author: WATSON, Judge. GUIDRY, Judge

text:
    Edward Bryant JINKS, Individually, etc., Plaintiff-Appellee, v. James W. McCLURE et al., Defendants-Appellants.
    No. 5840.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.

      Camp, Carmouche, Palmer, Carwile & Barsh by James E. Williams, Lake Charles, for defendants-appellants Allstate and McClures.
    Woodley, Fenet & Ranier by .Edmund E. Woodley, Lake Charles, for defendant-appellant Hudson Engineering Co.
    Norman L. Williams, Lake Charles, for plaintiffs-appellees Edward and John Jinks.
    Mouton, Roy, Carmouche, Hailey & Bivens, John A. Bivens and Ralph E. Kraft, Lafayette, for defendant-appellee.
    Thomas W. Sanders, Joseph W. Green-wald, Lake Charles, Jones, Jones & Alexander by J. B. Jones, Cameron, for plaintiff-appellee.
    Richard B. Cappel of Raggio, Farrar, Cappel & Chozen, Lake Charles, for defendants-appellants.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

This suit was consolidated for jury trial and appeal with our docket No. 5841, Earl Joseph Chapman v. James W. McClure, et al., La.App., 344 So.2d 688 in which a separate opinion has been rendered this date. Both suits arise from the same accident and involve the same defendants, James W. McClure, Larry D. McClure, Hudson Engineering Corporation, Allstate Insurance Company, A. H. Crain, John Paul Crain and American Mutual Liability Insurance Company. In the instant case, Earl Joseph Chapman, plaintiff in number 5841, is named as third party defendant. Plaintiff herein is Edward Bryant Jinks, individually, and as administrator of the estate of his minor child, John Kelvin Jinks.

The accident occurred in Cameron Parish, Louisiana on or about July 26, 1974. John Jinks was a guest passenger in a 1967 Ford pickup truck driven by Larry D. McClure and owned by James W. McClure, which was traveling west on Louisiana Highway 82. Approximately 10 miles west of Holly Beach, Louisiana, this truck collided with a 1974 Ford pickup truck owned and driven by Earl Joseph Chapman, which was proceeding east on the same highway. The collision occurred in an area of heavy smoke on the highway. It was alleged that Larry McClure, an employee of Hudson Engineering Corporation, was in the course and scope of his employment at the time of the accident. The McClure vehicle and the Chapman vehicle were both insured by Allstate Insurance Company. The owners of the property adjoining the highway, John Paul Crain and A. H. Crain, and their insurer, American Mutual Liability Insurance Company, were alleged to be responsible for the hazardous smoke condition and therefore liable for the damages resulting from the accident.

The jury concluded: that Larry McClure’s negligence was a proximate cause of the accident; that Chapman was not negligent; that the Crains were not negligent; that Larry McClure was acting within the course and scope of his employment with Hudson Engineering Corporation at the time of the accident; and that John Jinks and Chapman were not guilty of contributory negligence and did not assume the risk of the accident. Edward Bryant Jinks’ special damages were assessed at $1,175. John Kelvin Jinks was awarded special damages of $2,350, and general damages of $35,000. Earl Joseph Chapman was awarded damages of $50,000. Judgments were signed in accord with the verdicts of the jury. Hudson was given judgment against the McClures to indemnify it for any amount paid. Allstate’s liability, as the insurer of the McClures, was limited by its policy provisions, to $10,000 for Chapman and $10,000 for Jinks. All court costs were assessed by the trial judge against the McClures and Allstate.

Appealing from the judgments are the McClures, Allstate Insurance Company, and Hudson Engineering Corporation.

Counsel for Hudson Engineering Corporation contends on appeal that the jury erred in finding Larry McClure to be acting in the course and scope of his employment with Hudson at the time of the accident; and that the jury’s awards of damages to Jinks and Chapman are excessive.

Counsel for the McClures and Allstate contends that the jury erred in failing to find Jinks and Chapman guilty of contributory negligence and/or failing to find that they assumed the risk of the accident; that the jury awarded excessive damages; that the trial court erred in not finding the Crains liable; that the trial court erred in awarding the third party demand of Hudson against the McClures; and that the trial court erred in assessing all court costs against Allstate Insurance Company, as the insurer of the two McClures.

The facts, lengthy but largely undisputed, are best presented by a résumé of the testimony of the various witnesses, which follows.

Larry D. McClure

Larry D. McClure, born September 17, 1957, resided in the home of his parents, Mr. and Mrs. James Wayne McClure, in League City, Texas, 32 miles south of Houston, when the accident occurred. Larry, then 16 years of age, had been a licensed driver for about 10 months. James McClure was a superintendent of Hudson Engineering Corporation and Larry was hired by Thomas Granger, office manager of Hudson’s Grand Chenier project, to work for the same company around June 20, 1974. Larry worked 48 hours a week from Monday to Friday as a carpenter’s helper. Larry’s boss was N. T. Ammons, the general foreman. James McClure was general supervisor. Larry McClure lived in his father’s trailer on the job site. On the day of the accident, James McClure was in England and had been gone approximately one week. Generally, Larry rode from Cameron to Texas with his father in the Chevrolet Impala station wagon furnished by Hudson Engineering, but it had been left in Texas before the father’s departure for England. The father always drove the station wagon and used a Hudson Engineering credit card for the gasoline. Larry’s father customarily brought items such as nuts, bolts and pipe flanges from Houston to Grand Chenier. He also brought documents from Grand Chenier to Hudson’s Houston office. On the date of the accident, Granger asked Larry to take some documents in a 11 by 14 inch brown envelope and a surveyor’s “sighter” or transit to his father. Larry did not know what was in the envelope. Larry was driving his father’s brown pickup. Larry had had one beer at John’s Cafe east of Grand Chenier prior to the accident. It is approximately 25 miles from John’s Cafe to Cameron and about 20 miles from Cameron to the site of the accident. It took 15 to 20 minutes to cross the ferry at Cameron. Larry stopped on Louisiana Highway 82 near Johnson’s Bayou to pick up John Kelvin Jinks, who was holding a motorcycle tire. He then traveled about a mile and a half with Jinks as a passenger before reaching a patch of what appeared to be fog on the highway. Larry was driving approximately 50 miles an hour and had had little conversation with Jinks other than to ask where he was going to which Jinks replied “Johnson’s Bayou”. The fog or smoke was initially not very thick but it got worse; and the accident occurred approximately 50 yards into the area. Larry had slowed to a speed of about 30 or 40 m.p.h. Larry saw another truck coming head-on toward him; swerved to the right to miss it; and collided with the Chapman truck, which he had not seen prior to the collision. The truck which he avoided had its parking lights on and did not get involved in the accident. Larry did not have his lights' on and his view was totally obscured by the smoke. The accident was head-on with the left side of Larry’s truck and the left side of the other truck colliding. Larry’s pickup came to rest across the middle of the road facing south. The Chapman pickup came to rest facing north toward Larry’s truck with its back wheels in the ditch. After the accident, Jinks, who was cut above the eye and bleeding, said he was hurt. Larry’s right wrist was injured.

Trooper Gerald B. Singer

State Trooper Gerald B. Singer investigated the accident between McClure and Chapman. Singer was notified at 5:07 p. m. and arrived at the scene at approximately 6:07 p. m. It was still daylight and the day was cloudy. There was dense, thick smoke across the road and Trooper Singer who was proceeding west on Highway 82 said it was approximately 100 yards from where he entered the smoke area to the scene of the accident. The wind was blowing from the south to the north. The smoke was patchy and varied in density. None of the parties were still present when Singer arrived but the vehicles were in place. According to the heavy damage inflicted on both vehicles, the left front of the McClure pickup collided with the left front of the Chapman pickup in the eastbound portion of Highway 82, south of the center line, in Chapman’s lane of traffic. Singer could not accurately determine the exact point of impact because of the smoke, which was coming from a fire to the south. Chapman’s pickup was headed east, toward Holly Beach and Cameron, and the McClure pickup was headed toward the Texas line. Singer questioned McClure and Chapman approximately an hour and a half after the accident at the Port Arthur Hospital. Larry McClure appeared to be fully conscious and said that he had been traveling between 45 and 50' but was not sure of his location on the road. Larry was concerned about the truck, which had documents in it that he did not want lost or misplaced. Chapman said that he had been traveling at a very slow rate of speed. At least two other accidents occurred in the same smoke bank, which extended about a quarter of a' mile.

John Kelvin Jinks

John Kelvin Jinks, born November 29, 1957, had trouble speaking clearly because of four teeth missing from his mouth as a result of the accident. Jinks had come through the smoke ten or fifteen minutes prior to the accident with Dusty Sandifer operating Jinks’ motorcycle and Jinks riding as a passenger, but the smoke had not been thick enough to obscure visibility. Sandifer was driving at a speed of 35 to 40 miles per hour. The motorbike had a flat, and Sandifer got a ride in another car while Jinks remained with his motorbike. Jinks then removed the tire and hitched a ride with Larry McClure, who told Jinks he was working at Hudson and was going home to deliver some papers. Three or four cars came out of the area of smoke and blinked their lights at Larry to indicate he should slow down. Shortly after they entered the smoke, Larry jerked to the right and barely missed a truck coming the other way; a split-second later they hit the Chapman truck. The accident happened too quickly for Jinks to warn McClure about the smoke. Jinks was thrown into the windshield. Fearing fire, he dove out the truck window and took off running. Jinks’ sister, Carol Jean East, took him to the Port Arthur Hospital. Jinks was numb the first day but suffered considerable pain during subsequent days. At the time of trial, he was still having trouble with his neck, back and speech; he showed the jury scars left by the accident on his face. A temporary plate he wore to replace the missing teeth bothered him and was not replaced when broken two or three months before the trial. Jinks went to see Dr. Washburn, a plastic surgeon, for his scars and Dr. Schneider about his back. Jinks indicated a desire to have his scars removed.

