author: MO RIAL, Judge.

text:
    Label A. KATZ v. Paul CHATELAIN.
    No. 7071.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.

      Herman & Herman, Maury A. Herman, New Orleans, for plaintiff-appellant.
    Reed, Reed & D’Antonio, Guy J. D’Antonio, II, Metairie, for defendant-ap-pellee.
    Before SAMUEL, LEMMON and MORIAL, JJ.
   MO RIAL, Judge.

Plaintiff filed this suit against defendant seeking the forfeiture of a $1,500.00 deposit plus reasonable attorney’s fees, interest and costs. The deposit represented part of the $29,750.00 purchase price for certain real property which defendant had agreed to buy. Defendant filed an answer and re-conventional demand in which he prayed for the return of double the deposit, the return of which he had demanded prior to plaintiff’s filing suit, plus attorney’s fees, interest and costs. After trial the district court dismissed plaintiff’s suit and rendered judgment in favor of defendant-plaintiff in reconvention in the amount of $1,500.00 plus interest, costs and attorney’s fees of $300.00.

Plaintiff asserts in this appeal that: (1) Defendant-plaintiff in reconvention breached the agreement to purchase because a single application to one homestead for a loan is not a good faith effort, under the law, to obtain the financing as stipulated in the agreement to purchase; and (2) when the court determined that both purchaser and seller were in good faith, the award of attorney’s fees in favor of the purchaser, defendant-plaintiff in reconvention was improper.

The agreement of sale was entered into on June 25, 1973 on the Real Estate Board of New Orleans, Inc., Standard Form Agreement to Purchase or Sell. Included in the agreement were the following sus-pensive conditions:

“9. A. Of the six thousand dollars cash the vendor agrees to carry a second mortgage in the amount of $3,000.00 for one year with eleven equal payments of $23.16 (as if the loan was 8% for 25 years) with the entire principal balance due no later than one year from date of act of sale. The balance of $23,750.00 to be financed by a Homestead Loan based on 80% of CAB. However, in the event the CAB appraisal is less than $29,687.50 vendor agrees to carry a second mortgage in excess of the $3,000.00 stated above in an additional amount equal to the amount that the Homestead Loan is less than $23,750.00, on the same terms and conditions as the $3,000.00; eleven equal payments as if the loan was at 8% interest for 25 years ($7.72 per month per $1,000.00) with the entire principal balance due no later than one year from date of act of sale. The second mortgage will have no penalty for prepayment and will be assumable upon written permission of the holder of said note, permission not to be unreasonably withheld.
* * * * * *
“Should purchaser, seller or agent be unable to obtain the loan stipulated above within 30 days from acceptance hereof, this contract shall be null and void and the agent is hereby authorized to return the purchaser’s deposit in full. * * * ”

Did defendant’s failure to contemporaneously apply for a loan from more than one homestead within the thirty (30) day period evidence a lack of good faith ? We think not.

Plaintiff cites Brewster v. Yockey, 153 So.2d 489 (La.App. 4 Cir.1963) to support this argument that defendant’s single application lacks the requisite good faith required under the law. In Brewster, supra, the purchaser’s single verbal application to one homestead was held not to be a bona fide attempt to secure financing. The record there- clearly showed that another homestead was apparently ready, willing and able to make a loan if the purchaser had made a written application to it. Brewster is inapposite to the facts of the case at bar.

The evidence is that on June 25, 1973 defendant applied to Dixie Homestead Association in New Orleans for a loan of '$23,800.00 at 8J4 percent plus a one percent origination fee. He applied to no other homestead. Dixie ordered an appraisal of the property by the Central Appraisal Bureau (CAB) on June 29, 1973. The CAB’s appraisement in the amount of $20,500.00 was received by Dixie on July 18, 1973. About this date a representative of Dixie informed defendant via telephone of the CAB appraisal. Defendant then told plaintiff of the CAB valuation. Dixie’s loan committee met on July 24, 1973 and rejected defendant’s loan application “ * * * due to the condition of the property * * Defendant was so notified of the reason for Dixie’s declination to make a loan via letter dated August 1, 1973.

Plaintiff testified that several attempts were made to contact defendant via telephone after defendant notified him of the appraisal. He stated that the purpose of his efforts to reach the defendant was because “ * * * we could obtain a loan, * * On the evening of the thirtieth day, plaintiff delivered to defendant’s residence a letter which in pertinent part stated, “ * * * that the vendor is prepared to finance this sum, $26,750.00 on the terms and conditions * * * namely, $206.46 per month for eleven equal monthly payments beginning one month from the date of the act of sale, including principal and interest, with the entire remaining principal balance due not later than one year from the date of the act of [s]Sale. * * * ”

The suspensive condition imposed an inescapable duty upon the defendant to make a good faith application for the type of loan described. Morrison v. Mioton, 163 La. 1065, 113 So. 456 (1927); Williams v. Cormier, 100 So.2d 307 (La.App. 1 Cir.1958). Defendant did exactly what the law requires of him. He promptly made a bona fide application to Dixie Homestead for the type of loan described in the agreement. He had no obligation to apply elsewhere while his application for the type of loan stipulated was pending.

Though defendant was timely informed of a CAB appraisal that would not permit a homestead to loan the amount for which he had applied, nevertheless, the appraisal would have allowed a loan in an amount less than that applied for and accordingly would have fulfilled the suspensive condition. Defendant’s loan, however, was not declined because the appraisement was insufficient to make a loan. Defendant simply was unable to procure a loan within the thirty (30) day period from the homestead to which he had made a good faith application.

True, plaintiff testified that “we could obtain a loan.” Although plaintiff had procured the same CAB appraisement from another homestead, the record fails to show from which homestead plaintiff could have timely obtained a loan for the defendant. Defendant was not obligated to accept a loan from the plaintiff on terms and conditions inconsistent with usual and customary terms to be found in a “homestead loan.” The terms of the loan offered by plaintiff were not of the type of loan which was within contemplation of the parties when the agreement was made. Antonini v. Thrifty Nifty Homes, 76 So.2d 564 (La.App.Orl.1955).

The provision of the agreement pertaining to attorney’s fees provides:

“Either party hereto who fails, for any reason whatsoever, to comply with the terms of this offer, if accepted, is obligated and agrees to pay * * * reasonable attorney’s fees and costs incurred by the other party * * * in enforcing their respective rights.”

Upon defendant’s failure to obtain the loan stipulated within the time period allowed, the agreement by its terms became null and void. Thereupon defendant had a right to the return of his deposit. Plaintiff’s refusal to return defendant’s deposit was a failure to comply with the plain and clear terms of the agreement for which he must pay reasonable attorney’s fees.

For the foregoing reasons the judgment of the district court is affirmed.

Affirmed.

      . The various homesteads operating in New Orleans do not maintain separate real estate committees of appraisers. Appraisal made by the Central Appraisal Bureau are made use of by all homestead associations. A homestead association will customarily loan as much as 80% of the amount of the appraisal.


source: Caselaw Access Project

author: LEMMON, Judge.

license: Public Domain

text:
    Donald SYKES, Sr. v. Martha L. Square SYKES.
    No. 7053.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.

      Laborde & Brooks, John H. Brooks, New Orleans, for plaintiff-appellant.
    Midió & Lehmann, Rene Lehmann, New Orleans, for defendant-appellee. '
    Before SAMUEL, LEMMON and MORIAL, JJ.
   LEMMON, Judge.

Donald Sykes appealed from a judgment dismissing his suit for separation based on cruel treatment. Mrs. Sykes answered the appeal, complaining of the dismissal of her reconventional demand for separation grounded on abandonment.

Both parties were college graduates. He had worked as an accountant and she as a schoolteacher from the time of their marriage in January, 1969 until their separation in January, 1974.

Sykes attributed their marital problems solely to his wife’s refusal to allow him full control of the family income, which he claimed as a marital right of the head and master of the community. He testified: His income paid all the family expenses, while his wife kept her income and refused to tell him what she did with the funds. This became a constant source of friction which led to many quarrels of considerable intensity. When the quarreling reached a point he could no longer stand, he left.

Mrs. Sykes testified: They opened a joint checking account when first married, but her husband was such a poor manager of finances that they were constantly short of money, despite adequate earnings. She then opened a separate account with her income and made double payments on each bill, so that by the time their baby was born eighteen months after their marriage they were out of debt and had paid off their only major loan (for the purchase of initial household furnishings) in one year instead of two as scheduled. She also purchased clothing for herself and the child and supplemented her husband’s grocery purchases. In June, 1971, when her husband used an income tax refund for an unknown purpose without telling her about it, she wrote a check on their joint account for the same amount and used it to open a joint homestead savings account. Although she gave her husband a signature card for this account, he never mailed it to the homestead. Thereafter, she deposited $200.00 per month into this account (which she admitted was community property), and she also opened an account for their son, against her husband’s wishes. In October, 1973, she asked her husband to “open up his finances” (she claimed he never would disclose the amount of his salary), and she would do the same. She decided to start depositing $600.00 per month (her approximate net salary) into the savings account, with the understanding that her husband’s income would support the entire family. On other points, she denied that they quarreled about money, but admitted difficulties stemming from her husband’s refusal to take her to social activities. Despite this, she loved him and begged him not to leave.

