author: CUTRER, Judge. GUIDRY, Judge,

text:
    George M. DAILEY, Plaintiff-Appellant, v. Zachary Clayton HOUGH et al., Defendants-Appellees.
    No. 6886.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Thomas & Dunahoe, Gerard F. Thomas, Jr., Natchitoches, for plaintiff-appellant.
    John Stewart, Arcadia, Whitehead & McCoy, Charles R. Whitehead, Jr., Watson, Murchison, Crews & Arthur, Raymond Arthur, Natchitoches, for defendants-appel-lees.
    Before DOMENGEAUX, GUIDRY and CUTRER, JJ.
   CUTRER, Judge.

The plaintiff, George Michael Dailey, seeks a declaratory judgment decreeing that Zachary Clayton Hough, a minor child, is presumed to be the legitimate child of Rita Lenore Holloway Hough and Marshall Vernon Hough; that the plaintiff, George Michael Dailey, is not the natural father of the child and thus has no obligation to support and maintain the minor child, Zachary Clayton Hough. Made defendants in this suit were Zachary Clayton Hough, the minor child, Rita Lenore Holloway Hough, and Marshall Vernon Hough.

An attorney was appointed tutor ad hoc to represent the minor child, who filed an answer to the suit denying all allegations contained in the plaintiff’s petition for lack of sufficient information to justify a belief therein. A curator ad hoc was appointed to represent Rita Lenore Holloway Hough, who filed declinatory exceptions of lack of jurisdiction over the person of Rita Lenore Holloway Hough and lack of jurisdiction of the subject matter. Marshall Vernon Hough, Jr., also filed declinatory exceptions of lack of jurisdiction over the person of Rita Hough and the minor child, Zachary Clayton Hough, lack of jurisdiction over the subject matter, lack of jurisdiction over the status, and nonjoinder of necessary parties to this suit.

Mrs. Hough then retained counsel, who answered the plaintiff’s suit and filed a reconventional demand wherein she seeks to have George Michael Dailey declared the natural father of the child and also seeks custody of the minor child in addition to child support. By ex parte order, Rita Hough had the exceptions previously filed by her dismissed.

After a hearing on the exceptions, the lower court, relying on the case of Stewart v. Stewart, 233 So.2d 305 (La.App. 1st Cir. 1970), ruled that the court did not have jurisdiction over, the status (subject matter). The court further ruled that, under the provisions of LSA-C.C.P. Art. 3, the mother could not waive such jurisdiction by filing an answer. From this ruling the plaintiff appeals.

From the record it appears that Rita Lenore Holloway Hough and Marshall Vernon Hough, Jr., were married on June 14, 1975, in Bienville Parish, Louisiana, and that on January 14, 1977, a judgment of separation was rendered in favor of Marshall Vernon Hough, Jr., and against Rita Lenore Holloway Hough. On June 15, 1977, 181 days after the judgment of separation was rendered, Zachary Clayton Hough was born in the Presbyterian Hospital of Dallas, Dallas, Texas. The birth certificate of Zachary Hough lists the father as Marshall Vernon Hough, Jr. Since his birth Zachary Hough and his mother have resided in Texas.

The record further reveals that on March 7,1978, Rita Hough filed a suit to establish the paternity of Zachary Hough in the Juvenile Court of Dallas County, Texas. In that suit she alleges that George Michael Dailey is the biological father of Zachary. The record does not disclose the disposition of that suit and this court assumes that no judgment has been rendered in that suit.

The issue presented on appeal is whether a Louisiana court has jurisdiction to hear a declaratory action filed by George Dailey against an absentee child wherein Dailey seeks to be declared not the father of such minor child, Zachary Clayton Hough.

The plaintiff seeks a declaration of his status as to whether he is the natural father of the minor, Zachary Hough, who is an absentee residing with his mother in Dallas, Texas.

In the case of Stewart v. Stewart, supra, the issue was whether the Louisiana court had jurisdiction of an action en desaveu when the husband, a Louisiana resident, sought to disavow a child who lived with the mother in Tennessee.

The court held as follows:

“States may enact legislation to permit personal actions to determine status and still meet the requirements of due process of law as first announced in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878). Louisiana has done this through Article 10 of the Code of Civil Procedure. Significantly, however, the first paragraph of the article provides that such proceedings may occur ‘only’ under the seven enumerated conditions therein set forth and an action in disavowal of paternity is not one of the conditions listed. We can assume that the omission of this class of action pertaining to status was either an oversight on the part of the redactors of the Code or it was their intention to restrict its scope. In the absence of any prior jurisprudential or statutory expressions on the subject, we are compelled to follow the distinctly stated provisions of the article and apply it, insofar as extraterritorial effect is concerned, to ‘only’ the specifically enumerated actions. We feel fortified in this interpretation by the fact that in each of the conditions listed in the article particular reference ’’s made to domicile or physical presence of the adverse party in the state.”

In both the Stewart case and the case at hand the paternity of the absentee child is the principal issue presented. Under these circumstances, and for the reasons set forth in Stewart, this court concludes that the trial court correctly held that it was without jurisdiction over the subject matter.

For these reasons, the judgment of the trial court is affirmed.

AFFIRMED.

GUIDRY, J., concurs for additional reasons assigned.

GUIDRY, Judge,

concurring.

I agree with the majority that the trial court correctly held it was without jurisdiction over the subject matter. However, in any event, I conclude that plaintiffs petition fails to state a cause of action which circumstance may be noticed by this court on its own motion. LSA-C.C.P. Article 927.

Plaintiff has filed an action seeking to disavow paternity of the minor child, Zachary Clayton Hough. Accepting the allegations of plaintiff’s petition as true, this child is the presumed legitimate child born of the marriage between Rita Lenore Holloway and Marshall Vernon Hough. Our law affords the remedy of disavowal of paternity, under such circumstances, only to the husband of the mother or his heirs or legatees (LSA-C.C. Art. 187) and then only if suit is filed within the time limit fixed by LSA-C.C. Articles 189 or 190.

      . LSA-C.C.P. Art. 3 provides as follows:
      “The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties. A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void.

      . This appeal only concerns the principal demand. No disposition of the reconventional demand appears in the record.

      . Art. 10 of the Code of Civil Procedure reads as follows:
      Art. 10. Jurisdiction over status
      A. A court which is otherwise competent under the laws of this state has jurisdiction of the following actions or proceedings only under the following conditions:
      (1) An adoption proceeding if the person who has legal custody of the child is domiciled, or the child is lawfully, in this state, and the court has personal jurisdiction over the adoptive parent; or if the latter is domiciled in this state, and the court has personal jurisdiction over the legal custodian;
      (2) An emancipation proceeding if the minor is domiciled in this state;
      (3) An interdiction proceeding if the person sought to be interdicted is domiciled in this state, or is in this state and has property herein;
      (4) A tutorship or curatorship proceeding if the minor, interdict, or absentee, as the case may be, is domiciled in this state or has property herein;
      (5) A proceeding to obtain the legal custody of a minor if he is domiciled in, or is in, this state;
      (6) An action to annul a marriage if one or both the parties are domiciled in this state; and
      (7) An action of divorce, or of separation from bed and board, if one or both of the spouses are domiciled in this state and, except as otherwise provided by law, the grounds therefor were committed or occurred in this state, or while the matrimonial domicile was in this state.
      B. For purposes of Subparagraphs (6) and (7) of Paragraph (A) of this article, if a spouse has established and maintained a residence in a parish of this state for a period of twelve months, there shall be a rebuttable presumption that he has a domicile in this state in the parish of such residence.


source: Caselaw Access Project

author: WATSON, Judge.

license: Public Domain

text:
    Raymond DORNAK, Plaintiff-Appellant, v. LAFAYETTE GENERAL HOSPITAL et al., Defendants-Appellees.
    No. 6888.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Edward J. Milligan, Jr., Lafayette, for plaintiff-appellant.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Timothy J. McNamara, Lafayette, for defendants-appellees.
    Before WATSON, SWIFT and STOKER, JJ.
   WATSON, Judge.

This is an appeal by plaintiff, Raymond Dornak, from a trial court judgment dismissing his suit against defendants, William Grun, Lafayette General Hospital and Continental Insurance Company, for failure to state a cause of action.

The petition alleges that Grun, an employee of the Lafayette General Hospital, the hospital and its insurer are liable to plaintiff for medical expenses and loss of earnings resulting from failure to inform plaintiff’s wife that an x-ray taken at her preemployment physical disclosed a tubercular condition. It alleges that William Grun, acting within the course and scope of his employment at Lafayette General Hospital, was negligent: in failing to advise Ms. Dornak to return for further x-rays; failing to advise her of her condition; failing to inform her of the physician’s report concerning the x-ray, with its serious implications; and failing to make further examinations and tests. It further alleges that, following the x-ray in August of 1974, the result of which was reported to the hospital, Ms. Dornak was employed as a nurse’s aide at the hospital; that Ms. Dornak, therefore, assumed she was in good health and neglected to seek medical attention until she was hospitalized on May 26, 1977. It also states that she first discovered defendants’ negligence in 1977 when she was told her tuberculosis was apparent on the x-ray taken in August of 1974.

The exception of no cause of action asserts that defendants did not undertake medical care, treatment or diagnosis of Ms. Dornak’s illness and therefore owed no duty to her in connection with her alleged condition in August of 1974.

It is fundamental that:

“No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.” LSA-C.C.P. art. 931.

The exception presents the question of whether, conceding the facts alleged to be true, the law affords a remedy to plaintiff. Kird v. New Orleans & N. W. R. Co., 105 La. 226, 29 So. 729 (1901).