Edward Bryant Jinks

Edward Bryant Jinks, a resident of Johnson’s Bayou, is a widower and had raised his son, John Kelvin Jinks, alone from an early age. Edward Jinks is retired from employment with the state highway department. After the accident, his son was in shock and covered with blood. John has had trouble with his speech and with eating since the accident. It has caused him embarrassment in talking to people. Medical insurance paid for part of the son’s medical treatment but some had to be paid out of the father’s own pocket. John had not had his partial bridge fixed because it was uncomfortable and because of the additional expense. He has not had a permanent bridge made.

James Wayne McClure

James Wayne McClure, superintendent of construction for Hudson Engineering CorT poration, was assigned the task of building the gas processing plant at the Transocean oil location in Grand Chenier, Louisiana. Larry received a summer job with the company as a carpenter’s helper. Mr. McClure left for England on July 22, a Saturday, and told Larry that he could use the pickup truck to drive to Grand Chenier oh Sunday and return on Friday. James McClure, a salaried employee, quite often made trips between the job site and the Houston office. On several occasions, he transmitted the bi-weekly record of the 50 employees on the Grand Chenier payroll and the receiving invoices for the equipment at the Grand Chenier job site to the Houston office. After the accident, Mr. McClure received a sealed envelope from the Houston office with a check and an expense statement, which were personal items for him. He did not know what else might have been sent by Larry and did not know how the items delivered by Granger to Larry on the Fri- • day of the accident ultimately arrived in Houston. Larry’s right wrist was fractured in the accident; he was disabled for four to six weeks and did not have time to return to work before school started.

Thomas D. Granger

Thomas. D. Granger, an employee of Hudson Engineering Corporation, was office manager at Grand Chenier in July of 1974. One of the duties of his job was to send documents and materials back and forth from Grand Chenier to the main office of Hudson in Houston. James McClure often carried such documents, because the mail service to Grand Chenier was poor. On the Friday of the accident, Granger gave Larry McClure an envelope that he would normally have given to his father. There were various forms in the envelope, which contained a package of mail; Granger particularly remembered a payroll summary, which summarized the employees’ work for a two-week period, some receiving reports and field purchase orders. Receiving reports were sent to the Houston office so that the field invoices would be paid. Granger did not recall sending James McClure’s personal check in the packet of documents and believed that all were company documents. Granger was in charge of the payroll and the material received at the Grand Chenier job site. Larry McClure was paid on an hourly basis for 48 hours a week consisting of four 10-hour days and one 8-hour day on Friday. He was considered a field employee whose duties did not relate to Granger’s. Granger told Larry to take the papers to his father’s house after work the Friday of the accident. Larry was not asked to take the packet to the Houston office because his father, who was returning on Sunday, knew where the various documents should go, and, the Hudson Houston office would have been closed by the time of Larry’s arrival that Friday.

Charles “Dusty” Sandifer

Charles “Dusty” Sandifer, age 17 at the time of trial, was driving Jinks’ motorbike with Jinks as a passenger prior to the accident. Sandifer drove through the smoke at a speed of around 30 to 40 miles per hour; the visibility was fair; the smoke, although thick in spots, not really that bad. A fire was burning on the south side of the road and in the adjacent pasture. After the motorbike had a flat, Sandifer caught a ride into Holly Beach with Billy Boy Griffith. Jinks stayed with his motorbike to try to get the flat tire off and Sandifer did not see him again until the next day in the Port Arthur Hospital. Sandifer spent two or three weeks in Jinks' home after the accident to help out. Although Jinks had had no scars on his face prior to the accident, he had the appearance of a “monster” (TR. 840) afterward. He also suffered with headaches; his back hurt; and his mouth and teeth gave him a great deal of trouble.

Earl Joseph Chapman

Earl Joseph Chapman, age 35, is married and has two children of his own and three step-daughters by his wife’s previous marriage. Chapman’s ■ first wife was killed in an automobile accident and his wife Katherine’s first husband drowned. At the time of trial, Chapman was employed on pipeline work. He finished the ninth grade in school and has no specialized job training. In July of 1974, when the accident occurred, Chapman was working at Johnson’s Bayou. He was returning home to Holly Beach from Johnson’s Bayou when the accident occurred around 5:00 or 5:15 p. m. Chapman had been through the smoke in the opposite direction prior to the accident but the visibility at that time was not bad. On the second trip, Chapman put his emergency flashers on. He pulled over to the shoulder of the road when the smoke got thick and then drove ahead a little bit when the wind cleared the smoke away. He was driving about five miles an hour and got hit when he pulled over to the shoulder of the road for the second time and stopped. His truck was entirely off the road on the right shoulder and his blinkers were on at the time. The impact knocked the rear wheels of the truck into the ditch and Chapman hit the steering wheel. His truck was a total wreck. The McClure boy said he had to get some papers out of his pickup. Chapman was initially taken to the emergency room of St. Mary’s Hospital in Port Arthur where x-rays were taken and he was told he needed to see a neurosurgeon. The intern told him that he could die from his injury if he were on the road more than an hour and also instructed the ambulance driver to that effect. The ambulance then took Chapman to Dr. Foster in Lake Charles at Memorial Hospital, where he arrived around 1:00 a. m. in the morning. Dr. Foster told Chapman the nature of his injuries and he was hospitalized. He was also treated by Dr. Cutrer for his nose and by Dr. Drez for his wrist and leg. Chapman said the spinal fluid leakage from his nose lasted for about three weeks and his nose was fractured. Chapman returned to his regular occupation as a truck driver and pipeline worker around the middle of September, approximately six weeks after the accident. He was aware at the time of his head condition but was not trained for anything else and needed to go back to work. He was and is worried about the danger of a blow to his head. It was stipulated that Chapman lost wages of $1500 for the six weeks that he did not work. His hospital bills totaled $816.84; the doctors’ bills were $392; the ambulance bill was $140; the drug bill was $19.51; and his total medical expenses were $1,368.35. Chapman never saw the fire which was causing the smoke; there was no fire burning on the shoulder where he was parked. Chapman said he has occasional headaches as the result of his skull injury and his right wrist has continued to bother him when he holds something heavy.

Ms. Bonnie Conner

Ms. Bonnie Conner was employed by Hudson Engineering in July of 1974 as a secretary at the Grand Chenier job. She typed out the payroll records, progress reports, inter-office correspondence and other documents. She put address labels on the envelopes and then put them on Granger’s desk so that he could attend to their delivery, although she sometimes had to take things to the post office.

Gene Constance

Gene Constance, chief deputy with the Cameron Parish Sheriff’s Department, held that job in July of 1974 and observed the area of smoke on Highway 82 where the grass was burning on the side of the road and inside a pasture.

John Paul Crain

John Paul Crain observed the smoke on the highway, which was coming from the south side as the result of a fire on the shoulder and in a pasture owned by him and his brother. Two of his ranch employees who would have been concerned with the pasture were. Peter Sells and Murphy Romero, but he did not see either of them at the scene. That pasture, which consists of approximately 500 acres, is occasionally burned in August or September but never in July. A fire would not be set in a pasture south of the road unless there was a north wind. Pastures are generally burned around 10:00 or 11:00 in the morning and not in the late afternoon.

Peter E. Sells

Peter E. Sells, an employee of the Crains for 15 or 16 years, lives on the Crain Ranch between Holly Beach and Johnson’s Bayou and takes care of the cattle. He was living there in July of 1974. He did not start the fire on the day of the accident and was working in Singer that day. When returning from Singer late in the afternoon, he observed a fire burning along the road and in the Crain pasture. They had never burned pasture in July because it was too early and usually burned in September or October.

Joseph Murphy Romero

Joseph Murphy Romero was employed by the Crains in July of 1974. He did not remember where he was working the day of the accident but was not in the pasture in question because he did not know about the fire until his wife told him about it and young Jinks’ accident. When Romero checked the pasture a few days later, he observed that the fire had been along the highway and had gone into the pasture. He testified that pastures are not generally burned in August.

Tommie Lou Clark

Tommie Lou Clark, a resident of the Crain ranch in Singer, keeps a daily record or diary, which noted that Sells and Mr. A. H. Crain arrived for lunch on the 25th of July and remained until after lunch on the 26th. She made these notes because she cooked lunch on both days. ' Lunch was generally late, sometimes as late as 2:00 p. m.

Billy Griffith

Billy Griffith, known as Billy Boy, is a deputy with the Cameron Parish Sheriffs Department. He picked up Dusty Sandifer prior to the accident, going through the smoke, which he described as thick but not dangerous, to do so. The fire was then burning on the shoulder of the road and in the roadside ditch. After the smoke had cleared, Griffith noted that the fire had burned through the ditch and across the fence into the pasture. Griffith had participated in working cattle and had never known of a pasture being burned as early as July. There was a fire near the same spot on the north shoulder of the road shortly before the trial.

