author: SARTAIN, Judge.

text:
    Helen Stevens, wife of/and Kenneth G. STEVENS, Jr., Plaintiffs-Appellees, v. GULF AMERICAN FIRE & CASUALTY COMPANY et al., Defendants-Appellants.
    No. 10364.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1975.
    Rehearing Denied Aug. 26, 1975.
    C. Gordon Johnson, Jr., New Orleans, for defendants-appellants.
    Max Mercer, Slidell, for plaintiffs-appel-lees.

      Before S ART AIN, ELLIS and BAR-NETTE, JJ.
   SARTAIN, Judge.

This litigation was initiated by Mr. and Mrs. Kenneth G. Stevens, Jr. for damages arising out of an accident which occurred in St. Tammany Parish on May 2, 1970. Following a trial on the merits and for written reasons assigned the district judge awarded Mr. Stevens the sum of $750.00 for personal injuries sustained by him and $3,624.75 for special damages. Mrs. Stevens was awarded the sum of $30,000.00 for personal injuries, pain and suffering. Defendants have appealed, limiting their assignments of error to the issue of quantum. It is their contention that Mrs. Stevens was injured in a subsequent accident on December 29, 1970 and the plaintiffs have failed to bear the burden of proving that the damages they now seek are causally related to the first accident. We agree and amend.

The jurisprudence pertaining to the burden of proof in instances involving multiple accidents is well settled, A tort- . feasor is liable only for the direct and proximate results of his wrongful act. McGuire v. Oliver, 227 So.2d 149 (2nd La.App., 1969) and cases cited therein.

The burden of proving both the existence of the injuries and the causal connection between them and the accident rests with the plaintiff. Such proof 'must be shown to a legal certainty and by a reasonable preponderance of the evidence. A mere possibility is insufficient. Livaccari v. United Jewish Appeal, Inc., 126 So.2d 67 (4th La.App., 1961), (certiorari denied March 3, 1961.) With the above in mind, we look to the facts in the instant case.

The first accident occurred on the afternoon of May 2, 1970. Mrs. Stevens was riding in the front seat and was looking to the rear seat, talking to her children. She had one elbow on the dashboard when the accident occurred. The offending vehicle had cut in front of the automobile in which she was riding and her husband was driving. The latter could not avoid a collision. Mrs. Stevens testified that she “fell” into the dashboard. She did not receive any obvious injuries at the time although she was nervous and upset. Later that evening she developed a headache. The next morning (Sunday) her neck was very sore and- the headache persisted. The following day (Monday) she remained in bed and took aspirin and Bufferin. Dr. Henry T. Cook, a general practitioner and the Stevens’ family physician, was out of town on that day so Mrs. Stevens saw him on Tuesday, May 5, 1970.

Dr. Cook admitted her to the Slidell Memorial Hospital immediately and Mrs. Stevens remained hospitalized until May 12, 1970.

Dr. Cook’s testimony was taken by deposition. He stated that Mrs, Stevens was complaining of stiffness and pain in the neck. X-rays taken at that time were negative though they “showed changes consistent with muscle spasm.” Mrs. Stevens was placed in traction and was prescribed muscle relaxants, pain pills and physiotherapy to the neck area. On her release, Dr. Cook made the diagnosis of “whiplash injury . . . extension-flexion injury to the neck”, which he later described as “severe”. Mrs. Stevens was told to continue with her medication and return to his office on May 22,1970.

On May 22, 1970, Mrs. Stevens complained of headaches which Dr. Cook’s notes relate commenced about a week previous to this examination. He felt that her neck “appeared improved”. X-rays taken on this occasion disclosed no abnormality. She was asked to return in one week. During this interim period Mrs. Stevens apparently saw another physician. Testimony relative to the latter’s report was ruled inadmissible and this doctor was not called to testify nor was his report offered in evidence.

Dr. Cook last saw Mrs. Stevens on June 5, 1970. Because of complaints of headaches and dizziness he referred her to Dr. J. Carlos Pisarello, a neurological surgeon in New Orleans. Dr. Pisarello performed a neurological examination of Mrs. Stevens on June 8, 1970 and rendered a report to Dr. Cook under date of June 11, 1970. Dr. Pisarello’s examination was negative. However, he prescribed certain medication for her and advised that if her condition did not improve' it might be necessary to admit her to a hospital for a more complete neurological investigation. Mrs. Stevens did not return to Dr. Cook. Apparently she did go back to Dr. Pisarello for a complete neurological examination which was performed at the Southern Baptist Hospital in New Orleans between the dates of June 25, 1970 and July 2, 1970. These hospital records were introduced in evidence without further explanation. Dr. Pisarello’s subsequent evaluation is not known because only his report of June 11, 1970 is in the record. Accordingly, it must be assumed that all of the tests at the Southern Baptist Hospital were negative.

The second accident occurred on December 29, 1970. In this accident Mrs. Stevens sustained an undisplaced fracture of the left ninth rib, lacerations of the mouth which required sutures, contusions to her right facial area and right knee. She was treated in the Emergency Room at Slidell Memorial Hospital by Dr. Cook. On January 1, 1971, she was seen by Dr. Nix, an associate of Dr. Cook. Her right cheek was very swollen and painful. She was given penicillin.. Dr. Cook’s examination on January 2, 1971 revealed that her right cheek was still swollen. On January 4, 1971, the swelling had decreased but she was continued on medication. On January 6, 1971, her face had improved but she complained of neck and rib pain. She was administered diathermy treatments to the neck area on January 26, 27, 28, 29, 30, February 2, 4, 6, 16, 17, 18, 24, and 26, 1971. Dr. Pisarello’s examination on January 22, 1971 was neurologically negative. She was discharged by Dr. Cook on May 19, 1971.

In June of 1971 Mrs. Stevens experienced neck pains for four days following some swimming exercises. She was again placed on muscle relaxants and administered diathermy treatments on five occasions, the last on June 14, 1971. Dr. Cook referred her to Dr. G. Gernon Brown, an orthopedic surgeon in New Orleans. This specialist examined her on June 21, 1971 and by report dated June 30, 1971 to Dr. Cook stated that he could find no explanation for Mrs. Stevens’ persistent neck complaints. He recommended no further treatment but did suggest re-evaluation if “her symptoms persist.”

Mrs. Stevens returned to Dr. Cook on September 28, 1971 complaining of neck pains. He instructed her to resume the use of muscle relaxants and return in two weeks. When she returned on November 16, 1971, Dr. Cook arranged for her to see Dr. Brown again. Dr. Brown suggested that she see Dr. Dennis M. L. Rosenberg, a vascular surgeon.

Dr. Rosenberg examined Mrs. Stevens on November 29,' 1971 and his report of that date is in evidence. His examination revealed many signs and symptoms of “thoracic outlet compression syndrome” and he suggested that if Mrs. Stevens had been “cleared completely by the neurosurgeon for cervical disc or nerve root compression” that consideration be given to the removal of her first rib.

. Dr. Cook then sent Mrs. Stevens to Dr. Raeburn C. Llewellyn,.' A neurosurgeon. She was admitted to Ochsner Foundation Hospital by Dr. Llewellyn on December 7, 1971. A myelogram was performed on December 8, 1971 which indicated a ruptured cervical disc at the C-5, C-6 level. The disc was removed and an interbody fusion was performed.

She was discharged from Ochsner Foundation Hospital on December 21, 1971 and was seen at regular intervals by Dr. Llewellyn until May 11, 1972. He felt and so testified that Mrs. Stevens had made a very satisfactory recovery from her disc operation.

On October 4, 1972, Mrs. Stevens returned to Dr. Llewellyn complaining of tightness in the interior part of the throat and trouble with swallowing. She was readmitted to Ochsner Foundation Hospital on October 15, 1972 under the care of Dr. Daniel Marvin Adams, III, a specialist in otolaryngology, who performed a laryngos-copy on Mrs. Stevens. This is a medical procedure performed under general anesthesia whereby the vocal chords of the larynx are physically examined. This operation revealed a chronically inflamed area on the left arytenoid which is generally referred to in layman’s terms as a “contact ulcer.” The area was biopsied which ultimately ruled out any possibility of malignancy. Dr. Adams testified that a contact ulcer could develop as a result of irritation in this area caused by the anesthesia used in the previous operation, by improper speech habits, a type of gastric reflux, or by anxiety. He could not classify the origin of Mrs. Stevens’ throat problem and specifically stated that he could not relate it to the first accident, the second accident or the disc operation.

