author: WATSON, Judge. CULPEPPER, Judge, STOKER, Judge,

text:
    Priscilla DOMINGUE, Plaintiff-Appellee, v. CONTINENTAL INSURANCE COMPANY et al., Defendants-Appellants.
    No. 6060.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.

      Allen, Gooch & Bourgeois by Michael Harson, Lafayette, for defendants-appellants.
    Plaisanee & Franques by A. J. Plaisance, Lafayette, for plaintiff-appellee.
    Before CULPEPPER, WATSON and STOKER, JJ.
   WATSON, Judge.

Defendants, Joiscin B. Cormier and Continental Insurance Company, his liability insurer, have appealed from a jury verdict awarding plaintiff, Priscilla Domingue, $30,000 in damages for an intervertebral disc injury received in an automobile accident. The driver of the automobile in which plaintiff was riding, Grace M. Pelle-rin, who was made third party defendant, was found free of negligence. Ms. Pellerin reconvened, but the jury concluded that she sustained no damages in the accident. The trial court denied new trial, additur and remittitur.

Defendants contend that the trial court erred in allowing the jury to consider the policy limits of Continental’s policy. Also, it is contended that the jury erred in finding that Cormier was responsible for the accident, or, in the alternative, finding that he was solely responsible; and in finding that plaintiff’s injuries justify an award of $30,000. Ms. Domingue has answered the appeal asking for an increase to $125,000, and Ms. Pellerin has answered asking for an award of $750.

The first issue is whether the trial court erred in allowing the jury to view Continental’s insurance policy, which was introduced into evidence. The policy has limits of $100,000 for bodily injury in one occurrence. The jury was properly charged that an insurance company is entitled to be treated fairly and impartially in the same manner as a private individual. The First Circuit held in Ashley v. Nissan Motor Corp. in U.S.A., 321 So.2d 868 (La.App. 1 Cir. 1975) writ refused La., 323 So.2d 478, that the trial court correctly refused to allow a jury to be informed of the policy limits of the five insurers involved. 321 So.2d 874. The Supreme Court in denying writs in Ashley stated:

“Although we do not approve that portion of the opinion which permitted the policy limits to be withheld from the trial jury, we cannot say that under the facts the result is incorrect.” 323 So.2d 478

In view of this plain language by the Supreme Court and the fact that the ability of a defendant to respond in damages is well established as a proper subject for jury consideration, State Farm Fire & Casualty Company v. Drost, 330 So.2d 393 (La.App. 3 Cir. 1976), the trial judge did not err in allowing the jury to see Continental’s policy-

The remaining issues are:

(1) whether the jury’s verdict that Cor-mier’s negligence was the sole cause of the accident is manifestly erroneous; and

(2) whether the awards of $30,000 to Ms. Domingue and zero to Ms. Pellerin are within the jury’s much discretion under LSA-C.C. art. 1934.

I. Causation

The accident occurred at the intersection of two blacktopped roads in Lafayette Parish on October 3, 1975. Mr. Cor-mier was driving a tractor-backhoe south on Louisiana Highway 93, Garcia Road, and Ms. Pellerin was driving west on Louisiana Highway 342, Ridge Road. Mr. Cormier was getting ready to turn at the intersection and the scoop on the front of his backhoe was protruding into Ridge Road where it caught the Pellerin automobile on the right or passenger side. The backhoe was either at a dead stop or slightly rolling. Mr. Cormier was charged with failing to yield the right-of-way and pleaded guilty. The Pellerin automobile was a total loss. Acadian Ambulance took both Ms. Do-mingue and Ms. Pellerin away from the scene.

The two state troopers who investigated the accident said that the scoop was protruding into Ridge Road some four to six inches. Garcia Road is controlled by a stop sign. The blade of the backhoe was approximately three feet from the ground. Ridge Road was estimated as less than 20 feet wide.

Ms. Pellerin said there was a car coming from the other direction and a big shovel in the road in front of her. She was unable to stop or avoid the shovel, which she thought was still moving at the time of impact. Her speed was around 35 or 40 miles per hour. Her passenger, Priscilla Domingue, was unconscious and bleeding from the forehead after the accident.

Ms. Domingue had another accident December 8, 1975, which defendants claimed caused her injuries, but she testified she was not injured in the second accident except for a small nick in the neck from a piece of glass. It was stipulated that the truck which struck her car in the second accident was traveling between 50 and 60 miles per hour. Four other witnesses, Patrick Ritchey Garrett, Murray Joseph Fer-nell, Arthur J. Fisher and Lou (Mrs. Murphy) Cloteau, testified that Priscilla Do-mingue was not hurt in the second accident.

Mr. Cormier testified that he was coming to a stop when the accident occurred and thought he had been stopped about a minute at the time of impact. He saw the Pellerin automobile when it was 150 feet away. Cormier admitted saying in deposition that he was at fault in causing the accident but maintained at trial that Ms. Pellerin could have avoided him. Until the investigating officers measured with a tape, Mr. Cormier did not believe his scoop was protruding onto Ridge Road, but he admitted going past the stop sign in order to see the intersection.

Charles Dale Domingue, an employee of Cormier, witnessed the accident from a truck behind Mr. Cormier and testified that the backhoe was at a complete stop. This witness and Clifton Chesson, also an employee and passenger in the truck, said that the car coming toward Ms. Pellerin passed the intersection before the collision.

The jury apparently accepted the testimony of Ms. Pellerin that she was unable to avoid hitting the backhoe because of the oncoming car in the opposite lane. Her perception of this vehicle was undoubtedly different from that of the witnesses who viewed it from the side. It is undisputed that Mr. Cormier had a duty to prevent the shovel of the backhoe from protruding into the right-of-way street. The two blacktopped roads in question are narrow and there is a reasonable evidentiary basis for the jury to conclude that the accident resulted from Mr. Cormier’s partial obstruction of the intersection, clearly negligent on his part. Mr. Cormier was required to stop and yield the right-of-way without obstructing traffic on the favored highway. The jury’s verdict that Cormier’s negligence was the sole cause of the accident is not manifestly erroneous.

Damages

A. Grace M. Pellerin

Continental paid Ms. Pellerin $500 for property damage, $34 for wrecker service and $50 for inconvenience but did not receive a release from her. There is no evidence of any additional damages to Ms. Pellerin, and the jury correctly refused to award her further damages.

B. Priscilla M. Domingue

Ms. Domingue, age 24, said that the doctor at Charity Hospital suggested she see her own physician. She remained in bed in what she called “excruciating pain” until she went to Dr. Bourque a few days later. The base of her neck was hurting, her chest was sore and she had headaches. She returned to bed and remained on medication for a month and a half. She stopped taking the medication because she was unable to do so and work in her previous occupation as a waitress. She missed approximately a month of work as a result of the accident. At the time of trial, slightly over a year later, Ms. Domingue said she was still in pain with discomfort from the base of the neck to the elbow for which she took Tylenol and aspirin. She had returned to her previous occupation at the time of trial but said it aggravated her pain. Her chest pain subsided two or three weeks after the accident.

Ms. Domingue was seen by her family physician, Dr. Lawless Bourque, on October 7, four days after the accident, when she had a stiff neck and muscle spasms. Dr. Bourque saw her again on October 28, when she had a stiff neck and pain down the left arm. Dr. Bourque diagnosed a severe neck strain with some nerve root irritation on-the left side. Dr. Bourque referred her back to Charity Hospital for additional x-rays which could be compared with her initial ones. Ms. Domingue had been given medication for pain and muscle spasms at Charity and was given another kind of muscle relaxant and some codine on her second visit to Dr. Bourque. Dr. Bourque thought the arm and shoulder pain indicated a serious condition. He testified that his patient was truthful and honest and not a malingerer.

Ms. Dominque was subsequently sent by her attorney to Dr. John J. McCutchen in Houston, Texas; he is a neurologist with impressive professional qualifications. He saw Priscilla Domingue on August 13,1976, with a history of “ . . . probable mild post-concussion syndrome, traumatic vesti-bulitis, improved, and Stage I cervical inter-vertebral disc injury at C4-5.” (TR. 88) Dr. McCutchen’s opinion was that her headaches would improve, "but the disc space narrowing revealed by her x-rays suggested “ . a chronic intervertebral disc problem may result in the need for further medical treatment at sometime in the future.” (TR. 88) He defined a Stage I cervical intervertebral disc injury as a damaged disc which might have the capacity to return to a normal disc and a Stage II degenerated or softened disc as one that will remain that way throughout a lifetime and which, with minor stress, is more likely to swell, cause nerve root pressure and possibly rupture. He stated Ms. Domingue probably would be moved into the Stage II category, since the narrowing on her x-rays made it unlikely the disc would return to normal. There is a very high probability, according to the physician, that it will rupture and it might require disc removal and fusion to keep pressure off the nerve roots even if it did not rupture. He recommended that Ms. Domingue avoid heavy lifting or straining and limit herself to light duty activity. Dr. McCutchen said that the Stage I classification was a conservative estimation of Ms. Domingue’s injury and he could have put it in Stage II. He indicated that, if her pain continued, she should have further testing in order that a recommendation could be made for or against surgical treatment.

