author: DOMENGEAUX, Judge.

text:
    Mabel Cecelia Michiels BROWN et al., Plaintiffs-Appellees, v. SOUTHERN VENTURES CORPORATION et al., Defendants-Appellants.
    No. 5406.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 17, 1976.
    Writ Refused July 2, 1976.

      Stafford, Randow, O’Neal & Scott by Grove Stafford, Jr.,' Alexandria, for defendants-appellants.
    Gold, Hall, Hammill & Little by James D. Davis, James S. Gravel, Alexandria, for plaintiffs-appellees.
    Before DOMENGEAUX, WATSON and CUTRER, JJ.
   DOMENGEAUX, Judge.

This is a wrongful death action tried by jury. Plaintiffs are the surviving spouse and children of the decedent, James Brown. Defendants are Southern Motor Lodges of Alexandria, Inc., lessee and builder of the Howard Johnson’s Motor Lodge in Alexandria, Louisiana, and Insurance Company of North America, its liability insurer. Southern Ventures Corporation, the landowner and lessor of the premises was originally made a party defendant but filed a motion for summary judgment which was sustained by the trial judge. The jury awarded plaintiffs the sum of $161,-679.30. From this judgment the defendants have appealed. We affirm.

The pertinent facts of this case are as follows:

On the afternoon of January 14, 1973, a party was given by some Alexandria businessmen and their wives at the Bayou Room of the Howard Johnson’s Motor Lodge in that city. The party was to. coincide with the “Superbowl” football game and was given for the purpose of watching that contest amid friends. At approximately 2:30 P.M. the decedent, James Brown, arrived at the gathering and began to mill about and enjoy himself. Liquor flowed freely at the party and there is evidence that Mr. Brown indulged, but no one testified that he was noticeably intoxicated. During the party a number of the guests, including Mr. Brown, noticed and commented upon a phenomenon created by a combination of the pool lights and by steam rising from the motel swimming pool some ninety -three feet away and visible from the Bayou Room. At one point during the evening the decedent and another guest planned to walk over to the pool and observe it more closely but for some reason abandoned the idea. At about 7:00 P.M. Mr. Brown and another man who remained unidentified entered the motel restaurant and each had two cups of coffee. The manager of the restaurant knew Mr. Brown and testified that he was talking rather loudly about the game with his companion but that neither man gave the impression that he was intoxicated. No one saw Mr. Brown after he left the restaurant sometime after 7:00 P.M. At approximately 1:30 A.M. a city policeman found the decedent’s body floating in the shallow end (four feet) of the motel swimming pool which is located near the restaurant. The coroner ruled that the cause of death was drowning. There were no witnesses.

The defendants raise the following specifications of error:

1. The jury erred in finding the proximate cause of Mr. Brown’s death to be the allegedly dangerous condition existing around the motel swimming pool.
2. The jury erred in failing to find that Mr. Brown’s alleged intoxication contributed substantially to his death.
3. The- trial judge erred in allowing the jury to see photographs of the scene which were allegedly posed and unrepresentative.

THE MOTEL’S NEGLIGENCE

In order to determine the duty owed to the decedent by the defendants while on the latters’ premises, we must first ascertain the status which the decedent enjoyed while at the motel.

In the case of Savoy v. G. F. Poole Mortuary, 60 So.2d 108 (La.App. 1st Cir. 1952), the “invitee” was described in the following manner:

“ . . .an invitation to enter upon or use premises may be express or implied, and an invitation may be implied when the owner or occupant engages in some business which fairly indicates to the person entering the premises that his entry and use of the property is consistent with the intentions and purposes oí the owner or occupant.”

See also the cases of Mills v. Heidingsfield, 192 So. 786 (La.App. 2nd Cir. 1939), writ denied January 9, 1940; and Mercer v. Tremont, 19 So.2d 270 (La.App. 2nd Cir. 1944), writ denied October 3, 1944.

Mr. Brown entered onto the motel property at the express invitation of his hosts, occupants of the Bayou Room. The Bayou Room is a large room used almost exclusively for parties of this type. Under the test set forth in Savoy, supra, we find that the motel acted in such a fashion so as to clearly indicate its intentions that the room and motel premises be used as they were by the persons attending the “Superbowl” party. Furthermore, we find that after the termination of the party Mr. Brown became a paying customer in his own right when he purchased coffee in the restaurant. For these reasons, we are firmly of the opinion that Mr. Brown was a member of that class of persons deemed “invitees” as far as his relationship with the motel was concerned.

Under our jurisprudence the duty owed to an invitee is that of exercising reasonable and ordinary care including maintaining the premises in a reasonably safe and suitable condition and warning invitees of any hidden or concealed perils which are known or reasonably discoverable. Currington v. Great American Insurance Company, 281 So.2d 150 (La.App. 3rd Cir. 1973), writ refused October 12, 1973; Poggin v. General Guaranty Insurance Company, 250 La. 347, 195 So.2d 636 (1967); Alexander v. General Accident Fire and Life Assurance Group, 98 So.2d 730 (La.App. 1st Cir. 1957), writ denied February 10, 1958.

On the afternoon of the decedent’s funeral, approximately two days after his death, some members of his family visited the scene of the drowning. They discovered that much of the coping or slanted tile border (which extends approximately one inch over the edge of the pool wall) around the edge of the pool was loose and in a somewhat shaky or wobbly condition. In fact, one member of this party testified that all of the coping on the shallow end of the pool was loose. Mr. C. E. Ewing, Jr., a former swimming pool contractor, and now a swimming pool maintenance man, testified that he had inspected the Howard Johnson’s pool in 1972 or 1973, and found that approximately 25% of the cement coping around the pool had to be replaced and that some pieces were completely loose. There was also some conflicting testimony as to the effect of standing on a piece of loose coping. One individual testified that he did not think the coping would be shaky or wobbly if a person stood on it, while others testified to the contrary. An employee of the motel, Raymond Gaines, testified that he noted some loose coping and reported that condition to the motel manager some time prior to Mr. Brown’s death, however, the motel manager denies that such information was communicated to her. We find that the opinion of the majority of those witnesses who testified was that uncemented or loose coping would be more hazardous to an individual standing on it than coping which would be firmly cemented.

Portions of the decedent’s clothing were introduced at trial and revealed a pair of pants with a slight tear in the knee, a shoe with one of the heels partially knocked off, and a scratch on the crystal of his new wrist watch. The investigating officer found two small pools of water at the northwest corner of the swimming pool. There was also some evidence that the decedent had a bruise on his head. As to the exact cause of death, Doctor Edward C. Uhrich, the physician who performed the autopsy testified as follows:

“Now, there is a condition and this could fit this case very well, where the man fell into the water and on a real cold night, and if you will check the records, it was about 36 degrees that night. He fell into the pool and I maintain that—or I think that he had an laryngeal spasm. I think that—uh—that the epiglottis here cut off his air instantly and he had no chance at all, of swimming or yelling or doing anything. I think he died from a laryngeal spasm and this his—uh—as he died, almost instantly, I think the lungs filled up with water, and all the other things happened. That’s an honest opinion. That’s what I told the coroner and that’s what I believe and there’s nobody here can shake me out of that.”

Confronted with the above outlined circumstantial evidence, the jury was forced to make a determination of the causation of Mr. Brown’s death.

We find that the principle of res ipsa lo-quitur as set forth in the case of Boudreaux v. American Insurance Company, 262 La. 721, 264 So.2d 621 (La.1972) particularly applicable to this case. In Boud-reaux the Supreme Court stated:

“In this respect, the principle of ‘res ipsa loquitur’ (the thing speaks for itself) sometimes comes into play as a rule of circumstantial evidence, whereby negligence is inferred on the part of a defendant because the facts indicate this to be the more probable cause of injury in the absence of other as-plausible explanation by witnesses found credible. [Citations omitted] Thus, by this principle where properly applied, the circumstantial evidence indicates that the injury was caused by some negligence on the part of the defendant, without necessarily proving just what negligent act caused the injury.
. . .we have in our most recent decision on the issue noted that the real test of applying res ipsa loquitur to be as follows: ‘Do the facts of the controversy suggest negligence of the defendant, rather than some other factors, as the most plausible explanation of the accident?’ Pilie v. National Food Store, 245 La. 276, 158 So.2d 162, 165 (1963).”

In light of the duty which the motel owed Mr. Brown as an invitee we find a reasonable basis in the evidence to support the jury’s determination that the motel breached said duty when it failed to maintain the pool in a safe condition or at least warn Mr. Brown of the potential danger attendant thereto. Furthermore, in applying the above cited doctrine of Boudreaux, we cannot say that the jury committed manifest error in determining that the dangerous condition in existence around the motel pool was the “most plausible explanation” of the causation of Mr. Brown’s entry into the pool.