The trial judge in his written reasons for judgment held that all of the above medical procedures, treatment, disc and throat operations were causally related to the accident of May 2, 1970. His written reasons for judgment stated that from the date of the first accident to the date of the throat operation Mrs. Stevens was under consistent medical attention. In this conclusion of fact we find that the trial judge committed manifest error.

Mrs. Stevens went from June 5, 1970 until December 29, 1970, a period of six months, without seeing, calling, or contacting either Drs. Cook or Pisarello who advised her to return to them if her symptoms persisted.

It is very difficult for us to evaluate the testimony of the attending specialists because Mrs. Stevens did not advise Drs. Brown, Llewellyn, or Rosenberg when she went to them for examination that she had been involved in a second accident. Mrs. Stevens explained that she did not feel it necessary to advise these doctors of the second accident because she was referred to them by Dr. Cook and thought that the latter would give them all of the information necessary. These doctors’ reports and testimony clearly indicate that the patient’s history was given to them by Mrs. Stevens.

When Dr. Llewellyn was advised of the second accident and asked if it bore any causal relation to the cervical disc involvment experienced by Mrs. Stevens, he stated that Dr. Cook, as Mrs. Stevens’ personal physician, would be in a better position to answer that question than himself. This question was not propounded to Dr. Cook.

Dr. Llewellyn was queried generally about the causal relation between the first and second accident and the ultimate disc problem. It was in response to this question that he deferred to Dr. Cook’s opinion though generally he stated that the first trauma is the significant one. However, he qualified this statement by saying that if the patient did not immediately experience signs of disc injury the second trauma would be of more importance “assuming that the initial injury to the neck had resolved and there had been no signs or symptoms to indicate that irreparable disc injury had occurred.” It is obvious that Dr. Llewellyn’s opinion was premised on the assumption that Mrs. Stevens experienced significant neck, shoulder and arm complaints following the accident of May 2, 1970 and that these complaints had gradually worsened until he saw her in December of 1971. These assumptions are not borne out by the medical testimony. Dr. Cook’s testimony and notes are devoid of any evidence relative to shoulder and arm complaints. She received no diathermy-treatments for her neck complaints following her discharge from the hospital on May 12, 1970 until the December accident. She saw no doctor for a period of six months between the dates of the two accidents though she was advised to do so by Drs. Cook and Pisarello. It was only after the second accident that her complaints were consistent and that her medical attention was without significant interruption. In this situation Dr. Llewellyn would attach more significance to the second accident as having either precipitated or aggravated a pre-existing condition.

There is lay testimony in the record to the effect that from the date of the first accident Mrs. Stevens was in constant discomfort, nervous, unable to do her household duties and could no longer participate in civic and community activities. This testimony must be considered along with the medical testimony related above. With respect to the period between the two accidents (May 2, 1970 and December 29, 1970), the lay testimony is totally inconsistent with the medical testimony. Mrs. Stevens made no complaints of neck discomfort to Dr. Cook from May 22, 1970 until December 29, 1970. As stated above, she received no treatment from any doctor between these latter dates. Further, on each occasion following the second accident when Mrs. Stevens experienced neck discomfort or pain she sought medical attention, even following the swimming incident in June of 1971. The extensive diathermy treatments following the second accident not only attests to the seriousness of that accident but also to her efforts to seek medical treatment when she was in pain.

Mr. Stevens’ testimony that his wife went back to the doctor (Cook) between the two accidents to obtain relief from pain is obviously in error. Mrs. Stevens and Dr. Cook both acknowledged that she had not done so. Mrs. Stevens was mistaken when she testified that Dr. Cook did not treat her for neck complaints following the second accident. She actually received diathermy treatments to the neck area on six occasions.

Mrs. Stevens’ difficulties, which were many and serious, can not be solely related to the accident of May 2, 1970 without engaging in unwarranted speculation and improper consideration of possibilities.

From the above particularized facts we can reach no other conclusion but that Mrs. Stevens has failed to bear the burden of proving a causal relation between the accident of May 2, 1970 and any physical injuries, or pain that she suffered after December 29, 1970, the date of the second accident. We therefore find that as a result of the first accident she sustained a severe whiplash injury. Fpr this injury we feel that the sum of $5,000.00 is just and adequate consideration.

We now turn to the question of special damages. The trial court awarded Mr. Stevens the sum of $3,224.75. A substantial portion of these special damages was incurred at the time of and subsequent to the second accident. Accordingly, we shall cast the defendant for all special damages incurred by Mrs. Stevens up to the date of the second accident, to-wit:

Mahorner Clinic $ 25.00
Dr. J. Carlos Pisarello 255.00
Dr. H. T. Cook 70.00
New Orleans Anesthesia
Associates 60.00
Southern Baptist Hospital 850.75
Slideli Memorial Hospital 319.45
Total - $1580.20

While the defendants suggested that the amount awarded to Mr. Stevens for personal injury sustained by him in the amount of $750.00 was excessive, they conceded in oral argument that it was “probably” within the bounds of the discretion that is accorded the trier of fact in assessing damages. C.C. Art. 1934(3).

Accordingly, for the above reasons the judgment of the district court is amended by reducing the award to Mrs. Helen Stevens to the sum of Five Thousand and no/100 ($5,000.00) Dollars, and by further reducing the award to Mr. Kenneth G. Stevens, Jr. for special damages to the sum of One Thousand Five Hundred Eighty and 20/100 ($1,580.20) Dollars, both together with legal interest thereon from the date of judicial demand until paid. In all other respects the judgment of the district court is affirmed. All costs of these proceedings are assessed against appellants.

Amended, and as amended affirmed.

      . Mrs. Stevens’ answer to the appeal was untimely. O.C.E. Art. 2133.


source: Caselaw Access Project

author: SCHOTT, Judge.

license: Public Domain

text:
    Douglas RITTER v. Sherman WASHINGTON.
    No. 6976.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 15, 1975.
    Rehearing Denied Sept. 9, 1975.
    Writ Refused Oct. 31, 1975.
    C. Cyril Broussard, New Orleans, for plaintiff-appellant.
    Wells & Breaux, John H. Wells, New Orleans, for defendant-appellee.
    Before SAMUEL, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

On our own motion we questioned our jurisdiction to entertain this appeal from the Second Parish Court for the Parish of Jefferson. Notice of judgment was mailed to counsel on October 23, 1974, and the petition for appeal was not filed until January 20, 1975, far beyond the delay provided by LSA-C.C.P. Art. 5002.

Appellant attacks the constitutionality of R.S. 13:2562.10 which makes C.C.P. Art. 5002 applicable to this case on the ground that Art. VII, § 51(a) of the Constitution of 1921 authorizing the legislature to create Parish Courts for the Parish of Jefferson, did not specifically authorize the legislature to establish procedure and regulate appeals.

The final sentence of the cited section of the Constitution provides:

“The Legislature shall also provide for the necessary personnel for the operation of such Courts and make such other pro visions as may be considered necessary to establish and operate such Courts.” (our emphasis)

This language was ample authority for the legislature to adopt R.S. 13:2562.10, and accordingly the appeal is dismissed.

Appeal dismissed.


author: BAILES, Judge Pro Tem.

text:
    Gordon M. WHITE et al. v. Emmett E. BATSON.
    No. 10336.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1975.
    Iiehearing Denied Aug. 26, 1975.
    Writ Refused Oct. 24, 1975.

      Larry D. Book, Baton Rouge, for appellants.
    Darrell D. White, Baton Rouge, for ap-pellee.
    Before LOTTINGER and COVING-TON, JJ., and BAILES, J. Pro Tem.
   BAILES, Judge Pro Tem.

This is an action for specific performance of a contract to buy certain immovable property located in the City of Baton Rouge. The court a quo ordered specific performance. The defendant appealed. We affirm.

On February 7, 1974, the defendant entered into an agreement with the plaintiffs wherein defendant contracted to purchase" Lot 4, Square 18 South, Beauregard Town, Baton Rouge, Louisiana, from the plaintiffs for the sum of $50,000. The defendant refused to accept title to the property on the ground that plaintiffs’ title is un-merchantable and suggestive of serious future litigation.