Thus, the parties disagreed as to the cause of their marital discord. Each claimed complete ignorance of the other’s income. He claimed violent quarrels over money, while she denied any quarrels whatsoever. She claimed that upon her request to “open up” their finances, she deposited all of her wages into the savings account with the understanding that his income would be used to support the family, but he claimed ignorance of any such understanding. He claimed he paid all family expenses, while she claimed she paid numerous household bills. In short, each complained of the other’s handling of individual income.

The unreasonable behavior described by Mr. Sykes (that his wife refused use of her income to help pay household bills and that she lost her temper and became violent when he questioned her about this income) would perhaps be sufficient to destroy domestic tranquility and thus constitute cruel treatment of such a nature as to render living together insupportable. Nevertheless, we cannot say his unsupported testimony was accepted by the trial judge, since his wife denied such behavior and the judgment dismissed his suit.

On the other hand, we cannot say that Mrs. Sykes proved the elements necessary for abandonment. The record, while showing that considerable friction existed in the Sykes’ household, did not establish whose fault was the cause of the friction, without a credibility evaluation of the conflicting testimony.

Mrs. Sykes, nevertheless, contends her husband must be adjudged guilty of abandonment since he failed in his demand for separation based on cruel treatment. We disagree.

“Lawful cause” necessary to justify a spouse’s leaving the matrimonial domicile is not the equivalent of lawful grounds for a separation from bed and board under C.C. art. 138. When spouses are incompatible and come to this realization after sufficient reflection and reasonable attempts to resolve their differences, the law does not require them to continue living together until one or the other finally gathers sufficient evidence to prove one of the grounds listed in C.C. art. 138. If neither spouse has grounds for legal separation, they can agree to live separately until the passage of time required for obtaining a separation on the grounds of living apart, and the party leaving the matrimonial domicile is not automatically guilty of abandoning the spouse who remains.

Furthermore, this agreement to live separately may be express or may be implied from the action of the parties. A wife, for example, cannot implore her husband to continue living together on terms dictated by her and then claim abandonment when he declines to do so except on other terms. Since a successful marriage involves giving and taking, each spouse must do both, and when each declines to give, each will be deemed to have agreed to live separately. In such a case, unless one spouse can prove the other was principally at fault in the original separation and remained unwilling to remedy the fault, neither is entitled to a separation based on fault.

In the present case the record does not establish the fault of either spouse as the principal cause of the initial separation. Mr. and Mrs. Sykes could not agree on family finances, and this failure to agree carried over into other disagreements. Nevertheless, we do not regard financial disagreements any differently than disagreements as to how to raise children, where to live, when to have marital relations, or any other significant subject upon which two reasonable spouses must reach an agreement to enjoy marital harmony. Here, the spouses did not reach an agreement, and there was no preponderating proof (without a credibility determination) that the unreasonableness of either spouse caused the failure to agree. We can only conclude, at least on this record, that the spouses agreed they could not or would not agree.

The judgment is affirmed.

Affirmed.


author: GULOTTA, Judge.

text:
    Carolyn T. Thomas, wife of/and Harold F. THOMAS v. ALLSTATE INSURANCE COMPANY and Joseph R. Davis.
    No. 7064.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.

      Arnold & Giepert, Melvin J. Giepert, New Orleans, for plaintiffs-appellants.
    Murphy & Simon, E. Kelleher Simon, New Orleans, for defendant-appellee, Allstate Ins. Co.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

Carolyn T. Thomas was injured in an automobile accident while driving her personal automobile on a mission for her employer. A suit filed against the employer’s insurer in which recovery is sought under the uninsured motorists provisions of the employer’s policy was dismissed by the trial court. Plaintiffs appeal.

It is plaintiffs’ contention that her employer’s fleet insurance policy contains liability coverage for employees driving non-owned (not owned by the employer) automobiles on employer’s missions. According to plaintiffs, under LSA-R.S. 22:1406(D) (l), an insurer providing liability coverage has the responsibility of providing uninsured motorists protection unless coverage is rejected.

Defendant, Allstate, contends that liability insurance coverage was provided to the employer and not to the employee. Therefore, defendant argues, it is not responsible for providing the employee with uninsured motorists coverage. Allstate also maintains that plaintiffs do not qualify for uninsured motorists coverage under the terms of the insurance policy for the reason that (1) plaintiffs’ vehicle is not an insured highway vehicle covered under the uninsured motorists provisions of the policy which defines an insured highway vehicle as “any automobile owned by the named insured” and (2) plaintiff is not a person insured under the uninsured motorists coverage which defines such person as the named insured, a designated insured or any other person occupying an insured highway vehicle.

We are unable to consider the contentions raised by the parties. It is necessary to ascertain initially whether the insurance policy provides liability coverage to the employee, or protects the employer against an employee’s negligent act while driving a non-owned vehicle. LSA-R.S. 22:1406(D) (1) requires that uninsured motorists coverage be provided to those persons who are insured under a policy providing for liability insurance. Simply stated: If the policy provides liability insurance for the protection of the employee, then under the statute, uninsured motorists coverage must be provided to the employee. If, on the other hand, the liability coverage under the policy is for the protection of the employer, then under the statute, uninsured motorists coverage must be provided only to the employer.

Plaintiffs’ suit was dismissed on motion for summary judgment. Attached to the motion are copies of a portion of the policy. Unfortunately, the pertinent provisions of the policy which define and designate the individuals covered by liability insurance are not included in the attachment. Because we are unable to ascertain whether the policy provides liability coverage for the employer or the employee, we are unable to determine whether LSA-R.S. 22 .-1406(D) (1) requires uninsured motorists protection for the employer or the employee.

Under the circumstances, it is necessary that we remand this matter to afford the parties an opportunity to introduce the insurance policy in its entirety in order to ascertain to whom liability coverage is afforded.

Accordingly, the judgment maintaining defendant’s motion for summary judgment and dismissing plaintiffs’ suit against Allstate Insurance Company is annulled and set aside. It is now ordered that the matter be remanded to permit the attachment of a copy of the entire insurance policy to defendant’s motion for summary judgment and for any other purpose that the nature of the proceeding may require.

Judgment set aside and remanded.

      . LSA-R.S. 22 :1406(D) (1) reads as follows:
      § 1406. Specific duties of casualty and surety insurance division

      “D. (1) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage or selects lower limits.”


author: STOULIG, Judge.

text:
    Elizabeth P. Moore, wife of/and Paul F. MOORE v. Kenneth GORMIN et al.
    No. 7043.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.

      Deutsch, Kerrigan & Stiles, Bernard Marcus, New Orleans, for plaintiffs-appellants.
    Monroe & Lemann, Richard P. Wolfe, David E. Walker, New Orleans, for defendants-appellees.
    Before STOULIG, BOUTALL and BEER, JJ.
   STOULIG, Judge.

Plaintiffs, Elizabeth P. Moore, wife of/and Paul F. Moore, have appealed a summary judgment that partially rejects her claim against defendants, Kenneth Gor-min, P. Victor Bernard and Morris Wright, trustees of the Bauerlein, Inc. Pension Trust.

After more than 20 years with Bauerlein, Inc., a public relations firm, Mrs. Moore was discharged on August 1, 1973 because of a salary dispute. Immediately after her termination, she applied for her accrued benefits in the Bauerlein, Inc. Pension Trust, a plan in which she participated since its inception in 1962. Under its provisions her interest had fully vested. The method for liquidating her interest is set forth in the plan as follows:

“ARTICLE XI
SEVERANCE OF EMPLOYMENT OF PARTICIPANT
If the employment with the Employer of any participating employee shall be severed, either voluntarily or involuntarily * * * then such participating employee shall be entitled to receive a benefit equal to the greatest of (a) * * * or (b) * * * or (c) the sum of
(i) the cash value of any life insurance or annuity contracts on the life of such participating employee held by the Trustees, plus
(ii) the actuarially calculated value of that portion of the Auxiliary Investment Fund attributable to such participating employee * *

Defendants tendered to Mrs. Moore $13,-344.17 in full settlement of her interest. Of this amount, $3,316.03 was a refund of her contributions to the system and $10,028.14 was computed by the trustees to be the liquidated value of her interest derived from employer contributions to her account with the trust.

Plaintiff claims the employer contribution payout is $5,316.14 less than what is due because (1) the trustees failed to use her actual age in determining her participation and (2) they failed to give her credit for employer contributions made between November 15, 1972 and August 1, 1973, the date of her discharge.

Plaintiff concedes the reason the age discrepancy arises is that she has always represented to Bauerlein that she was five years younger than her actual age. When she was hired in 1952, she gave the year of her birth as 1923, rather than 1918. Ten years later when the pension trust was inaugurated she did nothing to correct the earlier misinformation on her age. In fact she did not admit to her real age until three weeks after her termination.

The effect Mrs. Moore’s misstatement had in enrolling in the pension trust at an age five years younger than actual is that the cost of funding her individual account is less than it would have been had her true age been known. The pension trust utilizes life insurance contracts on the individual participant and an auxiliary investment fund to provide the benefits stipulated. All other things equal, the younger the insured the smaller the premium. This contributory plan is financed by employee contributions at a designated percentage of salary per month and by the employer’s furnishing “ * * * the balance of the funds needed and necessary to finance and administer the retirement plan.” Because Mrs. Moore lied about her age, counsel for plaintiff points out, Bauerlien’s cost to maintain her account with the pension fund was less than if she had stated her true age. Plaintiff would have us conclude the employer actually benefited from a harmless misstatement in that it retained the use of the funds it should have paid into the pension trust for many more years.