While it is true that LSA-R.S. 23:13 requires employers to provide a safe place to work and to “. . .do every other thing reasonably necessary to protect the life, health, safety and welfare of . employees,” the statute does not require an employer to have a prospective employee medically examined prior to his employment, particularly when there is no evidence that such an examination would have revealed the condition of which the employee later complains. Blue v. Bunge Corp., 225 So.2d 145 (La.App. 4 Cir. 1969). However, here there was a preemployment physical. When such a physical reveals a condition which requires treatment, does the employer have a duty to inform the employee of that condition?

The fact that the defendant employer is a hospital is immaterial to the question of whether plaintiff’s petition states a cause of action. No higher duty should be placed on a hospital than other employers.

The rationale of Dowling v. Mutual Life Insurance Co. of New York, 168 So.2d 107 (La.App. 4 Cir. 1964) writ refused 247 La. 248, 170 So.2d 508 (1965) is applicable here. Both involve an allegation of failure to inform a party of a tubercular condition. Dowling decided that there was no duty on the part of the defendant insurance company to divulge the results of a physical examination to an applicant for insurance coverage. The lack of an employment relationship between the insurance company and the applicant is not sufficient to differentiate between Dowling and the present case.

The recent case of Devore v. Hobart Mfg. Co., 367 So.2d 836 (La., 1979) held that plaintiff Devore had no cause of action against her employer for negligent misrepresentation which was alleged to have caused a pecuniary loss. No affirmative duty rested on the employer to insure that the information furnished to plaintiff and her attorney about the identity of a third party was correct. If there was no duty in Devore to supply correct information, then it follows a fortiori that there is no duty arising from the employment relationship to supply any information at all.

We find the hospital had no duty and the exception was correctly maintained.

For the foregoing reasons, the judgment of the trial court herein is affirmed.

Costs on appeal are taxed against appellant.

AFFIRMED.


author: DOUCET, Judge.

text:
    Louis D., ARNAUD, (Plaintiff-Appellant), v. MOLBERT BROTHERS POULTRY & EGG COMPANY, INC., (Defendant-Appellee).
    No. 6890.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.
    John L. Van Norman, III, Lake Charles, for plaintiff-appellant.
    Plauche, Smith, Hebert & Nieset, Frank M. Walker, Jr., Raggio, Cappel, Chozen & Berniard by Frederick L. Cappel, Lake Charles, for defendant-appellee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   DOUCET, Judge.

The issue raised by this appeal is whether or not the filing of a petition for workmen’s compensation benefits interrupts the prescriptive period for bringing a tort action arising out of the same accident, when the allegations in the petition are sufficient for bringing the former but not the latter. We hold that prescription is not interrupted in such cases.

This suit was brought by plaintiff to secure indemnification for injuries he allegedly sustained while performing duties arising out of and during the course and scope of his employment by defendant. The original petition, filed July 23, 1973, was captioned as a petition for workmen’s compensation benefits. It contained factual allegations, which although sufficient for a workmen’s compensation suit, were inadequate as a basis for pursuing a claim in tort.

On January 14, 1976, a first amending and supplemental petition was filed which included a prayer for tort damages and the factual allegations necessary to support such an action. The district court sustained the peremptory exception of prescription raised by defendant, because the tort claim was asserted, more than a year after the date of the accident. Plaintiff appeals this ruling, claiming that the running of prescription was interrupted by the filing of the original petition.

Absent a suspension of interruption, tort actions prescribe in one year. La.Civil Code art. 3536. Plaintiff contends that prescription was interrupted in this case by L.S.A. R.S. 9:5801, which provides:

“The filing of a suit in a court of competent jurisdiction shall interrupt all prescriptions affecting the cause of action therein sued upon, against all defendants, including minors and interdicts.”

In order to determine the applicability of this provision to a particular case, an understanding of the meaning of the phrase “cause of action” is necessary.

In Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350 (La.1975), which was relied upon by the district court, our supreme court discussed at length the meaning of this phrase. After reviewing the jurisprudence relevant to this point, the court concluded:

“The causes of action, however, are different, a cause of action being an act by a defendant which gives a plaintiff a right to invoke judicial interference on his behalf.”

Plaintiffs original petition did not allege any acts by the defendant which would have entitled him to bring a tort action. There was no assertion that plaintiff’s injuries were the result of defendant’s breach of any duty owed to him. Therefore, it did not set forth a cause of action in tort.

The difference between the two petitions is not limited to the demands, as suggested by counsel for plaintiff in his brief. The original petition alleged a cause of action for workmen’s compensation benefits, based essentially on defendant’s employment of plaintiff at the time he was injured. The first amending and supplemental petition alleged an entirely different cause of action, based on defendant’s alleged grossly negligent maintenance of its premises which produced a dangerous substance, the presence of which was known to defendant’s executives. The factual allegations of the two were significantly different.

Our decision is entirely harmonious with Lemieux v. Cousins, 154 La. 811, 98 So. 255 (1923) in which the court dealt with the converse situation of the institution of a suit in tort, followed by a workmen’s compensation action. The original petition in that case contained all of the factual allegations necessary for a workmen’s compensation suit. In this case, the original petition did not contain the factual allegations needed to litigate a claim in tort.

For the above and foregoing reasons, the decision of the district court is affirmed. The costs of this appeal are assessed against Plaintiff-Appellant.

AFFIRMED.


author: STOKER, Judge.

text:
    Jeannie Elizabeth TOLAR, Plaintiff-Appellant, v. William Raymond CUNNINGHAM and Patricia Ann Carroll Cunningham, Defendants-Appellees.
    No. 6892.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Rozas, Manuel, Fontenot & McGee, A. Bruce Rozas, Mamou,-for-plaintiff-appel-lant.
    Mansour, Davis & Saybe, Alfred A. Mans-our, Alexandria, for defendants-appellees.
    Before WATSON, SWIFT and STOKER, JJ.
   STOKER, Judge.

This is a habeas corpus action brought by the mother of an illegitimate child attempting to regain custody of the child from her uncle and aunt. The issue posed by this ease is what are the appropriate and proper tests to be applied in determining the right to custody of a minor child in a dispute between a parent and a non-parent of the child.

On February 24, 1978, plaintiff, Jeannie Elizabeth Tolar, gave birth to a baby girl named Becky Elizabeth Tolar. On the day after Becky’s birth, Jeannie Tolar signed an act of surrender which purported to give custody of Becky to her uncle and aunt, William R. and Patricia A. Cunningham. On May 11, 1978, the Cunninghams filed a petition for adoption which Jeannie Tolar opposed. Pursuant to a motion for summary judgment in the adoption suit, Miss Tolar filed an affidavit in which she formally revoked her act of surrender and the consent which she had given to the adoption of her illegitimate child. On the basis of this affidavit and her opposition to the adoption, the court granted Miss Tolar’s motion and dismissed the Cunningham’s adoption proceeding. Subsequent to the dismissal of the adoption suit, Miss Tolar brought the present habeas corpus suit on June 15,1978. At the close of trial of this matter, the trial judge gave oral reasons recalling the writ of habeas corpus and maintained custody of Becky in the Cunninghams.

The testimony adduced in this case reflects that at the time Jeannie Tolar learned that she was pregnant, she was living with her mother and step-father, Mr. and Mrs. Wendell Manuel. Jeannie continued to reside with her mother without informing her that she was pregnant. Her mother eventually learned of the pregnancy from Mrs. Minnie Ruth Richard, Jeannie’s aunt, when Jeannie was in her fourth or fifth month of pregnancy. When Jeannie’s mother learned that Jeannie was pregnant, she was very upset.

Shortly after Mr. and Mrs. Manuel learned of the pregnancy, Jeannie went to stay with the Cunninghams. During this period of time, Jeannie discussed with the defendants the possibility of giving up the baby and allowing them to keep it. Although there is some conflict in the testimony on this point, it appears that the Cun-ninghams never encouraged Jeannie to give up the baby, while she was living with them.

After Jeannie was released from the hospital, she then moved in with another aunt, Ruth Richard, in Eunice, Louisiana. While residing with Mrs. Richard, she visited Becky at the Cunninghams about three or four times. However, it was not until approximately three or four months after Becky was born that Jeannie Tolar demanded custody of her. When the Cunninghams refused to surrender custody of Becky, Jeannie instituted the present habeas corpus action.

As noted earlier, the trial judge denied plaintiff’s writ and gave oral reasons therefore which read as follows:

As counsel for the plaintiff mentioned, this is not a battle between this mother and the uncle and aunt here. I’m interested in that child and I hope this decision I make is for the best interest of that child. I’m worried about this child going from a field of certainty now to a field of uncertainty. There are too many ifs. If this young lady had her own home, was making a good living, everything being equal, I would order the child be given to the mother, but it’s a field of uncertainty now. I’m going to deny the writ, and let it remain with the Cunninghams. That’s the order of the court.

Plaintiff-appellant asserts that the trial judge erred by applying a “best interests” of the child test in determining to whom custody of Becky Elizabeth Tolar would be granted. Since this is a contest between a parent and non-parents, plaintiff argues that defendants should have been required to prove her to be unfit as a mother before being entitled to the custody of Becky Tolar. In support of her argument, plaintiff relies principally upon the case of Wood v. Beard, 290 So.2d 675 (La.1974). Wood involved a habeas corpus action brought by the mother against the maternal grandparents seeking custody of her infant child. The Supreme Court granted the writ and ordered custody be given to the mother of the child. In so holding, the court reasoned that when parents compete with non-parents for custody of a child, “the parent’s right to custody is superior, unless the parent is unable or unfit, having forfeited parental rights.” The court further held that the non-parent had the heavy burden of showing the disqualification and unfitness of the parent. Hence, it can be seen that, without lessening the effect and force of the “best interests of the child” test in a custody contest between a parent and non-parents, the Supreme Court recognizes a rebuttable presumption that the child’s best interests are better served by awarding custody to the parent.