Dr. J. Lee Leonards, who examined Ms. Domingue on behalf of the defendant insurer, is an orthopedic surgeon in Lafayette, Louisiana, and saw her on October 7, 1976, not long before trial. The x-rays taken by Dr. Leonards show an abnormality at the C3-4 level which he described as “. an anterior flexion type of injury . .” with “. . . a residual osteophyte .” (TR. 148). He thought that the injury was a stable one.

The jury apparently accepted Dr. McCutchen’s testimony and considered it in connection with Ms. Domingue’s testimony that she was still in pain at the time of trial, over a year after the accident.

There is no abuse of the jury’s discretion in the award of damages to Ms. Domingue. Compare Schexnayder v. Carpenter, 338 So.2d 344 (La.App. 3 Cir. 1976), writ issued La., 340 So.2d 993, amended 346 So.2d 196 (La., 1977); and Fox v. State Farm Mutual Automobile Insurance Co., 288 So.2d 42 (La., 1974).

For the foregoing reasons, the judgment of the trial court herein is affirmed. All costs of this appeal are assessed to defendants-appellants, Continental Insurance Company and Joiscin B. Cormier.

AFFIRMED.

STOKER, J., concurs and assigns written reasons.

CULPEPPER, J., dissents from the holding that the jury can view the policy briefs and assigns written reasons, but concurs in the result.

CULPEPPER, Judge,

dissenting in part.

I dissent from that part of the majority opinion which holds the policy limits of insurance coverage may be presented to the jury. Insofar as I can determine, this holding is contrary not only to the jurisprudence of Louisiana, but also to the rule in every other court in the United States, including the Federal Courts.

In the recent case of Ashley v. Nissan Motor Corp. in U.S.A., 321 So.2d 868 (La. App. 1st Cir. 1975), the majority held that in a personal injury case a jury should not be informed of the policy limits of insurance liability coverage. The rationale of the court’s ruling is that although evidence is admissible to prove defendant’s inability to pay damages, it is not admissible to show defendant’s affluence or wealth. The court cites Hartman v. Aschaffenburg, 12 So.2d 282 (La.App. 4th Cir. 1943) and Winzer v. Lewis, 251 So.2d 650 (La.App. 2d Cir. 1971).

The majority opinion in the present matter cites no Louisiana case, nor have I found one, which holds contrary to Ashley. Instead, the author of the opinion in the present matter relies on the denial of the application for writs in Ashley, 323 So.2d 478, in which our Supreme Court stated:

“Writ denied. Although we do not approve that portion of the opinion which permitted the policy limits to be withheld from the trial jury, we cannot say that under the facts the result is incorrect.”

Our Supreme Court has held many times that it is not bound by its previous refusal to grant writs from a decision of an appellate court on a certain point of law. Colonial Pipeline Company v. Agerton, 289 So.2d 93 (La.1974) and the cases cited therein. Therefore, I think we should follow the existing jurisprudence as stated in the Court of Appeal decision in Ashley, unless or until our Supreme Court grants a writ and changes the rule.

On the merits of the issue, I think that the policy limits should be withheld from the jury not only because such evidence is irrelevant to the amount of damages, but also because it is prejudicial. It may induce juries to decide both negligence and the amount of damages on improper grounds.

Louisiana and Wisconsin have direct action statutes, and, therefore, in these two states evidence of the existence of insurance is admissible to show that the plaintiff has a right to sue the insurer directly. In other states, which do not have direct action statutes, evidence of the existence of insurance is held inadmissible both on the grounds that it is irrelevant to the issues of negligence and damages, and also on the grounds that it is prejudicial. See the Annotation, Showing As To Liability Insurance, 4 A.L.R.2d 761-825; Appleman, Insurance Law and Practice, Vol. 21, Ch. 443, Sec. 12831, et seq.

I also find it most persuasive that the new Federal Rules of Evidence, adopted by the Supreme Court of the United States and approved by the United States Congress in 1975, retain the rule that evidence of the existence of liability insurance should not go to the jury. Rule 411 states:

“Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.”

The comment by the Advisory Committee for the new Federal Rules of Evidence, Title 28, U.S.C.A. Federal Rules of Evidence, states under Rule 411:

“The courts have with substantial unanimity rejected evidence of liability insurance for the purpose of proving fault, and absence of liability insurance as proof of lack of fault. At best the inference of fault from the fact of insurance coverage is a tenuous one, as is its converse. More important, no doubt, has been the feeling that knowledge of the presence or absence of liability insurance would induce juries to decide cases on improper grounds. McCormick § 168; Annotation, 4 A.L.R.2d 761. ...” (Emphasis added)

McCormick’s Handbook Of The Law of Evidence, 2d Ed., Section 201, suggests that it may be time for a re-examination of the rule forbidding disclosure to the jury of the fact of insurance. The reasons stated are that the jury usually learns whether there is insurance from questions asked during examination of the jurors or from inferences drawn from questions and arguments during the trial. It is also suggested that because of new laws on no fault insurance and laws making insurance mandatory, there is less need to withhold from the jury the fact of insurance. However, I note particularly that not even McCormick suggests the amount of the policy limits should go to the jury. I also think that implicit in the reasoning by McCormick is an acknowledgment that both the fact of insurance and the amount of the policy limits is prejudicial in a jury trial. My personal view is that it is clearly prejudicial, and this is my principal reason for dissent in the present case.

It is noteworthy that McCormick, 2d Ed., Section 201, Footnote 22, cites Shingelton v. Bussey, 223 So.2d 713 (Fla.1969) which held that both the fact of insurance and the policy limits should go to the jury. However, it is pointed out by McCormick that one year later the Florida Supreme Court reversed itself, Beta Eta House Corporation v. Gregory, 22>1 So.2d 163 (Fla.1970) and held that policy limits should not go to the jury. Insofar as I have been able to determine, there is not one court in the United States today which permits policy limits to go to the jury, except for certain limited purposes.

As to the question raised by the dissenting judge of the Court of Appeal in Ashley, of how an impecunious defendant can establish his inability to pay in a low insurance high damage situation, if he cannot show the amount of his coverage, my answer would be that if either the insured or the insurer raises the issue of the insured’s inability to pay, then the policy limits would be relevant to this issue and would be admissible in evidence. Thus, I find no difficulty with this problem.

Although I disagree with the holding that the policy limits can go to the jury, I concur in the remaining portions of the majority opinion.

For the reasons assigned, I dissent in part and concur in part.

STOKER, Judge,

concurring:

I concur in the majority opinion. However, I wish to express separate views concerning the admission into evidence of the liability insurance policy of Continental Insurance Company. This was a jury case. The majority opinion holds it was proper to allow the policy limits to be presented to the jury on the authority of the denial of an application for a writ of certiorari by the Louisiana Supreme Court in Ashley v. Nissan Motor Corp. in U.S.A. et al., 323 So.2d 478 (La.1975). I am not certain that we must construe the expression of the Supreme Court in its writ denial in the manner in which it is applied in the majority opinion herein.

There was a logical and persuasive reason for the Supreme Court in the Ashley case to add to its writ denial its expression of disapproval. That reason would not necessarily mean that the Supreme Court intended to imply that, as a categorical rule, juries may be, or should be, informed of policy limits. It may well be that the reason the Supreme Court qualified its writ denial was because the one defendant held liable, Michael W. Brown, gave testimony concerning his occupation and means and ability to respond to any judgment rendered against him. The Court of Appeal in Ashley referred to the principle that the trier of fact can and should consider the impecuniousness of the defendant in making an award and cited Tabb v. Norred, 227 So.2d 223 (La.App. 3rd Cir. 1973) and Williams v. Garner 268 So.2d 56 (La.App. 1st Cir. 1972). Ashley was injured in a single car accident in which Brown was the vehicle driver. The seller and the manufacturer of the vehicle were sued along with their insurers. The jury found Brown’s negligence to be the sole cause of the accident.

The plaintiff has asked that the jury be informed of the policy limits of each insurer. The trial judge denied the request on the ground that it was improper to acquaint the jury with the amount of coverage involved. As Brown only was liable, his insurer was the sole insurer liable. Brown’s policy provided only $5,000.00 in coverage. The award was $36,000.00. Under the circumstances it might have been to Brown’s advantage rather than plaintiff, for the jury to know that Brown had only $5,000.00 in coverage. Nevertheless, it may be that the reason for the Supreme Court’s qualification of the writ denial was because the special defense of inability to pay had been raised. As seen, however, the award exceeded the policy limits by a large amount.

With reference to this set of facts the Supreme Court in denying plaintiff’s application writ in Ashley, said:

Writ denied. Although we do not approve that portion of the opinion which permitted the policy limits to be withheld from the trial jury, we cannot say that under the facts the result is incorrect. (Emphasis supplied.)