The trustees raised the affirmative defense of fraud to this claim and pointed out error created by fraud can vitiate the underlying obligation or contract. We do not construe Mrs. Moore’s misstatement as a fraud because it is apparent from the undisputed facts she had no intent to gain some unjust advantage against either her employer or the pension trust by taking five years from her age. In fact she went on record with a 1923 birthdate long before the company even thought of a - pension plan.

Appellant contends a misrepresentation by the employee does not in itself deprive participation in a pension plan based on actual fact. Robinson v. Standard Oil Co. of Louisiana is cited to support this proposition. In that case a widow was allowed to recover gratuitous death benefits that accrued under a company policy when her husband died. To qualify she had to prove she had been living with him at the time of death or was at least dependent upon him for 20 percent of her support. One month prior to his death the husband apparently signed a statement in which he said he was not living with his wife. While this was admissible as evidence to support the company’s contention of ineligibility, the court held the statement in itself did not support a denial of the widow’s claim under this policy in the absence of a written statement by the insured expressing an intent to exclude his wife.

The facts are not analogous to this case. In Robinson, the death benefit was a gratuity. In this case the pension trust was a contributory system under which the employer’s liability was to be determined in part by information furnished by the employee. The trustees were charged with administering a payment plan that utilized life insurance as a means of furnishing benefits. While it is true the employer contribution for Mrs. Moore was less under the misrepresented facts than it would have been had her real age been used, we think it would be a breach of trust for those charged with administering the plan to pay out funds it failed to collect because of Mrs. Moore’s deception. Plaintiff suggests the difference could be recouped from Bauerlein (not a party to this suit), because the employer should have paid it originally. We cannot at this late date burden an employer with furnishing a lump sum contribution to rectify a mistake originating with the employee. We conclude plaintiff’s rights at severance must be based on her representations as to age when she elected to participate in the trust.

Plaintiff’s second complaint is that the trustees failed to tender the vested interest she had in employer contributions due to the trust for the period beginning November 15, 1972 (date of employer’s annual supplementary contribution) and ending August 1, 1973 (date of termination of employment). The trustees take the position that the employer remits payment to the trust on an annual basis, when the premiums for life insurance become due on the anniversary date of the plan, or November 15. It is pointed out the employer’s obligation is to furnish the deficit between the cost of funding and the employees’ contributions; however, its annual remittance to the trustees is an advance payment of the amount actuarily projected to be the cost of financing the pension in the coming year. Bauerlein’s remittance in November 1972 constituted its projected liability through November 1973. Her vested right to employer contributions was calculated to her termination date, according to Paragraph 5 of the trustees’ affidavit filed in support of their motion for summary judgment. We quote:

“On the most recent anniversary date of the Plan, November 15, 1973, the twelve participants in the Plan (two of whom have since left the Plan) had the following interests in the Auxiliary Fund:
NOVEMBER 15, 1973
jjí % ‡ ‡ >fc jfi
Participant ‘H’ 10,407.42 1
i}C :}£ ‡ ‡ ‡ Sfc
“[N] 1 Participant ‘H’ is Elizabeth P. Moore. Both Ms. Moore and Participant ‘K’ were terminated prior to November 15, 1973. They therefore had their Fund valuation made as of the date of their respective employment terminations.”

The employee contributions withheld from plaintiff’s salary between November 1972 and her date of termination would have been applied to her 1973-74 liability to the plan had she not left Bauerlein. Thus the trustees were only responsible for refunding what had been deducted from her salary and tendering $10,407.42 as her vested interest in the plan.

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

Affirmed.

      . C.C. arts. 1832, 1847.

      . 180 So. 237 (La.App.1st Cir. 1938).


text:
    August ALOMBRO and Patricia Cresap v. Donna THOMAS and Preferred Risk Mutual Insurance Company.
    No. 7032.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.

      Birdsall, Alvarez & Rodriguez, Leonard L. Benedetto, Jr., New Orleans, for plaintiffs-appellants.
    Adams & Reese, Lloyd W. Hayes, New Orleans, for defendants-appellees.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

We are confronted with a quantum question. Plaintiffs complain of the inadequacy of a jury award in favor of August Alombro in the sum of $600.00 and Patricia Cresap in the sum of $400 for injuries sustained in an automobile ac.cident. We affirm.

When the accident occurred on March 24, 1973, Patricia Cresap was a front seat guest passenger in an automobile driven by Alombro. As in most appeals on quantum, plaintiffs depict the injuries as severe, while defendant portrays the injuries as minimal.

According to Alombro, after the accident, he experienced headaches and pain in the lower spine and neck. Referral was made by plaintiff’s attorney to Dr. Florence Jones. Between March 30, 1973 and July 16, 1973, Alombro visited the office of Dr. Jones on six occasions for physiotherapy and on seven occasions for examination and x-ray. According to Dr. Jones, plaintiff suffered a mild lumbrosacral strain and pain medication, muscle relaxants and deep heat therapy were prescribed. Alom-bro’s medical bill amounted to $280.00.

Because of continued complaints of pain in the lower back, plaintiff was referred to Dr. Gernon Brown, Jr., an orthopedist. However, his findings were negative.

Alombro testified that standing for an extended length of time causes back pain which worsens in the evening. However, other than the occasional visits to the doctor, he suffered no loss of work from the injury.

Patricia Cresap sustained injury to her head and to the side of her face. Immediately after the accident, this plaintiff was taken to Sara Mayo Hospital where she remained for approximately one-half hour. Medication for pain was prescribed and the use of a heating pad on the neck was recommended.

Miss Cresap also was referred by her attorney to Dr. Florence Jones. An examination on April 16, 1973, revealed cervical strain and headaches secondary to a contusion sustained in the accident. Dr. Jones also found some muscle spasm at the base of the neck. However, the doctor stated that the cervical strain suffered by Miss Cresap was similar to the lumbar injury sustained by Alombro. Medication for pain and muscle relaxants were prescribed, physiotherapy was administered, hot baths and use of a heating pad were recommended.

Between the initial visit on March 30 and the final visit on June 28, 1973, plaintiff Cresap was seen by Dr. Jones on 16 occasions. On 11 of these visits, physiotherapy was administered; the remaining visits were for examination and x-ray. Her bill for medical services rendered by Dr. Jones totalled $285.00.

According to Miss Cresap, she suffers headaches three or four times a week and neck pain every day. She complained that engaging in strenuous work increases her neck pain. Other than visits to the doctor, plaintiff suffered no loss of work and suffered no loss of pay.

Plaintiffs’ injuries, in the instant case, are similar to those sustained by plaintiff in Bitoun v. Landry, 302 So.2d 278 (La.1974), cited by defendant. In Bitoun, the court stated:

“On August 10, 1971 plaintiff’s car was hit from the rear by defendant. The next day he was referred to Dr. Florence Jones by his lawyer. After examination and x-rays Dr. Jones made a diagnosis of moderately severe cervical strain and moderate lumbar strain. Medication for pain and heat lamp therapy were prescribed. The doctor saw plaintiff on four occasions, the last on October 8 when plaintiff was discharged with no complaints from neck or back. From August 10 through October 1 plaintiff underwent twenty heat lamp treatments of twenty minutes each.”

The court further indicated that:

“We can agree with the plaintiff that an injury which requires four visits to the doctor and twenty therapeutic treatments might justify an award much greater than $500.00 for the inconvenience and the interruption of a normal life, to say nothing of the pain and discomfort from the injury. Nevertheless, there are legitimate inferences which the trial judge might have drawn from the evidence which would fully support his finding that the personal injuries suffered by this plaintiff were so slight that he would be fully compensated by an award of $500.00, in spite of his twenty trips to sit under the heat lamp.”

The Bitoun court reasserted that unless the record clearly demonstrates an abuse of discretion, the appellate court should not disturb the award. Although we may be of the opinion that a greater award might be more appropriate than one made by a trial judge or jury, nevertheless, if that award is reasonably supported by the evidence, the award is not to be disturbed. See also Fox v. State Farm Mutual Automobile Insurance Co., 288 So.2d 42 (La.1973).

In the instant case, we are unable to ascertain with any degree of certainty, what inferences the jury might have drawn in arriving at the amount of the awards. The jury may well have been impressed by the fact that the damage to plaintiff’s vehicle, in the sum of $197.58, was light and that no severe injury was likely to result from such a slight impact. Likewise, they may have been impressed by the fact that both plaintiffs went to the same doctor, at the same time, upon recommendation and referral by their attorney. The jury may have considered the fact that plaintiffs did not require hospitalization. Perhaps the jury concluded that plaintiffs were magnifying minimal injuries.

It is clear that whatever inferences were drawn resulted in the jury’s disbelieving that the injuries were as severe as claimed by plaintiffs. In any event, we cannot say the jury erred.

Accordingly, we affirm the judgment of the trial court.

Affirmed.


author: MORIAL, Judge.

text:
    Wayne A. MOLINARY v. ADVANCE PAPER COMPANY and the Hertz Corporation.
    No. 7037.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.

      Law Office of Young & Mars, Theodore A. Mars, Jr., New Orleans, for plaintiff-appellee.
    Law Office of Emile L. Turner, Jr., David M. Packard, New Orleans, for defendant-appellant.
    Before SAMUEL, LEMMON and MORIAL, JJ.
   MORIAL, Judge.