DECEDENT’S CONTRIBUTORY NEGLIGENCE

A blood alcohol test performed on the decedent at the time of the autopsy indicated that Mr. Brown had a blood alcohol content of .17% at the time of his death. There was conflicting testimony as to the exact degree of impairment which accompanies such a level of intoxication. There was also testimony by an eminent expert in the field of alcohol studies and its effect upon the human organism who concluded that the type of test employed by the physician who performed the autopsy as well as the manner in which the test was done created a serious doubt in his mind as to the accuracy of the results reached. Most of the experts were of the opinion that even if the decedent had been intoxicated to a level of .17% he would have been able to swim or at least climb out of the swimming pool. There was also testimony by persons attending the party and the manager of the coffee shop who said that Mr. Brown did not give the appearance of being intoxicated nor did his faculties appear to be noticeably impaired. While one might speculate that a person who had not been drinking might have been less likely to fall into the swimming pool, such a conclusion is not necessarily supported by the evidence. The following special interrogatory was propounded to the jury: “Was James Francis Brown guilty of any negligence which proximately caused or contributed to his drowning?” The jury returned a negative response to this inquiry. Thus the jury specifically considered the issue of contributory negligence and found that although Mr. Brown had apparently been drinking, he was not intoxicated to such a degree as to cause or contribute to his death. After a careful review of the evidence we are unable to say that the jury committed manifest error in its determination of this issue.

PHOTOGRAPHS

Over objection by the defendants, the trial judge allowed several photographs to be admitted into evidence. The photographs were taken by members of the decedent’s family at the scene of the drowning on the day of Mr. Brown’s funeral, approximately two days after his death. These photographs showed the coping around the swimming pool and particularly stressed the fact that a number of the pieces were loose or uncemented. In a number of the pictures different individuals actually lifted various pieces of coping to demonstrate their loose condition. The defendants argue that the pieces of coping were in place at the time of the drowning and that the photographs showing a number of the pieces lifted or askew misled the jury into believing that such a condition existed on the night of Mr. Brown’s death.

The individual who took the photographs testified that none of the pieces were out of place when he arrived upon the scene and that sections of the coping were removed merely to demonstrate the fact that they were loose. Before allowing the jury to view the photographs in question the judge gave the following admonition:

“I am going to admit [the photographs] with this admonition to you, you have heard the testimony of the witness and as the picture is shown to you, you are advised to recall that his testimony as [sic] to the events prior to the taking of the picture and how the coping happen [sic] to be in the position that it is in at the time the picture was taken.”

In the case of Messex v. Louisiana Department of Highways, 302 So.2d 40 (La.App. 3rd Cir. 1974) we stated:

“The fact that there are differences or changes in conditions does not necessarily exclude a photograph where the changes or differences are explained, so that the photograph, as explained, gives a correct understanding of the condition existing at the time to which the controversy relates.”

Also relevant is the case of Fuqua v. Martin, 47 So.2d 404 (La.App. 2nd Cir. 1949) in which it was held that:

“ . . . in the absence of a showing that the party offering the photograph was guilty of bad faith in making the pictures and staging the objects shown at the scene, photographs of the locale should be admitted when properly identified and offered in evidence. The opposing litigant has the right, of course, to bring out the diffences in conditions and circumstances between the time of the accident and the taking of the picture, both by cross-examination of the witness presenting the photographs and by other competent evidence.”

We are of the opinion that the individuals taking the photographs did not lift the sections of coping in an attempt to mislead the jury into believing that such a condition existed at the time of the drowning. Rather, it appears that this deviation from the actual condition was made for the purpose of demonstrating the fact that the copings were loose enough to be lifted by hand. A swimming pool expert also testified that such copings do not become unce-mented overnight, but that the loosening process takes place over a period of time. Thus it is reasonably apparent that the condition of the copings did not change substantially in the two day period between the drowning and the taking of the photographs. In view of the testimony elicited relative to the photographs and the trial judge’s admonition to the jury, we find no error in the trial judge’s admission of the photographs into evidence.

For the above and foregoing reasons the judgment of the district court is affirmed in all respects.

Costs of this appeal are assessed against the defendants-appellants.

AFFIRMED.

      . Southern Ventures Corporation is not a party to this appeal.

      . We are aware of the recent Louisiana Supreme Court decision in Callais v. Allstate Insurance Company, 334 So.2d 692, La.1975, and in which a rehearing has been granted. Calíais holds in essence that when a person has negligently caused his own death, those survivors named in C.C. Article 2315(3) have a cause of action for the damages they have suffered as a result of his death. If the decision stands, the question of Mr. Brown’s contributory negligence may become academic. However, we find it unnecessary to rely on the rule enunciated in Calíais, in determining the issue of contributory negligence in the instant litigation.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Emma T. BARROW v. BLEVINS POPCORN COMPANY, INC. and Michigan Mutual Liability Company.
    No. 7497.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Rehearing Denied May 18, 1976.
    Writ Refused July 1, 1976.

      J. Hunter Bienvenu, Jon A. Gegenhei-mer, Gegenheimer, Bienvenu & Olsen, Gretna, for plaintiff-appellee.
    Edward J. Rice, Jr., Harold A. Thomas, Adams & Reese, New Orleans, for defendants-appellants.
    Before REDMANN, MORIAL and BEER, JJ.
   REDMANN, Judge.

Defendant employer and insurer appeal from a workmen’s compensation award for total and permanent disability.

Two physicians testified that plaintiff’s fall at work produced ligamentous and muscular strain of her lower back which required an unusually long recuperative period because of a pre-existing degenerative condition. The principal difference in medical opinion is that one physician believed the effects of the fall of October 10, 1973 had resolved as of an April 5, 1974 examination, and the other believed that they were still present at the January 1975 trial (this appeal is delayed by five extensions of return day) and might be expected to continue as late as April 10, 1975, 18 months after the accident. The only medical assertion of disability that is expected to exist thereafter is from the pre-existing back condition (arthritis, osteophytes and disc disease), which was disabling prior to the accident and which will continue to be disabling in the future.

Plaintiff’s argument is that this condition was not disabling prior to the accident ; she did her work despite it, and now (as of trial) she cannot; and therefore, as in Johnson v. Travelers Ins. Co., La.1973, 284 So.2d 888, it was the accident which awakened the pre-existing condition and made it disabling. This argument is not persuasive under our circumstances, because the actual disability plaintiff experiences is, her doctor says, attributable in part to her ligamentous-muscular strain (although it is more disabling and longer-lived because of her pre-existing condition).

We conclude that the evidence does not support a finding of permanent disability. Plaintiff’s expert testified that the pre-existing condition and the fall “combined” to bring on the disability; that the “markedly degenerative lumbar disc” disease “produced [plaintiff’s] disability”, which he “felt was precipitated by the fall.” He estimated that the ligamentous injuries would subside in 18 months (compared to three months for a person without the pre-existing condition); “her future disability, past April 10, 1975, will be due to her degenerative condition rather than the accident of October 10, of 1973”. The pre-existing conditions “were even without the accident disabling, or would have been disabling to her . . . within a year” of the expert’s first examination of plaintiff. The expected disability after 18 months “is because of her degenerative condition rather than because of the October 10,1973 trauma”.

The proof is therefore of a temporary rather than permanent total disability. Moreover, this is an appropriate case for a judgment for compensation for a “fixed number of weeks to be based upon the probable duration of such disability”, R.S. 23:1222 (though the judgment be still modifiable under R.S. 23:1331).

The judgment is amended to fix 78 weeks as the period of compensation.


author: MORIAL, Judge.

text:
    Eudora A. BAESSLER v. Lewis C. MORGAN.
    No. 7376.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Rehearing Denied May 18, 1976.
    Writ Refused July 2, 1976.
    Norwood N. Hingle, Jr., New Orleans, for plaintiff-appellee.
    Bernard S. Dolbear, New Orleans, for defendant-appellant.
    Before REDMANN, MORIAL and BEER, JJ.
   MORIAL, Judge.

Defendant, Lewis C. Morgan, appeals from a district court judgment awarding plaintiff, Eudora A. Baessler, the sum of $4,000 for personal injuries suffered as a result of an automobile accident.

On February 2, 1973 plaintiff’s vehicle was struck from behind by a station wagon being driven by defendant. Upon inspection after the accident, it was noted that damage to plaintiff’s vehicle was minimal; however, plaintiff subsequently developed pains in her right upper arm and shoulder and neck. On January 31, 1974 plaintiff filed suit against defendant. After trial on the merits, the district court awarded plaintiff $4,000 in general damages. Defendant appeals. Plaintiff answers the appeal asking that the judgment he increased to $15,000. We affirm.

Defendant does not contest the trial court’s finding of negligence. Defendant’s appeal is directed primarily to the issues of whether the trial court erred in finding a causal connection between plaintiff’s injuries and the collision and quantum. We see no merit to either contention.