In view of the facts of Ashley, it does not appear to me that this expression necessarily lays down a blanket unqualified rule that policy limits constitute relevant information to be given juries in liability suits absent facts that make them relevant. Respectfully, therefore I do not subscribe to the holding of the majority opinion in this case that Ashley does lay down such a rule. However, I am of the opinion that the trial judge' in this case was fully justified in admitting the policy into evidence and permitting the jury to become informed of the policy limits.

To view the issue here in proper perspective, it should be noted that suit was instituted, not only against J. B. Cormier, but against the insurer of his liability, Continental Casualty Insurance Company. Under Louisiana law a liability insurer may be sued directly under the Louisiana Direct Action Statute, LSA-R.S. 22:655. The jury could not be ignorant of the fact that an insurer was involved because it was the only defendant listed in the caption of the suit. (The insured was brought in by amendment.) Inasmuch as the liability of any liability insurer is contingent on the insured being legally liable, that liability is contractual. Hence, the existence, terms, effective dates, limits of liability and all other provisions of the policy embodying the contract govern and delimit any liability of the insurer. Therefore, the existence of the policy in favor of the insured, and all its provisions become an issue, or fact, to be established just as any other fact necessary to ground the plaintiffs case.

In this case Priscilla Domingue alleged in her petition the necessary pleadings upon which a cause of action against Continental could be founded. Paragraph 10 of the petition alleges:

At the time of the accident sued upon herein J. B. Cormier was insured by a policy of automobile public liability by the defendant herein and said insurance was in full force and effect at the time of the accident.

As the suit was originally brought, Continental was the only named defendant. Cormier was named as a defendant later. Continental answered paragraph 10 in language which is more or less standard and which reads as follows:

The allegations of Paragraph Ten of the Plaintiffs Petition are denied, except, to admit that on or about the date of the accident made the basis of this litigation, there was in full force and effect a policy of liability insurance issued by CONTINENTAL INSURANCE COMPANY to Mr. J. B. Cormier, which policy is the best evidence of its terms, conditions, provisions and limitations contained therein. (Emphasis supplied.)

With the issues joined on this basis, there was no concession in the answer that the liability policy referred to by Continental insured Cormier’s liability as alleged in the petition. More significant however, is the fact that Continental alleged that its policy was the best evidence of its contents. It also urged, among other things, that the policy was the best evidence of its limitations. Limitations are generally understood to cover limitations of liability.

Thus, by its pleadings Continental made a trial issue of the policy contents including the limits of its liability.

It is also noteworthy that in answer to interrogatories filed on behalf of plaintiff, Tr. 28, defendants failed to disclose the limits of coverage of Continental’s policy, Tr. 30. Although the policy limits had been requested, the answers to interrogatories gave only the policy number and inclusive dates of coverage.

At the trial, before the presentation of evidence, and outside of the presence of the jury, counsel for the plaintiff asked the trial judge for a ruling on the admissibility of the Continental policy. Tr. 229-231. We gather from counsel’s presentation that two judges of the same district court had adopted conflicting rules. One allowed the policy limits to go to the jury and one did not. Aside from the prejudicial effect of knowledge of the policy limits, defendant’s counsel urged that the evidence of the policy was irrelevant to the question of liability. It was urged that “until there is a judgment in favor of plaintiff and against the defendant, the financial ability of the— what might be paid is not a proper inquiry.” Counsel for defendants further argued that the policy speaks for itself only on the question of coverage and not on the question of liability. The Court announced its view as being that the policy could be viewed by the jury as any other evidence. Defendants’ counsel urged the court to reconsider its ruling, stating: “The issue of the amount of coverage has nothing to do with it as long as — If the jury finds no liability on the part of the defendant, in essence, until they find liability, then the amount of coverage has nothing to do with the inquiries in this case.” Counsel for defendants further argued that this court had held “that the financial ability of the defendant, basically, that’s what the amount of the coverage is, is not a proper inquiry prior to judgment being rendered against the defendants.” (Emphasis supplied).

Later the policy was introduced into evidence. Defendants’ counsel renewed his objection citing this circuit’s case of Benoit v. International Harvester Company, 251 So.2d 389 (La.App. 3rd Cir. 1971). The objection was overruled. Tr. 320. During the course of the trial the defendant, J. B. Cormier, was cross examined. He was asked if he had paid the premiums on the policy and whether it was in full force and effect at the time of the accident. The court sustained an objection to the question urged on the ground that the policy was in evidence and its effective dates were shown in the policy. Mr. Cormier was then asked if he knew the limits of his policy. The court sustained an objection to this question. The basis of the objection was that the policy in evidence was the best evidence of its contents.

From the foregoing it may be seen that defendants made an issue of the existence of insurance coverage and the policy limits at the trial stage as well as the pleading stage. Moreover, the arguments of counsel make it clear that defendants objected to the jury seeing the policy, not only because of the policy limits, but on the ground that limits were irrelevant prior to a finding of liability. Only through a bifurcated trial of some nature could effect be given to counsel’s objections.

For the foregoing reasons I can concur in the majority opinion holding no error was committed by the trial judge in permitting the jury to view the Continental policy including the policy limits. This concurrence, I believe, can be reached without relying on the refusal of writs in Ashley v. Nissan Motor Corp. in U.S.A., supra.

I confess that the underlying issue of informing the jury of the limits of a liability insurance policy has meritorious arguments on both sides of the question. These positions are well set forth in the court of appeal decision in Ashley v. Nissan Motor Corp. in U.S.A. et al., 321 So.2d 868 (La. App. 1st Cir. 1975) in the majority and dissenting opinions. Insurers may well take issue with the position taken in this concurring opinion. Logically, it may be urged that, even if an insured defendant admits its policy limits in its answer, under my views there can still be no way the policy limits may be kept from the jury. Where an insurer is a defendant under the Louisiana Direct Action Statute, the jury may, and perhaps must, be told all the facts since it is the trier of fact. My own view is that if a categorical rule must be adopted (that the jury either shall or shall not be allowed to know the policy limits), then the rule should be that they shall be allowed to know.

Under our direct action statute the policy and its limits are relevant even though it may be prejudicial to inform the jury of the limits. Louisiana is one of the very few states which allow direct actions against insurers. Therefore, the rules as to relevance of any facts concerning insurance coverage developed in most other states are wholly inapplicable in Louisiana. The Louisiana Direct Action Statute has been in effect for many years. It has been thoroughly accepted. No doubt it has enabled our judicial system to function without having to face many of the vexing evidentiary problems experienced in other states relative to attempts to get information to a jury that insurance exists and to keep such information from the jury. The direct action statute was early construed as issued not primarily for the protection of the insured but to run in favor of third persons and to be for the protection of the public. Davies v. Consolidated Underwriters, 199 La. 459, 6 So.2d. 351 (1942) and West v. Monroe Bakery, 217 La. 189, 46 So.2d 122 (1950). That feature has been incorporated into the statute itself.

In view of the long history of apparent satisfaction with the direct action statute, the basic question under consideration here should perhaps be a matter for legislative consideration rather than judicial resolution. In any event, if we must adopt a categorical rule, I am of the opinion that less mischief will result by an open rule allowing the jury to have knowledge of the policy limits. See Judge Yelverton’s dissent in the Ashley case before the Court of Appeal at 321 So.2d 868, 877.

Certainly fairness requires that if an insured defendant raises the defense that he is impecunious as a foundation for request to the jury to reduce the quantum of damages, the plaintiff should be permitted to offset such evidence by showing the policy limits. This is a special circumstance and suggests that perhaps the matter should be left to the discretion of the trial judge. Under Articles 1811 and 1812 of the Louisiana Code of Civil Procedure much control may be exercised by the trial judge through the use of written interrogatories and forms of verdict to be submitted to the jury. In practice in this state many juries are guided, as was done in this case, by the use of such interrogatories. Here, they were required to answer, affirmatively or negatively the simple questions of whether J. B. Cormier was guilty of negligence, and if so, was the negligence a proximate cause of the accident. If Cormier was negligent, and his negligence was the sole proximate cause, the jury was instructed (through the written verdict form submitted to them) to fix the monetary damages for general and special damages. By such a course of action the questions of coverage and amount of coverage became in effect, non-jury questions. In the case of the host driver, Grace Pellerin, the jury was directed to answer whether she was guilty of negligence.

The record does not indicate whether defendants’ counsel knew, at the time he made his objections to introduction of the policy what the special verdict form would be. Had he known, he might have urged with reason that the policy could be introduced but that, as limits would be a non-jury question, it should not be viewed by the jury and the jury should not be informed of the limits. In most instances the parties can and do stipulate on insurance coverage and policy limits. Whether such a stipulation is entered into or the policy is admitted into evidence, if Articles 1811 and 1812 of the Code of Civil Procedure can be deemed to permit a trial court to determine what are jury issues and what issues are to be tried to the court alone, then the question may be controlled by leaving the question to the discretion of the trial judge in a jury case. This seems to me to be the preferable rule.