Dr. John W. Andrepont

Dr. John W. Andrepont is a doctor of dental surgery, licensed by the state of Texas. He was called by Dr. C. D. Walther to see Jinks at Park Place Hospital in Port Arthur on July 29, 1974. Jinks was under sedation and had a number of sutures in his face. His mouth and face were very swollen; the left front tooth had been forcibly removed; three other front teeth could have been taken out with fingers, being chipped and loose in their sockets. Other teeth were chipped. The bone under Jinks’ upper lip, the buckle alveolar bone, had several fractures. Dr. Andrepont removed the three loose teeth, smoothed out the fractured bone, packed it with gel foam and closed it with sutures so that the bone could heal, all under general anesthesia. Although the teeth that were removed had cavities, they could have been used during Jinks’ lifetime, but are now permanently lost and cannot be restored. They should be replaced with a six-unit permanent fixed bridge from eye tooth to eye tooth, which would cost approximately $1200, making a total dental bill of $1460. Such a bridge would be the closest thing possible to Jinks' own teeth but not as desirable as his natural teeth. Jinks’ mouth prior to the accident was in fair condition. In October, 1974, Jinks’ mouth was not ready for a permanent bridge, since the bone does not heal for about a year. Jinks was fitted with a temporary partial bridge at that time and advised Dr. Andrepont that his father was not financially able to have a fixed bridge made. Ordinarily, the permanent bridge would have been installed in February, 1975. Two adjustments were made on the temporary bridge. Temporary bridges are generally very uncomfortable. When Dr. Andrepont saw Jinks in October, 1975, Jinks advised him that the partial had been broken and had not been used for three or four months.

Dr. Wesley W. Washburn, Jr.

In deposition, Dr. Wesley W. Washburn, Jr., a board certified plastic surgeon, testified that he saw John Jinks in his office on September 20, 1974, and observed scars on his forehead, scars on the upper eyelid and on the nose. At that time, it was too early to attempt a revision of these scars. In Dr. Washburn’s opinion, they could-be improved but not completely erased by future surgery. Because the scars were so numerous and extensive, surgery should be done under general anesthesia and his fee for this would be $450. Following the first surgery, after six months to a year, further surgery might be attempted. The initial surgery would cost a minimum of $500 to $600 in hospital bills in addition to the surgical fee. At the time of Dr. Washburn’s examination, the sears were still in the healing stage and could not be revised. Dr. Washburn felt there was no possibility that the scars might improve sufficiently on their own for cosmetic surgery to be contraindicated.

Dr. Charles D. Walther

Dr. Charles D. Walther testified by deposition as a specialist in general surgery. He saw John Kelvin Jinks in the emergency room at Park Place Hospital in Port Arthur on July 26, 1974, and admitted him to the hospital. The initial examination in the emergency room showed multiple lacerations of the face and loss of teeth. Jinks complained of some chest pain. The lacerations on the face were described as being as severe as one can have without serious tissue loss; the worst were on the nose and the right eyelid which was cut completely across from side to side. Dr. Walther removed a large jagged fragment of glass from the right eyelid and multiple small fragments in the face and attempted to fit the skin back together with sutures to minimize scarring. He described this procedure as analogous to fitting together a jigsaw puzzle. Jinks had fractures in the upper mandible where the teeth came out and Dr. Walther called in Dr. Andrepont to treat the oral surgery problems. During his five-day hospitalization, Jinks received antibiotics, codein and aspirin for pain, and gelusel for his stomach. Jinks complained of hip pain but an x-ray showed no evidence of fracture and Walther diagnosed a strained hip. Walther testified on the basis of training in plastic surgery that the lacerations received by Jinks would leave residual scarring. On August 16, 1974, during an office visit, Walther recommended to Jinks that he consult a plastic surgeon for possible repair or revision of his scars during the following year. Dr. Walther noted a scar running the length of the right upper eyelid which was red and slightly swollen, small scattered scars about 20 in number, over the forehead, a large scar over the right nostril, multiple scars around the left nostril and a scar beneath the chin. He noted in particular that revision of the scar of the right nostril might be necessary. Jinks complained of tenderness from the fracture of his upper mandible but appeared to be doing fairly well. He also complained of backache and aching in his scapula or shoulder blade. Dr. Walther found these complaints in keeping with the nature of the injuries Jinks received in the accident. Walther identified his bill for treatment of Jinks in the amount of $250, in addition to another bill for the office visit. X-rays of Jinks’ skull, chest, and left hip were made in the hospital. Walther stated that the amount of disfigurement from scarring could not be evaluated until a year had passed. As of the time of his deposition on October 7, 1975, the scars had improved as far as they would without plastic surgery.

Dr. David Drez, Jr.

Dr. David Drez, Jr., an expert in the field of orthopedic surgery, examined Earl Joseph Chapman on July 27, 1974, at the request of Dr. William Foster. Chapman stated that he had been involved in an automobile accident around 5:00 p. m. the day before. Chapman had facial pain, right wrist pain and pain on the inner aspect of the left tibia. X-rays showed a small chipped fracture of the tibia. On the right wrist, there was a small area of calcification, which probably resulted from a spraining injury to the wrist with loss of a fleck of bone. Dr. Drez felt that the injuries would result in pain and tenderness with limited activity for six to eight weeks. He said Chapman would have no significant functional disability, although, in his occupation as a truck driver, Chapman’s injuries could cause a significant degree of pain.

Dr. William Franklin Foster

Dr. William Franklin Foster, an expert in the field of neurosurgery, examined Earl Joseph Chapman in Lake Charles Memorial Hospital on July 27, 1974, where he was transferred from the Port Arthur Hospital on referral from a Texas physician. Chapman, age 34, employed as a pipeliner, complained of headaches. The physician in Port Arthur diagnosed a fracture of the frontal bone of the skull and a spinal fluid leak secondary to this injury. The patient also had pain in the right wrist and was somewhat confused although not in acute distress. Chapman had cerebral spinal fluid draining from the nose on both sides and edema or swelling around the nose and face. Chapman was hospitalized and placed on antibiotics within the brain for 10 days and then discharged from the hospital on oral antibiotics. Dr. Foster saw Chapman on August 1 when the spinal fluid leak had subsided and, on August 7, when it had resumed. Chapman was seen again on August 21 and continued on antibiotics. The spinal fluid leak had subsided spontaneously and Chapman was released to return to work on a trial basis. Dr. Foster testified that this type of open fracture is often fatal, since it involves a tear of the dura, the sack which holds the brain. If the leak does not spontaneously subside, a cranioto-my, which is major and dangerous surgery of the brain, is required; such an operation often results in meningitis. The injury is also dangerous because it exposes the surface of the brain to all of the organisms and bacteria in the nasal cavity. Chapman was advised of the danger that the leak might resume at any time. Even minor trauma or a minor blow such as a slap in the face could precipitate a return of the leak. About ten per cent of patients develop seizure problems after this type of fracture and spinal fluid leak. Chapman is restricted from any contact sports or contact activities. Chapman was very eager to return to work and was released to do so but was advised to contact Dr. Foster immediately if he had any temperature elevation, seizure or other central nervous system problems. Although Dr. Foster did not feel that Chapman would have any further trouble, he testified that any recurrence, which could be precipitated by minor trauma, could be fatal.

Dr. William Kent Cutrer

Dr. William Kent Cutrer, an expert in the field of ear, nose and throat, saw Chapman on July 28, 1974, in consultation with Dr. Foster. Chapman had a displaced nasal fracture and cerebrospinal fluid rhinorrhea. A closed reduction of the nasal fracture was performed on July 31 under general anesthesia and Chapman was discharged from the hospital the next day with a small aluminum cast on the outside of the nose to protect it. The aluminum cast was removed on August 7. The swelling had gone down at that time and the nasal fracture was stable, although there was a spinal fluid leak from the nose.

ISSUES

The issues on appeal are:

(1) whether the Crains are liable;

(2) whether Larry McClure was in the course and scope of employment with Hudson;

(3) whether Chapman was contributorily negligent or assumed the risk of the accident; whether Jinks was contributorily negligent or assumed the risk of the accident;

(4) quantum of damages to Chapman and Jinks;

(5) indemnity to Hudson from the McClures; and

(6) court costs.

(1) LIABILITY OF THE CRAINS

The first issue is whether the Crains should be held liable, either on a negligence theory or under a theory of strict liability or legal fault as the owner of premises on which a fire was burning which caused harm. Loescher v. Parr, 324 So.2d 441 (La., 1975); LSA-C.C. arts. 2317, 2320 and 2322.

As to negligence on the part of either of the Crains, the jury correctly found that the record is devoid of evidence of negligence. In no way was the conduct of the Crains or their employees, Sells and Romero, sub-standard, blameworthy or negligent.

It is contended that, even in the absence of non-negligent conduct on the part of the Crains, the damages in question resulted from a defect, here a fire, on their premises which created an unreasonable risk of harm to others. In the instant situation, no legal fault rests on the owners of the property for failure to prevent or guard against the fire because the defect or fire originated on the shoulder of the highway rather than in the Crains’ pasture. This is established by the disinterested witness, Griffith. The inescapable conclusion is that the harm was caused by the fault of some third person, whoever caused the fire to start on the side of the highway. It was possibly a passerby with a careless cigarette. The fact that the grass on the shoulder caught fire and the fire spread to the Crain property does not make them liable. There is no evidence that the Crains could have prevented the spread of the fire. They were not responsible for the fire or defect but rather additional victims of it.

(2) COURSE AND SCOPE OF EMPLOYMENT

It is contended that the jury erred in finding Larry McClure to be in the course and scope of his employment with Hudson Engineering at the time of this accident. Counsel for Hudson maintains, correctly: that Larry was not driving a company automobile; the accident did not occur during the hours of his employment; Larry .was not being paid wages during the trip; and no mileage or expenses were being paid for the trip. However, this case presents an unusual situation in that Larry McClure was acting on behalf of his father, a co-employee, and doing a service for Hudson which was customarily done by his father. When the senior McClure performed this duty, it is undisputed that he used a Hudson company car and credit card. The senior McClure was a salaried employee rather than an hourly employee.