This is a suit for damages sustained by plaintiff, Wayne Molinary, when his two day old automobile was damaged by a truck allegedly operated by defendant, Advance Paper Company.

On June 14, 1974 plaintiff parked his 1974 Datsun on Iberville Street behind a truck. When he returned approximately ten minutes later, he observed that the front of the car had been damaged. Upon inquiry in the area, Edna May Howard informed plaintiff that she had witnessed the accident. She stated she heard a noise, looked up and saw a blue truck with “Advance” written on it pulling away and said to herself “Oh he must have hit a car.”

Based only upon these facts, plaintiff filed this suit. Damages were stipulated to be in the amount of $88.61 and judgment in that sum was awarded. Defendant appeals contending that the trial court erred in holding that plaintiff had sustained his burden of proof by a preponderance of the evidence. We agree.

Upon our meticulous review, we find the record devoid of any evidence tending to show that a vehicle operated by defendant was the cause of the accident. The only witness, Edna May Howard, identified the offending vehicle as being “blue” with “black” lettering and saw only the word “Advance” printed thereon. The unrefuted testimony of Mr. Fred Barbier, Secretary-Treasurer, General Manager of Advance Paper Company, established that defendant operated no blue trucks at the time of the accident. Mr. Barbier further testified (again unrefuted) that plaintiff visited the Advance Paper Company’s garage where he viewed and examined all of its trucks. At that time he was asked the color of the truck that hit his car. He said it was green. He then changed his story and stated the truck was silver and then said it might have been white. According to Bar-bier, plaintiff then stated, “Don’t see how it could have been any of these trucks that could have caused the accident.” This statement was not denied by plaintiff on cross-examination.

Plaintiff’s testimony is that he paid no attention to the truck he parked behind except to note the distance between it and his car.

The trial court ruled in favor of plaintiff and stated, “ * * * the court is of the opinion that the truck was identified by the plaintiff as being in front of his car when he parked on Iberville Street and it was proven by one witness that she saw this truck back into the car. * * * ” This conclusion is totally unsupported by the evidence and is, therefore, manifestly erroneous. As stated in Thibodeaux v. St. Joseph Hospital, 276 So.2d 703, 707 (La.App. 1 Cir. 1973), “ * * * Proof which establishes only possibility, speculation or unsupported probability does not suffice to establish a plaintiff’s claim. * * * ”

Accordingly, the judgment of the trial court is reversed. Plaintiff is to pay all costs.

Reversed.


author: BARNETTE, Judge.

text:
    Clarence WILLIS v. The STATE of Louisiana ex rel. the LOUISIANA DEPARTMENT OF HIGHWAYS et al.
    No. 10434.
    Court of Appeal of Louisiana, First Circuit.
    Aug. 5, 1975.
    Rehearing Denied Nov. 24, 1975.
    William J. Doran, Jr., and Robert J. Jones, Asst. Counsel, Highway Dept., Baton Rouge, for defendant-appellant-appel-lee.
    W. Paul Hawley, Lafayette, for plaintiffs-appellees-appellants.
    Before SARTAIN, ELLIS and BAR-NETTE, JJ.
   BARNETTE, Judge.

Plaintiff, Clarence Willis is seeking to have an appeal of the Department of Highways dismissed as abandoned. Judgment was rendered in the trial court February 13, 1974, in favor of Willis and against the Department of Highways for some $15,000. The defendant, the Department of Highways, filed motion for and was granted, a suspensive appeal. The order was signed February 28, 1974. Plaintiff also filed a motion for suspensive appeal which was granted March 19, 1974, and made returnable on May 17, 1974.

Subsequently, the Clerk of the district court, stating he was unable to complete the record, filed, ex parte, six successive motions for extensions of the return date. The original return date was April 26, 1974 and the last order of extension was to May 20, 1975, a total of 389 days. The record was lodged in this Court on May 20.

Plaintiff now seeks a dismissal for abandonment alleging that neither party “ . . . filed any pleadings or made any appearances seeking any extension of the return date or any other relief or action since plaintiff’s motion was granted on March 19, 1974.

The plaintiff contends that the above constitutes a failure of the parties to take any step in “prosecution or disposition” for over one year, and that for this reason the appeal should be considered abandoned under the provisions of LSA-C.C.P. arts. 561 and 2165 and Rule VII of the Uniform Rules of the Courts of Appeal.

LSA-C.C.P. 2165 provides the following:

“An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court, not to be less than one year.”

The part of article 561 pertaining to appeals reads exactly the same.

Rule VII, section 5 of the Uniform Rules of the Courts of Appeal provides that:

“The court may, ex proprio motu:
“(a) Consider as abandoned .and dismiss any appeal now or hereafter pending in which one year has elapsed without any steps having been taken in prosecution thereof, in accordance with the provisions of Articles 561 and 2165

The defendant cites C.C.P. art. 2127 and R.S. 13:4445 as applicable. The pertinent parts read as follows:

R.S. 13:4445
« * * *
“B. . . . When the appellant has paid the fees required . . . timely, the failure of the clerk of the trial court to transmit the record, or to pay the fees due the appellate court clerk timely, is not imputable to the appellant.” and
C.C.P. art. 2127
“The clerk of the trial court shall have the duty of the preparing the record on appeal. * * * Failure of the clerk to prepare and lodge the record on appeal either timely or correctly shall not prejudice the appeal.”

Several cases have been cited by the defendant standing for the proposition that where the clerk fails to file the transcript on or before the return date, the appeal would not be dismissed in the absence of a showing that failure to timely lodge was due to any fault of appellant. This seems to be a correct statement of the law. However, the above contemplates a situation where the return date is past and for some reason the record was not lodged. Such was not the case here. In the instant case all the extensions were current and up to date when filed and granted and thus the lodging was timely, even though more than a year had elapsed. The clerk of court did everything required of him by the Code of Civil Procedure.

In a somewhat similar case, Louisiana Power and Light v. Lasseigne, 211 So.2d 136 (La.App. 4th Cir. 1968), writ refused, judgment not final, 252 La. 480, 211 So.2d 335 (1968), on the merits 255 La. 579, 232 So.2d 278 (1970), some pointed language by Justice Barham lends support to this holding:

“No action was taken by any party to the suit or any officer of a court from December 1, 1964, to February 20, 1968, when a motion for a rule to show cause why the record should not be lodged with the Court of Appeal was filed by the defendants-appellants.” 232 So.2d at p. 280. (Emphasis added)

In Lasseigne, the motion to dismiss was finally granted by the Supreme Court on the merits. It was found that some of the later extensions, all of which were sought by the clerk, were filed after expiration of the last current extended return date, and that any action of the trial court thereafter upon such applications for an extension filed after the last extended return date is without legal effect. However, the Court went on to say that appeals are favored and that a motion to dismiss shall be granted only if the irregularity, error, or defect is imputable to the appellant. Such was found to be the case. The failure of the clerk to timely lodge the record was imputable to the defendants-appellants in that they failed to supply certain exhibits and pay costs, and under such circumstances, it is not incumbent upon the clerk to seek extended return dates.

In the instant case, all the extensions were timely filed by the clerk of the trial court. Nowhere in the record before us is there any indication that the delays were sought because of any action or inaction on the part of any of the parties. The record was timely lodged before expiration of the last extended return date.

For us to hold otherwise and allow dismissal would place an affirmative duty in such circumstances on the party wishing to sustain the appeal to mandamus the clerk in order to meet the codal requirements and interrupt the running of the one year. This would be a useless requirement solely for the sake of formality, for the clerk would, upon mandamus, always be able to show cause why he could not lodge the record since, presumably, he had had “good cause” for obtaining an extension of the return date.

Motion denied.


author: PICKETT, Judge:

text:
    Clarence WILLIS v. The STATE of Louisiana ex rel. the LOUISIANA DEPARTMENT OF HIGHWAYS et al.
    No. 10434.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Refused Jan. 16, 1976.

      William Doran, Baton Rouge, for Highway Dept.
    W. Paul Hawley, Lafayette, for Willis.
    Before SARTAIN, ELLIS and PICKETT, JJ.
   PICKETT, Judge:

This is a suit for personal injuries and damages arising out of an accident that occurred on April 26, 1965, in the Town of Baldwin, St. Mary Parish, at the intersection of U. S. Highway 90 and Rosebud Street. Plaintiff alleges that he was walking on the shoulder of U. S. Highway 90, with the aid of crutches, when one of his crutches plunged through an opening in a drainage grate, causing him to fall and break his right leg. Plaintiff alleges that his accident and the resulting injuries and damages were caused by the negligence of the Louisiana Department of Highways in the design, installation and maintenance of the drainage grate and the right of way area in which it was located.

The Plaintiff’s ■ original suit was against the State of Louisiana, ex rel The Department of Highways, and others. The actions involving all of the defendants except the Department of Highways were settled prior to the trial of this case.

From a judgment in favor of Plaintiff, the Department of Highways appeals. Plaintiff answered the appeal and prayed for an increase in the $15,000.00 award granted by the lower court.

The evidence establishes that the accident complained of occurred at the point referred to in the first paragraph hereof, and that at this point U. S. Highway 90 runs in a generally east-west direction through the Town of Baldwin. Rosebud Street intersects the south side of U. S. 90, and extends in a southeasterly direction therefrom. The drainage grate complained of is situated at the intersection of U. S. Highway 90 and Rosebud Street in the south shoulder of said Highway.