Defendants on the other hand rely primarily on the case of Cawthorne v. Williams, 313 So.2d 915 (La.App. 2nd Cir. 1975) in arguing that the District Court’s decision should be affirmed. In Cawthorne, the court held that when a mother competes with non-parents for custody of her child, her right to custody is superior unless it is proven that she is unable to provide a home for the child, is unfit for custody or has abandoned the child. The court then found that the mother was unable to provide a home for the child and awarded custody to the non-parents. Citing Cawthorne, defendants in the present case argue that Jeannie Tolar has abandoned and is unable to provide a home for Becky Tolar. Therefore, defendants assert that custody of Becky should remain with them.

A parent has a paramount right to custody of his or her children. Wood v. Beard, supra; In Re State in Interest of Thomam, 253 La. 496, 218 So.2d 571 (1969). From this parental right, the above mentioned presumption in favor of a parent in a custody contest with a non-parent arises. As noted earlier, this presumption in favor of the parent can be overcome only if the non-parent shows that the parent is unable to provide a home for the child, is unfit for custody or has abandoned the child. Wood v. Beard, supra.

Applying the above we conclude that defendants failed to rebut the presumption that the best interests of the child are better served by awarding custody to the natural mother of the child. The District Court erred in applying the “best interest” test without recognizing the presumption established in Wood.

With respect to defendant’s argument that Jeannie Tolar is unable to provide a home for her child, the record establishes the following. Jeannie Tolar is currently employed at a fast food establishment named “Mr. Burger”. From this job, Mrs. Tolar earns approximately $55.00 per week. Mrs. Manuel, Jeannie’s mother, testified that she and her husband were willing to allow Jeannie and Becky to live in their home and would provide monetary assistance to help support the child. It was shown that the Manuels are well established financially and would be able to assist in such a manner. However, defendants cite the fact that Jeannie left her mother and step-father’s home once her mother learned of her pregnancy. It is urged that she was made to feel unwelcome by her mother and step-father. Defendants argue that this shows that the Manuels cannot be depended on to provide the promised assistance and that Jeannie could not provide a home for the child without this assistance.

While it is true that Jeannie Tolar might be unable to provide a home for her child without assistance from her mother and step-father, we must accept Mrs. Manuel’s testimony and affirmation that she and her husband would provide the needed assistance. The fact that Jeannie felt compelled to leave her mother’s home when her mother learned of the pregnancy is not as persuasive as the direct testimony of Mrs. Manuel that she and her husband would help support Jeannie and her child. In any event, the defendants failed, in our opinion, to present sufficient evidence to overcome the presumption in favor of Jeannie Tolar.

With respect to the alleged abandonment of the child by Jeannie, it must be noted that Jeannie did sign an act of surrender and a consent to the adoption by the Cun-ninghams on the day after her child was born. However, in the case of State v. Webber, 245 La. 901, 161 So.2d 759 (1964), the Louisiana Supreme Court awarded custody to the natural parents of a child, notwithstanding the fact that they executed an act of surrender similar to one in the present case. In this regard the court in Webber stated at 161 So.2d 766 the following:

Nowhere in the brief of respondents (or in the opinion of the Court of Appeal) are there any circumstances pointed to (other than the fact that the parents voluntarily executed a notarial act of surrender) which would evidence that the welfare of the child would now be best served by depriving the natural parents of their right to custody. On the other hand, we find from our study of the record that under the facts of this case her interest would best be served by our ordering that the child be returned to them. They are persons of good moral character and have, in the past, bent every effort to rearing properly and well their other children. We are convinced that they are aware of the mistake they made in surrendering her in the first place; they are truly remorseful for their act in so doing; and they are desirous of regaining her custody and of making amends by affording the child their love and affection, together with the companionship of her brothers and sisters.

In this case, Jeannie Tolar made a decision to give up her child because at the time she felt it was the proper thing to do. She was very confused and did not know whether she would be able to support the child. Jeannie felt that her mother and step-father had not shown any willingness to lend support or assistance. However, Jeannie testified that she at all times loved the child. Hence, when she did receive assurances from the Manuels that they would provide her and her child, Becky, with a place to live and with monetary support, she decided that she wanted the custody of Becky. Under the circumstances, this court is unwilling to say that Jeannie Tolar abandoned and thus forfeited her parental right to the custody of the child.

While the record perhaps justifies the trial court’s apprehension over the return of Becky to her mother at this time, we do not regard the evidence as justifying any other course. While the record is strongly suggestive of a capricious attitude on the part of Mrs. Manuel and Jeannie Tolar, both acted in the past under stressful and emotional stimuli. We are required by law to make a presumption of the best of intentions on their part with respect to the “best interests” of Becky. No lack of moral fitness on the part of Jeannie has been shown. When questioned on this matter, the witnesses could only point to the fact that Jeannie had conceived her child out of wedlock. She has not been shown to be unstable. Therefore, since the evidence establishes that Becky will be provided for physically and her mother has not been shown to be morally unfit or unstable, Becky must be returned to her natural mother. The uncertainty which concerned the trial judge is not established by the record with the required legal sufficiency.

It has also been suggested that Jeannie’s request for the return of Becky is not motivated by true love for the child or interest in her welfare. It is suggested, on the other hand, that the true motivation is the promise of an automobile and a mobile home to be given to Jeannie by her parents if Becky is returned to her. Evidence of such a highly subjective factor has not been shown by a preponderance of evidence. Moreover, we doubt that the legal precepts we must follow in this context can be overridden by such things as suspect (and only suspect) motives and interfamily ill feeling or spiteful action. Furthermore, our holding here is not meant to imply that, as between the Cunninghams and Jeannie To-lar, the latter will provide the best home and best parental relationship. However, the law provides that we are not to pitch a custody decision on our personal judgment involving such grounds. Wood v. Beard, supra.

Therefore, finding that the defendants failed to prove Jeannie Elizabeth Tolar’s unfitness as a mother in any respect, the judgment of the District Court is reversed and it is ordered that the child, Becky Elizabeth Tolar, is to be placed in the custody of the plaintiff. All costs are to be borne by defendants-appellees.

REVERSED AND RENDERED.


text:
    Eva L. MARTEL, Plaintiff-Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY et al., Defendants-Appellees.
    No. 6897.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Tate & McManus, Vernon C. McManus, Eunice, for plaintiff-appellant.
    Fruge & Vidrine, Jack C. Fruge, Ville Platte, Dubuisson, Brinkhaus & Dauzat, Jimmy L. Dauzat, Opelousas, J. Jake Fon-tenot, Mamou, for defendants-appellees.
    Shiela M. Gordon, Baton Rouge, for intervening-appellee.
    Before WATSON, SWIFT and STOKER, JJ.
   STOKER, Judge.

This is a suit to recover damages for injuries the plaintiff, Eva L. Martel, sustained as she fell while leaving Cormier’s Grocery Store in Mamou, Louisiana. The sole issue presented on appeal is whether the trial court erred in determining that there was no negligence on the part of the defendants and that the sole cause of the accident was due to the negligence of the plaintiff.

On or about October 4, 1976, Eva Martel had gone to Dale Cormier’s Grocery Store accompanied by her granddaughter. The plaintiff had made several purchases while at the store and these items were placed in a shopping bag which she carried in her left hand, along with her handbag. As she left the store, Mrs. Martel held her granddaughter by the right hand.

The front entrance of the grocery store consists of two glass doors encased in aluminum frames which, at the time of the accident, opened inward. Attached to each door was a hydraulic cylinder which controlled the speed at which the doors would open and close. Evidence taken in the court below revealed that once open, these doors closed rapidly for the first 14 to 18 inches, but thereafter, the hydraulic cylinder would engage and the doors would proceed to close at a much slower pace.

As the plaintiff approached the exit, she opened the door with her right hand, directing her granddaughter through the door. As Mrs. Martel began to leave, her shoe apparently got caught some 12 to 14 inches from the hinge side of the door, causing her to fall and sustain the injuries for which she now seeks recovery.

Plaintiff initially brought suit against Dale Cormier, Cormier’s Grocery Store, Southern Farm Bureau Casualty Insurance Company, and on information and belief, ABC Corporation, XYZ Corporation, and Joe Doe, asserting that the operation of the door caused her to fall. A petition of intervention was filed by the State of Louisiana, Department of Health and Human Resources to recover hospital benefits paid on behalf of Mrs. Martel. The defendants then filed a third party demand against Anaconda Aluminum Company of Atlanta, Georgia, alleging that Anaconda was negligent in designing and manufacturing the doors installed in the grocery store.

Subsequently, the suit was dismissed as to Dale Cormier, and thereafter, the trial judge rendered judgment in favor of the defendants. Specifically, the trial court found that Dale Cormier was free of all negligence; the accident was caused by the negligence of Mrs. Martel; and the claim against the third party defendant was dismissed as was the intervention by the Department of Health and Human Resources. Mrs. Martel now appeals.

The owner of a business establishment is not considered to be the insurer of the safety of his patrons and need only keep the premises in a reasonably safe condition for use in a manner consistent with the purposes of the premises. Rousseau v. Deramus, 342 So.2d 276 (La.App. 3rd Cir. 1977); Rachal v. Brookshire Grocery Stores, Inc., 336 So.2d 1014 (La.App. 3rd Cir. 1976), writ denied 339 So.2d 358 (1976).

The mere fact that someone is injured while on another’s premises does not create a presumption of negligence of the owner. Rousseau v. Deramus, supra; Thomas v. Hanover Insurance Company, 321 So .2d 30 (La.App. 3rd Cir. 1975); Walker v. Union Oil Mill, Inc., 360 So.2d 894 (La.App. 3rd Cir. 1978). In order to recover for injuries sustained on another’s premises, the injured party has the burden of proving a breach of duty on the part of the owner to exercise reasonable care, and such a burden is met only where the evidence indicates that the defendant’s negligence was the most plausible or likely cause of the occurrence and that no other factor can as reasonably be ascribed as the cause of the accident. Ned v. Hertz Corporation, 356 So.2d 1074 (La.App. 4th Cir. 1978), writ denied 359 So.2d 197 (1978); Rousseau v. Deramus, supra.