In summary, my views are as follows.

If the trial judge does not have authority to delimit the jury issues, and if a plaintiff may demand a jury determination of policy limits, perhaps legislative consideration is in order. Until the Louisiana Supreme Court has spoken more explicitly and authoritatively, if a categorical rule must be adopted, it is my view that the fairer rule would be to admit policies and allow the juries to know of their contents including limits. For my own part I would hold that the trial judge has the authority to withdraw undisputed questions of coverage and amounts of coverage from jury consideration and withhold information concerning policy limits from the jury. Therefore, I concur in the majority opinion in this case.

      . There is no explanation of the discrepancy between the findings of the two physicians as to the location of the disc injury.

      . The pertinent provisions of the Louisiana Direct Action Statute, LSA-R.S. 22:655 read as follows:
      * * * The injured person or his or her survivors or heirs hereinabove referred to, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, . . It is the intent of this Section that any action brought hereunder shall be subject to all of the lawful conditions of the policy or contract and the defenses which could be urged by the insurer to a direct action brought by the insured, provided the terms and conditions of such policy or contract are not in violation of the laws of this State.
      It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured 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.


source: Caselaw Access Project

author:
DOMENGEAUX, Judge.
      GUIDRY, Judge,

license: Public Domain

text:
    Douglas P. FAULK, Plaintiff-Appellee, v. POWER RIG DRILLING COMPANY, Defendant-Appellee, Lamb Industries, Inc., Defendant-Appellant, The Northern Assurance Company of America, Intervenor-Appellee, Odell Vinson Contractors, Third-Party Defendant-Appellee, Employers Fire Insurance Company, Third-Party Defendant-Appellee.
    No. 6064.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Dismissed Oct. 26, 1977.

      Mouton, Roy, Carmouche & Hailey by John A. Bivins, Lafayette, for defendant-appellant.
    McHale & Bufkin by Louis D. Bufkin, Lake Charles, for plaintiff-appellee.
    Plauché, Smith, Hebert & Nieset by Allen L. Smith, Jr., Lake Charles, for third-party defendant-appellee.
    Brame, Bergstedt & Brame by Joe A. Brame, Lake Charles, for defendant-appel-lee.
    Davidson, Meaux, Sonnier & Roy by J. J. Davidson, III, Lafayette, for defendant-ap-pellee.
    Ryder & Deshotels by Alfred Ray Ryder, Oberlin, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

This is a suit for personal injuries arising out of an oil rig accident which occurred in Allen Parish on February 19, 1974. Douglas P. Faulk sued Power Rig Drilling Company, and Lamb Industries, Inc. The Northern Assurance Company of America intervened. Lamb Industries, Inc. third-partied Faulk’s employer, Odell Vinson Contractors, Inc. and its insurer, Employers Fire Insurance Company. Before the case went to trial Faulk settled with Power Rig and Northern Assurance, Power Rig’s workmen’s compensation insurer.

The case was tried before a judge, who held for plaintiff and against Lamb Industries, Inc., in the amount of $834,763.89. Third party demands by Lamb against Odell Vinson were rejected. Lamb appealed. Plaintiff answered the appeal, asking for an increase in the award. We affirm the decision of the district judge.

Early in the morning of February 19, 1974, around two or three o’clock, a. m., Douglas P. Faulk was working as the pusher of a roustabout crew at Power Rig No. 12, a well owned by Tesoro Petroleum Company. Power Rig Drilling Company was the company assigned to do the drilling. Lamb Industries, Inc., provided the casing crew which lowered the casing (pipe) into the well. Faulk’s roustabout crew, employees of Odell Vinson Contractors, Inc., were unloading the casing from the pipe rack situated at the foot of the rig. The catwalk or wooden platform was bordered on each side by pipe racks. The pipe was rolled by Faulk’s crew onto the catwalk, one joint of pipe at a time. Once a joint of pipe was placed on the catwalk; Faulk would tie on an air hoist line so that the pipe could be lifted into the V-door, a metal slide which leaned diagonally against the rig floor. A stairway leading up to the rig floor abutted the V-door. After the pipe was hoisted into the V-door, one of the Lamb Industries casing crew, Leeward Meche or Eugene M. Meaux, would remove the air hoist line and tie on the pickup line, which is attached to a travelling block. Upon a signal from Meche or Meaux, who were standing on the rig floor, the pipe would be hoisted up and out of the V-door and down into the hole to be connected to the previous joint of casing. The signal consisted of taking up the slack in the pickup line.

In the meantime, the air hoist line would be lowered back down to the catwalk where Faulk would tie it on to the next joint of casing.

This was a rhythmical procedure which lasted from one and one-half to three minutes for each joint. Occasionally a delay would occur and the pipe would stay in the V-door for a little longer period. On just one such occasion, while the previous joint lay in the V-door, Faulk began to tie on the air hoist line to the next joint. While Faulk was bent over in an awkward position near the above mentioned stairway, the pipe in the V-door was lifted by the driller. It slipped and hit the pipe Faulk was working on, sending Faulk head first into the metal hand rail of the stairway. Faulk’s skull was crushed.

OPINION

The trial court concluded “that the sole and proximate cause of Faulk’s injury was the negligence of Leeward Meche”. Meche was the Lamb employee who stood on the rig floor and gave the signal for the driller, Franks, to hoist the pipe out of the V-door. The trial court further opined “that Meche had the duty to ascertain that Faulk was not in the way before he signalled Franks”.

There is conflicting testimony as to this alleged duty of Meche. Mr. Buckalew, the Power Rig toolpusher who supervised the operation, and the only eyewitness to the accident, testified that it was Meche’s duty to make sure the catwalk was clear before giving his signal.

On the other hand, Mr. Stockstill, defendant’s expert on drilling operations, said Meche had no responsibility to act as a lookout. He testified that Meche must take care for his own safety, and that Faulk had no reason to be where he was at the time of the accident.

Mr. Begnot, the plaintiff’s expert driller, contradicted Mr. Stockstill by saying it is the duty of the man in the V-door to act as a lookout.

Where there is a conflict in the testimony, reasonable evaluations of credibility and inferences of fact should not be disturbed upon review. Canter v. Koehring Company, 283 So.2d 716 (La.1973). We see no reason here to disturb the trial court’s findings of a legal duty on Meche’s part to act as a lookout under the facts of this case. Faulk was in no position to see the driller nor could the driller see Faulk. Meche was the only person able to prevent this accident as he could see both Faulk and the driller. We feel that he could have taken the small amount of time needed to check the catwalk before giving his signal without unduly delaying the operation or risking his own safety.

The trial court also discussed Faulk’s possible contributory negligence, as follows:

“First of all, the court was not presented with any evidence that Faulk was doing anything other than his routine work or that he was in a position other than that which the performance of his work required of him . . .”

We reiterate that this was a rhythmical procedure in which Faulk relied on Meehe’s signal to keep the operation flowing safely and smoothly. In order for plaintiff to be held contributorily negligent, the defendants must show that plaintiff not only had knowledge of the danger, but also that he appreciated the danger under all the surrounding conditions and circumstances. In light of the fact that Faulk had been relying on Meche for some time and quite successfully so, we find no reason to find that he was aware of any danger. He was simply continuing his work as he had been doing for the preceding few hours.

We agree with the trial judge that defendant, who carries the burden of proof, has failed in his burden. Although the testimony of one expert indicated that Faulk was contributorily negligent, apparently the trial judge was not impressed that Faulk was doing anything other than what he was supposed to be doing at the time. Considering the paucity of evidence to prove this claim, we find no manifest error in the trial judge’s finding of no contributory negligence.

The district judge continued:

“Even if it were decided that he negligently placed himself where he was when the pipe hit him, the conclusion that Meche’s negligence was the sole and proximate cause of the accident is not altered. Faulk was in his perilous position before Meche signalled Franks. Meche, thus had the last clear chance to avoid the accident. Moses v. Commercial Standard Insurance Co. [La.App.], 174 So.2d 682.”

Because we find no contributory negligence on Faulk’s part, there is no need to discuss the “last clear chance” doctrine.

QUANTUM

Mr. Faulk’s injuries were devastating. Doctor Foster, his surgeon and the primary treating physician, testified that he was quite surprised that plaintiff survived the operation on his skull and brain. Plaintiff stayed in the hospital for two months subsequent to the accident. He had lacerations of both frontal lobes of his brain, and is now missing one-fourth of the right frontal lobe. This injury has the same approximate effect as a frontal lobotomy. The part of his brain which was injured affects his personality, judgment, behavior, and ability to get along with people. The part of his brain which controls his reading, writing and motor skills was not injured. However, plaintiff’s motor abilities have been affected because he is subject to grand mal epileptic seizures caused by his injury.

Plaintiff is severely depressed and emotionally unstable, partially because of his unhappiness with his physical appearance. He is blind in one eye, which is also horribly disfigured; he is severely scarred and has a plate in his head. The majority of the medical testimony indicates a great uncertainty that plaintiff will ever work again, especially because of his seizures. We conclude that the trial court did not err in finding plaintiff totally and permanently disabled.