The trial court, in reviewing the evidence with respect to plaintiff’s injury, stated:

“. . . the Plaintiff maintains that she has had complaints of pain since this accident and it has been in the area of the right side of her neck and shoulder and she has had the inability to raise her right arm up behind her back; she has been treated by physicians over an extended period of time. The facts reflect that less than two months before the accident, which was involved in this case, the Plaintiff was treated with injections into the right shoulder and that she had suffered from pain in her hack and had been treated for it prior to this accident. The facts also reflect that she had also been treated prior to this accident on at least one occasion, for aching neck muscles, and that on December 27, 1972, she was treated for pain in the right shoulder, including tendinitis. In addition, after the accident, the Plaintiff has suffered a fracture of the right elbow and was treated for a period of time in connection with that. Further, at the present time, she is being treated for a condition in her left shoulder, which is somewhat similar to the complaints set forth in her right shoulder.
In spite of this fact, this Court feels that the Plaintiff has suffered injury as a result of this accident. Dr. Williams testified that in his opinion, the plaintiff’s complaints at the present time, in connection with the right shoulder, are re-ferrable to the accident in this case.”

After careful scrutinization, we find the trial judge’s statements and conclusions of fact to be fully supported by the record.

The court was obviously impressed by the testimony of Dr. James Williams, the orthopedic surgeon who treated plaintiff. Dr. Williams first saw plaintiff on February 9, 1973, approximately one week after the accident. On examination, plaintiff indicated complaints of pain in the right side of her neck, radiating into the right shoulder and into her right arm and forearm on forward flexion of her head to the right side. Dr. Williams prescribed physical therapy treatments and noted that the neck symptoms subsided after several weeks. Her shoulder complaints though persisted and as of January 7, 1975 she still had feelings of stiffness and occasional aching in the right shoulder, and complaints of pain in doing her work and lifting. He concluded that plaintiff had a 10-20 degree limitation of motion on internal rotation of her shoulder and that in his opinion plaintiff’s complaints were related to the automobile accident. Based upon the fact that Dr. Williams was aware of plaintiff’s other physical problems, and had even treated her for some of them, we cannot say that the trial court’s reliance upon his opinion in reaching its determination of liability is manifestly erroneous. The record is devoid of any evidence which preponderates in favor of the conclusion that plaintiff’s injuries and complaints are unrelated to the accident.

We turn now to quantum. Plaintiff alleges that she is presently suffering and will continue to suffer from this accident and that the trial court’s award of $4,000 is wholly inadequate. She asserts that since the accident, in addition to experiencing continuous pain, her sister has had to assist her in dressing, she has been unable to perform many duties generally required of a registered nurse, she can no longer do housework or gardening and she cannot lift heavy objects. Defendant, on the other hand, asserts that plaintiff’s complaints are due primarily to her non-collision related problems (tendinitis and a fractured right elbow, among others) and that the general damage award is excessive.

As indicated by his reasons for judgment, the trial judge was well aware of the difficulty in assessing quantum in this case. After taking all facts into consideration, he arrived at the sum of $4,000 as represent a fair award. Upon the record before us, we cannot say that this indicates an abuse of the “much discretion” he has in a matter such as this.

The judgment of the trial court is affirmed.

AFFIRMED.


author: BEER, Judge.

text:
    Louise CHARLES v. SEWERAGE AND WATER BOARD OF NEW ORLEANS.
    No. 7375.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Rehearing Denied May 18, 1976.
    Writ Refused July 2, 1976.

      Adams & Geraghty, Barry R. Geraghty, New Orleans, for plaintiff-appellee.
    John A. Gordon and Vincent T. LoCoco, Richard M. Olsen, New Orleans, for defendant-appellant.
    Before LEMMON, MORIAL and BEER, JJ.
   BEER, Judge.

Plaintiff-appellee, Louise Charles, a lady seventy-three years of age, instituted this suit against defendant-appellant, Sewerage and Water Board of New Orleans (hereafter, S&WB) seeking damages for injuries sustained on November 9, 1973, when around noon, she allegedly fell into an uncovered manhole located in or adjacent to the pedestrian walkways in the intersection of Poydras and Baronne Streets. From a judgment in her favor in the total amount of $3,700 ($3,250 for general damages and $450 for medical expenses), S&WB sus-pensively appeals contending that the trial court committed error in: finding that the open manhole was not sufficiently barricaded so as to warn of its danger; failing to find Mrs. Charles contributorily negligent; determining that Mrs. Charles was the proper party to recover for medical expenses when she was not judicially separated or divorced from her husband (citing LSA-C.C.P. Article 686); assessing costs against S&WB in violation of LSA-R.S. 13:4521; and awarding excessive damages.

Mrs. Charles contends that she fell into an uncovered drainage manhole located immediately adjacent to the pedestrian crosswalk in Poydras Street where it intersects with Baronne. She was obliged to step outside the designated crosswalk because of a cone-type barricade positioned immediately in front of her which necessitated her lateral movement in order to complete crossing the street. She maintains that cone-type barricades blocked her progress but did not surround the open manhole into which she fell. She was looking “right straight in front of you” prior to the incident. Her testimony regarding physical description of the site of the incident is generally corroborated by Mr. Edward Brooks. He did not see her fall, but his description of the area is essentially similar to that presented by Mrs. Charles.

S&WB’s position is that only sewer manhole covers were open in the immediate area with cone-type barricades erected around them as warnings to both pedestrians and vehicular traffic. They contend that no drainage manhole covers were removed on the day in question and strenuously urge that Mrs. Charles’ description of the location of the opened manhole which caused her injury requires the conclusion that it was a drainage manhole opening. In support of this contention, members of the work crew were called and did testify that no drainage manhole covers had been removed.

Mr. Poche, foreman of the S&WB crew, observed that there were several sewer manholes in the area of the Poydras Street crosswalk. One sewer manhole, located in the crosswalk, served an abandoned line which his crew did not work on that day. His crew did work on the sewer line which was accessible by a manhole opening which was located immediately adjacent to the crosswalk of Poydras Street. However, Mr. Poche was positive that he and his crew had set up protective cone-type barricades all around this opening. One other manhole located near the intersection (but not involved in any way in this incident) was also opened and the same procedure followed. To the best of his knowledge, no drain cover was ever removed on the date of the accident.

The trial court apparently did not feel the need to reach a definitive conclusion about which particular hole (drain or sewer) Mrs. Charles had fallen into, since

“. . . The court is satisfied from the evidence—and finds as a fact—that plaintiff did fall into a manhole which was not sufficiently barricaded or protected, in such a manner as to warn a pedestrian of its being open.”
(Written Reasons for Judgment)

The issue of plaintiffs alleged contributory negligence was not discussed in the written Reasons for Judgment. The trial judge took notice of the fact that the parties had stipulated that defendant had control over all the various manholes (and manhole covers) in the area and, accordingly, imposed liability. Obviously, then, the trial judge concluded that Mrs. Charles was not contributorily negligent.

Overall, we believe that the trial court’s determinations with respect to both negligence and contributory negligence are subject to the manifest error rule announced in Canter v. Koehring Co., 283 So.2d 716 (La.1973). Applying same to this record begets no response which demands reversal.

Turning to the quantum of the award, including medical expenses and court costs, we first note that LSA-R.S. 13:4521 provides that the State, its subdivisions, boards and commissions are not subject to pay court costs except the stenographer’s cost for taking testimony. Thus, that portion of the judgment which casts Sewerage & Water Board for all other costs must be set aside.

As to medical expenses, the general rule is that the cause of action for same instituted as a result of injuries occasioned to a wife belongs to the community and must, therefore, be asserted by the husband as head and master. Warren v. Yellow Cab Co. of Shreveport, Inc., 136 So.2d 319 (La.App. 2nd Cir., 1961); LSA-C.C. Articles 2334 and 2402. However, in Johnson v. Shreveport Transit Co., 137 So.2d 463 (La.App. 2nd Cir., 1962), a wife who was separated from her husband for many years and who lived upon her own earnings, was allowed to bring an action for medical expenses and for loss of wages and was permitted to recover such items of loss as separate property. Mrs. Charles has been separated from her husband, non-judicially, for forty years. We apply the Johnson rationale and permit her recovery. We agree with the trial court’s observations regarding the excessiveness of the bill of Dr. Fisher but find no basis in the record upon which the amount can properly be reduced.

As to general damages, we note that Mrs. Charles was seen by Dr. William Fisher on November 14, 1973. He observed an acute contusion with a large hemotoma on the left thigh, a severe strain of the lower back on the left, and a small area of contusion and abrasion at the front of the right ankle. She remained under his care through April 8, 1974. Treatment of Mrs. Charles’ minor to moderate injury was confined to two or three office consultations plus a substantial number of physiotherapy visits apparently handled by the treating physician’s office personnel. The total medical bill, including the numerous physiotherapy sessions, was $450.00, which, as noted above, seemed high to the trial judge and to us, considering the circumstances.

Nevertheless, the overall award, which totals $3,700.00, does not demand reduction under the criterion that we are obliged to apply. Accordingly, the judgment of the Civil District Court for the Parish of Orleans is amended to delete the imposition of court costs (other than stenographic fees) and, thus amended, is, in all other respects, affirmed. Each party shall bear its own costs of this appeal.

AMENDED AND AFFIRMED.


author: GULOTTA, Judge.

text:
    Mrs. Joyce DEUTSCHMANN, wife of/and Frank Deutschmann v. STANDARD FUR COMPANY, INC.
    No. 7374.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Rehearing Denied May 18, 1976.
    Phelps, Dunbar, Marks, Claverie & Sims, Harry S. Redmon, Jr., John P. Manard, Jr., New Orleans, for plaintiffs-appellants.
    George C. Stringer, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and ST. AMANT, JJ.
   GULOTTA, Judge.