Immediately prior to the occurrence of the accident the Plaintiff, Clarence Willis, with the aid of crutches, had just crossed from the north side of U. S. Highway 90 to the south side of said Highway, and onto the south shoulder. He was in the process of crossing the shoulder of the road, intending to get onto a sidewalk that paralleled the Highway, when the tip of one of his crutches went into the above referred to drainage grate, which was located in the shoulder of the road, causing Mr. Willis to lose his balance and fall. He sustained a broken leg in the fall.

The Plaintiff alleges that the Department was negligent in a number of respects, each of which was treated separately in a well-written, well-reasoned opinion of the Trial Judge.

The evidence establishes that the drainage grate in question was installed in late 1963, in connection with the performance of State Project No. 713-13-89, which was a State Highway Department project to widen and improve the highway and related work to the State-owned right-of-way of the highway, in an area that included the Town of Baldwin.

The overall dimensions of the drainage grate were 2 feet 4inches by 3 feet 4 inches. The metal grid consisted of 70 openings, each 2%th inches square, divided by bars, or “dividers”, l^th inches in width. The metal grid was 4% inches in depth. The grate was of cast iron in a steel frame, with a total weight of 652 pounds. There was no evidence of faulty design, construction or installation. On the contrary, the drainage grate was a standard grate, used regularly by the Highway Department, and this particular grate was installed in accordance with the plans of the project. The top of the grate was below the level of the surrounding ground.

In the succinct language of the opinion of the Trial Judge: “Correct engineering and construction procedures were followed in regard to the design and the installation; hence, the Department was not negligent in these respects.” We concur in these findings.

This brings us to a consideration of the evidence as it relates to the contention of the Plaintiff that the Department was negligent in the maintenance and upkeep of the drainage grate and the shoulder of the right of way surrounding it.

Responsibilities of the Department of Highways are established by Legislative Acts.

The Department of Highways was created by Legislative Act (LSA-R.S. 48:11) pursuant to authority contained in Art. 6, Sec. 19.2 of the Louisiana Constitution of 1921, as amended.

The Legislature, by additional legislative acts, established the functions and duties of the Department of Highways. LSA-R.S. 48:21. These functions included the authority and responsibility to construct, improve, maintain, repair, and regulate the state highway system.

LSA-R.S. 48:1(11) defines a “highway” as follows:

“ ‘Highway’ means a public way for vehicular, mounted, and pedestrian traffic, including the entire area dedicated thereto and the bridges, culverts, structures, appurtenances, and features necessary to or associated with its purpose.”

LSA-R.S. 48:1(13) defines “maintenance” as follows:

“ ‘Maintenance’ is the operation, activity, and continuing process of repairing and preserving an existing highway or any part thereof to keep it at or near its original level or standard of usefulness.”

Highway La.-U.S. 90 is, and was, at all pertinent times, a part of the State Highway system. LSA-R.S. 48:191.

From the foregoing it is quite clear that the maintenance of the highway and shoulders thereof, in question here, is, and was, at all pertinent times, the sole responsibility of the Louisiana Department of Highways.

That the “shoulders” are included in this responsibility is reaffirmed in the recent case of Hopkins v. State of Louisiana, ex rel. Department of Highways, La.App., 167 So.2d 441, in which it was held:

“In addition, it has been held that the ‘shoulders’ of a highway are part of the state highway system thereby imposing upon the Department of Highways the duty and obligation of maintaining the shoulders of all roads and highways in the state system. Glover v. Town of Ponchatoula, La.App., 17 So.2d 44. We readily concur in this holding in view of the provisions of LSA-R.S. 48:1(11), LSA-R.S. 48:1(13) and LSA-R.S. 48:21.”

The drainage grate unquestionably constituted a part of the highway shoulder and drainage system.

The Department itself recognized these responsibilities, and incorporated them in a Maintenance Manual, which it published and used, copy of which was introduced in evidence.

At Chapter 7, Sec. 7.01, the Manual provides :

“Shoulders of hard surfaced roads require year-round maintenance to safely serve vehicular and pedestrian traffic as well as to provide good drainage of the roadway surface.”

The evidence established that the Department conducted an inspection when the project was completed in March of 1964, and that subsequent thereto, up to and including April 26, 1965, it neither inspected nor maintained the area under consideration in this lawsuit. The evidence is conclusive that during this period of time—in excess of one year—dirt, mud, rock, shell, and other debris, which apparently included fragments of sugar cane stalks, washed in, around and over the drainage grate, and built up on top of it to such an extent that it was completely covered, and looked like a part of the shoulder of the road.

The testimony of several witnesses, which the Trial Judge accepted as reliable witnesses, established that this condition had existed for a considerable period of time prior to the Plaintiff’s accident.

This drainage grate, its top covered by a thin crust of soil, etc., had thus become a trap for any shoe heel, cane or crutch measuring less than 2%ths inches in diameter that might be placed upon it.

Allowing such a condition to come into existence, and remain, was in direct violation of a duty of the Department of Highways, particularly as enunciated by Chapter 7, Sec. 7.01 of the Maintenance Manual, cited supra. This particular provision clearly recognizes the obligation of the Department to maintain the shoulders of the road for the safe use of pedestrians as well as vehicular traffic.

Accordingly, the failure of the Highway Department to maintain the drainage grate, which constituted an integral part of the shoulder, and drainage system, constituted negligence.

The responsibility of the Department to regularly inspect and maintain both the public highway and the shoulder has been consistently recognized by the jurisprudence of this State. Hopkins v. State Department of Highways (1st Cir.), cited supra; Hale v. Aetna Casualty and Surety Co., 273 So.2d 860 (La.App. 2nd Cir.); Petree v. Crowe et al., 272 So.2d 399 (La.App. 2nd Cir.) ; McCullin v. State Department of Highways, 216 So.2d 832 (La.App. 2nd Cir.); Hogg v. State Department of Highways, 80 So.2d 182 (La.App. 2nd Cir.); and many others.

Clearly, the Department had an obligation imposed upon it by law, to inspect and maintain the drainage grate, the shoulder of which it was a part, and the area of the right of way surrounding it. The factual evidence established that the Department failed to perform these duties and obligations, and was, therefore, negligent.

In its answer the Department has urged that the sole and proximate cause of the accident sued upon, or, alternatively, the contributing cause of the accident, was the negligence of the Plaintiff, Clarence Willis, in the following respects :

“1. In failing to properly observe his path of progress in order to avoid a foreseeable danger.
2. In failing to properly traverse the course of travel available to him at the alleged place of the accident and/or failing to select a more prudent course of travel.
3. In failing to exercise due care and caution when going upon a potentially dangerous condition for one walking on crutches, when he knew or should have known of the risk.”

It has already been established that the existence of the drainage grate was obscured from view, and that it constituted a hazardous condition — a trap, as it were— for those who were in the same category with Plaintiff. The evidence was uncon-tradicted that Plaintiff was unaware of the existence of the grate at this point. In addition to the general duty of the Department to maintain the shoulders of the road safe for pedestrians, the evidence establishes that Plaintiff was crossing the road at a point used daily by many persons, in crossing from a point north to south, to reach the sidewalk, and, conversely, when going in the other direction. This crossing was located directly across the road from the Baldwin Elementary School. It was near a row of private dwellings, and, across on the east side of Rosebud Street there was a place of business. The Post Office and Town Hall were also nearby. Undoubtedly many persons crossed at or near this point, daily, on foot. Exhibits P-2B through P-2F.

This Court finds that the Department knew, or should have known, that many pedestrians would cross the right of way in the area of the grate by virtue of its location in the heart of the Town of Baldwin. It is also reasonable to anticipate — and the Department should have anticipated — that some of the pedestrians would be wearing shoes with heels of a lesser diameter than the openings in the grate, or that some persons would be compelled to walk with the aid of crutches or canes.

The Department urges that the “ordinarily reasonable and prudent man” rule should not apply in this instance. The Department urges that Plaintiff, ambulating on crutches, was burdened with a greater duty of care than the “ordinary reasonable and prudent” man would have been. The Department postulates that rules and laws of society are made for the mass of society and the afflicted' — -like Plaintiff — being unlike the masses, must adjust to their affliction, rather than society as a whole adjusting to the afflicted.

The concrete application of this interesting concept, or bit of philosophy, to the facts of the instant case, is not pursued by the Department; neither are we favored with any supporting jurisprudence.

This Court finds, as did the Trial Court, that Plaintiff was crossing the highway and shoulder at a point where he was legally entitled to. He was not taking a “short cut.” He had a right to assume that the shoulder was safe to travel on and was only obliged to see that which was obvious. Carter v. State Fire and Casualty Co., 209 So.2d 510 (La.App. 2nd Cir.); Bustament v. City of New Orleans, 175 So.2d 404 (La.App. 4th Cir.).

This Court also finds that, since Plaintiff was unaware of the existence of the drainage grate, and it was obscured from his view, he was in fact exercising all of the care and attention that was apparently needed for his own safety up to and including the occurrence of the accident.

The Court finds no contributory negligence on the part of the plaintiff.

On the contrary, the Court finds that the sole, proximate cause of the accident and the resulting personal injury and damages to Plaintiff was the negligence of the Department of Highways in failing to maintain the shoulder and drainage grate in a safe condition for pedestrian travel.

