Plaintiff’s detention was pursuant to legal process instituted in good faith and without malice; therefore, there was no false imprisonment. Finally, LSA-R.S. 28:52 E precludes civil liability on the part of defendants under the circumstances of this case.

The judgment is affirmed at appellant’s cost.

      . LSA-R.S. 28:52 E (as amended by Act 614 of 1976)
      Any person who acts in good faith to assist in the apprehension or taking into protective custody and examination of a patient will not be subject to civil or criminal penalties. . .


text:
    RUSTON STATE BANK & TRUST COMPANY, Plaintiff-Respondent, v. George THEODUS et al., Defendant-Relator.
    No. 13832.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 5, 1979.
    En Banc. Rehearing Denied Feb. 28, 1979.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs, West Monroe, for defendant-relator.
    Goff, Goff & Levy by A. K. Goff, Jr., Ruston, for plaintiff-respondent.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

Plaintiff, Ruston State Bank and Trust Company, filed suit against Jimmy Theodus and George Theodus alleging that Jimmy Theodus is indebted to the bank for $16,-563.35 on a promissory note held by the bank and that George Theodus is indebted to the bank to the extent of $10,000.00 under a continuing guaranty agreement. George Theodus answered denying any indebtedness and pleading defenses of novation, release, fraud, error and want or failure of consideration. Defendant prayed for a trial by jury of all issues.

Plaintiff filed a motion seeking to limit the issues for determination by the jury to the issues of fraud, error and failure of consideration, relying on LSA-C.C.P. Art. 1733 which provides that a trial by jury shall not be available in “a suit on an unconditional obligation to pay a specific sum of money, unless the defense thereto is forgery, fraud, error, want or failure of consideration.” After hearing, the trial court ruled that the issues of fact for determination by the jury would be limited to questions of fraud, error and want or failure of consideration; all other issues to be determined by the judge. In the meantime, a default judgment for the balance due on the note was rendered against Jimmy Theo-dus.

Defendant George Theodus perfected a suspensive appeal from the order limiting the issues to be tried by the jury. This court, on its own motion, dismissed the appeal because the order was neither a final judgment nor an interlocutory order which may cause irreparable injury and, therefore was not appealable under LSA-C.C.P. Art. 2083. Ruston State Bank & Trust Company v. Theodus, et al., 366 So.2d 218 (La.App. 2nd Cir. 1978).

Defendant’s subsequent application for writs was granted by this court in order to review the correctness of the trial court’s ruling. The precise issue presented is: Where the defendant in a suit on an unconditional obligation to pay a specific sum of money pleads defenses of fraud, error and want of consideration, along with other defenses, and prays for a trial by jury, is the defendant entitled to a jury trial on all issues, or is the defendant entitled to a jury trial only on the issues of fraud, error and want of consideration, with the judge to decide all other issues?

LSA-C.C.P. Art. 1731 provides: “Except as limited by Article 1733, the right of trial by jury is recognized.” The right of a litigant to jury trial is fundamental in character and the courts will indulge every presumption against a waiver, loss or of forfeiture thereof. The right to trial by jury in a civil case is a basic right and should be protected in the absence of specific authority for its denial. Champagne v. American Southern Insurance Co., 295 So.2d 437 (La.1974). A civil litigant is not to be deprived of the important right of jury trial except by express legislative provision. The legislature has provided for the right of jury trial in all civil cases, with only express exceptions. Jones v. City of Kenner, 338 So.2d 606 (La.1976).

LSA-C.C.P. Art. 1733 lists specific exceptions to the general rule that a jury trial is available in civil cases. Among other exceptions the article provides that a trial by jury shall not be available in a suit on an unconditional obligation to pay a specific sum of money, unless the defense thereto is forgery, fraud, error, want or failure of consideration.

The present suit does not fall within the exception because defenses of fraud, error and want or failure of consideration have been pleaded, taking the case out of the exempted category. The article does not provide that where the defenses of fraud, error or lack of consideration are pleaded the jury trial will be limited to those issues or defenses. Such a limitation should not be read into the code article. The literal and plain meaning of the code provision is that the exception is not applicable if the stated defenses are raised. Article 1733 deals with “suits”, not issues.

As urged by plaintiff, LSA-C.C.P. Art. 1735 recognizes that there may be one trial where some issues are tried by the jury and other issues are tried by the judge. See: Jones v. City of Kenner, supra, Champagne v. American Southern Insurance Co. supra, and Montgomery v. Breaux, 338 So.2d 314 (La.App. 3rd Cir. 1976), writ refused 341 So.2d 410 (La.1977). However, the article specifically provides that the trial of “all issues” shall be by the jury unless the parties stipulate otherwise or “unless the right to trial by jury as to certain issues does not exist.” In each of the cited cases there was an express exception or exemption such as a suit against a political subdivision, LSA-R.S. 13:5105 and LSA-C.C.P. Art. 1733(5), and a summary proceeding, LSA-C.C.P. Art. 1733(3). There is no such express exception as to suits on unconditional obligations to pay a specific sum of money where the enumerated defenses are pleaded, as in the instant case. Defendant is entitled to a trial by jury of all issues.

No issue has been raised by either party as to whether the continuing guaranty agreement involved in this case is an unconditional obligation to pay a specific sum of money. Consequently, we make no determination in that respect.

The writ issued herein is made peremptory, the judgment of the district court is reversed and set aside, the motion filed by plaintiff to limit the issues triable by the jury is overruled, and the case is remanded for further proceedings in accordance with law and consistent with this opinion. Plaintiff is cast for all costs relating to this writ of certiorari; all other costs to await final judgment in this case.

Reversed and remanded.