Plaintiffs appeal from a judgment dismissing their suit for return of a $400.00 deposit on a $2,000.00 mink coat ordered by Mrs. Joyce Deutschmann from defendant. We reverse.

In November, 1974, Mrs. Deutschmann placed an order with Elza Abel, president of Standard Fur Company, for a mink coat to be made by a New York furrier. Plaintiff-wife deposited with defendant the sum of $400.00 to be credited against the price of the coat. Mrs. Deutschmann specified that the coat was to be made with the furs running horizontally; that quality female continuous, not pieced together, furs be used; and, that the furs be of the same width as the furs selected by her from a model coat at Standard Fur.

Plaintiff testified that she refused to accept the coat for the reasons that 1) the skins of the coat were wider than the skins of the model coat at Standard Fur Company; 2) the horizontal skins were not continuous, but pieced together; and, 3) in “letting out the skins”, the pelts had been sliced and sewn back together, rather than stretched.

The coat was returned by defendant to the New York furrier in an attempt to make alterations to satisfy plaintiff’s complaints. After the coat had been returned from the furrier a second time, plaintiff rejected the coat and requested return of the deposit. Defendant refused and this suit followed.

This case is a classic example of a misunderstanding between two parties to a purported agreement resulting in lack of consent on the part of the purchaser. LSA-C.C. arts. 1797 and 1798. Consent on the part of Mrs. Deutsch-mann was lacking (LSA-C.C. art. 1812) because of error of fact on the part of the purchaser which was a principal cause for malting the agreement. See LSA-C.C. arts. 1821, 1823 and 1825.

Our jurisprudence is well settled that a contract may be invalidated for a unilateral error as to a fact which was the principal cause for making the contract, where the other party knew or should have known it was the principal cause. LSA-C.C. art. 1845; Savoie v. Bills, 317 So.2d 249 (La.App. 3d Cir. 1975); West Esplanade Shell Service, Inc. v. Breithoff, 293 So.2d 595 (La.App. 4th Cir. 1974). Error as to the nature or object of a contract may be with regard to either the substance or the object of the agreement, or substantial quality of the object, or some other quality of the object if such quality is the principal cause of making the contract. Jefferson Truck Equipment Co. v. Guarisco Motor Co., 250 So.2d 211 (La.App. 1st Cir. 1971).

Applying the above articles and jurisprudence to the instant case, we con-elude that consent was lacking and the purported agreement was vitiated because of error of fact which constituted a principal cause for making the agreement. Mrs. Deutschmann testified that she understood the coat would be made of continuous skins, i. e., horizontal pelts that were not “pieced together” and which were “let out” and would extend all around the coat. According to Mrs. Deutschmann, her definition of a continuous skin was, “I mean a long continuous skin, not several short ones pieced together.” Her definition of a “fully let out” fur was as follows: “My understanding that they stretch the pelts instead of taking several small pieces and putting them together. If he could not have made it, I would have changed my plans.” Mrs. Deutschmann further indicated that the furs used in the purchased coat were wider than the ones used in the model coat selected by her.

On the other hand, Abel’s (a furrier with 40 years experience) understanding, according to trade usage, of the meaning of the terms “pieced together” and “let out”, graphically illustrates the lack of understanding between the parties. Abel admitted that plaintiff wanted a coat with continuous horizontal furs and without seams. However, he differentiated between a fur “pieced together” with straight seams, which he defined as a pieced together coat, and furs pieced together with a “V-type seam”, which he defined as “set up” and not “pieced together”. According to Abel, use of a V-type seam is an acceptable method of joining skins, and, in trade jargon, is not considered piecing together. Significantly, Abel failed to communicate to plaintiff the trade usage difference between “pieced together” and “set up V-type seams”. Abel further testified that female skins are not long enough, i. e., 36 inches long, to be used continuously in a wrap-around horizontal fur coat, but must be pieced together.

Abel failed to communicate to plaintiff that the width of horizontal skins was different from the width of vertical skins. Significantly, although the model coat shown Mrs. Deutschmann was made of vertical skins, Abel did not communicate the difference in width to plaintiff.

Abel also stated that the term “let out” means that the fur is sliced and sewn back together. A let out skin, according to Abel, is one that has been cut and then let out.

Abel is the expert. He was aware that Standard Fur was unable to deliver to plaintiff that which she thought she had ordered. It was his responsibility to communicate to Mrs. Deutschmann information which, clearly, would have avoided the confusion. For reasons best known to himself, he failed to do so. Abel’s lack of communication caused the misunderstanding on the part of Mrs. Deutschmann, resulting in the error of fact on the part of the purchaser which was a principal cause for making the agreement. See LSA-C.C. arts. 1812, 1821 and 1825. We find that consent was lacking in the instant case and that no agreement existed. The parties revert to the same position which they occupied prior to the purported formation of the agreement. Plaintiff is entitled to the return of her deposit.

Accordingly, the judgment of the trial court is reversed and set aside. Judgment is now rendered in favor of Mrs. Joyce Deutschmann and Frank Deutschmann, and against Standard Fur Company, Inc., in the sum of $400.00, together with legal interest thereon from date of judicial demand and for all costs.

REVERSED AND RENDERED.

      . Mrs. Deutschmann further specified that the coat be belted and have no buttons. The finished coat was made with four buttons and no belt, however, this problem was rectified to Mrs. Deutschmann’s satisfaction by defendant and is not an issue in this case.

      . “Art. 1797. Necessity for consent; proof.
      “Art. 1797. When the parties have the legal capacity to form a contract, the next requisite to its validity is their consent. This being a mere operation of the mind, can have no effect, unless it be evinced in some manner that shall cause it to be understood by the other parties to the contract. To prevent error in this essential point, the law establishes, by certain rules adapted to the nature of the contract, what circumstances shall be evidence of such consent, and how those circumstances shall be proved; these come within the purview of the law of evidence.”

      . “Art. 1798. Offer and acceptance.
      “Art. 1798. As there must be two parties at least to every contract, so there must be something proposed by one and accepted and agreed to by another to form the matter of such contract; the will of both parties must unite on the same point.”

      . “Art. 1812. Unequivocal language for express acceptance.
      “Art. 1812. Express consent must be given in a language understood by the party who accepts, and the words by which it is conveyed must be in themselves unequivocal; if they may mean different things, they give rise to error, which, as is hereinafter provided, destroys the effect of a contract.”

      . “Art. 1821. Error of fact.
      “Art. 1821. That is called error of fact, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none.”

      . “Art. 1823. Sufficiency of error to invalidate contract.
      “Art. 1823. Errors may exist as to all the circumstances and facts which relate to a contract, but it is not every error that will invalidate it. To have that effect, the error must be in some point, which was a principal cause for making the contract, and it may be either as to the motive for making the contract, to the person with whom it is made, or to the subject matter of the contract itself.”

      . “Art. 1825. Error as to motive.
      “Art. 1825. The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several; this principal cause is called the motive, and means that consideration without which the contract would not have been made.”


author: PAVY, Judge. CULPEPPER, Judge

text:
    Gilbert Wayne HEBERT, Plaintiff-Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY, Defendant-Appellee.
    No. 5347.
    Court of Appeal of Louisiana, Third Circuit.
    April 7, 1976.
    Rehearing Denied May 19, 1976.
    Writ Refused July 1, 1976.

      Levingston & Liles by Henry R. Liles, and E. C. Hamilton, Lake Charles, for plaintiff-appellant.
    Raggio, Farrar, Cappel & Chozen, by Fredrick L. Cappel, Lake Charles, for defendant-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ.
   PAVY, Judge.

This is a suit for workmen’s compensation benefits. Defendant filed an exception of prescription which was referred to the merits and sustained after completion of the trial. Plaintiff has appealed.

PRESCRIPTION

On July 25, 1973, while employed as a patrolman in the police department of the City of Lake Charles, plaintiff injured his right knee when he fell while dismounting from a scooter-like patrol vehicle. He was hospitalized twice and treated on an outpatient basis until September 12, 1973, when he was released to resume his employment. Compensation benefits had been paid to that date. Plaintiff returned to work, first on a light-duty basis, and later to the duties of patrolman such as he was fulfilling when injured. He continued working with substantial regularity until March, 1974. During this time plaintiff experienced difficulty (pain, swelling and intermittent locking of his knee) in his employment. On March 12, 1974, while on patrol and without any accidental episode, his knee became extremely swollen. He consulted Dr. George Schneider, the orthopaedist who had treated him during the previous summer, and the doctor diagnosed his condition as a deranged medial meniscus of the right knee. Shortly thereafter, corrective surgery was performed oh the involved knee. This suit was filed February 13, 1975. Defendant-Appellant contends that, since the injury was obvious initially and compensation benefits were paid, prescription started at the termination of said payments and ran out in September, 1974, several months prior to the suit filed February 13, 1975.