Carrying of documents back and forth between Houston and Grand Chenier was one of the senior McClure’s duties. He received the use of an automobile and payment of expenses for such trips. The jury could reasonably have found that Larry McClure was acting as a substitute for his father. The evidence, particularly that of Tommy Granger and Ms. Conner, establishes that Larry McClure was performing one of his father’s duties with Hudson at the time of the accident. Hudson cannot escape liability merely because Larry McClure was performing the service rather than his father. Whether Larry was requested or ordered to perform the errand is not material, since it is inconceivable that an employee in his situation would have declined to do so. The question of whether an act is within the scope of an employer’s business must be considered in the light of the particular circumstances, which indicate whether the act promotes the employer’s business. There is a reasonable basis here for 'the jury’s conclusion that Larry McClure was acting in the scope of his employment with Hudson at the time of this accident. We agree with the statement in the recent ease of St. Paul Fire & Marine Insurance Co. v. Roberts, 331 So.2d 529 (La.App. 1 Cir. 1976) as follows:

“We believe the master’s liability attaches to an accident which occurs while the servant is in the process of executing a mission requested or directed by his master for the master’s purposes.” 331 So.2d 538

Counsel for Hudson relies on Keen v. Pel State Oil Co., Inc., 332 So.2d 286 (La.App. 2 Cir. 1976) writ denied La., 333 So.2d 234 and Babineaux v. Lavergne, 321 So.2d 401 (La.App. 3 Cir. 1975).

Babineaux can be distinguished from the instant case. Crucial to that decision was the finding that the employee was performing an errand as a personal favor rather than because of employment, a situation not present here. In Babineaux, the trier of fact concluded that Lavergne was not acting within the course of his employment and this court found “. . .no error in the holding of the trial court . . 321 So.2d 404. As pointed out in Wright v. Romano, 279 So.2d 735 (La.App. 1 Cir. 1973) writ denied La., 281 So.2d 757, 758, each such case must be decided on its own facts. In Babineaux there was a reasonable evi-dentiary basis on which to hold the employee not in the course of employment. Here, there is a reasonable evidentiary basis on which to affirm a contrary finding. An initial determination of the issue is not before us. Pierre v. Landry, 341 So.2d 891 (La., 1977).

Keen is also distinguishable on its facts from the instant case. There, the employee, Fountain, was not performing a service which was generally done in a company vehicle at company expense, as is the case here. We are also not bound by Keen. Judge Bolin’s dissent, stating that the issue of whether an employee is performing a function of employment is best decided by trial on the merits, expresses our view of the question. Here, the jury found Larry McClure to be acting within the scope of his employment. That conclusion is not manifestly erroneous.

(3) CONTRIBUTORY NEGLIGENCE AND/OR ASSUMPTION OF RISK

The next issue is whether Jinks and Chapman were guilty of contributory negligence and/or assumed the risk of the accident.

Chapman testified that he was parked safely on the shoulder of the road with his flashers blinking when he was struck. His testimony was apparently believed by the jury and was supported to some extent by that of Larry McClure, who admitted that he did not know where he was located on the highway when the accident occurred. Chapman’s testimony was not contradicted by that of any of the other witnesses; Trooper Singer could not determine the exact location of the point of impact because of the smoke. The fact that the wheels of Chapman’s truck were in the ditch after the accident indicates that he was in all probability on the shoulder as he testified. While Chapman had been through the smoke in the opposite direction prior to the accident, he testified that the smoke at that time did not present a hazard. This testimony was confirmed by Sandifer, who testified that he could see well enough to proceed through the smoke safely on Jinks’ motorcycle prior to the accident, by Jinks himself who was riding with Sandifer, and by deputy Billy Griffith.

As to the question of contributory negligence on the part of Jinks, the jury apparently believed his testimony that he did not have time to warn McClure about the smoke. As to having assumed the risk of the accident, his testimony, as well as that of Chapman, Sandifer and Griffith, was that the smoke did not present a hazard on his initial venture through it.

There is an ample evidentiary basis for the jury’s conclusion that Chapman and Jinks were not guilty of contributory negligence and did not assume the risk of the accident.

(4) QUANTUM

No abuse of discretion is shown in the quantum of damages awarded Earl Joseph Chapman and Edward Bryant Jinks, individually, and as father of the minor, John Kelvin Jinks. LSA-C.C. art. 1934(3).

Earl Joseph Chapman was awarded $50,000. This sum included all items of special damages. Chapman, because of his lack of education, was forced to return to physical labor, despite the fact that any minor trauma could be fatal because of the unusual injury he received in this accident. Although the type of injury has small significance in determining the amount of damages awarded, Jenkins v. Dixie Rental Tools And Casing Crews, Inc., 283 So.2d 271 (La.App. 1 Cir. 1973) writ denied La., 285 So.2d 542, a worse injury than a potentially fatal tear of the brain sack secondary to an open skull fracture is difficult to envision. Chapman returned to work after six weeks because of a commendable desire to support his family but must live for the remainder of his life with the mental anguish of knowing that any slight trauma could result in his death. Loss of earnings cannot be calculated with mathematical exactitude and the jury here could well have considered the possibility that Chapman may suffer a recurrence of his injury. Coco v. Winston Industries, 341 So.2d 332 (La., 1976). Fear, anxiety and mental anguish about a potential result of a physical injury is a proper element of an award of damages. Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La., 1974).

The award of general damages to John Kelvin Jinks is not excessive. The jury had an opportunity to view the physical damage to this young man’s face. Even plastic surgery will not restore Jinks’ face completely. Such a facial disfiguration is a particularly sensitive matter to an adolescent. It is contended that the permanent bridge proposed by Dr. Andrepont would be superior to Jinks’ natural teeth but this is not the testimony of that physician who said that nothing would restore John Kelvin Jinks’ natural teeth since

“. . . it’s awfully hard to match the good Lord’s work.” (TR. 379)

Dr. Andrepont testified that the temporary bridge was a very uncomfortable thing. John Kelvin Jinks, because of financial inability to buy the permanent bridge, was forced to either wear the temporary bridge or go without it and be handicapped in his speech and eating during the period between the accident and trial. The jury here had the best opportunity of viewing John Kelvin Jinks and evaluating his injuries as well as his testimony. General damages

“. . . involve mental or physical pain or suffering, inconvenience, the loss of gratification of intellectual or physical enjoyment, or other losses of life or lifestyle which cannot really be measured definitively in terms of money.” Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 352.

(5) INDEMNITY

It is contended that the trial court erred in giving Hudson judgment on its third party demand against the McClures for indemnity as to any amount paid. Since Hudson’s liability is vicarious, Hudson is entitled to recover from the negligent party, Larry McClure, and his father, James McClure, who is responsible for the negligence of the minor, Larry, while residing in his household. LSA-C.C. art. 2318; Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960); Bewley Furniture Co., Inc. v. Maryland Casualty Co., 285 So.2d 216 (La., 1973).

(6) COURT COSTS

The trial court, in a post-trial ruling on court costs, held that Allstate and the McClures “. . . were cast with the total court costs by operation of law . and not by an application of the discretion of the trial judge.”

It is contended that the trial court erred in assessing all costs of court against Allstate, because Allstate tendered its $10,000 policy limits at trial. The applicable article of the Code of Civil Procedure, 1920, provides:

“Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. “Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.”

Although no reasons were assigned for holding the McClures and Allstate responsible for all costs, Hudson was apparently not cast for payment of costs because of its vicarious or secondary liability. Such a ruling might be within the trial court’s wide discretion, but the court here specifically stated that costs were not fixed by discretion.

The Louisiana Supreme Court in Wooten v. Wimberly, 272 So.2d 303 (La., 1973) held that a party who is only vicariously liable is not solidarily liable with the principal debt- or. As pointed out in the concurring opinion of Justice Tate,

“The two concepts are not mutually exclusive. A liability may be vicarious (a strict liability without fault, imposed by statute), and it may also be solidary.” 272 So.2d 309

This statement by Justice Tate is supported by Louisiana Civil Code art. 2106, which, as Professor H. Alston Johnson, III, points out in footnote 23 at 36 L.L.R. 380,

“. envisions indemnification as a possible relationship between solidary ob-ligors ....

The official revision comments under LSA-C.C.P. art. 1920 state in part:

“(c) Since the above article makes the imposition of costs discretionary with the court, the provision of Art. 549, Code of Practice of 1870, excepting from the general rule cases where compensation has been allowed or real tender made, is unnecessary.”

This court has authority under LSA-C. C.P. art. 2164 to tax costs:

“. . . as in its judgment may be considered equitable.”

It is not equitable for Allstate to bear the costs of the extensive litigation on the question of whether Larry McClure was in the course and scope of his employment with Hudson at the time of this accident.

A party may be cast for court costs, even though that party has no liability. Britt v. Merritt, 219 La. 333, 53 So.2d 121 (1951). Court costs need not be assessed against one primarily liable. Ogaard v. Wiley, 325 So.2d 642 (La.App. 3 Cir. 1975). The trial court erred in holding that the McClures and Allstate were liable for all costs as a matter of law. In the interest of fairness, Hudson is cast for one-half of all costs, both at trial and appeal; Allstate, Larry McClure and James McClure are cast for the other one-half.

CONCLUSION

For the foregoing reasons, the judgment of the trial court herein is amended to tax one-half of the costs of trial to Hudson Engineering Corporation. The judgment of the trial court is otherwise affirmed.

All costs of appeal are taxed one-half to Hudson Engineering Corporation and one-half to James McClure, Larry McClure and Allstate Insurance Company.

AMENDED AND AFFIRMED.

GUIDRY, J., concurs and assigns written reasons.

GUIDRY, Judge

(concurring).

I concur in the finding that the Crains are not strictly liable under LSA-C.C. Art. 2317 and Loescher v. Parr, 324 So.2d 441 (La.1975), but on the ground that they were not owners or guardians of a defective thing.

I concur in the finding of liability on the part of Hudson Engineering Corporation only because of the strict rule of appellate review as announced in Canter v. Koehring Company, 283 So.2d 716 (La.1973).

      . The court reporter repeatedly stated that she had difficulty in understanding him.