The evidence introduced in this case is completely devoid of any indication of negligence on the part of David Cormier or of anyone at Cormier’s Grocery Store. The door in question did not function defectively nor did its normal operation constitute a hazard or a risk to the plaintiff. Plaintiff had shopped at the store on many other occasions and was familiar with the door’s operation. Although the fact that the door opened inwardly was admittedly an inconvenience to patrons of the store, knowledge of this fact did not place Mr. Cormier under any duty to correct this situation; nor did such a fact constitute the existence of a dangerous condition on the premises or expose her to unreasonable risk of harm. The record amply supports the trial judge’s determination that the defendant in this action was not negligent.

Furthermore, the trial court found that the sole cause of the accident was due to the negligence of the plaintiff. This was a factual finding made by the trial judge based upon his analysis of the testimony and the credibility of the witnesses. In the absence of manifest error, such a ruling will not be overturned on review before this court.

For the above and foregoing reasons, the action of the trial court is upheld and all costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.


text:
    Elverna JOHNSON, Plaintiff-Appellee-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Defendants-Appellants-Appellees.
    No. 6900.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Thomas & Dunahoe, Edwin Dunahoe, Natchitoches, for plaintiff-appellee-appel-lant.
    Gist, Methvin, Hughes & Munsterman, Dorwan G. Vizzier, Alexandria, Stafford, Trimble, Randow & Smith, Ronald J. Fior-enza, Alexandria, for defendants-appellants-appellees.
    Before WATSON, SWIFT and STOKER, JJ.
   WATSON, Judge.

Plaintiff, Elverna Johnson was injured while riding as a guest passenger in an automobile which was struck from the rear by an automobile insured by defendant, State Farm Mutual Automobile Insurance Company. A third car, insured by defendant, Beacon National Insurance Company, then struck the second car. It is alleged that the third car caused a second impact with the Johnson car which contributed to plaintiff’s injuries. The trial court gave plaintiff Johnson a judgment against State Farm for $7,500 in general damages and $1,266.91 in special damages but dismissed the suit against Beacon. Both plaintiff Johnson and State Farm have appealed.

ISSUES

The issues on appeal are: (1) whether the trial court was clearly wrong in dismissing the suit against Beacon; and (2) whether the amount awarded to plaintiff is so excessive or inadequate as to constitute an abuse of the trial court’s discretion.

FACTS RELATING TO LIABILITY OF BEACON

The accident occurred on October 2, 1977, on U.S. Highway 71, about one-tenth of a mile north of the Clarence intersection, in Natchitoches Parish. Elverna Johnson was being driven by a daughter, Lucille Johnson Foster, in a car owned by another daughter, Adrena Reed. The Johnson vehicle was stopped to make a left turn when it was hit by the second automobile operated by Judy Fleming. Elverna Johnson, Lucille Foster and Judy Fleming all testified that there was a second impact between the Johnson and Fleming cars when the latter was struck from the rear by the third car. This third automobile was owned and operated by Beacon’s insured, Jessie Willard Alford, who was not named as a party to the suit and did not testify. The declarations’ sheet of the Beacon policy (BN-1) identifies Alford as a resident of Kermit, Texas, employed by Leatherwood Drilling Company.

The investigating officer, Louisiana State Police Trooper H. P. Salard, found the Johnson vehicle approximately 60 feet and the Fleming vehicle approximately 10 feet from the point of impact when he arrived on the scene. Trooper Salard said that Alford apparently ran into the rear of Fleming, but he did not know whether Fleming hit the Johnson vehicle a second time as a result. He assumed from the locations of the Johnson and Fleming automobiles that there was no second impact between these cars. Salard called an ambulance for plaintiff Johnson.

Elverna Johnson was taken to the emergency room of the Natchitoches Parish Hospital. The emergency room history (P-10) states that the car she was occupying was hit from the rear “. . - by two different impacts . . .” This was also the history given to Dr. Joseph A. Thomas and Dr. Robert Schwendimann, Elverna Johnson’s two treating physicians.

The trial court apparently attached no particular significance to Alford’s failure to testify. Alford was not subpoenaed by any party. Counsel for Beacon did not comment at trial on its failure to call its insured as a witness. It is contended in brief that he resides outside the subpoena power of the court and might have declined to appear.

CONCLUSION: LIABILITY

Since three of the four eyewitnesses to the accident testified to a second impact and this direct testimony was unrebutted by any testimony from the fourth, the fact of a second impact must be accepted as proven. Although Alford was not a party to a lawsuit and not subpoenaed to appear, his insurer was entitled to his cooperation had his testimony been desired. The only reasonable inference is that Alford’s testimony would have been adverse to Beacon. See Teissier v. Stewart, 11 La.App. 167, 123 So. 174 (La.App.Orl.1929) and Gulf States Utilities Company v. Guidry, 183 So.2d 122 (La.App. 1 Cir. 1966).

The trial court erred in concluding that there was no second impact between the Fleming and Johnson automobiles solely on the basis of the testimony of Trooper Salard (TR. 80), who was not an eyewitness to the accident and based his report primarily on statements made to him at the scene. (TR. 18). Salard’s hearsay version of the sequence of events is completely uncorroborated and is contradicted by the testimony of three eyewitnesses. See Gulf States Utilities Company, supra. The trial court was clearly wrong in dismissing plaintiff’s suit against Beacon. Arceaneaux v. Domingue, 365 So.2d 1330 (La., 1978).

FACTS RELATING TO QUANTUM

Dr. Joseph A. Thomas, stipulated to be an expert in general medicine and surgery, saw plaintiff Johnson, age 55, the day following the accident, when she appeared to be in obvious pain. In essence, Dr. Thomas found muscle spasms on both sides of plaintiff’s body from the neck down the entire length of the spine. She had spasms of the spinae erector muscles, tenderness to palpation over both occipital nerves at the base of the skull, severe spasms of the trapezius and latissimus dorsi muscles bilaterally, and an extreme degree of spasm in the paraspinous and iliolumbar muscles in the lumbar region of the back. Plaintiff Johnson exhibited a marked decrease in range of motion and sciatic nerve tenderness.

Dr. Thomas attributes plaintiff’s present headaches to occipital nerve pressure rather than a postconcussion syndrome. In Dr. Thomas’ opinion, plaintiff Johnson has nerve root irritation. She was in pain on her last weekly visit to Dr. Thomas shortly before trial. Dr. Thomas estimated her permanent disability at 40% of the body as a whole. Dr. Thomas had seen Ms. Johnson prior to the accident. She had preexisting osteoarthritis, but Dr. Thomas felt that the trauma activated her arthritic condition. However, in his opinion, she was unable to do manual labor before the accident, (TR. 66) as well as afterward.

Dr. Thomas referred plaintiff to Dr. Robert Newton Schwendimann, a neurologist, about 5 months after the accident. Dr. Schwendimann saw her three times and found no objective symptoms of injury. His diagnosis was a cervical muscle strain and postconcussion syndrome. Dr. Schwen-dimann’s only recommendation was for conservative therapeutic treatment. He testified in deposition that her prognosis for recovery was good.

The reports of Dr. Robert R. Sills, whose clinic had treated plaintiff at least 11 years prior to the accident, indicate that plaintiff was unemployable before the accident because of arthritis in the knees, overweight, anxiety, high blood pressure and some heart irregularity. When Dr. Sills saw her following the accident, she was also complaining of arthritis in her back. At that time, in addition to the arthritis in her back and knees, she had hypertension, emotional instability, obesity, and a gall bladder problem. Only the arthritis in her back can be related in any way to the accident. Dr. Sills’ reports indicate that Ms. Johnson has never worked much because of physical problems and emotional instability. She has been dependent on welfare for many years.

Plaintiff’s special damages include $332 for dental work based on the testimony of Dr. J. T. Melancon that he could replace two broken crowns for that amount. Although Dr. Melancon did not see Ms. Johnson until May of 1978, he said that the accident was a “more than likely” (TR. 27) cause of the dental injury.

Plaintiff Johnson testified that she had done odd jobs prior to the accident, working as a cook one day a week at $35 a day, painting and mowing yards. Plaintiff’s daughter, Lucille Foster, testified that her mother was not handicapped before the accident, could do part-time work, housework and yardwork, but had been incapacitated as a result of the accident. She said her mother had also had a personality change and had become “mean.”

CONCLUSION: QUANTUM '

According to Dr. Thomas and Dr. Sills, plaintiff Johnson was unemployable before the accident as well as afterward. A loss of earnings of $35 per week was uncorroborated. Dr. Thomas’ estimate of a 40% disability included plaintiff’s preexisting problems. Although, in answer to a hypothetical question, Dr. Thomas attributed 75% to 80% of this disability to the accident, the hypothet assumed, incorrectly, that plaintiff was functioning well prior to the accident. The reports of Dr. Sills and testimony of Dr. Thomas indicate she was disabled before the accident.

Although there is some doubt about the caused connection between Ms. Johnson’s dental problems and the accident, an award for this item of damages is supported by Dr. Melancon’s testimony. The award of general damages is within the trial court’s “much discretion.” LSA-C.C. art. 1934.

For the foregoing reasons, the judgment of the trial court herein is reversed insofar as it dismissed plaintiff’s suit against Beacon National Insurance Company and affirmed as to the award of damages.

It is ordered, adjudged and decreed that there be judgment herein in favor of plaintiff, Elverna Johnson, and against the defendants, State Farm Mutual Automobile Insurance Company and Beacon National Insurance Company, in solido, in the amount of $8,766.91, together with legal interest thereon from the date of judicial demand until paid and all costs, including the expert witness fees fixed by the trial court.

All costs of appeal are taxed against ap-pellee, Beacon National Insurance Company.

AFFIRMED IN PART, REVERSED IN PART and RENDERED.