Plaintiff claims the prescriptive question is controlled by the development-of-injury rule as specified in R.S. 23:1209 and that prescription did not commence until or immediately after the the operation in March, 1974, when the full extent and nature of his condition became known.

R.S. 23:1209 provides as follows:

“In case of personal injury (including death resulting therefrom) all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter or unless within one year after the accident proceedings have been begun as provided in Parts III and IV of this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

The last sentence of that provision was added in 1934. It is generally considered that the landmark jurisprudence interpreting the amendment is that represented by the trilogy of cases of Mottet v. Libbey-Owens-Ford Glass Co., 220 La. 653, 57 So. 2d 218 (1952); Johnson v. Cabot Carbon Co., Inc., 227 La. 941, 81 So.2d 2 (1955); and Wallace v. Remington Rand, Inc. et al, 229 La. 651, 86 So.2d 522 (1956).

In the Wallace case the court stated:

“The court, in Mottet v. Libbey-Owens-Ford Glass Co., supra (220 La. 657, 57 So.2d 219), construed the language of R.S. 23:1209 that ‘the limitation shall not take effect until the expiration of one year from the time the injury develops’, to mean that prescription does not begin to run until the time the workman is unable to substantially perform the duties of his employment. This is a fair interpretation of the statute and in keeping with the beneficent object of its enactment. Development, as applied to a compensable injury, signifies something more than occurrence and pain. It connotes the time when disability to perform work becomes manifest either to the injured employee or his employer. In the case at bar, it is obvious that manifestation of plaintiff’s incapacity did not occur until October 26, 1953.”

There are many cases interpreting the quoted statute and the cited jurisprudence. We ‘do not think it would serve any useful purpose to engage in an extended discussion of these cases. The facts herein bring this case within the landmark trilogy rationale. That rationale tends to encourage rather than penalize an employee who seeks to continue working despite what, in legal contemplation, turns out to be disability. This is advantageous to both the employer and the employee. We cannot consider an employee with the same knowledge and inclination of an attorney.

It makes no difference that there was an initial manifestation of disability. This was the general situation in the cited trilogy. See also Bigham v. Swift & Company, 229 La. 341, 86 So.2d 59 (1956) and Manuel v. Travelers Insurance Co., 46 So.2d 319 (La.App. 1st Cir., 1950).

Nor do we think the fact that compensation was paid and stopped preclude application of the development of injury rule, see Payne v. Travelers Insurance Co., 299 So.2d 913 (La.App. 3rd Cir., 1974).

In oral argument, defendant-ap-pellee argues that the true rule to be gained from the results, if not from the language, of the jurisprudence relative to R.S. 23:1209, is that once compensation has been paid and stopped the prescriptive period begins to run from the cessation of payment. We are unable to formulate such a rule from either the results or the expressions in the jurisprudence. Doubtlessly, payment of compensation tends to confirm the initial manifestation of disability but does not bear on a remanifestation after the employee returns to work. The rule that cessation of payments will commence a running of prescription is true when the payments are relied upon as interrupting the prescription. It is not controlling when the commencement of the prescriptive period is delayed because of a later remanifestation of the disability.

Specifically, the defendant-appellee relies on the cases of Guillory v. Maryland Casualty Company, 227 So.2d 620 (La.App. 3rd Cir., 1969); Hobley v. Phoenix of Hartford Insurance Company, 233 So.2d 589 (La.App. 4th Cir., 1970); Joffrion v. Sears Roebuck & Company, 272 So.2d 725 (La.App. 3rd Cir., 1973); Blanchard v. Liberty Mutual Insurance Company, 280 So.2d 592 (La.App. 3rd Cir., 1973).

In the Guillory case, plaintiff sued more than one year after he quit work but within a year from the date that he consulted a doctor. The court stated:

“The present is also to be distinguished from situations where, after the initial manifestation, the disabling nature of the injury becomes latent; only- to be activated later by a new trauma or otherwise. Croswell v. Wells, La.App. 2d Cir., 102 So.2d 794; Manuel v. Travelers Ins. Co., La.App. 1st Cir., 46 So.2d 319. Under these circumstances, the later reman-ifestation is regarded as the time when the injury “develops” (again), so that a suit brought within a year of re-manifestation is timely. Here, however, the evidence shows no remission, but rather a continuous manifestation of the injury, which thus developed at or soon after the accident.” (Footnotes omitted).

We note that herein there was perhaps not a total remission but it was enough to bring plaintiff back to his job for six months. He was discharged as able to return to work, did so return and substantially fulfilled the duties of his employment during that time. It is sufficient that the plaintiff returned to his employment under the impression that he would be able to continue in it or with the hope that he could do so.

In the Hobley case, plaintiff ceased work because of pain in June, 1967, but did not sue until August, 1968. Under the applicable rule, more than a year elapsed from the manifestation (cessation of work) and the suit filing.

In the Joffrion case, the plea of prescription was denied.

In the Blanchard case, the court held the cause of action had perempted and was lost forever and not revived by a resumption of benefit payments. Over three years had elapsed from a first cessation of payment of benefits to suit filing date and over two years had elapsed from said original cessation until a resumption of payments. The holding in that case is not applicable here.

Defendant complains that as a result of an automobile accident subsequent to the March, 1974 surgery, plaintiff’s present disability and its causes are so uncertain that the denial of prescription herein would greatly prejudice its defense. We acknowledge the problem but think that the question of causation must be examined separately from that of prescription. See the Bigham case, supra.

DISABILITY AND CAUSATION

Subsequent to the March, 1974 surgery, plaintiff was examined by Dr. Schneider on April 2 and 29 and on May 14 and June 4 at which last date he was released to resume employment subject to a return checkup in six weeks which was not kept. On May 1, plaintiff resigned from the police department. On May 10 he was in a serious automobile accident in Bossier City in which his car was rear-ended and the other vehicle climbed atop his car. On the May 14 visit, Dr. Schneider examined plaintiff’s right knee and found it improving and noted no injuries to it. He did find some muscle spasm in the back. Plaintiff has all along denied any injury to his right knee as a result of the automobile accident.

Shortly after the corrective surgery in March of ’74 until about July, plaintiff held several jobs as a welder’s helper which according to him was of a light-heavy nature. In July, plaintiff went to work for Olin Mathieson as a pipefitter and continued in that employment until January, 1975, at which time he took sick leave. On February 16, he had surgery in Houston for a disc condition apparently resulting from the automobile accident. On March 22, 1975, plaintiff returned to Dr. Schneider’s office complaining of trouble with both knees. Dr. Schneider’s examination confirmed by objective observation these knee complaints. On April 2, 1975, the doctor operated on plaintiff’s left knee. From March, 1975, until trial on June 4, 1975, Dr. Schneider treated plaintiff’s right knee conservatively. The doctor was the only expert whose evidence was in the case and he testified at trial. Concerning his examination of plaintiff on May 13, approximately three weeks prior to trial, he stated:

“Q. And on your last examination of May 13 you found good motion, no swelling, no effusion of the right knee ?
A. Yes. Now you see we have been —he had been on medication, and he had been treatéd conservatively referable to the right knee, and when I saw him on May 13 the right knee was better, but I can’t at this time say he is well, because he is still under followup, and he still has some residuals.
Q. He is under followup also for his left knee ?
A. For the left knee also; yes, sir, because when I put him in the hospital his right knee was bad, as well as the left knee.”

Dr. Schneider’s testimony shows that plaintiff was not able to return to his duties as policeman either at the time of trial or at any specific time thereafter. Conceding that the left knee involvement is not related to the July, 1973 on-the-job accident, we still think plaintiff has made out his case for a present award of total and permanent disability involving the condition of his right knee.

With regard to the question of causation, some, but not preponderating doubt, was cast on the issue of causation by the testimony of Dr. Schneider as follows:

“Q. Well, we have a problem because the man has had several accidents and several injuries. This lawsuit is about his right knee injury. My question is this, you discharged him after you operated on him in June of ’74 to return to his regular duties?
A. Right.
Q. Have- you seen anything about his right knee since that time that would cause you to change that opinion ?
A. Well, the difficult problem is there is a long hiatus in there when I didn’t see him, and yet he comes back with a complaint that he has been having trouble with his knee. As of my examination of March of this year—
Q. ’75?
A. —when—in ’75 when I saw him in the emergency room, and subsequently followed him. And at that time his examination revealed definite findings referable to the right knee. The thickening of the tissues, the reddening of the tissues, looking almost as though there had been a relatively recent contusion to the knee. Now this is pure speculation, but pathologically this is what it looked like.
Q. Yeah.
A. As though the knee bad been bruised, or hurt, or something had happened to it. Now I didn’t in any way refute what Mr. Hebert might say to this, except to testify that this is the way the knee looked to me.
Q. Yes, sir, I understand. That was in your March, ’75 exam ?
A. Yes, sir, that’s correct.”

Plaintiff testified that after his March, 1974 surgery he suffered no separate accident or untoward event involving his knee but continued to have trouble with it in the form of locking, swelling and pain. He stated that while in the hospital in Houston it became extremely swollen. This was corroborated by his mother. She stated that plaintiff had been confined to bed for several weeks prior to that swelling incident. According to plaintiff, the doctor in Houston advised him to consult Dr. Schneider regarding the knee when he would return to Lake Charles. We do not think corroboration by the Houston hospital personnel of that swelling is absolutely necessary to plaintiff’s discharge of his burden on the issue of causation.