The facts are few and free from dispute. Before this Court the sole objection of the defendant to the title of plaintiffs is that the chain of title to subject property includes a deed dated May 23, 1945, from Lillie Bell Knox and James T. Amiss to Carl E. Norder, et al, which was not physically signed by Mrs. Knox. The deed was signed by her co-owner, James T. Amiss, in her presence, at her request and direction, in the presence of three competent witnesses and the notary.

The deed in question contains the following statement by the notary, W. Frank Gladney, before whom the act of sale was passed which fully explains what transpired on that occasion, to-wit:

“At the request of the parties hereto, this Act of Sale with Mortgage was passed at the home of one of the vendors, Mrs. Lillie Bell Knox, at 423 North Boulevard in the City of Baton Rouge, instead of at the office of the notary for the reason that the said Mrs. Knox is now confined to her home. The said Mrs. Lillie Bell Knox, being blind, after having requested that this Act of Sale with Mortgage be read to her and after it was read to her in a clear voice by me, notary, did declare her approval of and satisfaction with the said Act, and did authorize and instruct the above described James T. Amiss to affix her signature hereunder, all having been read, done and signed in the presence of me, notary, and the three undersigned competent witnesses all in fullfillment (sic) of the provisions of Art. 2234 of the Revised Civil Code of Louisiana, as amended.”

The trial court in its written reasons for judgment, inter alia, stated:

« * * *
“With regard to the instant set of facts, the court regards Mr. Amiss to have been not an agent or mandatary, but simply a helping hand who loaned his arm and eyes to Mrs. Knox so that she, through him, could sign the act of sale. Mr. Amiss was simply an instrumentality for her signature much like the pen and paper are instrumentalities of the signature of a sighted person. Accordingly, the court concludes that because Mr. Amiss was not a mandatary, there was no violation of the rule prohibiting a verbal mandate to sell immovable property. Mrs. Knox’s signature through Mr. Amiss is held to be valid and to have divested her of her ownership in the property in question herein. The provisions of Civil Code A Article 2234 (requiring, inter alia, that a blind person execute an authentic act in the presence of three witnesses and which defendant alleges is a statute prohibiting the Amiss signature for Knox) was not violated inasmuch as Mrs. Knox did sign albeit through an amanuensis, in the presence of three witnesses. * * *.
“For the reasons given above, the court rules that the aforesaid sale was valid, that the title in question is merchantable and that it is not suggestive of serious litigation. * * *

Of the defendant’s specification of errors of the trial court, we deem only two of these need be considered. These are:

1. That the trial court erred in holding that the Knox-Norder sale did not contain a verbal power of attorney but instead contained an amanuensis which was effective to transfer an immovable; and

2. The trial court erred in not holding that the title to the subject property was suggestive of serious future litigation.

These two assigned errors by the appellant, suggests two questions for consideration and answer. These are:

I. Does the act of signing the name of a vendor to an act of sale of immovable property by another person in response to the verbal request and direction of the vendor who is present at the signing require a written power of attorney for such act of sale to legally convey title to the vendee named in the act of sale ? and,

II. Is the title to the immovable as thus vested in the vendee suggestive of serious future litigation?

We will consider these questions in the order stated:

The main thrust of appellant’s argument is that our law requires that a mandate to transfer title to immovable property must be in writing. He cites a long line of jurisprudence to support this argument as well as LSA-C.C. Articles 2275, 2440 and 2992.

Appellees rely on the holding of the courts in the cases of Meyer v. King, 29 La.Ann. 567 (1877) and Elmore v. Butler, 169 So.2d 717 (La.App. 2nd Cir. 1964) as being most controlling.

If the request of Mrs. Knox to Mr. Amiss and her direction to him to sign her name to the act of sale was a mandate to transfer title to immovable property then the act of sale is fatally defective for the mandate was not reduced to writing. We acknowledge that a power of attorney to sell immovable property must be in writing. Turner v. Snype, 162 La. 117, 110 So. 109, 110 (1926) and the cases therein cited.

In Meyer v. King, supra, the court, in considering the validity of the confection of a counter-letter and the admissibility of certain testimony of whether the son of a party to the counter-letter had signed his farther’s name to the act with his father’s consent, held:

“ * * * The counter-letter was not the mandate, but the act signed for, in presence and under the instructions of the parent. That authority was delegated for only one object, was not to be exercised out of the interested parties presence, lasted the space of time required to write a name, and expired when the last letter of the principal’s name fell from the agent’s pen. In such a case, the act itself is the act of the principal, not of the agent.”

In Elmore v. Butler, supra, a petitory action, the trial court had ruled that the •deed from M. M. Elmore to Georgia El-more and No vie Elmore was null and void because the signature thereon was found not to be that of M. M. Elmore, the alleged vendor, and there was no statement in the deed as to Elmore’s inability, or reason for his failure, to sign. The proof was that on the occasion of the confection of the deed, after two other parties thereto had signed their names, the notary asked M. M. Elmore to sign his name to the deed. When he attempted to comply, his hand was too shaky to write. At that time the notary instructed Elmore to “put your finger on the pen and let me write for you” and that is what he did. After citing and discussing Coats v. Guaranty Bank & Trust Co., 174 La. 503, 141 So. 41 (1932); Waggoner v. Grant Parish Police Jury, 203 La. 1071, 14 So.2d 855 (1943); In re Deshotels’ Estate, 153 La. 1096, 97 So. 203 (1923), and other authorities, the court held:

“The foregoing authorities convince us the signature of M. M. Elmore, affixed by G. F. Sheppard, where the former was present authorizing, aiding and consenting, became the signature of M. M. Elmore and thus effectively conveyed the property in dispute. * * *

In Black’s Law Dictionary, Revised Fourth Edition, 1968, the word Amanuensis is defined as “one who writes on behalf of another that which he dictates.”

In 80 C.J.S. Signatures § 6, p. 1291, is found the following comment:

“Generally, a signature may be made for a person by the hand of another, acting in the presence of such person, and at his direction, or request, or with his acquiescence, unless a statute provides otherwise. A signature so made becomes the signature of the person for whom it is made, and it has the same validity as though written by him. * * * Where a signature is made in this manner the person writing the name is regarded as a mere instrumentality, by which the person whose signature is written exercises his own discretion and acts for himself, and not through an agent. * * *.”

The other cases relied on by the appel-lee, viz: Coats v. Guaranty Bank & Trust Co., Waggoner v. Grant Parish Police Jury, and In re Deshotels’ Estate, all cited supra, stand for the principle that the verbal direction and instruction from one person to another for the latter to sign the former’s name makes a valid signature of the person whose name was written.

In the instant case, the vendor, Mrs. Lillie Bell Knox, was blind, the act of sale with mortgage was read to her, she voiced her approval and did ask Mr. James T. Amiss to sign the deed for her. All this was done in the presence of three competent witnesses and the notary.

We hold, under the authority above set forth, and the facts prevailing that the signing of the name of Mrs. Lillie Bell Knox by Mr. Amiss to be the lawful signature of Mrs. Knox and that the deed was translative of title to the property herein described to the named vendees. Further, we hold that Mr. Amiss was not an agent of Mrs. Knox in the context of the codal requirements that the mandate to convey immovable property must be in writing. He was nothing more than the amanuensis to Mrs. Knox, the instrument through which she wrote her name on the deed in much the same sense that one would use a typewriter, a pen or pencil to write a document or letter.

Now addressing the second question which this action dictates, namely: Is the title suggestive of serious future litigation, we do so mindful that the heirs of Mrs. Lillie Bell Knox, if any exist, are not before the court and that the holding herein is not res judicata as to them.

We note that the questioned deed is now over thirty years old and to this date none of her heirs have intervened in this litigation or instituted any action to have the transaction declared null. This is not to say that no contest will ever be presented; however, it is indicative, we believe, that such a contest is remote. Insofar as this affects the merchantability of the title, we must say that the doubtfulness of success definitely affects the likelihood of an attack.

It is accurate to say that it is rare indeed that the circumstances surrounding this transaction occur. The unusualness of the occurrence does not render the transaction less valid. Our extensive research does not reveal a single case wherein the courts have declared such action of an amanuensis invalid.