Faulk was 24 years old at the time of the accident, was married and had children. (Since the accident he and his wife have separated due to Faulk’s erratic behavior.) Faulk was earning $198.40 per week. He had a work life expectancy of 37.9 years. The actuary, Doctor Chisolm, valued Faulk’s claim for future income loss at $494,018.41. The trial court, after considering many factors including inflation and productivity wage increases awarded $400,000.00 for lost future wages. We find no error in this award. See generally Economic Variables in Personal Injury Cases, Recent State Court Developments, Volume XXIV, Louisiana Bar Journal, Issue No. 2 (September 1976) for a discussion of factors used by our courts in deciding quantum and loss of future wages. For the earnings lost up to the time of trial the court awarded $20,448.39, in which we see no error. Medical expenses both past and future of $32,-555.50 were awarded.

For the extreme physical discomfort and disfigurement suffered by plaintiff the trial court concluded $175,000.00 would be adequate, and for his emotional distress the trial court awarded $200,000.00. Upon reviewing the record and the evidence of the severity of this injury, we cannot say the trial court erred. See Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1977).

Plaintiff in his answer to the appeal requested that the award for loss of future wages be increased to $494,018.41, the value estimated by Doctor Chisolm. The district judge carefully analyzed the expert testimony presented by both sides, and our review thereof indicates that his award of $400,000.00 for that item was well within his discretionary powers.

For the above and foregoing reasons, the judgment of the district court is affirmed. Costs are assessed against defendant-appellant, Lamb Industries, Inc.

AFFIRMED.

GUIDRY, J., dissents and assigns written reasons.

GUIDRY, Judge,

dissenting.

Although I have the utmost respect for the conclusions reached by my brethren of the majority and in spite of my total sympathy for plaintiff I am unable to agree to an affirmation of the trial court judgment. In my opinion, the record in this case clearly supports a finding that plaintiff was contributorily negligent; the “last clear chance” doctrine is inapplicable; and, plaintiff’s demand should have been rejected.

The defendant, Lamb, pleaded contributory negligence as a bar to the plaintiff’s recovery. Defendant contended that plaintiff’s contributory negligence consists in his being on or near the catwalk attempting to tie the “air-hoist” line to a joint of casing, which was situated partially on and partially off the catwalk, while a joint of casing was lying in the V-door subject to being hoisted to the rig floor at any time. In other words defendant contends that it was negligence for Faulk to have been where he was attempting to do what he was doing while a joint of casing was lying in the V-door and until such casing is all the way up on the derrick floor. The trial judge rejected this contention and stated:

“First of all, the court was not presented with any evidence that Faulk was doing anything other than his routine work or that he was in a position other than that which the performance of his work required of him. Even if it were decided that he negligently placed himself where he was when the pipe hit him, the conclusion that Meche’s negligence was the sole and proximate cause of the accident is not altered. Faulk was in his perilous position before Meche signalled Franks. Meche, thus had the last clear chance to avoid.the accident. Moses v. Commercial Standard Insurance Co. [La.App.], 174 So.2d 682.”

My brethren of the majority agree with the trier of fact and therefore find no need to discuss the “last clear chance” doctrine. After careful study of the record I find that I am unable to agree to an affirmation of the trial court’s ruling on these issues.

As previously mentioned the trial court found that Faulk was doing routine work and that he was not in a position other than that which his work required of him. The record simply does not support this conclusion. Quite to the contrary, all of the evidence in the record, including that of plaintiff’s own experts, supports the factual conclusion that plaintiff should not have been attempting to attach the “air hoist” line to a joint of casing on and/or in close proximity to the catwalk while a joint of casing was lying in the V-door. In this connection I mention the fact that plaintiff was the “pusher” (foreman) of the roustabout crew sent to the Tesoro job, which was an experienced crew according to the testimony of Herman Vinson. (Tr. pgs. 770 et seq).

Mr. Foy D. Buckalew, toolpusher of Power Rig on the Tesoro job who testified as plaintiff’s witness stated:

A. Well, I saw him, that’s where I saw him.
Q. Mr. Buckalew, weren’t you surprised to see him there?
A. Yes, sir, I sure was.
Q. In fact, weren’t you surprised to see him in an area where if anything happened to that piece of pipe he would be struck by it?
A. Yes, sir.
Q. Didn’t you expect to see him — if you did at the time, didn’t you expect to see him out of the way of the piece of pipe that was being lifted up into the rig so that if anything happened to it he would be out of its way?
A. I would expect it if the pipe is picked up, yes, sir.” (Tr. pg. 804)
Q. Actually the normal situation is that from the time the previous joint is tied onto, there would not be anybody there, right?
A. Normally, there wouldn’t no, sir.
Q. And from a standpoint of conducting the work, Mr. Buckalew, there is no need for anybody to be in the catwalk area at the time when you are preparing to lift the joint into the rig — into the derrick with the pickup line, isn’t that correct?
A. Under normal procedure, yes, sir.” (Tr. pgs. 825 and 826).

In connection with Mr. Buckalew’s testimony there is no evidence which would even suggest that anything other than normal procedure was being followed or that some circumstances required a deviation from normal procedure.

Mr. Ecle Franks, who was the driller on the job at the time of accident and an employee of Power Rig, another of plaintiffs witnesses, stated:

“Q. As far as you knew, there was no reason for anyone to be there, is that right?
A. No, that’s right, because I wouldn’t have picked it up if I would have knowed there would be somebody there to get hurt.” (Tr. pg. 837).

Stanley Stockstill, defendant’s expert, testified that the normal and usual procedure in such cases is that no attempt is made or should be made to tie on the “air hoist” line until the casing lying in the V-door has been picked up into the derrick and the bottom portion clears the derrick floor. (Tr. pg. 958). Although the trial court rejected Mr. Stockstill’s expert opinion in part (as to the duty and signal of the casing crewman) there is no evidence in the record from plaintiff’s lay or expert witnesses to contradict this portion of his testimony. Rather, their testimony agrees with his on this score. In speaking to the reason why the area of the catwalk should be cleared when casing is in the V-door Stocks-till stated (Tr. pg. 958):

. . And that pick-up line is always subject to coming off, there’s always the possibility that the casing that’s being hoisted into the derrick can hit something and it will fall back down that ramp and slide down that catwalk. I’ve seen that happen . .

Perhaps even more convincing is the testimony of plaintiff’s own expert witness, Mr. Wilfred J. Begnot, Driller for Power Rig, who testified as follows:

“Q. It is also the duty of the people working on the catwalk to be out of the way, isn’t it, Mr. Begnot?
A. Yes, sir.
Q. The people working on the catwalk should, whenever that pipe is hitting (sic) in the V-door, should be out of the way of it until it’s all the way upon the derrick floor, shouldn’t they?
A. Yes, sir.” (Tr. pg. 1007).

And then again Mr. Begnot reiterated this position with positivity at Tr. pg. 1015:

“Q. Mr. Begnot, you were asked a minute ago whether the man down on the catwalk in ordinary operations should not move out onto that catwalk or be on the catwalk while the joint of 10% inch casing is being hauled up into the derrick by the block. You said, ‘Yes, that’s true’.
A. He shouldn’t be there, right.”

On the basis of the above evidence, which I find uncontradicted and supported by witnesses for both plaintiff and defendant, I would find plaintiff’s action in positioning himself on the catwalk and attempting to tie the “air hoist” line to a joint of casing while another joint of casing is lying in the V-door subject to being hoisted at any time, negligence which clearly contributed to plaintiff’s tragic and unfortunate accident. I would also reject plaintiff’s contention that the “last clear chance” doctrine is applicable, finding that, among others, the first element thereof, i. e., “That plaintiff was in a position of peril of which he was unaware or from which he was unable to extricate himself” is lacking. Clearly, plaintiff, the “pusher” of this roustabout crew, was aware or certainly should have been aware of his peril and/or clearly he was able to extricate himself from this peril by simply removing himself from the area of the catwalk until the casing had been lifted from the V-door and on to the rig floor. Having found this element lacking I would deem it unnecessary to consider applicability of the other elements necessary for imposition of the doctrine.

For the above and foregoing reasons I respectfully dissent.

      . The entire process of the casing operation was clarified by a 16 millimeter film admitted into evidence and viewed by the court.

      . $25,000.00 of this had previously been awarded to the workmen’s compensation insurer, Northern Assurance Company of America, by way of settlement.


author: GUIDRY, Judge.

text:
    Mary Alice Hardy MOSLEY, Plaintiff-Defendant in Rule-Appellee, v. Dr. Walter MOSLEY, Defendant-Plaintiff in Rule-Appellant.
    No. 6068.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 26, 1977.
    Makar & Whitaker by John B. Whitaker, Natchitoches, for plaintiff-appellant.
    Thomas & Dunahoe by Edwin Dunahoe, Natchitoches, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

A husband who voluntarily left a $20,-000.00 a year job to enroll in the Louisiana State University School of Law appeals from an adverse judgment denying his motion for a reduction in his child support payments.