Some detraction from plaintiff’s credibility is found in an impeachment wherein plaintiff denied having told Dr. Schneider that he had injured his knee in a basketball game about a year prior to the July, 1973 on-the-job accident. However, we do not choose to apply the falso-in-uno rule in this ease. We are too impressed with this man’s conduct to conclude that he has falsified as to whether his right knee suffered an additional injury which might be an independent and noncompensable cause of the disability at trial, lie immediately resumed work when discharged in 1W3 and persisted in attempting to maintain his job despite varying episodes of pain, swelling and locking. After the March, D74 surgery he sought and maintained several jobs before even being released by the doctor in June, 1974. Despite recurrent back left leg pain, he maintained the pipefitter’s job with Olin Mathieson for about six months until apparently forced to take sick leave and submit to the back surgery.

Although the issue is very close, we cannot say that the record as made up fails to preponderate in plaintiff’s favor on the issue of causation. Plaintiff suffered a definite knee injury in July of 1973 which required corrective surgery in March of 1974 and disabled him thereafter until at least June, 1974. Dr. Schneider examined him four days after the automobile accident and noticed no injury to the knee from that event. Plaintiff denies any separate injury to his knee and there has been intermittent, if not continual, problems with the knee during the times involved. The last acute onset occurred while he was in a hospital and has continued until trial. We think the proof taken overall is sufficient.

Plaintiff’s claim for penalties and attorney fees will he denied. The record does not reveal any demand for payment of compensation prior to suit. At that time, there were serious questions of disability and causation.

Accordingly, for reasons assigned, the judgment of the district court sustaining the exception of prescription is reversed, said exception is overruled, and there is now judgment in favor of plaintiff, Gilbert Wayne Hebert, and against Hartford Accident & Indemnity Company for:

(1) compensation at the rate of $65 per week commencing July 25, 1973 for the duration of his disability, not exceeding 500 weeks with interest at the rate of 5 percent per annum on each past due installment from its due date until paid subject to a credit for compensation paid from July 25, 1973 until March 12, 1974,
(2) all medical expenses incurred by plaintiff and attributable to the condition of his right knee, subject to the limitation provided by R.S. 23:1203 as amended, and
(3) for all costs of this proceeding.

REVERSED AND RENDERED.

CULPEPPER, J., dissents and assigns written reasons.

CULPEPPER, Judge

(dissenting).

At issue here is the construction of the following portion of LSA-R.S. 23:1209:

“Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment. Also, where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, . . . ” (Emphasis supplied)

I can agree with the majority that in the situation where the disabling symptoms of the injury disappear and compensation payments are terminated, a new period of prescription of one year will nevertheless commence where there is either a new injury or a remanifestation of the symptoms of the initial injury. Actually, the only case which I find supporting this rule is Seago v. Continental Casualty Company, 294 So.2d 912 (La.App. 2d Cir. 1974). In that case, plaintiff injured his back on December 20, 1969. A herniated disc was surgically removed on January 7, 1970. Plaintiff returned to work in June of 1970 and workmen’s compensation payments were terminated. Plaintiff was symptom free for a short time and then scar tissue developed at the site of the surgery, requiring a second surgical procedure to fuse the vertebrae. The court held that the development of this scar tissue was a second injury, or a remanifestation of the original injury, from the time of which a new period of prescription of one year commenced.

I find that the present case is distinguished from Seago on the facts. Here, there is not even a contention that there was a second injury. Furthermore, I do not think the evidence supports a finding that there was a remanifestation of the symptoms of the initial injury. Although compensation payments were terminated and plaintiff returned to work on September 12, 1973, his symptoms continued. The majority opinion concedes that after plaintiff returned to work he continued to experience pain, swelling and intermittent locking of his knee after periods of activity. Finally, plaintiff went back to Dr. Schneider, and the doctor decided plaintiff had a deranged medial meniscus. The meniscus was surgically removed on March 14, 1974. However, Dr. Schneider was unequivocal in his testimony that the injury to his meniscus was the result of the original accident on July 25, 1973. There was no new injury. Furthermore, the symptoms of the original injury had never disappeared, and there was thus no remanifestation of symptoms.

For the reasons assigned, I respectfully dissent.


author: LEMMON, Judge.

text:
    GENERAL ELECTRIC COMPANY v. Cecil MARTIN.
    No. 7362.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Rehearing Denied May 18, 1976.
    Writ Refused July 2, 1976.

      Michael H. Bagot and John H. Gniady, New Orleans, for plaintiff-appellant.
    Jamie F. Veverica, New Orleans, for defendant-appellee.
    Before SAMUEL, LEMMON and STOULIG, JJ.
   LEMMON, Judge.

Plaintiff has appealed from the dismissal of its suit which sought to collect a corporate debt from an individual defendant, Cecil Martin.

Plaintiff had obtained a judgment in another proceedings against C. C. Rentals, Inc., a corporation for which Martin worked on salary as manager. When a judgment debtor rule was filed, Martin authorized the company attorney to negotiate with plaintiff to prevent seizure of the company assets. After some negotiations, the exact nature and extent of which was in dispute, plaintiff agreed to withhold execution of the judgment. C. C. Rental’s attorney then sent plaintiff’s attorney a corporation check in the amount of $100.-00, accompanied by the following letter:

“This will confirm our agreement.
“Cecil Martin, who is associated with C-C Rentals, Inc., has agreed to pay $100.00 per week on the amount due General Electric Company. He understands this amount to be $1,589.67, plus interest from March 31, 1971, plus costs.
“So long as he continues to make these $100.00 per week payments you have agreed not to take any further action to collect a judgment.
“If this confirms your understanding, please initial a copy of this letter and return it to me for my files.”

Martin left C. C. Rentals’ employ shortly thereafter, and plaintiff received no further payments on the debt. Plaintiff then filed this suit to collect the .debt from Martin as his personal obligation.

Since parol evidence cannot be received to prove a promise to pay the debt of a third person [C.C. art. 2278(3)], the issues before us are (1) whether Martin authorized the letter as a personal undertaking and (2) whether the letter obliged Martin to pay the entire judgment.

The trial court found that the attorney, at the time of writing the letter, “was not Martin’s lawyer. He was the lawyer for C. C. Rentals, Inc.” Our review of the evidence shows that neither plaintiff’s attorney nor other representative ever discussed the matter with Martin, and at least in the beginning of negotiations the attorney undoubtedly represented Martin’s employer and not Martin individually. While plaintiff’s counsel testified as to his understanding from the negotiations that Martin undertook to bind himself personally, both Martin and the attorney denied any intent for Martin to undertake any personal obligation. Furthermore, the sole payment delivered under the agreement was a corporation check.

Nevertheless, even if the attorney was authorized to bind Martin personally at the time of writing the letter and intended to do so, the language does not reasonably establish an obligation for Martin to assume payment of the entire judgment. At most, the letter established that he bargained to pay $100.00 each week in exchange for plaintiff’s forebearance in withholding execution of the judgment that week.

An obligation to pay the debt of another must be express in all particulars. If plaintiff understood that Martin promised to personally pay the entire judgment, it was incumbent upon plaintiff to secure clear written evidence of the promise.

Finally, we reject plaintiff’s contention that it suffered a detriment in reliance on Martin’s promise. Any forebearance beyond one week after the agreement was not induced by Martin.

The judgment is affirmed.

AFFIRMED.

      . Martin also owned 25% of the corporation stock.

      . Plaintiff’s attorney responded with the following letter:
      “Thank you for your letter of December 3, enclosing a check in the amount of $100.-00. This will confirm our understanding, as set out in your letter, that Mr. Cecil Martin will pay $100.00 per week on the amount due General Electric Company, and that this check acts as a first payment.
      “I confirm to you that the amount owed is $1,589.67, plus interest and costs. We will determine these after sufficient payments are made to reduce the amount of the the claim.
      “This will also confirm our agreement that we will take no further action to collect the judgment as long as weekly payments of $100.00 are received.
      “Kindly make the checks payable to General Electric Company and foreward them to our office.”

      . While the letter does not deny Martin intended to do so, plaintiff has the burden of proving by competent evidence that Martin did in fact personally assume the obligation.


author: SCHOTT, Judge.

text:
    PLY-WOODS, INC. v. INDIANA LUMBERMENS MUTUAL INSURANCE CO.
    No. 7351.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Rehearing Denied May 18, 1976.
    Writ Refused July 2, 1976.

      Greenberg & Dallam, Nathan Greenberg, Gretna, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Vance E. Ellefson, New Orleans, for defendant-appellee.
    Before GULOTTA and SCHOTT, JJ., and P. C. ST. AMANT, Judge Assigned.
   SCHOTT, Judge.

Plaintiff appeals from a judgment denying the full amount of its claim under two insurance policies issued by defendant.