In Roberts v. Medlock, 148 So. 474 (La.App. 2nd Cir. 1933), the court stated:

“[4] A ‘merchantable title’ is one which can be readily sold or mortgaged in the ordinary course of business, to a reasonable person familiar with the facts and appraised of the question of law involved. It need not be free from every technical defect, of all suspicion, or of the possibility of litigation. It must be a record title free of rational substantial doubt to the extent that a purchaser should feel that he can hold his purchase in peace without the probability of attack and with reasonable assurance that it will be readily salable on the open market. (citations omitted).
“The word ‘merchantable’ implies something less than a perfect title and permits of defects which are not reasonably liable to result in assault. This presents a question of fact as well as one of law.”

In the record we find testimony of - members of the bar who, as expert witnesses, expressed opinions pro and con on the merchantability of the title. We are not impressed adversely by the honest opinion of such witnesses who might feel the title to the subject property is suggestive of serious future litigation.

In Pesson Plumbing and Heating Company, Inc. v. Hammonds, 160 So.2d 769 (La.App. 3rd Cir. 1964), the court said:

“[4,5] A title does not become unmer-chantable simply because a reputable attorney might question certain aspects of it as imperfect. As the Supreme Court recently stated in Kay v. Carter, 243 La. 1095, 150 So.2d 27, 29, ‘not all seeming defects render a title unmerchantable, especially those based on objections which are obviously groundless; it is when there are outstanding rights in third persons (not parties to the action) who might thereafter make claims of a substantial nature against the property, and hence subject the vendee to serious litigation, that the title is deemed not merchantable.’ [Italics those of the Supreme Court.] * * *

For the foregoing reasons we find that the title to the following described property, to-wit:

“One certain lot or parcel of ground together with all the improvements thereon and the rights, ways and privileges thereto appertaining, situated in that part of the City of Baton Rouge, State of Louisiana, known as Beauregard Town, and designated on the official map of the City of Baton Rouge as LOT NO. FOUR (4) of SQUARE NO. EIGHTEEN SOUTH (18S), of said Beauregard Town, the said lot measuring Sixty-four (64) feet front on the South side of Government Street by a depth at right angles and between parallel lines along the west side of St. Louis Street of One Hundred Six and two-thirds (10694rd) feet, running through to the North side of France Street. Being the same property acquired from Martin Broderick on January 27, 1956,”

standing in the name of the plaintiffs is merchantable and not suggestive of serious future litigation; and the judgment of the trial court ordering specific performance of the contract to purchase the above described property on the conditions therein set forth is affirmed. All court costs are assessed against defendant-appellant.

Affirmed.


author: SAMUEL, Judge.

text:
    Henry VANDERSON v. Barbara VIGO and Conrad Vigo.
    No. 6937.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.
    Robert F. Fleming, Jr., New Orleans, for plaintiff-appellant.
    Hammett, Leake, Hammett, Hayne & Hulse, Michael E. Wanek, New Orleans, for defendants-appellees.
    SAMUEL, STOULIG and BOUTALL, JJ.
   SAMUEL, Judge.

This is a suit for property damage, mental anguish and inconvenience resulting from a vehicular collision. Following trial on the merits, judgment was rendered in favor of the defendants, dismissing the suit. Plaintiff has appealed.

The accident occurred between 6 and 7 p. m. on June 22, 1971 in a heavy rainstorm near the intersection of Millaudon Street and Leake Avenue in the City of New Orleans. Traffic on Millaudon is controlled by a stop sign at that intersection. Leake is a two-lane, two-way roadway which Millaudon intersects at an unusual angle. Immediately prior to the accident plaintiff had stopped his pickup truck on Millaudon for the stop sign. At that time the defendant car was on Leake approaching Milloudon from plaintiff’s right. After stopping, plaintiff proceeded to make a right turn into Leake.

Four witnesses testified at the trial of the matter, plaintiff and these three defense witnesses: Conrad Vigo, minor driver of the defendant car, Lynn Vigo, sister of the driver and a guest passenger in that vehicle, and Mrs. Barbara Vigo, mother of the driver and owner of the defendant automobile.

Plaintiff testified: After stopping and after observing no approaching traffic he completed the right turn entirely in the proper, or his right, lane of traffic on Leake and proceeded a distance of about 100 to 150 feet. At that time he observed the approaching defendant vehicle apparently out of control, wobbling and zigzagging back and forth between both traffic lanes. He pulled as far as possible to the right and stopped just before his truck was struck by the defendant automobile which slid from the left front to the left back side of the truck. The accident occurred entirely in his, plaintiff’s, lane where both vehicles came to rest after the accident.

The defendant driver testified: He was traveling on Leake at a speed of between 25 to 30 miles per hour. About 75 to 100 feet from the intersection of Millaudon he saw the plaintiff truck stopped for the stop sign. As the truck turned onto Leake it intruded approximately 2 feet into the defendant traffic lane. Fearing a head-on collision, he applied his brakes about 50 feet from the intersection, causing his vehicle to skid. His car remained entirely within its proper lane of travel and the two vehicles collided in that lane about 20 feet from the intersection. When the vehicles came to rest after the collision, the defendant car was still in its proper lane, the plaintiff truck was just on the center line, and the debris resulting from the collision was entirely in the defendant lane. The testimony of the driver’s sister, the passenger in the automobile, is generally in accord with that of her brother.

Mrs. Vigo arrived at the scene about five minutes after the accident. She was in accord with the other defendant testimony regarding the location of the vehicles and debris. She also testified she drove with her own car over the route taken by plaintiff and, because of the angle at which Millaudon intersects Leake, it is impossible to turn right without going over into the opposite lane of traffic to some extent.

The two versions of the accident are irreconcilable. We are satisfied the trial judge accepted the defendant version and we find no manifest error herein. Under the facts established by the testimony of the defendant witnesses, we find no negligence on the part of the defendant driver.

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

Affirmed.


text:
    Clarence MELERINE and Martin Belmonte v. Robert PRINE and XYZ Insurance Company.
    No. 6926.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.

      J. Peyton Parker, Jr., Baton Rouge, for de f endant-appellant.
    Before SAMUEL, BOUTALL and BEER, JJ.
   SAMUEL, Judge.

Defendant has appealed from a judgment, in favor of both plaintiffs in the total amount of $295, resulting from a collision between two automobiles driven, respectively, by defendant, Prine, and one of the plaintiffs, Melerine.

Six witnesses testified at the trial of the matter, three on behalf of plaintiffs (the driver and guest passenger in the plaintiff vehicle and the investigating deputy sheriff) and three on behalf of defendant (the driver and guest passenger in the defendant vehicle and that driver’s then girl -friend, now wife, who observed the collision from her front yard).

The plaintiff driver testified he was traveling on LeBeau Street in Chalmette proceeding in a northerly direction at a speed of approximately 15 to 20 miles per hour when the automobile driven by the defendant suddenly backed out of a private driveway on his left onto LeBeau Street directly in his path. He immediately applied his brakes and turned to the right in an effort to avoid the collision, but his vehicle struck the defendant car in the area of its left tail light and bumper. Damage to the plaintiff vehicle was to the left front and part of the grill. The other plaintiff, the passenger in that vehicle, was generally in accord with the testimony of the plaintiff driver. The testimony of the deputy sheriff neither adds nor detracts from the remaining testimony adduced at the trial.

The defendant driver testified he backed out and stopped at the end of the driveway, looking both ways. He saw no approaching vehicle and proceeded to back into LeBeau Street, turning the car so that he could proceed in a northerly direction. Upon completing the backing maneuver, he stopped the car and then started ahead. He was struck in the rear by the plaintiff vehicle when his car was almost parallel to the eastern sidewalk and curb of LeBeau Street. The other two defendant witnesses were generally in accord with the testimony of the defendant driver. None of them saw the plaintiff vehicle prior to the colli'sion.

In this court appellant contends the plaintiffs have failed to sustain their burden of proof, and therefore are not entitled to a judgment, because of the conflict in the testimony of the two sets of witnesses and the absence of corroborating evidence or circumstances. We do not agree.

Even if the defense testimony is accepted, in view of the high degree of care imposed upon the driver of an automobile entering a public highway. from a private driveway, particularly when the vehicle is backing into the highway, it appears plaintiffs would be entitled to a judgment. However, we do not consider or decide that question because we are satisfied the trial judge accepted the plaintiff version of how the accident occurred and we find no manifest error therein. Quite clearly, under the facts established by the plaintiff testimony, the judgment is correct.

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

Affirmed.