There is no evidence of negligence, or liability, on the part of any party other than the Department.

Plaintiff answered the appeal taken by the Department, and prayed for an increase in the amount of the award granted by the District Court from $15,000.00 to $35,000.00.

Mr. Clarence Willis was 46 years of age at the time of the accident. His next birthday was due in two months.

At the time of his accident Mr. Willis was recovering from injuries sustained in a previous accident, which had occurred on December 9, 1964, which injuries consisted primarily of a fractured right tibia and fibula, a fracture dislocation of the right ankle, and severe laceration of a hand. According to the medical evidence he was progressing well and complete recovery was anticipated.

The injuries sustained in the accident that forms the basis of this suit consisted of a new fracture of the right leg, at a point below the knee. Plaintiff was taken to Lafayette Charity Hospital where surgery was performed. A Lottes Nail was inserted, with a bone graft being taken from his left hip. He was hospitalized for approximately three months and thereafter he was treated as an out-patient, with the exception of a four-day period when he was re-admitted for the removal of the nail.

Even though Mr. Willis suffered severe pain, the medical evidence fails to definitely establish any degree of permanent disability as a result of the accident of April 26, 1965. The evidence establishes that his normal activities had been limited, and he had performed only occasional work between the time of the accident and the trial some four years later. The record fails to support Plaintiffs claim for lost income. The Plaintiff suffered severe pain for an extended period of time.

For these injuries the lower court awarded Plaintiff $15,000.00, and in our opinion such an award does not amount to an abuse of the Trial Judge’s discretion.

For the reasons assigned the judgment appealed from is affirmed.

Affirmed.


author: REDMANN, Judge.

text:
    Roland Joseph LEFORT v. MEIBAUM BROS., INC. and the Continental Insurance Company.
    No. 7063.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.

      John G. Derussy, Russell & Derussy, New Orleans, for plaintiff-appellant.
    Louis M. Kiefer, Jr., New Orleans, Ronald L. Ronzello, Metairie, for defendants-appellees.
    Before REDMANN, GULOTTA and SCHOTT, JJ.
   REDMANN, Judge.

Plaintiff appeals from the dismissal on the merits of his workmen’s compensation claim. We remand to allow further evidence.

Plaintiff was a rural milk route salesman. His employment took him in a truck from his home to a nearby milk-storage depot, thence along a highway delivering milk to his customers, and then back home, where he kept the truck.

On the day of plaintiff’s accident, he had already returned to his home, either because he had finished his route or because (as he testified at trial) he needed extra milk from the storage depot in order to finish his route. He then left his home in the truck again, stopped at the gasoline station of a friend (who also irregularly bought milk from plaintiff) and then went to pick up several cases of soft drinks for the friend. After getting the soft drinks (and delivering the extra milk?), plaintiff was returning to the gasoline station, along the same route as that of his usual return home from his milk deliveries. While on that return route plaintiff had an accident.

Plaintiff argues that the trial court incorrectly rejected his testimony that he was returning from delivering the extra milk (as well as from getting soft drinks). Plaintiff contends that the court improperly admitted into evidence a voice recording of his earlier statement that he had finished work before going to the gasoline station.

Prior inconsistent statements are generally admissible. We reject plaintiff’s argument that, because portions of the recording are unintelligible, the balance should be inadmissible; see State v. Melerine, 1959, 236 La. 881, 109 So.2d 454, 465. The recording is clear in its reproduction of plaintiff’s statements that he “knocked off” work and was “unloading” at about 3:30 p. m. and that the accident happened at about 5 p. m.

We also reject plaintiff’s argument that inadmissibility results from defendants’ failure to list the recording in their pre-trial “Note of Evidence” (ordered under C.C.P. 1551 prior to pre-trial conference). Reliance on the literal assertions of defendants’ “Note” might have supported the exclusion of virtually all factual evidence, and specifically any evidence that plaintiff did not return for extra milk, because the material facts defendants asserted in their “Note” included that plaintiff had returned for extra milk and was returning from delivering it (and from getting the soft drinks) when injured. (Indeed, were the “Note of Evidence” a stipulation of counsel we would be obliged to hold counsel to its content, Moak v. Link-Belt Co., 1970, 257 La. 281, 242 So.2d 515, and we would therefore reverse.) However, having “due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves,” C.C.P. 5051, we agree that reasonable flexibility in admitting evidence is a necessity in some cases to avoid substantive injustice. See Davis v. Duplantis, 5 Cir. 1971, 448 F.2d 918, interpreting Fed. Rules Civ.Proc. 16 (on which C.C.P. 1551 is based); see also Ladas v. Savage, La.App.1973, 284 So.2d 852.

If, however, we properly allow defendants to introduce evidence contrary to the statement of facts of its pre-trial “Note of Evidence/’ we believe that the simple fairness of impartial administration of justice, La.Const. art. 1 § 22, obliges us to afford to plaintiff the clear opportunity to introduce evidence corroborative of that statement of facts. Plaintiff was led to believe by defendants’ “Note of Evidence” that he would not need corroboration on this question: and the admission of the inconsistent recording not listed in the “Note” makes it necessary that plaintiff do produce corroboration. Perhaps plaintiff can corroborate his own testimony by that of one or more of his milk customers or that of the Coca-Cola bottler. We point out that plaintiff is not well educated; the trial court noted he is easily led. The recording might suffice to support a conclusion that all work activity had ended: but it is not beyond all hope of explanation, if contradicted by disinterested witnesses.

If, indeed, plaintiff’s employment required that he deliver the extra milk and then return the truck to his home, he would be entitled to compensation because the deviation from employment route would have been finished prior to the accident; see Simmons v. Liberty Mut. Ins. Co., La.App.1966, 185 So.2d 822.

Finally, we reject plaintiff’s alternative argument that, because he was doing a favor for a customer, even if after normal working hours and after completion of his route, his accident arose out of and in the course of his employment. The record affords little factual support for classifying the gasoline station owner as a customer, or plaintiff’s dealing with him as in the furtherance of the milk business: plaintiff visited him daily, but sold him milk only about twice a month.

The judgment is set aside and the matter remanded for further proceedings consistent with this opinion. Costs are to await final outcome.


author: COVINGTON, Judge:

text:
    TOOMER ELECTRICAL COMPANY, INC. v. HUMBLE OIL AND REFINING COMPANY et al.
    No. 10417.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Refused Jan. 10, 1970.

      Walton J. Barnes, Baton Rouge, for plaintiff Toomer Electrical Co., Inc., appellant.
    Robert J. Jones, Baton Rouge, for defendant Dept, of Highways, State of La., Appellee.
    Allen J. Bergeron, Jr., Baton Rouge, for defendant Derral Deen Walker, appellee.
    Robert L. Kleinpeter, Baton Rouge, for defendant Edwin Edwards, appellee.
    Wallace A. Hunter, Baton Rouge, for defendant Humble Oil & Refining Co., ap-pellee.
    Horace C. Lane, Baton Rouge, for defendants E. N. Edwards & State Farm Mutual Auto. Ins. Co., appellees.
    John F. McKay, Baton Rouge, for defendant Julia Calvaruso, Indv. and on behalf of her minor son, Joseph Calvaruso, appellee.
    Before SARTAIN, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

This case, together with cases numbered 10418, 10419, 10420, 10421, 10422, and 10423 (bearing numbers 148369, 148878, 1S0269, IS 1740, 152165, 153437, and 153455 in the trial court) were consolidated in the lower court for purposes of trial and also were consolidated and argued simultaneously in this court. Separate judgments shall be rendered herein.

The trial court handed down excellent written reasons for judgment and we will quote extensively therefrom with approval, as follows:

“These seven consolidated cases arose from a series of events occurring on December 23, 1970, about 6:00 to 6:30 p. m. on I — 110 between Choctaw Drive and Twenty-second Street. The undisputed facts are these.

“Mrs. Carol Clark Madigan Dupuy Knickerbocker, driving a 1964 Oldsmobile southward on 1-110 after dark and in a hard rain, with Pat Adams as a guest passenger, had a one-car accident, running into the east or left curb and/or rail. A wrecker driven by Willie Lee came by and stopped. A period of discussion and negotiation estimated at from 5 to 15 minutes ensued. Edwin N. Edwards in a 1969 Pontiac and Derral D. Walker driving a Mack truck and a tandem trailer loaded with 9,000 gallons of gasoline entered I-110 at Wyandotte with an undetermined but short interval between them. Edwards was driving in the middle lane. It is disputed as to whether Walker was in the middle or right-hand lane. The sequence of the collisions is disputed but there were collisions between the Pontiac and the Oldsmobile and between the Pontiac and the Mack truck. The latter went out of control and broke through the east or left-hand rail and the gasoline ignited. Both Walker and Edwards were seriously injured; extensive damage was done to the highway and to electrical work being done by Toomer Electrical Company, Inc.; the Mack truck and the Pontiac were total losses; and Mrs. Calvaruso, who lived on Pocohontas Street near the scene, claims burns and mental injuries.