Initially in this proceeding a judgment of divorce was granted between Mary Alice Mosley and Dr. Walter Mosley. This judgment, which was rendered on January 25, 1975 in favor of Mrs. Mosley, granted her custody of the three children of the marriage and condemned Dr. Mosley to pay the sum of $500.00 per month in child support.

Dr. Mosley was at the time of the divorce employed as head of the Department of English at Northwestern State University at Natchitoches, Louisiana. Dr. Mosley voluntarily terminated his employment with the University following the 1976 summer school session. Thereafter on October 26, 1976, Dr. Mosley, after having entered law school, filed a motion to reduce his child support payments due to his loss of income.

Dr. Mosley testified that he would be willing to make child support payments in the amount of $200.00 per month. He revealed that from the community property funds he was able to pay for his housing for the full term of law school and presently has remaining only $4500.00 in savings. Dr. Mosley, who has not been employed since leaving his University position, stated that his savings should be able to get him through his freshman year of law school. He anticipates having to work part-time after completion of his first year.

Mrs. Mosley did not testify at the hearing on this motion, however the evidence indicates that she is living in Denton, Texas with her three children. She is at this time, with the aid of a fellowship grant, pursuing a doctorate degree.

Appellant contends the trial court erred in finding he was not entitled to a reduction in child support because he voluntarily changed his financial condition.

Appellant argues that he is not trying to escape the alimentary obligation imposed upon him under Civil Code Article 227, in that he is not seeking a total suspension of payments, nor is he trying to escape with a minimal payment. Rather appellant argues he is willing and able to pay the substantial sum of $200.00 per month in child support. Appellant relies on the proposition that in order to obtain this reduction in his child support payments it is only incumbent upon him to prove a change in his circumstance, i. e., loss of income. See Fisher v. Fisher, La.App., 320 So.2d 326.

Although our search into the jurisprudence discloses no cases which are apposite to the peculiar facts of the instant matter we recognize that it is a well established rule that a husband may not avoid his alimony obligation by quitting work. Viser v. Viser, 179 So.2d 673 (La.App. 1st Cir. 1965); Rakosky v. Rakosky, 275 So.2d 421 (La.App. 4th Cir. 1973), writs refused June 11, 1973. In the Rakosky case a husband left a $12,000.00 a year job in anticipation of entering private law practice. Thereafter he filed a motion to suspend or reduce his wife’s alimony pendente lite because of his loss of income. The court in rejecting his motion for a reduction of his alimony payments stated at page 422:

“We do not disagree that the husband’s alimony obligation ought not prevent his attempting private practice, and that a decreased income from practice should be considered in reviewing the amount of his alimony obligation. But here the only evidence of substantial loss of income is that the husband quit his salaried job, which his supervisor testified remained available to him. He had not yet decided what practice opportunity to pursue, and did not anticipate ‘any kind of firm decision in the next three weeks. * * * If necessary, I can go longer. I don't want to rush into something.’
A capable husband may not avoid his alimony obligation by quitting work; Viser v. Viser, 179 So.2d 672 (La.App. 1965). After the husband had begun practice and the trial court could consider his actual circumstances, further reduction might be justified. But here the refusal to suspend was correct.” (Emphasis ours)

We observe that with the exception of Rakosky v. Rakosky, supra, in the cases above cited, as well as in the other cases relied on by the appellee, the issue presented was whether the husband’s alimony and child support payments should be completely suspended. Sykes v. Sykes, 308 So.2d 816 (La.App. 4th Cir. 1975); Mittlebronn v. Mittlebronn, 337 So.2d 608 (La.App. 4th Cir. 1976). As stated in Sykes v. Sykes, supra, at page 817:

“In order for a husband to excuse himself from the obligation to provide minimal financial assistance to a wife and children he must show that he is absolutely unemployable, not merely that he is unemployed at the time.” (Emphasis ours)

The instant matter is distinguishable in that appellant does not seek a complete suspension of his child support payments. Additionally, the instant matter is distinguishable from Rakosky, supra. In this latter connection we note that the appellant husband herein is attending law school which will require some three or so years to complete. Dr. Mosley’s present circumstances are fixed and can be actually considered, whereas in Rakosky, although he quit his salaried position to enter private law practice, he had not made a firm decision in this regard. The court, unable to consider Rakosky’s actual circumstances, stated that a reduction might be justified when he had begun his law practice.

The narrow issue presented here is whether a husband, whose change of circumstance is due to his voluntary termination of employment, will be permitted to have his child support payments reduced, while engaged in further educational pursuits.

As aforementioned we can find no case in which this particular issue was dealt with and our study of the jurisprudence reveals no specific guidelines. We determine that in such a case a reduction in child support payments may be ordered upon a showing by the father that a change of circumstance has occurred; his voluntary change of circumstance is reasonable and justified; he is in good faith and not attempting to avoid his alimentary obligation; and, his action will not deprive his children of continued reasonable financial support. We emphasize the fact that the employable husband can not completely escape his responsibility to support his children. See Sykes v. Sykes, supra; Mittlebronn v. Mittlebronn, supra. We agree with appellant that a husband’s alimony obligation to his children ought not to prevent him from attempting further educational pursuits provided he remains able to provide reasonable financial assistance to his children, i. e., food, clothing, shelter, education, and the other necessities of life commensurate with their needs and his ability to pay.

After examining the record it is quite obvious that the appellant has shown a change of circumstance. Although once employed as a professor of English he is now unemployed, while attending law school. The evidence also shows that appellant has demonstrated that his voluntary change of circumstance was reasonable and justified. We cannot say that for a person to want to seek a career in law, even considering appellant’s past position, is unjustified. Law is a most honorable profession, which in most instances provides one not only with a high standard of living, but with a great deal of self fulfillment. Furthermore, we find that the two years which it will require appellant to obtain his legal degree is reasonable, and that following completion of his schooling the benefits of appellant’s legal education will surely accrue to his children.

Secondly, our review of the evidence clearly reveals that the appellant, after much considered thought, decided to pursue a legal career. It was a decision he did not make lightly. We are of the opinion appellant made the decision in good faith and not in an attempt to avoid his alimentary obligation. This finding is further supported by appellant’s willingness to pay support to his children in the amount of $200.00 per month.

Finally, the record indicates that from his savings and earnings from part-time employment, relator should be able to provide his children with a reasonable amount of support.

Under the particular facts of this case we conclude that appellant’s demand for a reduction in child support payments is justified and should be granted. We recognize that Dr. Mosley’s pursuit of a legal career will impose some short term sacrifice on his children, however, this fact must be considered and necessarily balanced against the fact that Dr. Mosley was apparently discontent with his former career as an educator and that his new found career may well provide benefits for his children beyond those which he was able to provide while in the field of education. Under any circumstances, however, we conclude that the adjustment in support payments should be such as to accord reasonable financial support to the children.

Although, under LSA-C.C.P. Article 2164, this court has authority to render a specific decree reducing the initial award of child support we believe that the interests of justice will best be served by a remand of this matter to the trial court for appropriate reduction. This is so because the evidence taken at the original hearing is not made a part of the record on appeal. There is nothing in the record before us concerning the ages of the children, their specific needs, etc. The only evidence in the record concerns a change in the relator’s ability to pay. Under the circumstances we are unable to render an appropriate decree balancing the needs of the children against their father’s ability to pay.

For the above and foregoing reasons the judgment of the trial court rejecting relator’s motion for a reduction in child support payments is reversed and set aside and the matter is remanded to the trial court for further proceedings consistent with the views hereinabove expressed. All costs of these proceedings on appeal are to be borne by relator-appellant.

REVERSED AND REMANDED.

      . Appellant has presumably completed his first year of law school at this time.


author: WATSON, Judge.

text:
    Lucille BELLARD v. Virginia O’NORA et al.
    No. 6070.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 13, 1977.
    Pucheu & Pucheu by Jacque B. Pucheu, Sr., Eunice, for plaintiff-appellant.
    Lewis & Lewis by John M. Shaw, Opelou-sas, Guillory, McGee & Mayeux by Donald L. Mayeux, Eunice, for defendants-appel-lees.
    Before CULPEPPER, WATSON and STOKER, JJ.
   WATSON, Judge.

At issue in this appeal is whether the trial judge erred manifestly in absolving defendants, Magnolia Liquor of Lafayette, Inc. and its liability insurer, American Casualty Company, of liability claimed to result from a Magnolia truck being parked just off the street at the corner of an intersection. Plaintiff-appellant, Lucille Bellard, was proceeding east on U.S. Highway 190 in Eunice, Louisiana, while Virginia O’Nora was proceeding north on St. George Street. The intersection was governed by a stop sign facing Ms. O’Nora, but it is contended that the Magnolia truck, driven by one Courville, was parked off the street at the southwest corner of the intersection in a position which prevented Ms. O’Nora from observing the approaching Bellard vehicle. The truck was near the curb just off Highway 190 (also known as Laurel Street) but the exact distance between the side of the truck and the roadway is disputed.