      . In an offer of proof, Ms. Conner added that, every week or every other week, James McClure would carry invoices, receiving reports, payroll time sheets and progress reports from the Grand Chenier job site addressed to the Houston office of Hudson Engineering. Granger made the decisions as to what would be transmitted.

      . Filed in this court on February 10, 1977, by stipulation of all parties.

      . The record does not reflect that Allstate tendered its policy limits or paid any sum into the registry of the court.

      . LSA-C.C. art. 2106:
      “Art. 2106. If the affair for which the debt has been contracted in solido, concern only one of the coobligors in solido, that one is liable for the whole debt towards the other codebtors, who, with regard to him, are considered only as his securities.”


source: Caselaw Access Project

license: Public Domain

text:
    Earl Joseph CHAPMAN, Plaintiff-Appellee, v. James W. McCLURE et al., Defendants-Appellants.
    No. 5841.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 1977.
    Camp, Carmouche, Palmer, Carwile & Barsh by James E. Williams, Lake Charles, for defendants-appellants Allstate and McClures.
    Woodley, Fenet & Ranier by Edmund E. Woodley, Lake Charles, for defendant-appellant Hudson Engineering Co.
    Norman L. Williams, Lake Charles, for plaintiffs-appellees Edward and John Jinks.
    Mouton, Roy, Carmouche, Hailey & Bivens, John A. Bivens and Ralph E. Kraft, Lafayette, for defendant-appellee.
    Thomas W. Sanders, Joseph W. Green-wald, Lake Charles, Jones, Jones & Alexander by J. B. Jones, Cameron, for plaintiff-appellee.
    Richard B. Cappel of Raggio, Farrar, Cappel & Chozen, Lake Charles, for defendants-appellants.
    Before WATSON, GUIDRY and FORET, JJ.
   WATSON, Judge.

This suit was consolidated for jury trial and appeal with our docket No. 5840, Edward Bryant Jinks, Individually, Etc. v. James W. McClure, Et Al, in which a separate opinion has been rendered this date. Both suits arise from the same accident and involve the same defendants, James W. McClure, Larry D. McClure, Hudson Engineering Corporation, Allstate Insurance Company, A. H. Crain, John Paul Crain and American Mutual Liability Insurance Company. Plaintiff herein is Earl Joseph Chapman. The issues presented are identical in the two cases. The testimony and conclusions applicable herein are discussed in the companion case. For the reasons assigned therein, the judgment of the trial court herein is amended to tax one-half of the costs of trial to Hudson Engineering Corporation. The judgment of the trial court is otherwise affirmed.

All costs of the appeal are taxed one-half to Hudson Engineering Corporation and one-half to James McClure, Larry McClure and Allstate Insurance Company.

AMENDED AND AFFIRMED.

GUIDRY, J., concurs and assigns written reasons.

GUIDRY, Judge

(concurring).

I concur in the finding that the Crains are not strictly liable under LSA-C.C. Art. 2317 and Loescher v. Parr, 324 So.2d 441 (La.1975), but on the ground that they were not owners or guardians of a defective thing.

I concur in the finding of liability on the part of Hudson Engineering Corporation only because of the strict rule of appellate review as announced in Canter v. Koehring Company, 283 So.2d 716 (La.1973).


author: LANDRY, Judge.

text:
    In re Arville Wiley STEED applying for adoption v. Kenneth E. McKENZIE.
    No. 11180.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Michael F. Little, New Orleans, for plaintiff, appellant.
    Larry J. Green, Covington, Haynes L. Harkey, Jr., Monroe, for Kenneth E. McKenzie, appellee.
    Before LANDRY, EDWARDS and COLE, JJ.
   LANDRY, Judge.

This appeal by Arville Wiley Steed (appellant) is from judgment rejecting his application for adoption of his minor step-children, Kevin DeMarc McKenzie and Christopher Allen McKenzie, without the consent of the children’s natural father, Kenneth E. McKenzie (Appellee). We affirm.

The sole issue presented is whether Ap-pellee’s consent to the proposed adoptions has been rendered unnecessary because of his alleged failure to pay child support. LSA-R.S. 9:422.1 pertinently provides:

“If the spouse of the petitioner is the legitimate parent of the child * * * the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist: ■
(1) The spouse of the petitioner * * * [has] been granted custody of the child by a court of competent jurisdiction and
(2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year * * *.”

Appellee and Marian Rose Mann were married in October, 1964. Of this marriage Kevin DeMarc McKenzie and Christopher Allen McKenzie were born on July 4, 1965, and October 29,1967, respectively. In 1968, the McKenzies were divorced by judgment of the Chancery Court, Adams County, Mississippi, which decree also' awarded Mrs. McKenzie custody of the children. On May 4, 1970, the Mississippi Court fixed temporary visiting rights for Appellee and condemned Appellee to pay $50.00 monthly alimony for the support of the children. On April 14, 1971, the Mississippi Court again amended its decree by defining Appellee’s visitation privileges with greater particularity and continuing its previous alimony award.

Appellant and Marian Rose Mann McKenzie were married in February, 1970. They established their first matrimonial domicile in Pasadena, Texas, and resided there until August, 1971, when they moved to Slidell, Louisiana. The Steeds have resided in Slidell continuously since moving there. The McKenzie children have resided with their mother and step-father ever since their mother’s re-marriage. The Steeds now have a child of their own.

Appellee paid all alimony due his children through November, 1972, and has admittedly paid nothing since. Prior to November, 1972, Appellee exercised his visitation privileges with some degree of regularity. He also maintained contact with the children by mail and sent them presents at Christmas and other occasions. Since November, 1972, he has neither seen the children nor attempted any contact whatsoever, nor sent them presents at any time. In January, 1976, Mrs. Steed received a check for $1,038.20 representing Social Security benefits due the children, commencing in February, 1975, at which time Appellee qualified for Social Security benefits for total incapacity. Since receiving the first check, Mrs. Steed has received monthly Social Security benefits of $97.00 for the children.

It is Appellee’s position that his consent to the adoption has not been rendered unnecessary because of his failure to pay child support without just cause. He attributes his failure to pay to his inability to work and earn a living because of prolonged, chronic emotional and mental illness.

Appellee has shown a long history of hospitalization for emotional and mental instability, his first hospitalization having occurred in 1967, during a period of separation from his then wife. At this time he was committed to the psychiatric ward of St. Francis Hospital, in Monroe, Louisiana. When committed, Appellee was residing in Monroe, Louisiana, which city was and has remained the home of Appellee’s parents. In January, 1969, Appellee was admitted to Central Louisiana State Hospital, Pineville, Louisiana, an institution for the care and treatment of the mentally ill. In November, 1972, Appellee was committed to Confederate Memorial Hospital, Shreveport, Louisiana, also an institution for the mentally ill, and recommitted to that facility in August, 1974. It suffices to state the record shows evidence of immaturity and emotional and mental instability on Appellee’s part from the time of his marriage. During the marriage, at least, Appellee’s problems were complicated and aggravated by his excessive consumption of alcohol. There is no evidence of his excessive drinking in recent years.

Since November, 1972, Appellee has resided almost continuously with his parents in Monroe, Louisiana, except for an approximate three-month period in 1974, during which he worked and resided in Texarkana, Texas-Arkansas. This period of employment resulted in earnings of $1,200.00. Except for this three months work, Appellee has been unemployed since November, 1972. ■He was furnished a home, food and clothing by his parents until February, 1975, when he began receiving Social Security benefits of approximately $190.00 per month for total incapacity due to mental illness. Appel-lee is presently enrolled in college and is earning approximately $50.00 per month as a tutor of Business Administration courses. Appellee does not own an automobile.

From September 22, 1971, through May 21, 1972, Appellee consulted William N. Tarver, psychiatric social worker, Columbia Mental Health Clinic, approximately three or four times monthly. Tarver characterized Appellee’s condition as a state of severe depression to the extent Appellee could not work, attend school or function as a normal person. He advised Appellee to discontinue seeing the children because Tarver felt the visits were upsetting Appellee and aggravating his condition.

Dr. Merritt N. Dearman, M.D., Psychiatrist, first saw Appellee in December, 1974, during a series of visits by Appellee to the Monroe Mental Health Clinic. Commencing December 16, 1975, Dr. Dearman has seen Appellee numerous times as Appellee’s private physician. Based on Appellee’s history of hospitalization, complaints of withdrawal symptoms and other subjective and objective symptoms, Dr. Dearman diagnosed Appellee’s condition as chronic schizophrenia of long duration, probably beginning during Appellee’s early life. During 1975, while Dr. Dearman was a consultant for the Monroe Mental Health Clinic, he certified Appellee as being totally incapacitated, which diagnosis was the basis for Appellee’s receipt of Social Security benefits.

The record establishes beyond doubt that, commencing in 1971, Appellee has experienced prolonged periods of severe depression, accompanied by virtually complete withdrawal from all normal activities. During these episodes, he remained almost totally uncommunicative, even as to his parents, with whom he resided, and upon whom he was completely dependent for support. The record leaves no doubt as to his unemployability during these periods. It also appears that in recent months, Ap-pellee’s condition has improved to the extent he has resumed his college education with the aid of his disability income from Social Security.

LSA-R.S. 9:422.1 is in derogation of the natural right of a parent to his or her child. For this reason, the statute must be construed strictly in favor of the parent. In re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963). Ackenhausen, above, also held that the consent of both parents is required for adoption, except where parental consent has been expressly dispensed with, as in the event of failure to pay support as provided by LSA-R.S. 9:422.1, and even in such cases, consent is not dispensed with when it appears that failure to pay was due to reasons beyond the parent’s control. In Ackenhausen, above, we note the following pertinent language:

“The statute dealing with support could only mean that consent is dispensed with when the failure to comply with the order of court is without just cause. The Legislature never intended by this provision to dispense with the consent where the legitimate parent shows that his failure to comply with the court order for support was for reasons beyond his control. It intended that consent be dispensed with only where the parent refuses to comply with the order or fails to comply with the order without justification. To say that the consent of a legitimate parent is not required when his failure to comply with an order of support was due to sickness or some other situation beyond his control would be absurd, and the Legislature never intended for the statute to be given such an interpretation.”