      . Travelers Insurance Company v. Harris, La.App., 294 So.2d 588; Smith v. Hearn., La.App., 181 So.2d 433; Fontana v. Borden’s Company, La.App., 155 So.2d 210; Josey v. Granite State Fire Insurance Company, La.App., 122 So.2d 303.


author: BOUTALL, Judge.

text:
    Frederick J. HERZOG v. Nuria Badilla, wife of/and Jamie BADILLA, and Liberty Mutual Insurance Company.
    No. 6928.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 5, 1975.
    Rehearing Denied Sept. 9, 1975.
    Writ Refused Oct. 31, 1975.
    Gerald P. Webre, Metairie, for Frederick J. Herzog, plaintiff-appellant.
    A. Miles Pratt, III, New Orleans, for Liberty Mut. Ins. Co., defendant-appellee.
    Nuria Badilla in pro per and Jamie (Jaime) Badilla, defendants-appellees.
    Before SAMUEL, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

This case involves a collision between an automobile driven by the defendant, Mrs. Nuria Badilla, and a bicycle ridden by the plaintiff, Frederick J. Herzog. Plaintiff claims Mrs. Badilla was negligent in striking his bicycle. The trial court rendered judgment in favor of defendants, Mrs. Badilla, her husband Jamie (Jaime) Badil-la, and Liberty Mutual Insurance Company (the uninsured motorist carrier for Mr. Herzog) dismissing plaintiff’s suit. He has appealed.

The facts as to how this accident occurred derive mainly from the testimony of the two litigants and the investigating police officer. As the following accounts show, the facts are greatly in dispute.

Mrs. Badilla testified that she was traveling on Behrman Highway on a Sunday morning intending to go to church. As she approached the intersection of Behr-man Highway and Baldwin Woods she noted a cyclist on the extreme right-hand side of her lane. At this time she estimated that she was about 50 feet from the cyclist, and as she neared him to within about 10 feet, he suddenly turned to the left at the intersection, directly into the path of her car. Mrs. Badilla stated that she slammed on her brakes and turned her wheels to the left to avoid the collision but still struck the Herzog bicycle on the left side. At the moment of impact Mr. Her-zog was thrown up onto the windshield of the car shattering the glass; he then rolled off the car and fell to the street. Mrs. Badilla got out of her car and noticed that Mr. Herzog was cut on the forehead and seemed to be dazed and confused. She and a passerby helped Mr. Herzog to the roadside where he remained until the emergency unit took him to the hospital.

Mr. Herzog’s version of the accident is quite different. He testified that he was riding his bicycle on the extreme outside edge of Behrman Highway intending to turn onto Baldwin Woods, which is the access road for Brechtel Park. Some distance before the intersection, but not close to it, he glanced over his shoulder to see if the road was clear for his proposed left hand turn. He saw no vehicle approaching, but a split second later he was struck from the rear. He testified that he was not in the process of turning because he had not yet reached the intersection. He denies being thrown up on the windshield, but states he was thrown forward in front of the car. He denies being cut on his forehead, receiving only a back injury and a bad bruise on his left leg. He states he was not helped from the street by Mrs. Badilla, but rather by the police officer.

The police officer’s testimony was indefinite as to cause of the accident, but tending to support Mrs. Badilla. He found some mud in the roadway at about the middle of the .righthand lane of Behrman Highway, 10 feet from Baldwin Wood Road, indicative of collision point. He stated that the car windshield was broken on the right side and that Mr. Herzog and his bicycle were off to the side of Behr-man Highway by Baldwin Woods when he arrived. He called the emergency unit because Mr. Herzog had a head injury and appeared incoherent. The officer further stated that Mr. Herzog said something about a left turn signal, although both litigants deny that any such signal was given.

In cases such as this where the testimony of the parties is so divergent the trial court often relies upon the physical evidence as an aid in its decision as to credibility. The physical evidence offered at trial includes a series of photographs of the accident location, a series of photographs of the bicycle and the bicycle itself. Plaintiff places great stress on the configuration of the damages done to the bicycle. He asserts that any reasonable man viewing the bicycle could easily see that it was not struck from the side, but rather from the rear. We find the physical evidence to be inconclusive. The damage to the bicycle does not show clearly that the bicycle was struck directly from the rear. Such damages can readily be explained by the bicycle turning left and the automobile swerving left with the collision taking place toward the center of the road.

Since the trial judge obviously also found the physical evidence to be inconclusive, his decision as to whether the plaintiff had carried the burden of proof necessarily rested upon the credibility of the witnesses. Great weight must be given to the trial-court’s determination of credibility. Canter v. Koehring Co., 283 So.2d 716 (La.1973); May v. Finest Foods, Inc., 303 So.2d 192 (La.App. 4th Cir. 1974).

We find no manifest error in the trial court’s decision that plaintiff has failed to carry his burden of proof. Accordingly, we affirm the judgment appealed from. Plaintiff-Appellant is to pay all costs.

Affirmed.


author: MORIAL, Judge.

text:
    The CITY OF NEW ORLEANS, and its agent the New Orleans Aviation Board, an unattached Board of the Executive Branch of the City of New Orleans v. GRAY LINE MOTOR TOURS, INC., and Toye Bros. Airport Service.
    No. 6876.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 23, 1975.
    Rehearing Denied Sept. 9, 1975.
    Writ Refused Nov. 14, 1975.

      Herman & Herman, Russ M. Herman, New Orleans, for plaintiffs-appellants.
    Deutsch, Kerrigan & Stiles, Ralph L. Kaskell, Jr., New Orleans, for defendants-appellees.
    Before GULOTTA, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

The New Orleans Aviation Board (Board) is an unattached board of the executive branch of the City of New Orleans. On August 10, 1972 the Board unanimously approved a resolution “ * * * establishing the payment of 15% of gross receipts to the Board, effective July 11, 1972, for the following types of non-contractual ground transportation activities to and from the New Orleans International Airport (Airport):

1. Limousine service to airport only
2. Prearranged or reserved limousine pickups at the airport
3. Charter busses to and from the airport.”

Pursuant to this resolution the Board demanded payment of defendants who are engaged in non-contractual ground transportation activities to and from the Airport. Defendants failed to make payment and this suit was filed. Defendants filed an exception of no cause of action. They argued that plaintiffs’ petition failed to allege affirmatively the approval by the City Council of the Board’s resolution of August 10, 1973 as required by the Louisiana Constitution of 1921, Article 14, Section 31.6(D). Plaintiffs conceded that specific approval of the City Council was not sought nor has the Council taken any action on the resolution. The district court sustained defendants’ exception. We affirm.

Plaintiffs argue that the required approval of the City Council is contained in the M.C.S. Ordinance No. 680, Sections 1, 2, and 7, adopted on April 19, 1956, which remains unaffected by Article 14, Section 31.6(D) because of the provisions of Article 14, Section 31.6(1) of the Louisiana Constitution of 1921.

The functions of New Orleans Aviation Board are to:

“(1) Administer, operate and maintain all municipal airports and aviation facilities.
“(2) Represent the City in all technical ' matters pertaining to aeronautics in consultation with state, national or international aeronautics officers or agencies.” Home Rule Charter of the City of New Orleans, 1954, Chapter 7, Section 5-702.

Apparently, M.C.S. Ordinance No. 680, Sections 1 and 2 (Code of the City of New Orleans, Sections 4-12.1 and 4 — 12.2 were adopted to supplement the various statutes, ordinances, and the Home Rule Charter, under all of which the Board is charged with the “administration, operation and- maintenance” of the Airport. This ordinance empowers the Board to do nothing more than is specifically approved therein, i. e., “ * * * to execute contracts and grant concessions * * *.” The rule that city boards created by statute, charter, or ordinance possess only such powers as expressly granted by law requires no citation of authority. It cannot be argued that the specifically restricted grant of powers in M.C.S. Ordinance No. 680, Section 2, or the “ * * * functions of collecting all revenues * * * ” [from operations, contracts and concessions] delegated by M.C.S. Ordinance 680, Section 8, implies approval by the City Council for the Board to exact the payment of a percentage of gross receipts from providers of non-contractual ground transportation activities. The rule of strict construction is applicable to an ordinance conferring powers on a municipal board. There can be no enlargement by implication of the powers specifically granted. Obviously, it was not within the legislative intendment of the City Council by M.C.S. Ordinance No. 680, Sections 1, 2, or 8, to delegate to the Board the power and authority to exact, within its discretion, an onerous payment or pecuniary burden -in the nature of a tax from defendants for engaging in the business of non-contractual ground transportation services at the Airport.