The trial court gave judgment for Magnolia and American, holding that Virginia O’Nora’s negligence was the sole cause in fact of the accident.

The record reveals that the Magnolia truck at least partially obscured the view of Ms. O’Nora. According to the testimony most favorable to appellant, Ms. O’Nora stopped before proceeding slowly into the intersection, saw the approaching vehicle and accelerated to beat the Bellard vehicle across the intersection. Her attempt was unsuccessful and a collision resulted, causing injuries to Lucille Bellard.

The trial judge had the opportunity to see and hear the witnesses and to make reasonable inferences of credibility and fact on the basis of their testimony. We find no error in his determination that the parked vehicle was not a cause in fact of the accident. State Farm Mutual Insurance Company v. South Central Bell Telephone, 343 So.2d 758 (La.App. 3 Cir. 1977).

For the above reasons, the judgment of the trial court is affirmed. Costs are taxed against appellant.

AFFIRMED.

      . In the trial court Lucille Bellard was given judgment against the other defendant, Virginia O’Nora, for $5,677.51 but there is no appeal from that feature of the judgment.


author: ROGERS, Judge.

text:
    John VALIEN, Plaintiff-Appellant, v. George Warren PRATHER, Defendant-Appellee.
    No. 6071.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Sept. 27, 1977.

      Andrew S. Vallien, Natchitoches, for plaintiff-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Robert L. Cabes, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   ROGERS, Judge.

This action involving immovable property was instituted by John Yalien against George W. Prather. Defendant filed exceptions of res judicata and no cause or right of action. The trial court sustained defendant’s exceptions of res judicata and no cause of action from which adverse judgment plaintiff perfected a suspensive and a devolutive appeal to this court.

The two issues raised by plaintiff on appeal are that the trial court erred in sustaining defendant’s exception of res judica-ta and that the court erred in sustaining defendant’s exception of no cause of action. On August 31, 1976, plaintiff John Valien filed a petition in Twenty-Seventh Judicial District Court, St. Landry Parish, Louisiana against defendant George W. Prather, the body of which petition is copied in its entirety as follows:

“The petition of JOHN YALIEN, domiciled in the Parish of St. Landry, State of Louisiana, respectfully shows that:
1.
GEORGE W. PRATHER instituted legal action against him, JOHN VALIEN, on June 25, 1973, asking that the boundary between their adjacent tracts of land be judicially establish (sic).
2.
JOHN VALIEN, in response to PRATHER’S suit, urged the ten (10) years acquisitive prescription.
3.
The court found on June 20, 1975, that the ten (10) years acquisitive not applicable, but left the question as to actually where the boundary line should be established.
4.
The boundary line at issue is to divide a tract of land originally owned by MR. ED LUCUIS STELLY which was sold to VALIEN and PRATHER, respectively; and that at the time of the sale to VAL-IEN, STELLY was of the impression that he owned an eighteen (18) acres tract.
5.
On December 19, 1946, VALIEN bought eight (8) acres from STELLY in a cash sale passed before Notary Public, CHARLES BOAGNI, JR., and established his fence line in accordance with a survey made by R. M. Hollier on December 9, 1929.
6.
In 1947 MRS. ELIZABETH STELLY COLLINS acquired the remainder of ED LUCUIS STELLY’S property, described as 10.32 acres, more or less.
7.
Title to the 10.32 acquired by ELIZABETH STELLY COLLINS in 1947 later passed from her to CLEVELAND CAS-TILLE, to RIGBY OWEN, to GEORGR (sic) PRATHER.
8.
Taken together the sale to VALIEN and the sale to PRATHER should amount ot (sic) 18.32 acres; however, a survey-made on July 26, 1974, by William H. Jarrell, Jr., revealed that the original tract contained 14.7951 acres instead of 18 acres as originally stated by the original owner/seller, ED LUCUIS STELLY.
9.
Discussions as to where the boundary line should be established held between VALIEN and PRATHER with reference to the surveys made by R. M. Hollier and William H. Jarrel (sic) proved fruitless; accordingly the property should be resurveyed by a disinterested surveyor.
10.
Since PRATHER was the last purchaser, and that his tract is four (4) acres less than described in his deed, his legal remedy should be pursuant with Civil Code Articles 2494 and 2495; however, since the interim sellers no longer live in this State and may not be available to answer diminution action brought by PRATHER, the solution, therefore, in the interest of justice and fairness is to follow a procedure pursuant to the rules of equity, thus allowing both side (sic) of this litigation to share equally in the loss or gain if such be the case.
11.
Since a relief in equity is the proper course of action, it should be tried by a jury.
12.
VALIEN lives and makes his living for himself and his family on this tract of land, while PRATHER does not now nor has ever lived on the property.
WHEREFORE, VALIEN prays that:
1. There be judgment herein ordering that litigants herein equally share in the loss of four (4) acres.
2. The costs be paid equally between VALIEN and PRATHER.
3. This matter be tried by a jury, and
4. A disinterested surveyor be appointed to survey and establish the line between the two tracts of land.”

On September 8, 1976, defendant filed exceptions of res judicata and no cause or right of action. The exception petition alleged that the instant matter was previously litigated between the same two parties in the suit entitled Prather v. Valien, docket number 65344V2, of the Twenty-Seventh Judicial District Court, St. Landry Parish, which was decided in favor of Prather. Valien appealed that judgment to this court, whereupon we affirmed the trial court, which decision was reported at 327 So.2d 130 (La.App.3rd Cir. 1976). Valien’s application for rehearing was denied by this court on March 4, 1976, and writs were refused by the Louisiana Supreme Court on April 27, 1976, reported at 330 So.2d 318 (La.S.Ct.1976).

Prather’s exception petition further alleged that Valien did not have a cause or right of action against Prather because, as stated in paragraph number three of the exception:

“1. Plaintiff’s petition affirmatively avers that plaintiff purchased the property in question from one Ed Lucius Stelly, there being no privity between plaintiff and defendant-exceptor herein;
“2. The plaintiff has correctly stated that in fact his relief is action against his warrantor, Ed Lucius Stelly, or subject to citation by virtue of the Long Arm Statute, and plaintiff has no remedy against this defendant.”

A hearing on the exceptions was held on January 11,1977, which resulted in a signed judgment being rendered on January 18, 1977, sustaining Prather’s exceptions of res judicata and no cause of action, and dismissing Valien’s suit with prejudice. Val-ien applied for a rehearing, which was denied, whereupon he filed this appeal to this court.

The brunt of Valien’s arguments on appeal relate to the prior litigation referred to above, which was a boundary action brought by Prather against Valien. Valien urges several alleged defects and errors in regard to this prior suit, such as failure of the court appointed surveyor to follow le-gaily prescribed procedures, and failure of that prior litigation to have set a definite boundary between the two tracts of land. All these arguments, however, are without merit for they are not responsive to the issues before this court, i. e. whether or not Valien’s petition states a cause of action, and whether or not Valien’s attempted suit is res judicata. The proper time for making those arguments and alleging those errors was during the course of the prior litigation. Valien was afforded his “day in court”, and all matters decided therein have now become final. The instant petition makes no attempt to annul that prior judgment.

In regard to the issues that are before this court, we will first consider whether the instant petition set out above states a cause of action. Paragraphs ten and eleven of the petition, and arguments made in brief by Valien, allude to his cause of action against Prather as being based “in equity”. Article 21 of the Louisiana Civil Code allows a “. . . judge . to proceed and decide according to equity.” However, in keeping with the Civil Law tradition, this principle may be invoked only “. . . where there is no express law . .” LSA-C.C. art. 21. In the instant suit, where Valien is seeking to have a boundary line set between two neighboring tracts of land, there is an abundance of express law covering this type situation, and thus a cause of action based on equity cannot be relied upon. LSA-C.C. arts. 823-855; LSA-C.C.P. arts. 3691-3693.

The only possible cause of action that we feel might be applicable to the facts alleged in Valien’s petition is a boundary action, but we decline to affirmatively so decide other than for the purpose of considering whether the instant suit is res judicata.

Therefore, assuming that Valien’s petition alleges facts sufficient to constitute a boundary action, we must compare the instant petition to the prior suit to determine if the thing demanded is the same, if it is founded on the same cause of action, and if the action is brought between identical parties. LSA-C.C. art. 2286; Bullis v. Town of Jackson, 203 La. 289, 14 So.2d 1 (La.S.Ct.1943). A review of this court’s decision reported at 327 So.2d 130, and referred to above, reveals that all these requisites are met.

In regard to the applicability of res judicata, Valien’s protests that the prior adjudication was incorrect is immaterial so long as it was a final judgment between identical parties, with the same object, and based on the same cause of action. Richards v. Crescent Towing & Salvage Co., 115 So.2d 894 (La.App.Orleans 1959). We therefore agree with the conclusion of the trial court that the exception of res judicata was applicable to the instant suit.