Each case of this nature must be determined in the light of its own peculiar facts and circumstances. Ackenhausen, above; Rodden v. Davis, 293 So.2d 578 (La.App. 3rd Cir. 1974).

In numerous instances it has been held that failure of a parent to make support payments does not dispense with the necessity of his consent to the adoption of his child, where such failure is due to circumstances beyond his control. In re Adoption of Fouts, 254 So.2d 649 (La.App. 4th Cir. 1971); In re Spraggins, 234 So.2d 462 (La.App. 1st Cir. 1970); In re Adoption of Schieman, 204 So.2d 433 (La.App. 4th Cir. 1967); In re Adoption of Bickerstaff, 190 So.2d 117 (La.App. 4th Cir. 1966); In re Hughes, 176 So.2d 158 (La.App. 4th Cir. 1965).

Citing In re Merrill, 246 So.2d 207 (La.App. 1st Cir. 1971); In re Adoption of Moody, 201 So.2d 222 (La.App. 2nd Cir. 1967); Rodden v. Davis, above, and In re Salmon, 318 So.2d 897 (La.App. 2nd Cir. 1975), Appellant contends the trend of recent decisions places emphasis upon the best interest of the child. In this regard, Appellant notes that the children are presently well adjusted in a comfortable pleasant home; that Appellant is able to amply provide for their support considering he is an airline pilot with an annual income of $35,000; that he is willing and anxious to adopt and provide for the children; and, that the children have come to regard and love him as their father.

We note language in the cited cases referring to the “best interest of the children”, but we fail to detect theréin any indication of a trend to decide cases of this nature, either entirely or primarily upon the mentioned concept. In our view, the basic, primary and fundamental issue in these cases is not the best interest or welfare of the child. Presumably that issue was determined when custody was awarded to the spouse of the party seeking adoption. These cases, we believe, are concerned solely with the basic, inherent right of the parent whose child is sought to be adopted by the spouse of his former mate. We refer, of course, to the right of a parent to prevent the adoption of his child without his consent. We agree with the pronouncement in In re Adoption of Fouts, above, to the effect that courts will not callously overlook the rights of a natural parent who has made a reasonable effort to fulfill his parental obligation to support his children. We conclude this same principle applies to a parent who is incapable of fulfilling this obligation by circumstances beyond his control.

Appellant stresses the fact that Appellee attempted no communication with the children between November, 1972 and institution of this action in October, 1975. Appel-lee explained that his remission was due to his disturbed emotional and mental state, his lack of transportation, and also to some misunderstanding concerning his visitation privileges and the willingness of his former wife to cooperate in the exercise of his visitation privileges. The record as a whole convinces us that Appellee has not shown a calculated, intentional disregard for the welfare of his children. We are in complete agreement with the trial court’s resolution of the factual issues presented on this appeal.

The judgment is affirmed at Appellant’s cost.

AFFIRMED.


author: EDWARDS, Judge.

text:
    Claranell FAVORS et al. v. SOUTHERN INDUSTRIES, INC., et al.
    No. 11175.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.

      Wilson C. Krebs and Victor J. Versaggi, Patterson, for appellants.
    John E. Coleman, Jr., and James McClel-land, Aycoek, Horne, Caldwell, Coleman & Duncan, Franklin, for appellees.
    Before LANDRY, EDWARDS and COLE, JJ.
   EDWARDS, Judge.

This is a suit for wrongful death brought by the widow and only child of the decedent against the decedent’s corporate employers, four executive officers of these employers, and the insurer of the officers. The trial court sustained a peremptory exception of no cause of action as to the corporate employers, since plaintiffs’ sole and exclusive remedy against the employers was in workmen’s compensation, and dismissed the employers from the suit.

The insurer of the executive officers filed an exception of prescription of one year and this exception was sustained by the trial court. The suit was thereafter dismissed. Plaintiffs only appeal the trial court’s judgment sustaining the exception of prescription and dismissing the suit.

The decedent, Daniel Favors, died on January 25,1975, allegedly as a result of a lung condition precipitated and/or aggravated by his employment at defendants’ lime plant.

A suit seeking damages, in tort, was filed on January 13, 1976 by Claranell Favors, widow of the decedent, and Ronnie Favors, only child of decedent, represented by Clar-anell Favors as his natural tutrix. Named as defendants in this suit were the four corporate employers of the decedent, four executive officers, and the liability insurer of the officers. When the suit was filed the identity of the officers and their insurer was unknown, therefore they were named in the suit as “John Doe, John Roe, Richard Doe, Richard Roe and X Y Z Insurance Company.”

The corporate defendants filed a peremptory exception on March 26, 1976 alleging that plaintiffs’ sole remedy, as to the corporate employers, is provided under the workmen’s compensation act and therefore, the plaintiffs are prohibited from asserting this action in tort. This exception was sustained in a written judgment on April 14, 1976 and the corporate defendants were ultimately dismissed from the suit. Plaintiffs have not appealed, this judgment or the dismissal of the corporate defendants from the suii.

On April 27, 1976, plaintiffs filed their first amending petition naming Travelers Insurance Company as the insurer of the executive officers in place of the X Y Z Insurance Company named in the original petition.

The correct names of the four executive officers were stated in plaintiffs’ second amending petition of May 10, 1976.

A peremptory exception of one year prescription was filed on behalf of Travelers as the liability insurer of the four executive officers on June 7, 1976. This exception was sustained and the suit dismissed after a hearing on August 13, 1976.

The applicable prescriptive period for a suit in tort for damages is stated in LSA-C.C. art. 3536 as one year. This one year period began to run on the date of Daniel Favor’s death, January 25,1975, and tolled on January 25, 1976, unless some event interrupted the running of prescription.

LSA-R.S. 9:5801 provides in pertinent part:

“All prescriptions affecting the cause of action therein sued upon are interrupted as to all defendants, including minors and interdicts, by the commencement of a civil action in a court of competent jurisdiction and in the proper venue. . . .”
Additionally, LSA-C.C. art. 2097 states: “A suit brought against one of the debtors in solido interrupts prescription with regard to all.”

In determining whether an interruption has occurred in this case, we must examine the original petition which was filed within the one year prescriptive period. The defendants named by this petition were the four corporate employers; all other defendants were denominated by fictitious identifications.

Therefore, in order for prescription to be interrupted by this suit, it was necessary that the unnamed defendants be solidarily liable with a timely-sued named defendant, or that the unnamed defendants be named within the prescriptive period. Majesty v. Comet-Mercury-Ford Company of Lorain, Michigan, 296 So.2d 271 (La.1974).

There existed no solidarity between the named corporate employers and the unnamed defendant insurance company or executive officers, since there was no cause of action in tort as to the corporate defendants. LSA-R.S. 23:1032; Kenner v. Hanreco, Inc., 161 So.2d 142 (La.App. 4th Cir. 1964). Therefore, Civil Code article 2097 does not apply in this case.

Travelers was not named as a defendant until April 27, 1976, and the executive officers were not named until May 10, 1976. The amendments were filed after the one year prescriptive period had run. These amendments to correct the fictitious names given to the defendants do not relate back to the original filing date of the suit, Majesty v. Comet-Mercury-Ford Company of Lorain, Michigan, supra; Commercial Union Insurance Co. v. Bringol, 262 So.2d 532 (La.App. 4th Cir. 1972).

We find that prescription as to the unnamed defendants was not interrupted by the filing of the original suit, since they were not named as defendants nor was there a solidary obligation with any named defendant who was timely sued.

The appellants have urged the doctrine of “contra non valentem agere nulla curric prescripto.” We find the doctrine inapplicable since there has been no showing that the defendants practiced any concealing or misleading actions which prevented the plaintiffs from instituting suit within the prescriptive period. Hyman v. Hibernia Bank & Trust Co., 139 La. 411, 71 So. 598 (1916).

We hold that the trial court properly sustained the peremptory exception of prescription.

For the reasons assigned, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

      . No prescription runs against i . person unable to bring an action.


author: COLE, Judge.

text:
    RE-STEEL, INC. v. HAAS AND HAYNIE-TUDOR CONSTRUCTION COMPANY et al.
    No. 11129.
    Court of Appeal of Louisiana, First Circuit.
    March 21, 1977.
    Writ Not Considered May 26, 1977.

      Martin A. Welp, New Orleans, of counsel for plaintiff-appellant Re-Steel, Inc.
    Victor A. Sachse, III, Breazeale, Sachse & Wilson, Baton Rouge, of counsel for defendant-appellee Haas and Haynie-Tudor Construction Company, et al.
    Before LANDRY, EDWARDS and COLE, JJ.
   COLE, Judge.

This is a contractual dispute over funds allegedly owed to plaintiff as a subcontractor on a construction project in Baton Rouge, Louisiana.

On August 25, 1972, Re-Steel, Inc., entered into a written contract with Haas and Haynie-Tudor Construction Company (hereafter, “HHT”), which was the general contractor for the construction of a bank building known as “One American Place.” That contract provided that the plaintiff was to provide and install the necessary reinforcing steel for the job.