“In Suit Number 148,369, plaintiff, Toomer Electrical Company, Inc., seeks recovery of $6,953.57 from Humble Oil and Refining Co. (now Exxon), Hartford Accident and Indemnity Company, State Farm Mutual Automobile Insurance Company, Allstate Insurance Company, Carol Clark Madigan Dupuy Knickerbocker, Edwin N. Edwards, Derral Deen Walker, Pat Adams and Willie Lee for repairs to the lighting system it was engaged in installing on the Baton Rouge Interstate routes. The claim against Willie Lee was voluntarily dismissed. The claims against Hartford Accident and Indemnity Company and Allstate Insurance Company were dismissed on motions for summary judgment. Evidently, Mrs. Knickerbocker and Pat Adams were never served. State Farm as an employer of Edwards, was relieved on a motion for summary judgment, remaining in the suit, however, as the insurer of Edwards.

“In Suit Number 148,878, the Department of Highways of the State of Louisiana seeks recovery of $206,739.71, from Humble Oil and Refining Company (now Exxon), State Farm Mutual Automobile Insurance Company, Hartford Accident and Indemnity Company, Carol Clark Ma-digan Dupuy Knickerbocker, Edwin N. Edwards, Derral Deen Walker, Pat Adams and Willie Lee for repairs made to Interstate 110 after the accidents and fire herein sued upon. Hartford Accident and Indemnity Company was dismissed on a motion for summary judgment. Willie Lee was voluntarily dismissed. Mrs. Knickerbocker and Mr. Adams were never served. State Farm, as the employer, but not as the insurer, was relieved on a motion for summary judgment.

“In Suit Number 150,269, Derral Deen Walker seeks recovery in the amount of $25,360.00 for injuries and damages from Hartford Accident and Indemnity Company, State Farm Mutual Automobile Insurance Company, Carol Clark Madigan Du-puy Knickerbocker, Edwin N. Edwards, Pat Adams and Willie Lee. Hartford was released on a motion for summary judgment. Willie Lee was voluntarily dismissed. Pat Adams was evidently never served. Issue was never joined as to Mrs. Knickerbocker.

“In Suit Number 151,740, Edwin N. Edwards seeks recovery of $89,000.00 for personal injuries and damages from Humble Oil and Refining Company (now Exxon), Hartford Accident and Indemnity Company, Carol Clark Madigan Dupuy Knickerbocker, Derral Deen Walker and Willie Lee. Hartford was dismissed on a motion for summary judgment. Willie Lee was voluntarily dismissed. Mrs. Knickerbocker was never served.

“In Suit Number 152,165, Humble Oil and Refining Company (now Exxon) seeks recovery of $26,585.00 for damages from State Farm Mutual Automobile Insurance Company both as the employer and the insurer of Edwin N. Edwards, Edwin N. Edwards, Carol Clark Madigan Dupuy Knickerbocker, Willie Lee and Hartford Accident and Indemnity Company. State Farm was relieved in the capacity of employer of Edwards, but not as his insuror (sic), on a motion for summary judgment as was Hartford Accident and Indemnity Company. Willie Lee was voluntarily dismissed. Mrs. Knickerbocker was never served.

“Suit Number 153,437, is by State Farm Mutual Automobile Insurance Company against Humble Oil and Refining Company (now Exxon), Hartford Accident and Indemnity Company, Carol Clark Madigan Dupuy Knickerbocker, Derral Deen Walker, and Willie Lee, seeking recovery of $2,182.51 for the amount it has lost because of its insurance on the vehicle of Edwin N. Edwards. Hartford was dismissed on a motion for summary judgment. Willie Lee was voluntarily dismissed. Mrs. Knickerbocker was never served.

“In Suit Number 153,455, Mrs. Julia Cal-varuso seeks damages for herself and her minor son, Joseph Calvaruso, in the amount of $15,000.00, from Humble Oil and Refining Company (now Exxon), State Farm Mutual Automobile Insurance Company, Hartford Accident and Indemnity Company, Carol Clark Madigan Dupuy Knickerbocker, Edwin N. Edwards, Derral Deen Walker, Pat Adams and Willie Lee. Mrs. Knickerbocker and Mr. Adams were never served. Hartford Accident and Indemnity Company was dismissed on a motion for summary judgment. Willie Lee was voluntarily dismissed.

“The negligence of Willie Lee and Carol Knickerbocker will not be considered and the facts involving them will not be adduced except as needed to explain the other facts.

“The Knickerbocker car was left in its disabled condition facing not quite directly into the curb on the left side with the left southbound lane completely blocked and the middle lane intruded into by the rear end by at least two or three feet. There were no street lights in that area at the time and there was a downpour of rain.

“Edwards testified that he was proceeding southward in the middle lane at a speed of about 40 miles per hour. As he came over the Choctaw ‘hump’ he saw the revolving yellow light (he called it a red light) atop the wrecker. As he came nearer he became aware of the disabled Oldsmobile. He began a normal stopping procedure and had slowed to about thirty miles per hour when he was struck violently in the rear. He is a little vague as to the ensuing events but his car stopped ahead of the Oldsmobile and wrecker, against the' left curb facing in a northwesterly direction. The truck and trailer, ahead of him, had broken through the rail and was burning.

“Derral D. Walker testified he was driving in the right-hand lane southward at a speed of about 40 miles per hour. He does not recall seeing the yellow light. The Pontiac car in the middle lane struck something and ‘glanced off’ into his lane of traffic. He was unable to avoid hitting it. His truck and trailer slid to the left despite his efforts to control and went through the rail and exploded.

“Mrs. Knickerbocker, whose deposition was taken but who did not testify at the trial, did not contribute anything that was help■ful to the decision of the case. Pat Adams was not located for service of process, depositions or testimony at the trial.

“Willie Lee testified that he was in the cab of the wrecker when he heard two collisions; he looked and saw the truck coming by him. He thinks he saw the car also. When the gasoline caught on fire, he backed out and left.

“The investigating officer placed the first point of impact at approximately 260 feet north of the fire. The Oldsmobile was not engaged in the railing and was then facing north. He found no debris indicating a collision between the Olds and Pontiac. He located a collision as taking place in the right-hand lane 52 feet south of the collision of the Olds with the left railing and 182 feet north of the break in the east retaining wall. There were skid marks from the truck trailer and the Pontiac starting in the right-hand lane at the debris.

“Alvin Doyle examined the three vehicles involved. He found that the Olds had been struck twice and that the damage to its left rear was unrelated to the damage to its front. The Pontiac’s paint coincided with the paint on the left side of the Olds. Most of the glass of the Pontiac fell inside the car. His opinion was that the Pontiac was most likely in the middle lane when it was struck and was not rotating or spinning when it was hit in the rear.

“Dr. William H. Tonn expressed his opinion that the probability was that the truck hit the Pontiac knocking it into the Oldsmobile; that the Pontiac was to the left of where the glass debris was found and that the impact was at a slight angle, less than 20 or 25 degrees.

“An analysis of the photographs is of some assistance. Exxon-1 shows the Olds heading northwest, leading to the conclusion that the impact of the Olds and the Pontiac caused the Olds to rotate between 90 and 180 degrees. Exxon-3, Exxon-14, Exxon-15, State Farm-2, and State Farm-3 show the damage to the left front of the Olds. Exxon-8, Exxon-11, Exxon-12, and State Farm-4 show the damage to the left side over or near the rear wheel of the Olds. As noted above, Mr. Doyle found there was no connection between these damages. Exxon-22 shows little or no damage to the right side of the Olds. Exxon-13 and State Farm-5 show little damage to the rear of the Olds. Exxon-9, Exxon-17 and State Farm-6 show the damage to the left front of the Pontiac. Exxon-18 shows little damage to the left front side of the Pontiac. Exxon-16, Exxon-19, Exxon-20, State Farm-7, State Farm-8 and State Farm-9, show the extensive damage to the rear of the Pontiac. State Farm-10 shows the glass in the rear of the Pontiac adverted to by Mr. Doyle. Exxon-25 shows the Pontiac pointing northwest evidently in the position in which it came to rest. Exxon-4 shows gouge marks in the right lane of traffic and the skid marks leading to the break in the rail. The latter are also shown in Exxon-5. Exxon-6 shows both the marks on the left curb and the break in the rail. Exxon-23 was identified as showing marks in the east railing. However, because of the background of the photo, it has to be of the west railing.

“After studying at considerable length and with considerable detail all this evidence the Court has come to the conclusion that the following is what happened.

“When Mr. Edwards came over the Choctaw ‘hump’ and saw the revolving light, he was alerted to something unusual. He naturally expected this to be in front of or at the same place as the light. He began a slowing procedure. The Olds, unlighted and cross-wise to his direction of travel, protruding into the middle lane some three or four car-lengths back of the revolving light, was therefore a hidden trap to him. Even if he became aware of the car before striking it there was a sudden emergency that he was unable to avoid. The Court finds no negligence on the part of Mr. Edwards even though it concludes that Mr. Edwards struck the Olds before being hit by the truck.

“Mr. Walker, the Court finds, was proceeding in the right-hand lane, when Mr. Edwards’ car came into his lane of travel after the latter hit the Olds. He was also confronted with a sudden emergency that he was unable to avoid. The Court comes to this conclusion even though Messrs. Doyle and Tonn believed the collision occurred in the middle lane and the latter believed that the collision between the truck and Pontiac preceded that between the Olds and the Pontiac. The reversal of direction of the Olds, the unequivocal testimony of Walker, the location of the debris further south from where the Olds hit the rail, the comparatively greater damage to the right rear of the Pontiac, the skid marks beginning in the righthand lane, the arc of the slides of both the Pontiac and the truck missing, as it did, the wrecker, are all persuasive of this conclusion. Even Messrs. Doyle and Tonn conceded that their findings led only to conclusions of probability and could not rule out entirely the collision in the right-hand lane. At least some of their opinions are weakened by the obvious facts that the Pontiac was moving with great force when it struck the Olds, whether self-propelled or not, and that the Olds was standing on a surface made less resistant by a downgrade and a downpour of rain.