      . This physician did not appear in person; his reports were received in evidence in lieu of his testimony without objection.


text:
    Ivan J. HEBERT et ux. v. Robert MELANCON.
    No. 6903.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      Kenneth W. Ford, Morgan City, for plaintiff s-appellants.
    John A. Hammers, St. Martinville, for defendant-appellee.
    Before WATSON, SWIFT and STOKER, JJ.
   WATSON, Judge.

This is a petitory action. Suit was originally filed by Ivan J. Hebert and his wife, Carrie Hebert, against the defendant, Robert Melancon.

By supplemental and amending petition, Calvin Lambert was substituted as the sole plaintiff on an allegation that the property was acquired by the original plaintiffs from Calvin Lambert and resold to him during the pendency of the suit. (TR. 12).

The petition seeks judgment recognizing plaintiff Lambert as owner of a tract of land with about 5 acres of frontage on Belle River in St. Martin Parish.

Defendant, Robert Melancon, is the successor in title to the heirs of Joseph Adams, having purchased the property by an instrument represented in the present record as D-2. (TR. 18).

Previous litigation concerning title to the identical property has been before this court. See Lambert v. Heirs of Adams, 325 So.2d 331 (La.App. 3 Cir. 1975): writ denied, 329 So.2d 458 (1976). The earlier litigation was described by this court as a “petitory action” (325 So.2d 333) and was decided adversely to plaintiff Lambert. Counsel for plaintiff has suggested in argument that this court was in error in using the phrase “petitory action”, because the earlier suit was a proceeding for declaratory judgment, Lambert being in possession at the time. However, Lambert was then possessing as tenant, not as owner. Thus the suit was in fact a petitory action.

In the present litigation, defendant filed several exceptions but we are only concerned with the exception of res judicata which was sustained by the trial court. The issue is whether the doctrine of res judicata applies.

The essential elements for the plea of res judicata are found in LSA-C.C. art. 2286.

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

The article requires that the thing demanded be the same; the cause of action be the same; and the parties be the same.

In the present proceedings, it is obvious that the thing demanded (the land) is the same; and that the cause of action (ownership claimed by petitory action) is the same. The only remaining question is whether the parties are the same.

The plaintiff, Lambert, is the same individual, but the defendant is not the same person or persons. However, the defendant is what is called, in the civil law, an ayant cause, which means an assignee or successor in title.

The jurisprudence holds that for the purpose of the plea of res judicata, an ayant cause is to be considered as the same party involved in the previous litigation. See Delabigarre v. Second Municipality of New Orleans, 3 La.Ann. 230 (1848); Roach v. Craig, 124 La. 684, 50 So. 652 (1909); Hargrave v. Mouton, 109 La. 533, 33 So. 590 (1903).

Therefore, the trial court was correct in maintaining the exception of res judicata. The judgment of the trial court is affirmed. All costs on appeal are taxed against the plaintiff-appellant.

AFFIRMED.

      . In French law, and also in Louisiana, this term signifies one to whom a right has been assigned, either by will, gift, sale, exchange, or the like; an assignee. An ayant cause differs from an heir who acquires the right by inheritance. 8 Toullier, n. 245. Black’s Law Dictionary, 4th Edition, p. 174.

      . We are aware of the recent case of Ugulano v. Allstate Insurance Co., 359 So.2d 318 (La., 1978), in which the Louisiana Supreme Court stated that neither the doctrine of judicial es-toppel nor collateral estoppel obtains in Louisiana. However, we do not read Ugulano as impinging on the principles applicable in the present case.


text:
    Edward MANUEL, Plaintiff-Appellee, v. AMERICAN INDEMNITY COMPANY et al., Defendant-Appellant.
    No. 6909.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.
    Plauche, Smith, Hebert & Nieset, Reid K. Hebert, Lake Charles, for defendant-appellant.

      Alvis J. Roche, Lake Charles, for plaintiff-appellee.
    Brame, Bergstedt & Brame, David Fraser, Lake Charles, Raggio, Cappel, Chozen & Berniard, Richard B. Cappel, Lake Charles, for defendant-appellee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   DOUCET, Judge.

Plaintiff instituted this suit to recover damages for fatal injuries sustained by his wife in an automobile accident on May 26, 1977. One of the defendants named in the suit was appellant, Southeastern Fidelity Insurance Company, the uninsured motorist carrier of an insurance policy on two vehicles owned by plaintiff at the time of the accident. Also named as a defendant was Aetna Casualty and Surety Company, the uninsured motorist carrier of an insurance policy on the car owned and being driven by plaintiff’s wife at the time of the accident.

After trial, in addition to rendering judgment in favor of plaintiff and against the liability insurer of the other driver involved in the accident, the district court rendered judgment against the latter two insurance companies under the uninsured motorist provisions of those policies. The policy limits for damage caused by an uninsured or underinsured motorist under the Southeastern Fidelity Insurance Company policy were five thousand dollars for each vehicle. The district court allowed the coverage for the two vehicles to be “stacked” and awarded ten thousand dollars. Southeastern Fidelity Insurance Company appeals this judgment, contending that only five thousand dollars should have been awarded.

The following issues are before this court on appeal:

(1) Whether the district court erred in allowing the stacking of uninsured motorist coverage under the Southeastern Fidelity Insurance Company policy in view of Act 623 of 1977, which amended La.R.S. 22:1406(D).

(2) Whether the district court erred in failing to award penalties and attorney’s fees to plaintiff, due to the appellant’s refusal to pay up to the policy limits under La.R.S. 22:658.

Southeastern’s policy contains exclusionary language prohibiting stacking. However, prior to the passage of Act 623 of 1977 by the legislature, the courts of this state had held repeatedly that such prohibitory language was contrary to public policy, which was provided for in La.R.S. 22:1406(D) and was without effect. Graham v. American Casualty Company of Reading, Pennsylvania, 261 La. 85, 259 So.2d 22 (1972); Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972); Barbin v. United States Fidelity & Guaranty Company, 315 So.2d 754 (La.1975).

Act 623 of 1977 amended La.R.S. 22:1406, which now provides at § (D)(1)(c):

(c) If the insured has any limits of uninsured motorist coverage in a policy of automobile liability insurance, in accordance with the terms of Subsection D(l), then such limits of liability shall not be increased because of multiple motor vehicles covered under said policy of insurance and such limits of uninsured motorist coverage shall not be increased when the insured has insurance available to him under more than one uninsured motorist coverage provision or policy; provided, however, that with respect to other insurance available, the policy of insurance or endorsement shall provide the following:
With respect to bodily injury to an injured party while occupying an automobile not owned by said injured party, the following priorities of recovery under uninsured motorist coverage shall apply:
(i) The uninsured motorist coverage on the vehicle in which the injured party was an occupant is primary;
(ii) Should that primary uninsured motorist coverage be exhausted due to the extent of damages, then the injured occupant may recover as excess from other uninsured motorist coverage available to him. In no instance shall more than one coverage from more than one uninsured motorist policy be available as excess over and above the primary coverage available to the injured occupant.

Under the above language, plaintiff would be limited to recovering Five thousand dollars from Southeastern, or the amount of coverage on one of the vehicles it insured, but not both. Southeastern contends that this is the law which is applicable to this case. We disagree.

Act 623 of 1977 did not become effective until September 9, 1977. As noted above, the accident which gave rise to plaintiff’s cause of action took place on May 26, 1977. Southeastern argues, however, that the act was either interpretive legislation under Gulf Oil Corp. v. State Mineral Board, 317 So.2d 576 (La.1975, remedial legislation under Fullilove v. U. S. Casualty Company of New York, 129 So.2d 816 (La.App. 2nd Cir. 1961), or procedural. The thrust of the argument made is that the courts of this state had misinterpreted La. R.S. 22:1406 and that the legislature, by means of Act 623 of 1977, sought to correct this situation and reinstate its original intent.

We find this argument unpersuasive. The fact that in 1977 the legislature elected to limit the circumstances in which the stacking of uninsured motorist coverage is permissible does not in any way suggest that the judicial interpretations of that provision prior to its amendment were erroneous. We need not speculate about the numerous factors, economic or otherwise, which influenced the legislature’s decision in order to recognize that a change was made in the law. Furthermore, that change operates to determine the substantive rights of the parties governed by it. Therefore, this court will not give the amendment retroactive effect in this case.

The remaining issue concerns the district court’s refusal to award to plaintiff penalties and attorney’s fees under La.R.S. 22:658 for Southeastern’s failure to tender to him within the delay allowed the full amount to which he is entitled. Such failure must be arbitrary, capricious, or without probable cause under this provision. The district court was of the opinion that it was not and refused to award these additional damages. Having reviewed all of the evidence, we do not think that this is an abuse of his discretion.

For these reasons, the judgment appealed from is affirmed in all respects. The costs of this appeal are to be borne by defendant-appellant.

AFFIRMED.


author: BOUTALL, Judge.

text:
    FIRST PROGRESSIVE BANK v. David L. VERRET et al.
    No. 9410.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.

      Fred Clegg Strong; Legier, McEnerny, Waguespack, Kuhner, Scoggin & Strong, New Orleans, counsel for First Progressive Bank, plaintiff-appellee.
    Charles E. Cabibi, New Orleans, counsel for Charles A. Mannina, defendant-appellant.
    Rodney J. Madere, New Orleans, counsel for Donald J. Burke, plaintiff-appellant.
    David L. Verret, Jr., defendant-appellant, in pro per.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This is a suit for collection of monies owed under a continuing guaranty agreement after default of the principal debtor.

The facts are as follows: First Funds, Inc. borrowed approximately $800,000 through a revolving loan and security agreement from Firstmark Rediscount Corporation in May of 1974. In September of 1974, First Progressive Bank, appellee herein, lent money to First Funds through a participation agreement with Firstmark Re-discount in the amount of $250,000. In connection with this transaction, continuing guaranty agreements in favor of the bank were executed by Donald Burke, John Cres-pino, Charles Mannina, and David Verret, all defendants and appellants herein. The balance owed to the bank was subsequently reduced to $203,000 by a later participation certificate and a payment of $10,000.