In December, 1973, disagreements between the project owner, Cabot, Cabot and Forbes (hereafter, “CCF”), and HHT arose, which caused considerable doubt as to whether HHT was going to complete the job as the general contractor. Mac R. Lambert, the president of Re-Steel, Inc., was so informed and discussed its status at that time with Kenneth R. Kay, the project manager for HHT. On or about December 20, 1973, at Kay’s suggestion, Lambert discussed Re-Steel’s continuation on the job with William Purcell, the project manager for HHT’s apparent successor, Linbeck Construction Corporation. An oral agreement was thereafter reached between those two under which the plaintiff, which had been previously losing money on the job, agreed to continue. On January 7, 1974, Re-Steel Was notified that HHT would remain as the general contractor, and on the following day, plaintiff voluntarily left the job.

This litigation followed with suits being brought by Re-Steel against the owner, general contractor and Linbeck. The latter was subsequently dismissed and the matter tried as to the remaining defendants. Judgment was thereafter rendered in favor of the plaintiff in the amount of $13,713 against HHT only. Only the plaintiff has appealed.

Re-Steel contends that it is owed $96,-576.83, or, alternatively, $139,615.27, because there was a unilateral cancellation of the contract by HHT and that the terms of Article XXXII relating to such a cancellation should be applied. That article provides:

“The Contractor may terminate the employment of the Subcontractor at any time, even though the Subcontractor is not in default. In such event, the Contractor shall pay to, or for the account of the Subcontractor, on account of the Work performed prior to the effective date of such termination (1) all actual costs approved by the Contractor as having been paid or incurred by the Subcontractor in connection with performance of the Work; (2) all costs incurred with the Contractor’s prior written approval in settling or discharging outstanding commitments entered into, in good faith, by the Subcontractor in connection with performance of the work; (3) a reasonable amount to cover general overhead expenses of the Subcontractor incurred in connection with the performance of the Work and which are not covered by payments under Items (1) and (2) above; and (4) an amount equal to — of the total of Items (1), (2) and (3) above in lieu of all profits which the Subcontractor would or might have realized if this Contract had been completely performed; provided that the workmanship, materials and equipment for which payment is to be made as aforesaid are in accordance with the requirements of this Contract. There shall be deducted from the amount determined above all payments previously made by the Contractor and all amounts which the Contractor is entitled to charge the Subcontractor under this Contract. In no event shall the amount to be paid to, or for the account of, the Subcontractor pursuant to this Article XXXII plus all amounts previously paid the Subcontractor plus all amounts which the Contractor is entitled to charge the Subcontractor under this Contract exceed the Contract Price, as adjusted.
“The Subcontractor shall (a) assign and transfer to the Contractor, as directed by the Contractor, all materials, equipment, tools, plant and facilities for which payment has or will be made under this Contract and all subcontracts, orders and commitments and shall execute and deliver all such papers and take all such action as the Contractor may require to fully vest in the Contractor the rights of the Subcontractor in and to the same; (b) cancel, as directed by the Contractor, subcontracts, orders and commitments; and (c) sell at prices approved by the Contractor such materials, equipment, tools, plant and facilities as the Contractor shall direct, the proceeds to be paid or credited to the Contractor as the Contractor shall direct.
“The Subcontractor shall furnish the Contractor with detailed and correct records and copies of all subcontracts, orders, commitments, costs, accounts and statements. Furthermore, in order that the interests of the Contractor may be properly protected, the Subcontractor shall fully insure, at the cost of the Contractor, such materials, equipment, tools, plant and facilities as may be involved hereunder with insurance in favor of the Contractor against fire and/or theft, and if so required, shall furnish the Contractor with certificates for such insurance.” (Exhibit P-1)

In the further alternative, they seek damages from these defendants because they allegedly caused Linbeck to breach its agreement with the appellant.

The trial judge concluded that the contract between Re-Steel and HHT was can-celled by mutual consent and although Re-Steel had a later agreement with Linbeck, that Re-Steel itself abandoned that agreement, and that no proof was produced that the owner or general contractor caused Re-Steel to lose the Linbeck contract. Although our findings vary from those of the trial court to some extent, the result of its decision will not be affected.

We conclude that there was no mutual cancellation of the contract between Re-Steel and HHT. Although Lambert testified that he believed that the contract had been terminated by his discussion with Kay, the latter testified that he made no such representations to Lambert, nor did he have the authority to do so. William Purcell also stated that it was not clear at that point in time that Re-Steel had been released by HHT.

Additionally, although Article XXXII does not specifically state that a unilateral termination would have to be in writing, the tenor of the agreement strongly supports that conclusion. Article XXXIV contains these terms:

“This Contract constitutes the entire agreement between the parties hereto and cannot be amended, modified or changed except as herein provided; nor can the provisions of this Contract be waived except by an express waiver in writing.” (Exhibit P-1)

Articles VIII and XXI contain similar requirements. Therefore, the provisions of Article XXXII are not applicable here, as the agreement was never unilaterally terminated by HHT.

While still so obligated, Lambert negotiated with Linbeck with the expectation of staying on the job for that contractor. Purcell related that in late December, 1973, many uncertainties existed as to the various responsibilities on the project; but, in the interest of keeping the work moving during the prospective transition, they agreed with Lambert to see to it that he did not lose more money if he would continue until the details were worked out. Acting for Re-Steel, Lambert agreed to do this and did so until notified that HHT was to remain as the general contractor under Linbeck’s supervision, at which time Re-Steel elected to cease working on the project, thereby passively violating its contract with HHT. LSA-C.C. art. 1931.

That this was a tentative, interim arrangement was known and made clear to Lambert by Purcell. Plaintiff’s answer to Interrogatory No. 3-a propounded by Lin-beek, which is entered here as Defendant’s Exhibit-4, is the following:

“a.) On December 24, 1973, a tentative verbal agreement was made but all the terms were not finalized until January 3, 1974.”

Linbeck’s arrangement with Re-Steel thereafter terminated when HHT began to continue again in the capacity of general contractor.

With respect to appellant’s demand based upon appellee’s alleged inducement of a breach of contract between Linbeck and appellant, our law does not recognize a cause of action therefor. Roussel Pump & Electric Company v. Sanderson, 216 So.2d 650 (La.App. 4th Cir. 1968); Delta Finance Company of Louisiana v. Graves, 180 So.2d 85 (La.App. 2nd Cir. 1965); New Orleans Opera Guild v. Local 174, Musicians M. P. U., 242 La. 134, 134 So.2d 901 (1961); Templeton v. Interstate Electric Company, 214 La. 334, 37 So.2d 809 (1948); Cust v. Item Company, 200 La. 515, 8 So.2d 361 (1942).

The appellee admits that the amount' awarded by the trial judge is correct and has deposited those funds into the registry of the court. The judgment will, therefore, be affirmed, at appellant’s costs.

AFFIRMED.


author: REDMANN, Judge.

text:
    SZUSH MACHINE WORKS, INC. v. SHELL OIL COMPANY.
    No. 7971.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.

      George C. Stringer, Jr., New Orleans, for plaintiff-appellant.
    Al J. Moore, New Orleans, for defendant-appellee.
    Before SAMUEL, REDMANN and LEM-MON, JJ.
   REDMANN, Judge.

Defendant’s offer for a contract for re-bushing eight cranes on offshore rigs provided plaintiff was to be paid “for work performed”, “fixed price per crane $475 ea., plus price per hour $40 hr., price overtime hour (after 8 hrs.) $60 hr.” Plaintiff’s acceptance of the offer, with defendant’s approval, added to the after-eight-hours overtime provision “and until my man returns to shop”. The question is of interpretation of the contract’s overtime provision in its application to an employee who stays overnight on the off-shore rig.

Plaintiff contends, in substance, that the $40 rate was for his employee’s travel time of about four hours each way from plaintiff’s shop in Harahan to the off-shore rigs, and the $60 rate was applicable to all time spent on the rig — both working time and sleeping time. Thus plaintiff contends that when, for example, an employee left the shop at 6 a. m. on January 13 and stayed on the rig until January 17, arriving at the shop at 11 a. m. on the 17th, that total of 101 hours is payable as 8 hours at $40 and 93 hours at $60 (of which only 44 hours were hours of work), for a total work charge of $5,900.

Defendant contends that overtime is due “after 8 hrs.” of each day, rather than of each trip off-shore, and further contends that no pay is due for the normal 12 hour non-working period on the rigs even if the employee does stay on the rig. Thus defendant calculates the January 13-17 work charge as eight hours at $40 from 6 a. m. to 2 p. m. and four hours at $60 from 2 p. m. to 6 p. m. on January 13,14,15 and 16, plus five hours at $60 from 6 a. m. to 11 a. m. on January 17 for a total of $2,440 (compared to plaintiff’s $5,900).

The trial judge ruled that no pay was due for non-working hours (from which plaintiff appeals) but that the $40 pay was only applicable to the first eight hours of work on each crane, after which all work on each crane was payable at $60 an hour, resulting in an award of $3,238.85 (from which defendant appeals by answer to plaintiff’s appeal).

Supportive of the trial judge’s position is testimony that the contract was “set up for one day at a time” and contemplated that each crane would take about a 12-hour working day to complete — in which case the work charge would have been $40 for eight hours only and $60 for all additional time on each crane, but there would not have been a second day of work to begin at either $40 or $60 on the same crane, and there would have been no staying overnight on the rig.

Also somewhat supportive is plaintiff’s testimony that he paid his employee $6 an hour for the first eight hours of each trip and $12 an hour thereafter (although not for the non-working time).