For the above given reasons, the judgment of the trial court sustaining defendant’s exception of res judicata and dismissing plaintiff’s action is affirmed, with all costs of this appeal to be assessed against plaintiff-appellant.

AFFIRMED.


author: SAMUEL, Judge.

text:
    UNITED TEACHERS OF NEW ORLEANS v. ORLEANS PARISH SCHOOL BOARD.
    No. 8429.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1977.
    Rehearing Denied Aug. 1, 1977.

      Nelson, Nelson & Lombard, Ltd., John P. Nelson, Jr., Patricia E. Saik, New Orleans, for plaintiff-appellee.
    Polack, Rosenberg, Rittenberg & Endom, Franklin V. Endom, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, REDMANN and LEM-MON JJ.
   SAMUEL, Judge.

Plaintiff, a union of teachers and certain other employees in the New Orleans public school system, filed this suit against the Orleans Parish School Board to compel arbitration of new teacher evaluation policies and procedures sought to be instituted by the Board as allegedly required by a collective bargaining agreement between the litigants.

Defendant filed exceptions of vagueness and no cause of action and also answered the petition denying plaintiff’s right to arbitrate the implementation of new teacher evaluation practices.

Defendant’s exceptions were overruled, and judgment was rendered on the merits ordering the defendant Board to submit to arbitration. Defendant has appealed from that judgment.

Plaintiff is the recognized collective bargaining representative for its members in the New Orleans public school system pursuant to a collective bargaining agreement executed between the Union and the Board in September of 1975. Thereafter, the superintendent of Orleans Parish schools established new teacher performance evaluation procedures which the Union contends were implemented in violation of the collective bargaining agreement.

The agreement between the Union and the Board provides for mandatory arbitration of certain grievances spelled out in that document. In accordance with the grievance procedure, the Union set forth its grievance by stating the “Superintendent has instituted a new written evaluation regulation in violation of contract terms and without negotiating over impact with UTNO.” The grievance was answered on July 6, 1976 by the Board’s assistant superintendent for personnel who took the position the new teacher evaluation program was simply a further refinement of policy regulations already in existence and was consistent with the teacher evaluation provisions contained in the collective bargaining agreement. On July 9, 1976, the Union appealed this response to the superintendent of schools in accordance with the contractual grievance procedure, and the superintendent responded by stating the agreement had not been violated by the new evaluation provisions because: (1) they were not in conflict with the evaluation provisions of the collective bargaining agreement; and (2) the Board retained the exclusive right to evaluate its staff. Pursuant to the contract, the Union gave notice to the Board of its desire to appeal the dispute to arbitration. On October 12,1976, the Board answered, denying the dispute was arbitrable. Consequently, the Union filed this action to determine whether the dispute concerning implementation of new teacher evaluation procedures should be submitted to arbitration.

Article XIII of contract between the Union and the Board governs teacher evaluation procedures. The contract provides:

“13:1 Progress reports on all probationary, temporary and substitute employees shall be submitted periodically.
13:2 The purpose of periodic progress reports on probationary employees is to evaluate the quality of service rendered by the employee in his/her particular position. It will enable the employee’s supervisor to judge his/her progress and ability and enable him/her to become aware of his/her strengths and weaknesses. It will assist the employee’s supervisor in helping the employee overcome weaknesses through personal conferences, guidance and special assistance. Finally, this report will provide an important criterion for the employee’s promotion, transfer and eligibility for tenure status.
13:3 A special progress report in the form of a letter addressed to the Assistant Superintendent for Personnel, through the appropriate administrative superiors, may be submitted at any time on any tenured employee when it becomes necessary, in the opinion of the immediate supervisor, to bring to the attention of the school administration that a particular employee is failing to properly discharge the duties of his/her position or to commend a particular employee for outstanding service in his/her position. All such letters will be brought to the attention of the Superintendent, with a copy to the employee concerned, and appropriate follow-up action instituted.
13:4 Discipline
13:4.1a No member of the bargaining unit shall receive for willful neglect of duty, a written reprimand, suspension or discharge without just cause.
13:4.1b No probationary teacher shall be dismissed for reasons of professional incompetency without adequate notice thereof and the opportunity to respond at the administrative hearing.
13:4.1c All situations involving removal of a teacher with tenure shall be in accordance with the requirements of the applicable laws of the State of Louisiana.”

The Union contends the Board’s unilateral implementation of teacher evaluation procedures violates these contractual provisions and also violates Section 4:3 of the contract, which provides:

“The BOARD shall not, during the life of this AGREEMENT establish any policy, practice, rules or regulation inconsistent with the terms of this AGREEMENT. If the BOARD intends to establish a new educational policy, practice, rules or regulation which has an impact upon the terms and conditions of employment of the teachers the BOARD shall negotiate over such impact with the UNION.” (Emphasis ours).

On the other hand, the Board relies on two contractual provisions to support its assertion the dispute is not subject to arbitration. In part, Article 7:1 of the agreement provides:

“For the purpose of this AGREEMENT, a grievance is defined as a dispute between the BOARD and the UNION . with respect to the alleged violation of a specific provision of this AGREEMENT, provided that the term grievance shall not apply to (a) any matter for which a method of review is prescribed by law, or (b) any matter which according to law is either beyond the scope of BOARD authority or limited to unilateral action by the BOARD alone .” (Emphasis ours).

The Board also relies on Paragraph 7:3.-5(b) of the contract, as follows:

“In the consideration of the decision of any questions involving arbitrability, it is the specific agreement of the parties that:
(b) In the consideration of whether a matter is subject to arbitration, a fundamental principle shall be that the BOARD retains all of its rights to manage the school system, subject only to the express limitations set forth in this AGREEMENT; it is understood that the parties have not agreed to arbitrate demands which challenge action taken by the BOARD in the exercise of any such retained rights, except where such challenge is based upon a violation of express limitations set forth in this AGREEMENT.”

The decisive issue presented for our determination is whether the implementation of the teacher evaluation procedures complained of by the Union is the exclusive prerogative of the Board as part of its legal authority and duty to promote, demote, discharge, or remove its teachers. If the Board has these rights exclusively as a matter of law, arbitration cannot be invoked because as a public agency it may not delegate this authority in any way to the Union by contract.

The defendant Board has the statutory authority to determine the number of teachers to be employed, to select these teachers, to hire them and fix their salaries, and to determine the number and location of schools. The Board is further authorized to make rules and regulations for its own government, not inconsistent with law or with the regulations of the Louisiana State Board of Education. The plaintiff Union also stipulates the right to hire and fire as part of the school Board’s legal authority. Moreover, as has been pointed out, the Board may not delegate any power given it by the legislature to other non-governmental agencies or persons.

In our view, the right to hire, fire, promote, or discharge its teachers includes the corresponding right to evaluate the performance of those teachers in order to properly carry out the Board’s decision-making powers as part of its management prerogative. Since the evaluation procedures are part of the Board’s legal right to manage the school system, they fall within Article 7:1 of the agreement which exempts from the term “grievance” matters which are legally limited to unilateral action by the Board alone.

Having concluded the teachers evaluation procedures promulgated by the Board are within its legal management authority, the judgment of the trial court ordering the Board to submit to arbitration must be reversed.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that there be judgment in favor of the defendant, Orleans Parish School Board, and against the plaintiff, United Teachers of New Orleans, dismissing the latter’s suit at its cost.

REVERSED.

      . The grievance procedure provides in Section 7:3.4 of the Collective Bargaining Agreement that resort to judicial procedures may be had when either party denies a dispute is arbitrable.

      . Compare Stone v. Stone, La., 292 So.2d 686.

      . Louisiana Teachers' Ass’n. v. Orleans Parish Sch. Bd., La.App., 303 So.2d 564.

      . R.S. 17:81, R.S. 17:122. See Louisiana Teachers’ Ass’n. v. Orleans Parish Sch. Bd., Id.

      . Louisiana Teachers’ Ass’n. v. Orleans Parish Sch. Bd., Id.

      . Evaluation procedures also fall within the retained rights deemed not subject to arbitration under Paragraph 7:3.5(b) of the contract as quoted above.


text:
    Mrs. Linda LEACH v. Gerald LEACH.
    No. 49465.
    Supreme Court of Mississippi.
    July 6, 1977.
    Rehearing Denied Aug. 3, 1977.
    Gordon & Mangum, Robert Mangum, Union, for appellant.
    Alford, Mars & Thomas, Herman Alford, Philadelphia, for appellee.
   Appeal from Chancery Court, Newton County; Osborn Guyton Idom, Chancellor.

Before INZER, P. J., and SMITH and BROOM, JJ.

AFFIRMED AS TO DIVORCE; REVERSED AND RENDERED AS TO CHILD CUSTODY.

GILLESPIE, C. J., PATTERSON, P. J., and ROBERTSON, SUGG, WALKER and LEE, JJ., concurring.