Accordingly, since we conclude that M. C.S. Ordinance No. 680 is specifically limited to the approval therein granted to the Board, it is unnecessary, and we do not decide whether Article 14, Section 31.6(D) expressly or impliedly repeals M.C.S. Ordinance No. 680. We simply conclude that the provisions of Article 14, LSA-Const. 1921, Section 31.6(D) are applicable to the Board’s resolution of August 10, 1972.

Affirmed.

      . The New Orleans Aviation Board was established under Article XIY, Sections 22 and 31.6 of the Louisiana Constitution of 1921; LSA-R.S. 2:131-2:141, 2:601 et seq., Chapter 7, Section 5-702, Home Rule Charter of the City of New Orleans, 1954; Ordinances 15,839 C.C.S. and 680 M.C.S., City of New Orleans. The duties of the Board were to construct, administer, maintain, and operate the New Orleans International Airport.

      . (D) The City of New Orleans, acting by and through the New Orleans Aviation Board, with the approval of the City Council, is empowered to, and shall, impose, charge and collect, rates, fees rentals and other charges for the use of the said Moisant International Airport and of the facilities constructed pursuant to this Section, in such amounts as will be sufficient at least to provide revenues adequate to maintain and operate the said Airport and facilities heretofore or hereafter constructed, to pay the principal of and interest on and premiums, if any, upon redemption of such obligations, to provide for the renewal and replacement of any or all of the Airport facilities and adequate reserves for all of such purposes, and for that purpose may contract for the operation of the said Moisant International Airport or lease all or any part thereof, to any person or corporation, public or private, upon such terms and conditions, and for such period of years as the New Orleans Aviation Board may deem advisable, after having received the approval of the City Council. Added by Acts 1960, No. 635, adopted Nov. 8, 1960.

      . The pertinent parts of which are in Chapter 4, Article 1 of the Code of the City of New Orleans.
      Section 4-12.1 provides:
      “The New Orleans Aviation Board shall have the. fullest power, authority and responsibility permitted by the Home Rule Charter of the City, consistent with’ordinances heretofore adopted and with its contractual obligations with airline lessees of New Orleans International Airport (Moisant Field), to:
      “(1) Administer, operate and maintain all municipal airports and aviation facilities;
      “(2) Represent the city in all technical matters pertaining to aeronautics, in consultation with state, national or international aeronautic offices or agencies.” M.C.S., Ord. No. 680, § 1, adopted 4-19-56; M.C.S., Ord. No. 2348, § 2 adopted 12-21-61.
      Section 4-12.2 provides:
      “In the carrying out of its rights, duties and responsibilities such board, acting through its proper officers, shall have full -power to execute contracts and gra/nt concessions appertaining to airport property and operations, which contracts and concession grants, when duly executed by such Board, shall be binding upon and represent commitments regarding the same on the part of the city.” M.CbS., Ord. No. 680 § 2, adopted 4-19-56. (emphasis supplied)
      Section 4-12.7 provides:
      “The Council hereby authorizes and approves the delegation by the Director of Finance to the Board of the functions of collecting all revenues described in preceding section and awarding all concessions located on property of the city which is dedicated to airport or other aviation purposes.” M.C.S., Ord. No. 680, § 8, adopted 4-19-56.

      . LSA-Const. 1921, Article 14, Section 31.6 (I) provides:
      “The provisions of this Section shall be self-operative and shall constitute complete authority for the exercise of the powers herein authorized, and no proceedings, publications, notices, elections, consents or approvals shall be required for exercising any of such powers except such as are herein prescribed, and the provisions hereof are intended as supplemental and additional grants of power and shall not be construed as supplanting or repealing any existing powers of the City of New Orleans.” Added by Acts 1960, No. 635, adopted Nov. 8, 1960.

      . Footnote 1, Supra.

      . There is no indication in the Board’s Resolution or in the record that the payment of 15% of gross receipts is for a concession or for services rendered, or conveniences supplied by the Board to providers of non-contractual ground transportation services. Cf. Toye Bros. Yellow Cab Company v. Irby, D.C., 305 F.Supp. 905 and D.C., 305 F.Supp, 911, affirmed, 437 F.2d 806. The power to levy a tax is vested in the City Council. See Section 3-101 Home Rule Charter of the City of New Orleans, 1954. This legislative power cannot be delegated to the discretion of an administrative board of the City.


author: REDMANN, Judge.

text:
    UNITED STATES FIRE INSURANCE COMPANY v. Gloria B. LAWSON.
    No. 6865.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1975.
    Rehearing Denied Sept. 9, 1975.
    Writ Refused Oct. 31, 1975.

      Harvey L. Strayhan, Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, for plaintiff-appellant.
    Leonard A. Washofsky, Jackson & Hess, New Orleans, for defendant-appellee.
    Before REDMANN, LEMMON and BEER, JJ.
   REDMANN, Judge.

Plaintiff insurer paid claims under its uninsured motorist coverage over a year after an automobile accident, and then sued the uninsured motorist to recover the $4,-500 paid. The trial court dismissed on an exception of tort prescription and the insurer appeals.

The insurer argues it is unfair to hold the insurer during a ten-year contract prescriptive period, Booth v. Fireman’s Fund Ins. Co., 1969, 253 La. 521, 218 So.2d 580, while releasing the tortfeasor by the one-year tort prescription. We first reject this argument. Booth itself notes that policy provisions may require the insured’s assistance "to preserve the tortfeasor’s obligation for the benefit of the insurer . ,” 218 So.2d at 584. Breach of those policy provisions may constitute a defense to the contractual action of the insured. Neither the policy nor the circumstances in this case are alleged or in evidence from trial of the exception. Presumably a breach which causes loss of the tortfeasor’s obligation, as by prescription, could be a defense against the uncooperative insured’s claim against the insurer. Thus, if an insured were to wait beyond a year before presenting his claim, the insurer might successfully defend on the basis of breach of the obligation “to preserve the tortfeasor’s obligation” — although not on the basis of one-year tort prescription.

In any event, this case is governed by Marquette Cas. Co. v. Brown, 1958, 235 La. 245, 103 So.2d 269. There a workmen’s compensation insurer’s demand for reimbursement against a tortfeasor was held prescribed by one year. The court reasoned that no cause of action existed except that granted by the statute, R.S. 23:1101-1103, which was held to be subrogation to the injured workman’s tort claim. The same arguments made here — on quasi-contract indemnity and de in rem verso— would have applied to Brown. Yet tort prescription was applied against the insurer’s claim in Brown, and Brown was cited without any hint of disagreement in the plurality opinion in Minyard v. Curtis Products, Inc., 1968, 251 La. 624, 205 So.2d 422, 429, 430 (on whose de in rem verso theory our insurer relies).

Affirmed.

      . Compare R.S. 22:1406, subd. D(4), providing only that “[i]n the event of payment to any person under [uninsured motorist coverage] * * * the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement or judgment resulting from the exercise of any rights of recovery of such person . . . ” against tortfeasor, etc. (Emphasis added.)


author: HOOD, Judge.

text:
    Helen HICKMAN, Plaintiff-Appellee, v. Mildred FLETCHER, Petition for Judicial Commitment, Defendant-Appellant.
    No. 5066.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1975.
    Rehearing Denied Aug. 28, 1975.
    Writ Denied Oct. 31, 1975.
    Robert L. Kennedy, Colfax, for defendant-appellant.
    Charles B. Bice, Dist. Atty., Winnfield, for plaintiff-appellee.
    Before HOOD, CULPEPPER and WATSON, JJ.
   HOOD, Judge.

Helen Hickman, filed a petition seeking the judicial commitment of Mrs. Mildred Fletcher under LSA-R.S. 28:53. Defendant answered and filed a separate petition for a writ of habeas corpus and an exception of no cause and no right of action. In her answer and petition for a writ of, habeas corpus, Mrs. Fletcher alleged that she was being illegally confined for treatment in the Central Louisiana State Hospital, in Pineville. After trial, judgment was rendered by the trial court overruling the exception of no cause and no right of action, rejecting Mrs. Fletcher’s demands in the habeas corpus proceeding and ordering that she be committed to the above hospital. Defendant, Mrs. Fletcher, appealed.

The issues presented are whether LSA-R.S. 28:52 and 53 are unconstitutional, and alternatively, whether those statutory provisions have been complied with in confining Mrs. Fletcher in the Central Louisiana State Hospital.