We first reject plaintiff’s claim for pay for the non-working time on the rigs. The contract — the law between these parties, C.C. 1901 — was to pay “for work performed . . price per hour” etc., and plaintiff’s addition of “until my man returns to shop” seems most naturally to alter the bargain to pay “for work performed” only to the extent that travel time was to be included in paid hours. The custom of the industry — applicable to determine ambiguity, C.C. 1953 — is not to pay for non-working hours, according to the testimony of defendant’s employees and the proffer of the testimony of others knowledgeable in the field (although defendant had never previously employed a machinist off-shore and plaintiff suggests that pay plans for others are irrelevant). Finally, the reasonableness of not paying for nonworking hours commends itself in defendant’s payment of plaintiff just as in plaintiff’s payment of its own employee. We see no reasonable connection (other than, possibly, insurance costs supposed to be covered by the $475 per crane) between plaintiff’s business costs or basis for profits and its employee’s spending non-working hours offshore rather than at home. After the employee had already worked 12 hours in the day, and would require four more hours to return to the shop, plaintiff could not anticipate his working at the shop. We conclude there is no basis upon which plaintiff can fairly recover $60 an hour for the 12-hour non-working period on the rigs.

We do find a basis for awarding $60 an hour for all time after the first eight hours on each trip. If the employee returned from the rig to the shop each day, eight hours of travel time would have to be added to the hours of work (probably reducing them to fewer than 12) and that travel time would itself exhaust the eight hours of regular pay so that all actual working time would be payable as “overtime”. Thus it was to defendant’s advantage to start paying the after-travel “overtime” rate at 6 a. m. on the second day of a trip rather than pay both the travel pay at $40 and all actual work at $60.

We can sympathize with defendant’s basic position that “after 8 hours” has an obvious relationship to the standard eight-hour day. But the circumstances discussed, including the quoted “price per crane” wording of the contract, justify the trial judge’s interpretation as a reasonable one, and perhaps the most reasonable one.

We can also sympathize with plaintiff’s objection that, despite plaintiff’s having invoiced defendant on its 24-hours-daily basis, defendant said nothing for about four months until the contract was completed, and meanwhile paid two of the invoices. Plaintiff suspects it was lulled into completing a job when defendant knew plaintiff believed it was being paid 24 hours a day yet defendant, believing only 12 hours were payable, kept silent. The trial judge presumably believed defendant’s evidence that the payment of the first invoices was by oversight and not in any effort to deceive plaintiff, and that the mistake was not discovered until shortly before defendant notified plaintiff. Defendant’s mistake does not entitle plaintiff to payment under its erroneous contract interpretation.

Affirmed.


author: GULOTTA, Judge.

text:
    Enas T. LANE v. The FIREMAN’S FUND INSURANCE COMPANY.
    No. 8462.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1977.
    Guste, Barnett & Shushan, Dennis C. Strayhan, New Orleans, for plaintiff-appellant.
    Loeb & Livaudais, Marcel Livaudais, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and MORIAL, JJ.
   GULOTTA, Judge.

Plaintiff appeals from the dismissal of his claim for additional medical payments under an automobile insurance policy. We affirm.

The matter was submitted to the trial court on memoranda arid a stipulation of facts. While guest passengers in an automobile owned by a third party, plaintiff was injured and his wife killed. As a result of his injuries, plaintiff incurred medical expenses totalling approximately $18,-000.00. In effect at the time of the accident was a Family Automobile Policy issued to plaintiff’s wife. The insurer paid to plaintiff the sum of $5,000.00 for which Lane signed a release.

The policy covers two automobiles and includes separate premiums for medical payments in the sum of $5,000.00 on each vehicle. However, the declarations section of the policy contains a $5,000.00 limit of liability for medical payments to each person. It is plaintiff’s contention that although the policy provides a $5,000.00 limit of liability for medical expenses incurred by one person, the policy provides for medical payments coverage on two automobiles to-talling the sum of $10,000.00. According to plaintiff, when the coverage limit on each automobile is “stacked”, he is entitled to recover the sum of $10,000.00.

The pertinent portion of the policy relative to medical payments reads as follows:

PART II — EXPENSES FOR MEDICAL SERVICES
“Coverage C — Medical Payments. To pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices,'and necessary ambulance, hospital, professional nursing and funeral services:
“Division 1. To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’, caused by accident, (a) while occupying the owned automobile, (b) while occupying a non-owned automobile, but only if such person has, or reasonably believes he has, the permission of the owner to use the automobile and the use is within the scope of such permission, or (c) through being struck by an automobile or by a trailer of any type;
* * * * * *
“Limit of Liability. The limit of liability for medical payments stated in the declarations as applicable to ‘each person’ is the limit of the Company’s liability for all expenses incurred by or on behalf of each person who- sustains bodily injury as the result of any one accident.”

Though we have not been confronted with a case involving the “stacking” of medical payments, our brethren on the Third Circuit, in Guillory v. Grain Dealers Mutual Insurance Company, 203 So.2d 762 (La.App. 3d Cir. 1967), writ denied, 251 La. 687, 205 So.2d 605 (1968), refused to permit stacking of medical payments where, as in the instant case, one policy of insurance covered two vehicles. Two separate premiums were paid for medical payment coverage and the policy contained a limit of liability similar to that in the policy before us. As in the instant case, the policy also contained the following condition:

“4. Two or More Automobiles — Parts I, II and III. When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each, but an automobile and a trailer attached thereto shall be held to be one automobile as respects limits of liability under Part I of this policy, and separate automobiles under Part III of this policy, including any deductible provisions applicable thereto.”

Reading this provision, together with other pertinent provisions of the policy (identical to those previously quoted above), the court in Guillory concluded that the policy did not allow double recovery under the medical payments clause. Likewise, in Bost v. Hartford Accident and Indemnity Company, 242 So.2d 355 (La.App. 2d Cir. 1970), the court, citing Guillory, disallowed stacking on facts similar to the cited case. In so holding, the court rejected plaintiff’s argument that stacking was allowed on the basis of the language “When two or more automobiles are insured hereunder, the terms of this policy shall apply separately to each”.

In the instant case, plaintiff attempts to distinguish Guillory and Bost on the ground that his injuries occurred while he occupied a vehicle owned by a third party, whereas in the cited cases, the accidents involved automobiles covered by the policy. It is true that the factual distinction exists as pointed out by plaintiff. Nevertheless, we do not perceive a difference in result. We interpret this limitation-to-each-person provision to apply whether the insured or his relative incurs injury while occupying an “owned automobile” or a “non-owned automobile” (as in the instant case). In Odom v. American Insurance Company, 213 So.2d 359 (La.App. 3d Cir. 1968), where the injured party was a passenger in one of the insured automobiles, as in Guillory, the court stated in response to plaintiff’s attempt to distinguish the case:

“We feel, however, that whether plaintiff incurred his injury ‘while occupying the owned automobile’ under Division 1(a) or ‘through being struck by an automobile’ under Division 1(c) makes no substantial difference insofar as the maximum recovery stated on the declarations page of the contract. For this reason we feel that the principle announced in the Guillory case is applicable to the instant one.”

We extend this rationale to the facts before us and apply the Guillory result despite the fact that plaintiff seeks medical payments under Division 1(b) for injuries incurred “while occupying a non-owned automobile”.

We find no merit, further, to plaintiff’s contention that denial of stacking under the Family Automobile Policy means no additional coverage ’is provided to the insured for medical payments although additional premiums are charged for coverage on each automobile. Though it is true that the limit of liability of the insurer remains at $5,000.00 despite the fact that two premiums are paid, the insured does, however, receive a greater expanse of coverage by paying two premiums. Had the insured paid a medical payment premium on only one of the vehicles covered by the policy and had the injuries been incurred in the other vehicle for which no premiums had been paid, no medical payment coverage would have been received by the insured. Argument similar to that raised in our case was disposed of by the court in Guillory, 203 So.2d at page 764:

“Had the plaintiff been involved in an accident while driving one of his own vehicles upon which no medical payment clause had been taken, then he would not have been entitled to recover under the medical, payments clause reserved on another of his owned vehicles because neither condition would have been presented, i. e., he would not have been in an owned vehicle (as regards to policy interpretation) and he would not have been driving a non-owned vehicle. Thus, the argument of the plaintiff that he would be paying double premiums for no good reason must fall.”

We adopt this reasoning from Guillory. See also Crenwelge v. State Farm Mutual Automobile Insurance Company, 277 So.2d 155 (La.App. 3d Cir. 1973).

Finally, we find no merit to plaintiff’s argument that the additional $5,000.00 medical payment is considered “excess insurance” under the policy. In support of this argument, plaintiff cites the following provision:

“Other Insurance. If there is other automobile medical payments insurance against a loss covered by Part II of this policy the Company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible automobile medical payments insurance; provided, however, the insurance with respect to a temporary substitute automobile or non-owned automobile shall be excess insurance over any other valid and collectible automobile medical payments insurance.”

Reading this language, together with the policy provision that “the terms of this policy shall apply separately to each” of the two or more vehicles insured under the policy, plaintiff argues that the two medical payment coverages are separate policies, both of which are fully collectible. We do not agree. We interpret this policy provision relating to “excess insurance” to be applicable only where there exists other insurance coverage under more than one policy. There is only one insurance policy in our case. This provision of the policy is clearly not applicable.

In Bourgeois v. Government Employees Insurance Company, 316 So.2d 804 (La.App. 1st Cir. 1975), writ refused, 320 So.2d 914 (La.1975), the court allowed stacking of uninsured motorist payments in the multiple vehicle single policy situation, but rejected stacking of medical payments.

Defendant has raised the release executed by plaintiff as a bar to the claim for the additional amount under the medical payments provision. Because we have rejected plaintiff’s claim on other grounds, no necessity exists for a discussion of this issue. Accordingly, the judgment is affirmed.

AFFIRMED.

      . By amendment, plaintiff is the named insured.

      . See Seaton v. Kelly, 339 So.2d 731 (La.1976); Phillips v. Barraza, 320 So.2d 587 (La.App. 4th Cir. 1975), writs denied, 323 So.2d 476 (La.1975) and 323 So.2d 478 (La.1975), where stacking is permitted in uninsured motorist coverage. We have found no Louisiana cases where stacking has been permitted under medical payments coverage.