In December of 1976, a complaint was filed in Federal District Court by Firstmark Rediscount Corporation for the purpose of appointing a receiver to take possession of the assets of First Funds and related companies, and judgment was obtained against certain guarantors of First Funds. In January of 1977, this suit was filed by First Progressive Bank against the guarantors of First Funds named above to collect the balance due. After trial on the merits, judgment was rendered in favor of the bank in the amount of $203,000 plus interest.

Appellants take this appeal contending that the bank did not carry its burden of proof as to the validity of the signatures, the balance and interest due on the claim, and the date upon which the interest became due. The bank answers the appeal praying for an increase in the judgment in that their petition in the trial court asked for attorney’s fees of 20%, but the judgment contained no award for attorney’s fees.

Appellants introduced no evidence at the trial. They did not testify, nor did any witnesses testify in their behalf. On the other hand, the bank introduced testimony of the bank president, the chairman of the board and one board member. The continuing guaranty agreements complete with signatures were placed in evidence along with the participation agreement. In view of this, the argument by the appellants that since none of the witnesses actually saw appellants sign the documents (with the exception of David Verret) the bank has not borne its burden of proof, is not worthy of lengthy discussion. The bank has obviously prevailed on this point by a preponderance of the evidence.

As to the interest and balance due, there is testimony in the record by bank witnesses as to the interest rate and the balance due under this agreement. This testimony is uncontradicted. This court cannot hold that a judgment based on un-eontradicted evidence is manifestly erroneous. Likewise, appellants argue in brief that no advancement of funds was shown by the bank. The testimony of the Chairman of the Board that the bank lent the money and the introduction of the participation agreement is uncontradicted evidence and the trial judge was correct in granting judgment in favor of the bank.

The only issue remaining is with regard to attorney’s fees. We note that no testimony was given at the trial to support either the right to attorney’s fees or the amount of fees which should be awarded. We feel, however, that the agreements provide for attorney’s fees. Paragraph 14 of the Revolving Loan Agreement reads as follows:

“14. EXPENSES, PROCEEDS OF COLLATERAL. The Borrower shall pay to the Secured Party on demand any and all expenses, including reasonable attorney fees, incurred or paid by the Secured Party in protecting or enforcing its rights upon or under Obligations or Collateral or this agreement. After deducting all of said expenses the residue of any proceeds or collection or sale of Obligations or Collateral shall be applied to the payment of principal or interest on Obligations in such order of preference as the Secured Party may determine, proper allowance for interest on Obligations not then due being made, and any excess shall be returned to the Borrower and the Borrower shall remain liable for any deficiency.”

The continuing guaranty agreements provide in pertinent part:

“ * * * I hereby give this continuing guaranty to the said FIRST PROGRESSIVE BANK of Metairie, Louisiana, hereinafter referred to as the Bank, its transferees or assigns, for the payment in full together with interest, fees and charges of whatsoever nature and kind * *

These agreements provide for the award of “reasonable attorney’s fees”. When there is no evidence as to the reasonableness of the fees, this court may fix the fee without express evidence on the point. Jones v. Bryant, 283 So.2d 307 (La.App. 4th Cir. 1973). In computing the fee, several factors must be considered including the amount involved, the number of hours worked, and the ability of the party to pay. See Guillory v. Guillory, 339 So.2d 529 (La. App. 4th Cir. 1976). Appellee has asked for 20% of the judgment, but we feel that 10% is the proper award in this case absent the showing that a greater fee is required under the factors listed in Guillory.

For the above reasons, the judgment appealed from is amended to include attorney’s fees in the amount of 10% and affirmed.

AMENDED AND AFFIRMED.

      . It must be noted that in February of 1977, First Funds was adjudged to be a bankrupt and a trustee in bankruptcy was appointed who is presently administering the assets of First Funds. It is admitted that all sums collected by the bank from the administration must be credited to the judgment of the trial court.


author: REDMANN, Judge.

text:
    Marlene JACOBS et al. v. NEW ORLEANS PUBLIC SERVICE, INC., et al.
    No. 9446.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.

      James E. Shields, New Orleans, for plaintiffs.
    A. R. Christovich, Jr., New Orleans, for defendants.
    Before REDMANN, GULOTTA and BEER, JJ.
   REDMANN, Judge.

Defendants appeal from a $100,000 judgment for plaintiff mother’s psychological disability, “what I consider a conversion reaction,” the trial judge reasoned.

Plaintiffs did not plead that the accident caused the mother any psychological problems. They did plead that it caused traumatic neurosis to her 12-year daughter, whose psychiatrist diagnosed post-traumatic psychoneurosis with conversion symptoms. Quantum for the daughter is not at issue on this appeal. Plaintiffs introduced psychiatric testimony to prove that the mother’s refusal of a diagnostic myelogram, for an alleged intervertebral disc problem, was the result of a long-held fear of needles. During that testimony one psychiatrist opined that the mother was psychologically disabled.

Under the circumstances of the psychiatric testimony’s being introduced for one purpose within the pleadings but supporting a conclusion not alleged by the pleadings, we conclude that defendants did not consent to the trial of the unalleged issue within La.C.C.P. 1154 and thus it was not presented for decision. We therefore eliminate the awards, including future medical, based on conversion reaction.

The trial judge concluded that plaintiff “has some slight mechanical or orthopedic disfunction in the cervical area, but that this would not disable her. . . . Marlene Jacobs does not have any disc pathology of any significance.” We conclude that the maximum the trial judge could have awarded for these injuries was approximately $7,500.

Amended to reduce the award to Marlene Jacobs to $7,500 and that to Edward Jacobs to $2,619.50. Plaintiffs are to pay the costs of appeal.


author: SAMUEL, Judge.

text:
    Gaylon D. SIMMONS v. AMERICAN SAVINGS & LOAN ASSOCIATION and J. J. Krebs & Sons, Inc.
    No. 9635.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Roy C. Cheatwood and Edward B. Poitevent, II, New Orleans, for plaintiff-appellant.

      Gauche, Wegener & Oster, Robert J. Oster, New Orleans, for American Sav. & Loan Ass’n, defendant-appellee.
    Before SAMUEL, REDMANN and GU-LOTTA, JJ.
   SAMUEL, Judge.

Plaintiff, Gaylon D. Simmons, filed suit against defendants, American Savings & Loan Association, a homestead, and J. J. Krebs & Sons, Inc., surveyors, for the damages he alleges resulted from the negligence of the defendants in causing him to begin construction of a residence on a lot which he did not own.

The defendants filed separate answers, both denying liability. Thereafter, American Savings filed a motion for judgment on the pleadings and for summary judgment, together with a supporting affidavit. Plaintiff opposed the motion and filed a countervailing affidavit.

Thereafter, judgment was rendered maintaining American Savings’ motion for summary judgment and dismissing plaintiff’s claims against that defendant. Plaintiff’s rights against the other defendant, Krebs, were reserved. Plaintiff has appealed.

The controlling Code of Procedure article on summary judgments is Article 966 which, in pertinent part, provides:

“. . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” LSA-C.C.P. Art. 966.

In the instant case the record, particularly the petition and the two affidavits, reveal the following facts:

Intending to build a residence thereon, plaintiff agreed to purchase Lot 56, Square 4, Section 1, Chateau Estates South Subdivision, in Kenner, Louisiana, for $28,000. To finance the purchase, he applied to American Savings for an $18,900 loan. The loan was approved and that defendant had its attorney examine the title to Lot 56. The examining attorney required a current survey which American Savings ordered for the purpose of protecting its proposed loan and vendor’s lien and mortgage. The survey so ordered did not include a staking of the lot.

Plaintiff telephoned a representative of defendant (defendant’s affidavit denies any of its people were contacted but, insofar as this appeal is concerned, we accept the plaintiff version) and stated he was unable to locate Lot 56 upon visual inspection. At the time, Lot 56 was part of an undeveloped tract and had no easily identifiable features allowing simple site location. American Savings informed plaintiff a survey would be made prior to the passage of the act of sale, and plaintiff requested that the surveyor place stakes on the lot so it could be located and identified. Accordingly, a “builders package” survey, which included staking the lot, was obtained instead of the survey originally ordered by American Savings.

Krebs’ employees then conducted the survey of Lot 56 and furnished a drawing of the correct lot with correct dimensions. However, according to the allegations of the petition, Krebs staked Lot 55 instead of Lot 56. Plaintiff purchased Lot 56 on April 5, 1976 through a notary designated by American Savings. In connection with the purchase, he was provided with a copy of the survey. The price of the survey was $115, which was included as part of the closing costs.

On April 12, 1976, plaintiff began clearing and filling what he thought was the staked Lot 56, after which he began constructing a two-story brick veneer building. On or about January 14,1977, he received a telephone call from a real estate agent, who informed him the improvements he thought were being constructed on Lot 56 were actually being construed on Lot 55. He ceased construction immediately and attempted to purchase the lot upon which he was building. That attempt failed and plaintiff filed two law suits, one against the owner of Lot 55 and the other, the present suit, against American Savings.

In this court appellant contends American Savings is not entitled to a summary judgment as a matter of law because there is a genuine issue of material fact on the question of breach of contract and on the question of agency.

Appellant’s contention that there is an issue of material fact relative to breach of contract is without merit. In support thereof appellant argues only that American Savings breached “its contract to provide a proper surveyor”. As there is only one contract involved, a commitment to lend money, the answer to this argument is simply that American Savings ordered the survey solely for its own protection. It was under no contractual obligation to the plaintiff to have a survey made.