Mrs. Fletcher was admitted to the above hospital on November 19, 1974, pursuant to a custody order signed by the Coroner, or the Acting Coroner, of Grant Parish, and she has been confined in that hospital continuously since that time. The provisions of LSA-R.S. 28:52, setting out procedures for a coroner’s confinement for treatment order, were not complied with following her admission to the hospital, in that the examining physician did not submit a written medical report to the Coroner within 48 hours after examining defendant, and the Coroner has never signed a confinement for treatment order.

On January 23, 1975, while Mrs. Fletcher was confined in that hospital, plaintiff in this proceeding, Helen Hickman, filed a petition for the judicial commitment of defendant, under LSA-R.S. 28:53. The petition was accompanied by the certificate of two physicians certifying that the patient was suffering from a mental illness which caused her to be dangerous to herself or others and/or incapable of caring for herself or her personal safety. An attorney was appointed to represent the defendant, and it was through that attorney that she filed the petition for a writ of habeas corpus on January 27, an answer to the petition for commitment on January 28, and an exception of no cause and no right of action on February 3, 1975.

The case was tried on February 3, and on that date the trial court rendered the judgment which is before us on this appeal.

The defendant-appellant contended in the trial court, and she argues here, that LSA-R.S. 28:52 and 53 are unconstitutional, in that they deny to persons whose commitment is sought due process of law and equal protection of the laws, in violation of the Fourteenth Amendment of the Federal Constitution. Alternatively, she contends that the state has not complied with the procedures provided in LSA-R.S. 28:52 and 53, and that she thus is being confined illegally in the Central Louisiana State Hospital.

In support of her alternate contention, defendant argues that Sections 52 and 53, of Title 28 of the Revised Statutes, “should be read and the procedures followed together” in order for there to be a valid judicial commitment under Section 53. Both parties agree that the procedures provided in Section 52 for a coroner’s confinement for treatment were not observed in this case. We hold, however, that all of the procedures set out in Section 53 for a judicial commitment were followed. Defendant does not allege or contend otherwise.

The trial judge obviously concluded that LSA-R.S. 28:52 and 53 are constitutional, and that a judicial commitment may be made under Section 53, even though there has been no compliance with the procedures provided in Section 52.

The issues presented in the instant suit are identical to those which we considered and determined in State v. Commitment of Jackson, 289 So.2d 565 (La.App. 3 Cir. 1974); State v. Commitment of Fletcher, 289 So.2d 572 (La.App. 3 Cir. 1974); and In re Williams, 297 So.2d 458 (La.App. 3 Cir. 1974). Each of the above cases originated in Grant Parish, as did the instant suit. Each was decided by the trial judge who rendered the judgment which is before us on appeal now, and the attorneys involved in the instant suit were also involved in each of the above cases. The same arguments are made in the present suit as were made in each of the three above cited prior cases, and in each of those suits we decided the issues which are presented here. The briefs filed in the instant suit, in fact, are almost verbatim copies of the briefs which were filed in each of the cited cases, except that counsel for the appellant in the present suit has added quotations from two Federal court cases which were not cited in the arguments presented in the earlier cases. For some reason, however, counsel for the parties in the instant suit did not cite or mention in their briefs any of the three above cited cases, all of which involved issues identical to those presented here and all' of which were decided recently by this court.

In Jackson, Fletcher and Williams, supra, we held that the procedure provided in LSA-R.S. 28:52 is separate and distinct from that provided in LSA-R.S. 28:53, and that a judicial commitment under Section 53 may be accomplished validly, even though there previously had been no compliance with the procedure set out in Section 52. We also determined in the Jackson and Williams cases, supra, that the procedures provided in LSA-R.S. 28:53, relating to a judicial commitment, do not violate any of the constitutional safeguards provided in the Fourteenth Amendment, and that that section of the Revised Statutes thus is not vulnerable to attack on constitutional grounds. We did not consider in any of those cases the constitutionality of Section 52, relating to a coroner’s commitment for treatment, since we considered it to be immaterial whether the provisions of that section of the Revised Statutes had been followed.

Defendant refers us to the recent cases of Lynch v. Baxley, 386 F.Supp. 378 (D.C.Ala.1974); and Kendall v. True, 391 F.Supp. 413 (W.D.Ky.1975), in each of which cases a three judge federal district court held that all or a part of the state statute involved there, relating to commitment proceedings, was invalid because it did not provide adequate constitutional safeguards. Our review of those cases shows that the provisions of the statute involved in each case differed considerably from those contained in LSA-R.S. 28:53, and that those two cases thus are not applicable here, except insofar as they set out the minimum standards or safeguards which are. required by the Fourteenth Amendment. We believe that the procedures provided in LSA-R.S. 28:53 for a judicial commitment includes all of the required constitutional safeguards, as set out in those cases.

For the reasons which we assigned in Jackson, Fletcher and Williams, supra, we conclude that LSA-R.S. 28:53 is valid, and that there is not merit to defendant’s claim that the procedures set out therein deny her due process of law or equal protection of the laws, in violation of the Fourteenth Amendment. We also conclude that a judicial commitment under LSA-R.S. 28:53 may be accomplished validly even though there has been no compliance with the procedures set out in LSA-R.S. 28:52. We find that defendant was legally committed under the provisions of Section 53.

Since Mrs. Fletchér was legally confined in the Central Louisiana State Hospital under LSA-R.S. 28:53 at the time the hearing on the habeas corpus proceeding was held, the issue as to whether she previously had been unlawfully detained under LSA-R.S. 28:52 is moot. No useful purpose would be served and no practical relief can be given to defendant by holding that the coroner’s commitment was invalid, because even if it was she is not entitled to judgment releasing her from the hospital. See Danna v. Commissioner of Insurance, 207 So.2d 377 (La.App. 1 Cir. 1968); State v. Ward, 259 La. 317, 249 So.2d 921 (1971); Spinato v. Lowe, 239 La. 604, 119 So.2d 480 (1960).

We find no error in the judgment of the trial court which overruled defendant’s exception of no cause and no right of action, rejected her demand for a writ of habeas corpus and ordered that she be committed to the hospital.

For the reasons herein assigned the judgment appealed from is affirmed. The costs of this appeal are assessed to the defendant-appellant.

Affirmed.


text:
    Carlton Joseph GUIDRY and Josephine Jolivette Guidry, Plaintiffs-Appellants, v. STATE of Louisiana. Through the DEPARTMENT OF HOSPITALS, et al., Defendants-Appellees.
    No. 5001.
    Court of Appeal of Louisiana, Third Circuit.
    July 16, 1975.
    Rehearing Denied Aug. 28, 1975.
    Writ Refused Oct. 22, 1975.

      Edwards, Stefanski & Barousse by Homer E. Barousse, Jr., Crowley, for plain-, tiffs-appellants.
    Lawrence W. Bell, Baton Rouge, for defendants-appellees.
    Before FRUGÉ, HOOD and WATSON, JJ. '
   HOOD, Judge.

Mr. and Mrs. Carlton Joseph Guidry instituted this action for damages, alleging as the basis therefor'that Mrs. Guidry was injured while she was a patient at the Lafayette Charity Hospital. Defendants are the State of Louisiana, through the Department of Hospitals, and the Lafayette Charity Hospital. Answers were filed, and one of the defendants, State of Louisiana, through the Department of Hospitals, reconvened seeking to recover from plaintiffs the value of the hospital and medical services furnished to Mrs. Guidry. The trial court rendered judgment rejecting the demands of all parties. Plaintiffs appealed.

The issues presented are whether Mrs. Guidry sustained the injuries of which she complains while in the hospital, and if so, whether the accident and resulting injuries were caused by the negligence of defendants’ agents or employees.

Plaintiffs allege that Mrs. Guidry fell on April 1, 1970, while she was confined in the Lafayette Charity Hospital, and that as a result of that fall she sustained injuries consisting of the loss of her unborn child and fractures of the tibia and fibula of her right leg. She was 38 years of age at that time, and was in the last three or four months of her sixteenth pregnancy. She had given birth to fourteen living children and had had one miscarriage prior to that date.