Plaintiff is engaged in selling lumber and building supplies in New Orleans. On September 18, 1973, a fire occurred on plaintiff’s premises causing substantial damage to its building and loss of inventory. It claimed under the property loss (inventory) and income loss policies $203,879.-55 and $59,084.74 respectively but recovered $16,709.08 less than it claimed. Defendant refused to pay the full claim on the ground that plaintiff previously under-reported its inventory. The two insurance contracts called for monthly reports of inventory upon which premiums would be based. The following was included in the property loss policy:

“At the timé of any loss, if the insured has failed to file with this Company the reports as above required, this policy, subject otherwise to all its provisions, shall cover only at the locations reported in the last report filed prior to the loss and, at the location where the loss occurs, shall cover for not more than its proportion of an amount equal to the valpe reported, less the amount of any special insurance reported, in such last report. If such delinquent report is the first report herein required to be filed, this policy shall cover only at the locations specifically listed herein and for not exceeding its proportion of 75% of each specified limit of liability.
“F. FULL REPORTING: The liability of this Company shall not exceed that proportion of loss (meaning the loss, as provided in the Excess Clause above, at the location involved), which the last reported value filed prior to the loss, less the amount of any specific insurance reported, at the location where the loss occurs, bears to the total actual cash value, less the amount of specific insurance, if any, at that location on the date for which the report was made.
“At any location acquired since filing the last report of values, the liability of this Company shall not exceed that proportion of loss (meaning the loss, as provided in the Excess Clause above at the acquired location), which the total of the values last reported and filed prior to the loss, less the total of the amounts of any specific insurance reported, at all locations, bears to the total of the actual cash values, less the total of the amounts of specific insurance, if any, at all locations on the date for which the report was made.

The following was included in the income loss policy:

“FULL REPORTING CLAUSE—
Liability under this clause shall not in any case exceed that proportion of any loss hereunder (meaning the loss at the location involved) which the last value reported to this Company prior to the loss bears to the actual cash value of the property, at the time of such report. Liability for loss hereunder occurring at any new location where, since filing the last report, the Insured may have property as hereinbefore described shall be apportioned in a like manner, except that the proportion used shall be the relation that the value at all locations reported prior to the loss, bear to the actual cash value of the property hereinbefore described at all locations, at the time of such report.”
* * * * * *
“REPORT OF VALUE CLAUSE:— The insured hereby agrees to furnish this Company with statements declaring the sound value of all merchandise on hand at each location named herein as of the last day of each calendar month as shown by the insured’s book records. When necessary he shall also add an estimated amount to cover merchandise received but not entered on his books and deficits due to changes in the market values.”

Defendant has taken the position that it is bound only for that proportion of the loss which plaintiff’s last inventory report bore to the actual count of goods on hand on July 31, 1973. Plaintiff, in accordance with the report of value clause, reported an inventory of $150,000 upon which premiums were paid. An actual merchandise count on that date revealed an inventory of $155,206.70 or a difference of 3.36%.

Plaintiff argues that actual counts of merchandise are not a practical approach to inventory record keeping due to the complexities of its business. Its accountant testified that the 3.36% error was reasonable considering the method of inventory calculation used, which was in keeping with sound accounting principles. In substance, plaintiff claims that its inventory record keeping was a good faith effort to reach the closest approximation possible within sound accounting procedures and that it should not be penalized as the margin of error was de minimis.

We disagree. The language of the policies is clear and unambiguous and lends no support to plaintiff’s position. Furthermore, this case parallels Reilly-Benton Co., Inc. v. Liberty Mutual Insurance Co., 278 So.2d 24 (La.1973) which supports defendant’s position. There, a claimant under reported its merchandise inventories prior to a fire loss and the Court approved a proportionate reduction in the loss payment based on policy language similar to defendant’s. The Supreme Court cited with approval the following language:

“ . . . an insured who had purchased a fixed amount of insurance could not, after his property had been destroyed, successfully seek through reformation the enlargement of his policy’s limited coverage on the ground that he had intended to obtain full insurance coverage, but had failed to do so because of a clerical error made by one of his employees in determining the value of his property.”

Thus, the deduction from the amounts claimed by plaintiff was proper in view of plaintiff’s failure to report the full value of its inventory on the last reporting period prior to the date of the loss. To the extent that plaintiff failed to report full inventory and thereby failed to pay full premiums it was self-insured for the difference.

The judgment of the trial court is affirmed.

Affirmed.


text:
    Walter R. KELLY, Jr. v. GENERAL MILLS SUPPLIES, INC. and Liberty Mutual Insurance Company.
    No. 7332.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Rehearing Denied May 18, 1976.
    Writ Refused July 1, 1976.

      LaBorde & Brooks, Gerald Thos. La-Borde, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John C. Combe, Jr., New Orleans, for defendants-appellees.
    Before SAMUEL, MORIAL and BEER, JJ-
   MORIAL, Judge.

Plaintiff, Walter R. Kelly, Jr., appeals from a district court judgment maintaining an exception of prescription filed by defendants, General Mills Supplies, Inc. and Liberty Mutual Insurance Company (Liberty Mutual).

On July 17, 1973 plaintiff was injured in a rear-end collision with a truck owned by defendant. On August 3, 1973 Liberty Mutual mailed plaintiff a check in the amount of $164.98 in payment of their estimate of property damage to his vehicle. This check, valid for six months, was never cashed and was subsequently replaced by another check of same amount on August 26, 1974.

On April 24, 1974 plaintiff filed suit in the United States District Court for the Eastern District of Louisiana against “General Mills Supply, Inc.” and Liberty Mutual alleging jurisdiction based upon diversity of citizenship. Service of this suit on Liberty Mutual was requested on August 8, 1974 but was not accomplished until August 13, 1974, approximately four weeks after the anniversary of the accident. The other defendant was never served because its named agent refused service.

On August 26, 1974 Liberty Mutual, alleging its insured to be a Louisiana corporation, filed a motion to dismiss the federal court suit for lack of diversity jurisdiction and on that same date, plaintiff filed the instant suit in state court. Thereafter, the United States District Court rendered judgment dismissing plaintiff’s suit for lack of diversity.

On October 10, 1974 defendant, relying upon LSA-R.C.C. 3536, filed an exception of prescription to the state court action. The trial court maintained the exception and thereupon dismissed plaintiff’s suit. Plaintiff appeals. We affirm.

Plaintiff herein alleges four grounds for reversal. He asserts that: (1) Liberty Mutual is not entitled to a plea of prescription due to the fact that its attorneys lulled plaintiff into suing the wrong insured; (2) General Mills Supplies, Inc. is not entitled to a plea of prescription due to the fact that its counsel of record agreed to waive “any procedural defects” in order to gain dismissal of the federal court suit; (3) the part payment check mailed on August 3, 1973 acted to extend the prescriptive period, to one year from the six month expiration date of the check; and (4) the issuance of the second check on August 26, 1974 acted to extend the prescriptive period to one year from the date of such check.

It is well established that the filing of suit in a court of incompetent jurisdiction does not interrupt prescription unless the defendants have been served with proper citation within the prescriptive period. Conner v. Continental Southern Lines, Incorporated, La., 294 So.2d 485 (1974). Plaintiff admits that the correct defendants were not served in time but contends that he erroneously filed suit in federal court believing General Mills Supplies, Inc. to be the nationally known Delaware Corporation, General Mills, Inc. He asserts that Liberty Mutual contributed to this confusion and should not be allowed to take advantage of it due to the fact that in correspondence it referred to its insured both as “General Mill Supplies” and “General Mills Supplies, Inc.” We see no merit to this argument. At no time did Liberty Mutual refer to its insured as “General Mills, Inc.” or in any other manner lead plaintiff to believe that its insured was a foreign corporation. Even if the insured had been properly named in the federal suit, the claim still would have prescribed because service on the named defendants was not requested until after the expiration of the prescriptive period.

Plaintiff’s next contention centers around a letter dated August 27, 1974. This letter, sent by counsel for plaintiff to counsel for defendants in apparent confirmation of a prior telephone conversation, provides in pertinent part as follows:

“(1) We will assent to dismissal for lack of a Federal jurisdiaion [sic] and we will immediately file in State Court.
“(2) In return for which you will not raise objections as to any procedural defects based upon by reason concerning the names of General Mills, Inc. and General Mills Supply, Inc.” (emphasis ours)

Plaintiff alleges that the failure of defendants to respond to this letter amounts to an acceptance of its provisions, including the waiver of accrued prescription implicit in the agreement to "not raise objections as to any procedural defects.”

Defendants contend that at no time prior to the letter was it ever agreed that they would renounce prescription and that the cryptic term “procedural defects” was employed merely as subterfuge in an attempt to resurrect a dead claim. They argue that if counsel had -received a letter confirming that he had agreed to specifically waive prescription, a telephone call and letter of denial would have immediately followed.

We believe defendants’ position is fully supported by the law and the evidence. At the hearing on the exception, counsel for plaintiff admitted that the subject of prescription was never discussed with opposing counsel and that the only term ever mentioned was “procedural defect.” In Succession of Brower v. State, 80 So.2d 217, 222 (La.App. 2 Cir. 1955), the court in discussing renunciation of accrued prescription stated:

“ * * * It is clear that renunciation of prescription only takes place when the intention to renounce the prescription is manifest either from the words or the acts of the debtor. Such an acknowledgment must be clear, direct and absolute.”