We are also of the opinion that appellant’s contention that there is an issue of material fact relative to. agency is without merit. The trial court found that agency was not an issue, a conclusion with which we agree. The evidence establishes the examining attorney for American Savings required a survey as a condition of the sale, but it was plaintiff who requested the surveyor place stakes on the lot for its physical identification. In accordance with the precise request made by plaintiff, American Savings requested the surveyor stake the lot. Because American Savings transmitted plaintiff’s instructions as made, the existence of an agency relationship is not a material issue.

Plaintiff also argues a material issue exists as to whether the surveyor was an independent contractor or an agent or employee of the defendant, American Savings. The affidavit filed by American Savings asserts the surveyor was not acting as its agent but rather as an independent contractor and American Savings urges this argument should not be considered because it was raised by plaintiff for the first time in connection with his motion for a new trial in the lower court and therefore cannot be raised on appeal. That contention aside, we conclude it is not material whether the surveyor was an agent or an independent contractor. Plaintiff admits he requested the lot be staked, and it is unquestioned that American Savings made no such requirement in connection with the loan because the property securing the loan was merely an empty lot and no construction contract was involved. Because the lot was staked solely at the request of, and solely for the benefit of, the plaintiff, the actions of the surveyor in staking would be outside the scope of its agency relationship with defendant, if any such relationship in fact existed. American Savings merely required a survey which certified the existence of the particular lot and its dimensions. Plaintiff could as well have requested the staking be performed by another surveyor, but by his action in requesting the surveyor selected by defendant to place the stakes on the property he chose to make the staking actions of the surveyor his own responsibility and not that of American Savings.

We make no comment in this opinion regarding the merits of plaintiff’s claim against the defendant surveyor, and no statement in this opinion should be construed in any way to have any relationship to that issue.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . The two suits were consolidated in the trial court and lodged as consolidated cases in this court. However, this appeal is concerned only with the summary judgment dismissing American Savings and we do not consider the other suit (No. 9634 of our docket) against the owner of Lot 55.

      . See Burton v. Allen Parish Police Jury, 198 La. 752, 4 So.2d 817.


author: STOULIG, Judge.

text:
    Mrs. Mabel M. QUATROY, wife of/and Peter Quatroy v. James J. CULOTTA.
    No. 9781.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.
    Ganucheau & Allmand, Richard J. Ganu-cheau, New Orleans, for plaintiff s-appel-lees.
    Zeringer & Zeringer, Harold J. Zeringer, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   STOULIG, Judge.

Plaintiffs, Mrs. Mabel Quatroy, wife of/and Peter Quatroy, filed suit on a $7,500 promissory note against its maker James J. Culotta. Defendant based his affirmative defense and a reconventional demand against plaintiffs on the alleged breach of a contract between Mrs. Quatroy and Lotta Homes, Inc., a corporation of which Culotta is president. Plaintiffs excepted to the re-conventional demand and a judgment maintaining “the exceptions of no right of action and improper parties plaintiff and defendant” was rendered on May 15,1978. Culot-ta has appealed the judgment dismissing his reconventional demand.

When read as a whole the pleadings indicate that Mrs. Quatroy entered into a contract with the corporation. Defendant’s answer to Article 6 states:

“Upon the strength of said representation, respondent agreed to purchase five of said lots, and did, in fact, through Lotta Homes, Inc., a corporation of which respondent is the President and principal shareholder, purchase five of the above mentioned lots, to-wit, Lots 159, 160, 161, 214, and 216, and respondent undertook to construct residences thereon for the said Lotta Homes, Inc.”

From the standpoint of having the capacity to sue and be sued, Culotta and his corporation Lotta Homes, Inc., are two separate entities. Therefore, Culotta cannot urge the corporation’s alleged claim against the plaintiffs as a bar to their right to recover against him individually.

As we previously stated, the phrasing of the answer indicates to us the corporation acted with Mrs. Quatroy in this venture, assuming for the purposes of this discussion all allegations of fact in the answer are true. However in answering Article 4, defendant states in part that “on December 4, 1975, respondent and plaintiff, Mrs. Mabel M. Quatroy, had entered into a joint venture agreement for the development of a certain tract of land in the Parish of St. Bernard.” Contrary to all the remaining allegations, this indicates the agreement was between Mrs. Quatroy and Culotta individually.

As the record is now constituted the pleadings do not reflect Culotta individually may assert the reconventional demand urged. That claim appears to belong to the corporation. However to insure justice, we remand this matter to permit defendant to plead his affirmative defense and reconven-tional demand if the joint venture was in fact an enterprise between him individually and Mrs. Quatroy, rather than between her and the corporation over which he presides.

For the reasons assigned the judgment maintaining the exception of no right of action is affirmed and this matter is remanded for further proceedings consistent with the views herein expressed. Appellant is to pay all costs of this appeal.

AFFIRMED AND REMANDED.


text:
    SAVE OUR WETLANDS, INC. (SOWL) and Neal Foy, v. ORLEANS LEVEE BOARD and Guy LeMieux as President of the Orleans Levee Board.
    No. 9812.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.

      Philip R. Johnson, Metairie, for Save Our Wetlands, Inc. et ah, appellant.
    Richard J. McGinity, McGinity & McGinity, New Orleans, for Orleans Levee Board et al., defendants-appellees. '• Nf
    Trudy H. Oppenheim, Trudy H. Oppen-heim, P.C., New Orleans, for Pilot’s Association of Greater New Orleans, intervenors-appellees.
    Before SAMUEL, STOULIG and BOU-TALL, JJ.
   BOUTALL, Judge.

This is a suit for injunctive relief to prohibit expansion of the New Orleans Lakefront Airport by use of the water bottom of the adjoining Lake Pontchartrain.

Save Our Wetlands, Inc. (Sowl) and Neal Foy brought suit against the Orleans Levee Board and Guy LeMieux as its President contending that the expansion violated Louisiana Revised Statute 38:1235.2(B) which prohibits any construction beyond a “front line of development” where such a front line has been established and also violated Article 9, § 3 of the Louisiana Constitution of 1974 prohibiting alienation of the bed of a navigable water body. The Pilots Association of Greater New Orleans intervened in the suit on the side of defendants. Defendants then filed a motion for summary judgment which was maintained dismissing the suit. Plaintiffs appeal from this dismissal.

Appellants correctly point out that a motion for summary judgment should be maintained only if the pleadings and other evidence show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. Code of Civil Procedure Article 966. We find, however, no issue of material fact in this ease and agree with the trial judge that the defendants are entitled to judgment as a matter of law.

As to the first contention, R.S. 38:1235.2(B) reads in part as follows:

“ * * * * However, when the board has established and located the front line of the development in the bed of Lake Pontchartrain, including the line or location of piers, breakwaters, or other like extensions, and has sold, leased, or otherwise disposed of any land or granted any rights based upon the line or location, or when any party, for a valuable consideration, has acquired rights based upon the line or location, then no further reclamation shall be made or other works constructed by the board beyond the established front line or location in the bed of the lake, and the state of Louisiana shall not itself undertake, authorize, or permit the board or any other governmental agency or any person, association, firm or corporation whatsoever to reclaim the bed of the lake or any part thereof, or to construct any works thereon within three miles of the front line location as made by the board.”

The trial judge summarized this issue in his written reasons for judgment and we hereby adopt it in part as our own:

“ * * * * This ‘front line of development’ theory was formerly part of the 1921 Constitution, and is now R.S. 38:1235.2 (as amended). One must go back to the time when this front line of development was originated, to then and there determine why it was presented, before one can answer the question: is this expansion a violation of the front line of development?
“Large portions of the Pontchartrain Lake front were, by the Levee Board, reclaimed, filled in. That reclaimed land was then sold to individuals, thousands of them, for residential purposes primarily. Persons who bought these lots paid good, prime prices for them only because they were choice sites on ‘the’ lakefront. The public, the people who bid in on and bought these sites obviously did not wish to be ‘sandbagged.’ They needed assurances that when they bought and paid for their land, and built their homes on it, they would remain on the lakefront. There had to be some way of preventing the Levee Board from later on filling in another three or four blocks of the lake and selling that reclaimed land as prime lakefront sites at prime prices. People who relied on the integrity, etc. of the state or its agency, the Levee Board, had to be sure that their lakefront homes did not end up blocks away from the lakefront. So there was presented the front line of development, to be established by the Levee Board, and once that line was established, there could be no further extension of any development out into the lake.
“It is admitted by both the plaintiffs and the defendants, and the Court itself readily recognizes that from the point where the former New Basin Canal was located, as Westend, to the Industrial Canal, the front line of development has been established. Lakeshore Drive, a public street, is all that separates the development in that area from the lake. The seawall has been constructed and that seawall is the front line of development. There can be no further reclaiming of the bottom of Lake Pontchartrain beyond that point. That takes care of the area west of the Industrial Canal, and that really is not at issue in this case. What is at issue in this case is: (1) has a front line of development been established by the Levee Board (which has the exclusive right to so establish), east of the Industrial Canal, and (2) if the front line of development has been established east of the Industrial Canal, where it is located?
“For the sake of argument, and in disposing of this lawsuit, it may be conceded, and is, that the New Orleans Lakefront Airport in the immediate vicinity east of the Industrial Canal separates east and west lakefront property.
“It is the plaintiff’s position that the front line of development has in fact been established east of the Industrial Canal, both by the operation of the airport and by the leasing of camp sites in the waters of Lake Pontchartrain. Plaintiffs argue that the Levee Board’s airport facilities fixed the front line of development for the airport. This argument is further bolstered by showing the year in and year out, for many, many years, leasing of camp sites in the Milneburg area. More particularly, they cite the leases by the Levee Board to the old Lincoln Beach and the lease to McGovern for marina purposes. They (plaintiffs) hold these leases together with the airport itself constitute the front line of development. With these arguments, the Court cannot agree, for the following reasons:
“First, the Court specifically does not establish the front line of development east of the Industrial Canal. The arguments of the plaintiffs are a pursuance in trying to show that ‘a ’ front line of development has been in fact established by virtue of the activity itself (airport operation and leasing) and not necessarily the location of said line of development.
“The plaintiffs’ argument overlooks several material factors, not the least of which are:
“(1) The Orleans Levee Board itself, by law, has the exclusive right to determine or to locate the front line of development.
“(2) Development West of the Industrial Canal is far and away greater, and more extensive and more complete than it has been east of that Canal. West of the Industrial Canal, the Levee Board has indeed de facto and de jure established the front line of development. East of the Industrial Canal, the situation (development) is essentially exactly as it was when the Levee Board was given, by law, the right to establish a front line.
“(3) This is not a situation in which the Levee Board did something mistakenly, and now wishes to avoid the consequences. On the contrary, the Levee Board has guarded its right to establish the front line of development. It has been mindful of this, and has taken care to see to it that whatever it did, in its leases could not and was not to be interpreted as establishing the front line. The McGovern and Lincoln Beach leases specifically state that the improvements contemplated under them do not establish the front line of development.
“The camp sites in Milneburg, east of the airport, are not occupied on any lease right or leasehold. They are there from year to year on a permit basis, which permit can be cancelled at any time upon 90 days notice. This is done, because the Levee Board retained the right to some day establish a front line of development and it did not wish to have those camp sites then interfere with its plans for development.
“(4) The Levee Board, when it established the front line west of the Industrial Canal, did so formally and in so many words, declared that ‘this’ is the front line. It left nothing for speculation or conjecture. Whenever it did anything east of the Industrial Canal, it took care to formally express, in writing, that what was being done did not constitute establishment of a front line. There has been no formal or even tacit establishment of a front line to the east. That has been jealously and cautiously avoided.
“(5) There is nothing in the old (1921) Constitution or in the revised statutes that places any time limitation on when the front line is to be established. Nor are there any provisions therein which state that the airport as formerly constituted could not be modernized or expanded, that in its former confines it established a front line of development in that area.” *****