“But even if it be concluded that the collision was in the middle lane, the result would be the same. Mr. Edwards was confronted with a sudden emergency and so was Mr. Walker. The collision between the Olds and the Pontiac must have preceded that between the Pontiac and the truck or the two must have been coincident or practically so. The Court cannot accept Mr. Edwards’ belief that he was going about 30 miles per hour coming to a normal stop when he was struck. For one thing the consequences of that collision were disproportionate to a difference in speeds of 10 miles per hour or less between the vehicles. Even if Mr. Edward» were engaged in stopping it was of a panic nature and only added to the emergency confronting Walker.

“Both Toomer and the Department of Highways have contended for strict liability on the part of Walker and Exxon. The Court cannot adopt that position. In the first place, there is no holding in Louisiana to that effect. In the second place, it would be illogical to impose strict liability without negligence on them when the accidents were caused by the negligence of others. Furthermore, the case cited by them, Seigler v. Kuhlman, 81 Wash. [2d] 448, 502 P.2d 1181 (1972) is distinguishable on its facts, in that the truck and trailer carrying gasoline became disengaged from each other and the trailer overturned without possible negligence of third parties. Even if the present situation be one of burden of proof on the part of Walker and Exxon to exonerate themselves, the Court believes that burden has been borne. Res ipsa loquitur is inapplicable.

“Argument has been made that both Edwards and Walker violated the so-called ‘assured clear distance’ rule. As was pointed out in Craker v. Allstate Insurance Company, 259 La. 578, 250 So.2d 746 (1971), ‘which ones (dangers) are foreseeable is a question that has to be answered by common sense, on the basis of the circumstances in each case.’ The Court does not believe that either Mr. Edwards or Mr. Walker was negligent under these circumstances.

“These conclusions obviate the necessity of recounting and evaluating the extensive injuries of both Mr. Edwards and Mr. Walker. They also obviate the necessity of the Court considering the rather far-fetched claim of Mrs. Calvaruso who claims that she was burned by the heat, not any flame, of the burning gasoline from across at least three lanes of the Interstate, a service road, and some additional diagonal distance from the fire plus emotional upset therefrom.

“Plaintiff Derral Deen Walker has urged the Court despite these conclusions to make a finding of his damages because of his possible recovery under Uninsured Motorist Coverage. In the view of the Court this would be no more than an advisory opinion and is therefore denied.

“Both Alvin Doyle and William H. Tonn, Jr., qualified and testified as experts. Their fees are set at $75.00 each and taxed as costs.

“For these reasons there will be judgment in Suit Number 148,369, in favor of the defendants, Humble Oil and Refining Company, State Farm Mutual Automobile Insurance Company, Edwin N. Edwards and Derral Deen Walker, and against the plaintiff, Toomer Electrical Company, Inc., denying the latter’s claim at its costs.

We do not feel that any manifest error was committed by the trial judge in reaching his conclusions and, therefore, we affirm his decision; Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973), Papania v. Aetna Casualty & Surety Co., 291 So.2d 908 (La.App.3rd Cir., 1974), writ denied, 294 So.2d 835 (1974).

Affirmed.

      . A question was raised as to whether the trial court correctly stated the exact site on 1-110, relative to street names of exits, where the events took place; in view of our conclusions, this is of no consequence.


text:
    DEPARTMENT OF HIGHWAYS of the State of Louisiana v. HUMBLE OIL AND REFINING COMPANY et al.
    No. 10418.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    Writ Refused Jan. 10, 1970.
    Robert J. Jones, Baton Rouge, for Dept, of Highways.
    Alex W. Wall, Baton Rouge, for defendant Willie Lee, appellee.
    Horace C. Lane, Baton Rouge, for defendants Edwin N. Edwards and State Farm Mutual, appellees.
    Edward W. Gray, Baton Rouge, for defendant Hartford Accident & Indemnity Co., appellee.
    Wallace A. Hunter, Baton Rouge, for defendants Derral Deen Walker & Humble Oil & Refining Co., appellees.
    Before SARTAIN, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

For the reasons assigned in the case of "Toomer Electrical Company, Inc. v. Humble Oil and Refining Company et al.”, 321 So.2d 827, the judgment of the trial court 18 dismissing the plaintiffs suit, and assessing it with all costs for which it , can be held liable.

Affirmed.


text:
    Derral Deen WALKER v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. et al.
    No. 10419.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    George R. Covert, Baton Rouge, for plaintiff appellant.
    Alex W. Wall, Baton Rouge, for defendant Willie Lee, appellee.
    Edward W. Gray, Baton Rouge, for defendant Hartford Accident & Indemnity Co., appellee.
    Horace C. Lane, Baton Rouge for defendants Edwin N. Edwards & State Farm Mutual, appellees.
    Before SARTAIN, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

For the reasons assigned in the case of “Toomer Electrical Company, Inc. v. Humble oil and Refining Company et al.”, 321 So.2d 827, the judgment of the trial court .g affirmedj dismissing plaintiffs suit at . . his cost,

Affirmed.


text:
    Edwin N. EDWARDS v. HUMBLE OIL AND REFINING COMPANY et al.
    No. 10420.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    Robert L. Kleinpeter, Baton Rouge, for plaintiff Edwin N. Edwards, appellant.
    Edward W. Gray, Baton Rouge, for defendant Hartford Accident & Indemnity Co., appellees.
    Wallace A. Hunter, Baton Rouge, for defendants Derral Deen Walker and Humble Oil & Refining Co., appellees.
    Alex W. Wall, Baton Rouge, for defendant Willie Lee, appellee.
    Walton J. Barnes, Baton Rouge, for defendant Toomer Electric, appellee.
    Before SARTAIN, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

For the reasons assigned in the case of "Toomer Electrical Company, Inc. v. Humble Oil and Refining Company et al.”, 321 So.2d 827, the judgment of the trial court is affirmed, dismissing plaintiff’s suit at his cost.

Affirmed.


text:
    HUMBLE OIL AND REFINING CO. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO. et al.
    No. 10421.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    Wallace A. Hunter, Baton Rouge, for plaintiff Humble Oil & Refining Co., appellant.
    Edward W. Gray, Baton Rouge, for defendant Hartford Accident & Indemnity Co., appellee.
    Alex W. Wall, Baton Rouge, for defendant Willie Lee, appellee.
    Walton J. Barnes, Baton Rouge, for defendant Toomer Electrical Co., appellee.
    Horace C. Lane, Baton Rouge, for defendants Edwin N. Edwards and State Farm Mutual Automobile Ins. Co., appel-lees.
    Before SARTAIN, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

For the reasons assigned in the case of “Toomer Electrical Company, Inc. v. Humble Oil and Refining Company et al.”, 321 So.2d 827, the judgment of the trial court is affirmed, dismissing plaintiff’s suit at its costs.

Affirmed.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. HUMBLE OIL AND REFINING COMPANY et al.
    No. 10422.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    Horace C. Lane, Baton Rouge, for plaintiff State Farm Mutual Ins. Co., appellant.
    Edward W. Gray, Baton Rouge, for defendant Hartford Accident and Indemnity Co., appellee.
    Wallace A. Hunter, Baton Rouge, for defendants Derral Deen Walker and Exxon Corp., appellees.
    Before SARTAIN, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

For the reasons assigned in the case of “Toomer Electrical Company, Inc. v. Humble Oil and Refining Company et al.”, 321 So.2d 827, the judgment of the trial court is affirmed, dismissing plaintiff’s suit at its costs.

Affirmed.


text:
    Julia CALVARUSO, Ind., etc. v. HUMBLE OIL AND REFINING COMPANY et al.
    No. 10423.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 2, 1975.
    Rehearing Denied Nov. 24, 1975.
    John F. McKay, Baton Rouge, for plaintiff Julia Calvaruso and on behalf of her minor son, Joseph Calvaruso, appellant.
    Robert L. Kleinpeter, Baton Rouge, for defendant Edwin N. Edwards, appellee.
    Edward W. Gray, Baton Rouge, for defendant Hartford Accident & Indemnity, appellee.
    Horace C. Lane, Baton Rouge, for defendant State Farm Mutual Auto Ins. Co., appellee.
    Joseph F. Keogh, Baton Rouge, for defendant Allstate Ins. Co., appellee.
    Wallace A. Hunter, Baton Rouge, for defendant Humble Oil & Refining, appel-lee.
    Allen J. Bergeron, Jr., Baton Rouge, for defendant Derral Deen Walker, appellee.
    Robert J. Jones, Baton Rouge, for defendant Dept, of Highways, State of La., appellee.
    Before SARTAIN, COVINGTON and BARNETTE, JJ.
   COVINGTON, Judge:

For the reasons assigned in the case of "Toomer Electrical Company, Inc. v. Humble Oil and Refining Company et al.’', 321 So.2d 827, the judgment of the trial court is affirmed, dismissing plaintiff’s suit at her costs.

Affirmed.