We believe that defendants never intended to renounce prescription through their tacit agreement to waive “any procedural defects.” The defendants’ failure to respond to this letter can in no way be construed as a “clear, direct and absolute” acknowledgment of the prescribed obligation.

Plaintiff argues that the defendants’ renunciation was in consideration of his assenting to dismissal of the federal suit, and that in performing his part of the bargain he gave up his right to argue his case in federal court. We do not believe that plaintiff relinquished any rights by his assent to the dismissal. Defendants had an unqualified right to have their motion to dismiss granted due to the absence of diversity jurisdiction. Reed v. Ulmer, 308 F.2d 915 (5th Cir. 1962). Plaintiff’s assent in the matter was, in effect, unnecessary.

Plaintiff’s final two allegations are also without merit. Assuming arguendo that the partial payment check mailed on August 3, 1973 had the effect of interrupting prescription, the action nevertheless remains subject to dismissal because suit was not filed until August 26, 1974, more than one year after the commencement of the prescriptive period. LSA-R.C.C. Art. 3536. Plaintiff’s contention that the provision on the check specifying that it would be “void if not presented within six (6) months from issue date” effected an extension of the commencement of the prescriptive period for six months, is totally specious. If this were the result of such a provision, a check issued without any expiration date might extend the commencement of the prescriptive period forever. Surely this would lead to absurd results.

With respect to the reissuance on August 26, 1974 of the partial payment check, plaintiff asserts that “whatever legal effects attached to the first check were revived by the second.” Since we have found that the issuance of the first check did not prevent the cause of action from prescribing, the issuance of the second check could have no different effect.

For the reasons assigned, the judgment of the district court sustaining defendants’ exception of prescription and dismissing plaintiff’s suit is hereby affirmed. Plaintiff is to pay all costs of this appeal.

AFFIRMED.


text:
    Joaquin COUTO, Individually and as duly qualified natural tutor of Maria Defantima Couto, et al. v. Doctor Louis R. OMS and St. Paul Fire and Marine Insurance Company.
    No. 6617.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 19, 1976.
    Rehearing Denied May 18, 1976.

    Levy & Smith, Lawrence J. Smith, New Orleans, for plaintiff-appellee.
    Lemle, Kelleher, Kohlmeyer & Matthews, William S. Penick, New Orleans, for defendant-appellant St. Paul Fire and Marine Ins. Co.
    Before SCHOTT, MORIAL and BEER, JJ-

       Schott, J. was of the opinion the rehearing should be granted.

   BEER, Judge.

On September 9, 1975 we issued our opinion in this matter (319 So.2d 518). After our denial of a rehearing on October 9, 1975, the plaintiff-appellee made application for certiorari or writ of review on which the Supreme Court of Louisiana took the following action on November 21, 1975, 323 So.2d 128:

“Writ granted. This case is remanded to the court of appeal for a decision on the merits. See Gonzales v. Xerox Corp., 320 So.2d 163, decided by this Court, October 1, 1975.” (Emphasis ours.)

On December 3, 1975 the Supreme Court denied plaintiff-appellee’s application for rehearing and, thereafter, the record was transferred to this court in accordance with the Supreme Court’s order of November 21, 1975. We now proceed to deal with the case on the basis of the mandate from our brothers above:

Our previous opinion contains a lengthy summary of the facts of this case, a discussion of the issues, and references to serious conflicts in the testimony of fact as well as expert witnesses. Nothing would be gained by repeating these matters.

We have determined that the evidence as a whole does not preponderate to the effect that Mrs. Couto died of eclampsia or that her death was the proximate result of any negligence of Dr. Oms in failing properly to diagnose her condition or treat her on the day of her death. Thus, plaintiff failed to carry the burden of proof required in the premises.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans is reversed and judgment is rendered in favor of defendants, Dr. Louis R. Oms and St. Paul Fire and Marine Insurance Company, dismissing plaintiff’s suit at his costs.

REVERSED AND RENDERED.


author: PETERS, Judge ad hoc.

text:
    J. J. BRACKIN et ux., Plaintiffs-Appellees, v. KANSAS CITY SOUTHERN et al., Defendants-Appellants.
    No. 5352.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Rehearing Denied May 19, 1976.
    Writ Refused July 1, 1976.
    Wilkinson, Carmody & Peatross by Samuel W. Caverlee, Shreveport, for defendants-appellants.
    Knoll & Knoll by Jerold E. Knoll, Marksville, for plaintiffs-appellees.
    GUIDRY, HOOD and PETERS, JJ.
   PETERS, Judge ad hoc.

This is a personal injury and property damage suit arising out of a collision between a car driven by plaintiff, Mrs. Mary Brackin, and a railroad maintenance machine driven by Charles Kimble, an employee of the Louisiana and Arkansas Railway Company. Plaintiff was driving south on Laurel St. in the Town of Simmesport. Defendant’s main railroad line through Simmesport is perpendicular to and intersects Laurel Street. At the time of the accident defendant maintained a train depot which was located in the northwest quadrant of the intersection of Laurel Street and the railroad line. The depot was 60 feet in length along the main rail line and 20 feet in width along Laurel Street. Attached to the south side of the depot was a 42-inch high platform. This platform paralleled the tracks and was five feet wide. The front of the platform was 14 feet away from the centerline of the main rail line. The rails of the main line are 4 feet 814 inches apart, making the distance from the front of the platform to the nearest rail about IU/2 feet. The distance from the front of the depot building to the nearest rail was about I6I/2 feet. The intersection was marked with the standard railroad cross buck sign; in addition, Mrs. Brackin had been driving through this intersection for a number of years and was therefore familiar with it.

On the morning of the accident Charles Kimble was driving a tamper machine, a 26,000 pound machine used for railroad maintenance. Kimble was driving the machine in an easterly direction on the main rail line. Kimble testified that he first saw Mrs. Brackin’s car when it was near an intersection north of the depot; this intersection is about 100 feet north of the main line. Kimble was travelling at a speed of 10 to 15 miles per hour. After Kimble first saw Mrs. Brackin, the depot obscured his vision of her. He assumed she would stop for the intersection with the main line. He testified that the blue warning light on top of his machine was operating and he was sounding his whistle as he approached the intersection. Mrs. Brackin testified that she had not seen Kimble’s machine as she approached the intersection. She did not stop at the intersection to look for train traffic. She intended to drive over the tracks but when she was about 10 feet away from the tracks she saw the tamper machine. She slammed on her brakes and came to a stop with the front end of her car on the tracks. Kimble said that he locked up his brakes as soon as he saw that Mrs. Brack-in was in peril. He stated that the tracks were covered with dew and the wetness of the rails caused him to skid into the Brack-in car despite his efforts to stop.

The trial judge found that defendant was negligent in maintaining its depot too close to the railroad line without installing adequate warning signals. He also held Mrs. Brackin guilty of contributory negligence. However, he further found that Kimble had the last clear chance to avoid the accident. He rendered judgment for plaintiffs in the amount of $11,671.10. Defendant appealed and plaintiffs answered the appeal asking for an increase in the award. We find the judgment to be manifestly erroneous and reverse.

We deal first with the question whether defendant was negligent in maintaining a dangerous crossing. We find that the crossing in the instant case did not constitute a dangerous trap. The front of the depot building was 16j4 feet from the nearest rail. Since the platform which was attached to the front of the building was only 42 inches high, a driver on Laurel Street could stop his car a safe distance from the tracks and still be able to see an adequate distance down the tracks by looking over the platform. Mr. Dallas Raba-lais, town marshal of Simmesport at the time of the accident, testified that he investigated the scene of the accident to determine whether a driver on Laurel Street could see down the tracks without placing his car on the tracks. He found that even if one did not look over the platform, he could see around the platform when he placed his car with the front end about 4 feet from the nearest rail. From this vantage point Rabalais was able to see about 500 feet down the tracks. Rabalais further stated that while seated in his car he had no difficulty seeing over the platform. Since the platform was 5 feet wide, we assume that Rabalais could have placed his car with the front end 9 feet from the nearest rail and have been able to see down the tracks by looking over the platform. It is apparent from the testimony of Rabalais that Mrs. Brackin could have obtained an adequate view down the tracks without having to place her car nearer than 9 feet from the tracks. The intersection therefore was not a dangerous trap,

Nor can we find any negligence on the part of Kimble in his operation of the tamper machine. The trial court found that Kimble negligently failed to stop his machine in time to avoid the accident. We can find no evidence to support such a conclusion. All the evidence indicates that Kimble did everything possible to stop his machine when he saw Mrs. Brackin approaching the tracks. He simply did not have sufficient time to stop.

We conclude that defendant was guilty of no negligence in the accident between the tamper machine and plaintiffs’ car.

For the reasons assigned, the judgment of the trial court is reversed at plaintiffs’ costs.

Reversed and rendered.