For these reasons, we agree with the trial judge that a front line of development has not been established and that no violation of the statute is present in this case.

Appellants’ second contention is that the actions of defendants violate Article 9, § 3 of The Louisiana Constitution of 1974 which provides as follows:

“The legislature shall neither alienate nor authorize the alienation of the bed of a navigable water body, except for purposes of reclamation by the riparian owner to recover land lost through erosion. This Section shall not prevent the leasing of state lands or water bottoms for mineral or other purposes. Except as provided in this Section, the bed of a navigable water body may be reclaimed only for public use.”

We think that the last sentence of this section controls in this case. The operation of an airport for the benefit of the public is clearly public use. Further, it is clear that the State’s actions do not constitute alienation, but rather reclamation. Alienation is defined in Black’s Law Dictionary, Fourth Edition, page 96 as follows:

“ * * * * the transfer of the property and possession of lands, tenements, or other things, from one person to another.”

Alienate is defined as:

“To convey; to transfer the title to property.”

Thus, we see that the key element is the transfer of title.

Reclaim, on the other hand is defined by Black at page 1435 as:

“To claim or demand back; to ask for the return or restoration of a thing; to insist upon one’s right to recover that which was one’s own, * * * ”

The State is, in this case, only reclaiming through a State agency a waterbottom which it already owns. See Revised Statute 38:1235.1. We therefore reject the contention that this portion of the project violates the Constitution of this State; on the contrary, it is specifically authorized by Article 9 § 3.

We find that only questions of law are presented by this lawsuit. Since no material facts are at issue and defendants are entitled to judgment as a matter of law, the dismissal of this suit by summary judgment was proper under our law.

Appellants’ second assignment of error argues that the Constitutional issue raised by supplemental petition presented a justi-ciable controversy and rendered summary judgment improper. Appellants did file a supplemental petition in the trial court, asking that a declaratory judgment in favor of appellants be entered in addition to the injunctive relief originally prayed for. The trial judge apparently felt that since this suit dealt with only phase one of the entire project, specifically the extension of the runway, and since the Constitutional prohibition against alienation did not apply that there was no reason to decide the prayer for declaratory relief separately from the other issues. Further, when this suit was filed the reclamation was per se complete. To require its removal would compound any harm, assuming any was done.

For all of the above reasons, the judgment appealed from is affirmed.

AFFIRMED.

      . The trial judge specifically stated in his reasons for judgment that later phases in the overall program would have to be decided in a separate suit. Future phases call for the building of Marinas, Hotels, Restaurants, and other structures.


author: LEMMON, Judge.

text:
    Dennis J. HAYES, Jr. and Inland Marine Salvage Company, Inc. v. ALLSTATE INSURANCE COMPANY and Starr Steckler.
    No. 9821.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 7, 1979.

      Satterlee, Mestayer & Freeman, A. D. Freeman and Charlotte A. Hayes, New Orleans, for plaintiffs-appellants.
    Drury, Lozes & Curry, Robert P. Baum-gartner, New Orleans, for defendants-ap-pellees.
    Before REDMANN, LEMMON and GARRISON, JJ.
   LEMMON, Judge.

This appeal by plaintiffs, the driver and the corporate owner of the car involved in an automobile accident with defendant’s insured, questions the adequacy of the amount awarded by the jury.

In the May 7,1976 rear-end collision Dennis Hayes was driving a car owned by Inland Marine Salvage Company, Inc., a corporation whose stock was owned by Hayes and his family. Hayes did not experience pain that day, but had headaches and neck discomfort the following day. However, he was primarily concerned about the effect of the trauma on the partial paralysis he had sustained in 1971 when a bullet became lodged in the occipital area of his skull and was left in place after the doctors determined it was not causing any progressive neurological damage.

About five or six days after the accident Hayes consulted the neurosurgeon who had performed the 1971 craniotomy. The doctor found cervical tenderness and restriction of neck motion and diagnosed a mild to moderate cervical strain, but found no evidence of additional brain damage and reassured Hayes that his physical condition had not been worsened by the accident.

Hayes did not consult the neurosurgeon again, but in August at his annual examination at the governmental facility where he had recuperated following the 1971 incident he reported the accident and requested comparative X-rays to insure that the bullet had not been moved by the trauma.

Hayes described the neck pain as “bad” for the first few days, but could not say how long the pain had persisted. He testified that his primary concern was over possible aggravation to his pre-existing condition.

The car owned by Inland was repaired at a cost of $2,778.00, but the repairs were not completed until August 9 because certain parts were lost in shipment, causing about a six-week delay until the parts were traced and found. In September additional repairs were performed at a cost of $103.61, and the body repair expert testified that this damage was also attributable to the accident.

An adjuster employed by defendant insurer had inspected the car immediately after the accident and had estimated the cost of repair at $2,045.78, but he emphasized in testimony that his estimate did not include hidden damage.

Inland additionally claimed a $12.60 expenditure on August 18 for a check of the alignment (not by the repair expert but by another repairman who did not testify); an expenditure for repair of the water pump in Florida in August and car rental during that repair (without any proof that this repair was accident related); and a $375.49 expenditure for car rental in California on June 19. As to the latest item Hayes testified that he had intended to use the car for the combined business-pleasure trip, but when the repairs were not completed he flew there and rented a car for use in California and for the trip back to Louisiana.

The jury awarded the lump sum of $3,000.00 in answering the following special interrogatory:

“How much personal injury and property damage did plaintiff suffer?
“$3000.00
“together with interest and cost from date of judicial demand.”

On appeal plaintiffs first complain that the jury failed to differentiate the different damage sustained by each plaintiff.

Not only did Hayes and his family own the corporation in whose name title to the car was vested, but also he referred in his testimony to the vehicle as “my car”. Under these circumstances, although plaintiffs could have obtained specificity in the interrogatory prior to submission to the jury (or perhaps even after submission and before the jury was discharged), plaintiff cannot now complain that the jury treated the two plaintiffs as one and rendered a lump sum verdict.

Accordingly, the amount of the award will be reviewed as if Hayes were the owner of the car and had been the proper party for the award of property damage.

As to the adequacy of the lump sum awarded for personal injuries and property damage, the cervical injury was a minor one of short duration. Furthermore, whatever anxiety Hayes experienced in worry over his prior condition was not so great as to prompt him to seek medical attention until almost a week after the accident, and as soon as he did so he was reassured that no additional damage had been done. Therefore, the jury on this record could reasonably have awarded only a modest sum for personal injuries.

For property damage the sum of $2,881.61 was actually paid to the repairman, and there was no substantial contradiction to plaintiffs’ evidence that the charges were reasonable and were necessitated by the accident. However, the jury could reasonably have rejected all of plaintiffs’ other claims relating to property damage.

There was no evidence (not even by plaintiff) of the necessity of an alignment check immediately after completion of repairs by the repairman who regularly serviced the car. There was no evidence (not even by inference) that the water pump repair in Florida over three months after the accident was necessitated by the accident. A closer question, however, is presented as to the claim for loss of use, as measured by the charge for the two-week rental in California.

Loss of use is compensable during the period of time required for repair of the vehicle in the exercise of proper diligence. Carimi v. Saia, 301 So.2d 895 (La. App. 4th Cir. 1974). Here, the charge for which reimbursement is claimed was incurred six weeks after the accident, at which time repairs would have been completed if the parts had not been lost in shipment. Since neither the repairman’s testimony nor any other evidence explained why a six-week delay was necessitated by the lost shipment, or why the parts could not have been obtained by immediate reorder or by immediate tracing, the jury could reasonably have concluded plaintiffs failed to prove the charge was incurred within the time reasonably required for completion of repairs in the exercise of proper diligence.

The award by general verdict, although modest, was within the much discretion accorded by C.C. art. 1934(3).

AFFIRMED.

      . Indeed, because of the probability of more extensive damage, the adjuster declared the car (which he valued at $2,805.00) a constructive total loss.

      . There was no cross examination of the repairman as to his estimate. Although the insurer’s adjuster’s estimate was an implicit contradiction, it was of little probative value because of the reservation as to hidden damages.