Shortly before noon on March 31, 1970, Mrs. Guidry began to experience heavy vaginal bleeding while in her home in Rayne. She was transported by ambulance to Lafayette, and was admitted to the Lafayette Charity Hospital early that afternoon. At 3:30 P.M., shortly after she arrived at the hospital, the attending physician determined that no “fetal heart tones” could be heard. Other examinations made at 4:00 P.M. that day and at 6:30 the next morning, April 1, also revealed that no fetal heart tones could be heard.

Dr. Richard M. Miers, who was interning in the obstetrical/gynecological services section of the hospital, made a complete physical examination of Mrs. Guidry at about 7:00 A.M. on the morning of April 1. That examination revealed that plaintiff had (1) a spiral fracture of the tibia and fibula of her right leg, (2) a condition known as “abrupcio placenta,” and (3) blood deficiencies described as “hypofi-brinogenemia” and severe anemia.

The condition known as “abrupcio placenta,” according to Dr. Miers, results from the “premature separation of the placenta from the uterine wall of the mother.” Normally the placenta separates after the baby is born. When it separates prior to the birth of the child, however, the mother has the condition called abrupcio placenta. The medical experts who testified agree that that condition almost always causes the death of the fetus. He defined “hypo-fibrinogenemia” as the loss of the substance in the blood which causes the blood to clot or to coagulate. He explained that this clotting factor in the blood is necessary and that the lack of it causes the patient to bleed profusely.

The treatment administered to Mrs. Guidry from the time she was admitted to the hospital until she was examined by Dr. Miers consisted principally of strict bed rest and blood transfusions.

Dr. Miers and Dr. O. William Hilton, Jr., were the only physicians who testified at the trial. Both were of the opinion that fetal heart tones would have been heard while Mrs. Guidry was in the hospital if her unborn child had been alive at that time. They agree that the fetus was not alive at the time Mrs. Guidry was admitted to the hospital.

Shortly after Dr. Miers examined Mrs. Guidry on the morning of April 1, a caesarean section was performed on her, and an eight ounce fetus, estimated to be from 20 to 22 weeks old, was removed from her uterus. The fetus was not alive. Her fractured right leg was put in a cast while she was under the general anesthesia.

Mrs. Guidry testified that at about 7:00 o’clock, or shortly thereafter, on the morning of April 1, 1970, she was instructed by Mrs. Hilda Mae Cudges, a nurse’s aid in the hospital, to get out of bed in order that Mrs. Cudges could make up her bed. Plaintiff stated that she protested, but that Mrs. Cudges insisted that she get up, and that plaintiff thereupon got out of bed, took one or two steps and then sat on a chair in the room. At plaintiff’s request, a bed pan was placed on the chair, and she sat on the bed pan. Mrs. Guidry testified that while in that position she told Mrs. Cudges that she was getting weak, that the nurse nevertheless insisted that plaintiff remain out of bed, and that plaintiff then lost consciousness for a few seconds. She stated that upon regaining consciousness she got back in her bed with the assistance of Mrs. Cudges, but that as she was doing so she noticed for the first time that her right leg was swollen and that it pained her. Within two or three hours thereafter Dr. Miers found that her leg was fractured. Mrs. Guidry has no recollection of having fallen, but she reasons that she must have sustained a fall while she was unconscious, since there appears to be no other explanation for her having sustained a fracture of her leg.

The testimony of Mrs. Cudges conflicts with that of plaintiff. Mrs. Cudges stated that she and Mrs. Leanna Wiltz, another nurse’s aid, were in the room in which Mrs. Guidry was confined at the time the above incident occurred, and that they were preparing to take the “vital signs” of the patients and to give them their baths. While Mrs. Cudges’ back was turned to plaintiff, another patient in the room cried out “Nurse, watch,” and Mrs. Cudges thereupon turned and saw that Mrs. Guid-ry was getting out of her bed without assistance. Mrs. Cudges went to plaintiff immediately and reminded her that she should not get out of bed, but plaintiff explained that she wanted to use the bed pan and that she couldn’t use it while in bed. Mrs. Cudges said that plaintiff then appeared to get weak, so instead of putting her back in bed she helped her to sit in a chair which was next to the bed, and she called to Mrs. Wiltz and asked her to get Mrs. Wilda Robinson, a licensed practical nurse who was supervising the nurse’s aids on that floor. Mrs. Cudges then stood in front of plaintiff while the latter was sitting in the chair and allowed her to rest her head on Mrs. Cudges’ chest. A few seconds later plaintiff said that she was alright, and by that time Mrs. Wiltz and Mrs. Robinson were present. Mrs. Cudges, Mrs. Wiltz and Mrs. Robinson thereupon assisted plaintiff in getting back into her bed.

Mrs. Cudges stated that plaintiff did not fall at any time while she was in the hospital that morning, but that Mrs. Guidry told her that she had fallen previously “in the bathroom at home.”

The testimony of Mrs. Cudges as to what occurred in plaintiff’s hospital room that morning is supported by that of Mrs. Wiltz and of Mrs. Robinson. These witnesses also stated that a patient on strict bed rest is never ordered to get out of bed for any reason, and that they particularly are not required to get out of bed to allow the bed linen to be changed. They testified that the linen is changed easily while the patient remains in bed. The evidence also shows that Mrs. Guidry was receiving a blood transfusion when the above incident occurred, and that the intravenous tube which was attached to her arm began to leak when she got out of bed, causing blood to spill on the uniform of at least one of the nurses.

The trial judge found that Mrs. Guidry’s expected child was deceased at the time she was admitted tó the hospital, and that the loss of the fetus thus did not result from any act of defendants’ agents or employees.

The evidence clearly supports those findings of the trial court. The testimony of the medical experts indicates that Mrs. Guidry had at least a partial abrupcio placenta before she left her home to go to Lafayette, and that that condition probably caused the bleeding which made it necessary for her to be taken to the hospital. The medical evidence is uncontradicted to the effect that an abrupcio placenta is almost always fatal to the unborn child, that no fetal heart tone could be heard when Mrs. Guidry was admitted to the hospital, and that the death of the fetus occurred before that time.

We conclude, as did the trial judge, that plaintiff’s unborn child was deceased before the alleged fall occurred, and that defendants thus are not liable in damages for the loss of that child;

The trial judge also concluded that Mrs. Guidry did not sustain a fall while she was a patient in the hospital, as alleged, and that her leg fracture thus could not be attributed to the acts of defendants’ employees.

There is no question but that Mrs. Guidry had a fracture of the tibia and fibula of her right leg when Dr. Miers examined her about 7:00 A.M. on April 1, 1970. The doctor testified, however, that although the fracture could have been very recent, it also “could have been at least a week or two old.” The evidence does not indicate how or when the fracture was sustained, but defendants are not presumed to have negligently caused that injury simply because the fracture was discovered while she was in the hospital. Plaintiffs allege that the fracture resulted from a fall which Mrs. Guidry sustained on the morning of April 1, 1970. The burden of proof rests on plaintiffs to show that such a fall occurred, that it was caused by the negligence of defendants’ agents or employees, and that Mrs. Guidry’s injuries resulted from that fall. The trial court held that plaintiffs failed to meet that burden.

The factual findings of the trial judge are entitled to great weight, and they will not be disturbed unless found to be clearly erroneous.

We cannot say that the trial judge erred in accepting the testimony of Mrs. Cudges, rather than that of Mrs. Guidry, as to what occurred in the latter’s hospital room on the morning of April 1, 1970. The record shows that Mrs. Cudges had worked as a nurse’s aid in the OB unit for 23 years. Even if we assume that she was as callous as plaintiff intimates, we find it difficult to accept Mrs. Guidry’s statements that Mrs. Cudges ordered her to get out of bed unassisted while a blood transfusion was being administered to her, knowing that the intravenous tube would be pulled loose or would leak, and despite the fact that strict bed rest had been prescribed for her.

Our conclusion, like that of the trial judge, is that Mrs. Guidry did not sustain a fall in the hospital, as alleged. The fracture of her right leg thus did not result from an accident which occurred while she was a patient in the Lafayette Charity Hospital.

Plaintiffs contend, however, that even though Mrs. Guidry’s version of the accident is rejected, defendants nevertheless are liable for the damages they sustained because of the negligence of defendants’ employees in failing to use guard rails on Mrs. Guidry’s bed while she was in the hospital.

We find no merit to that argument for at least two reasons. First, we have determined that the loss of Mrs. Guidry’s unborn child and the fracture of her right leg did not result from a fall or any other incident which occurred in the hospital. The evidence thus fails to show any causal connection between her injuries or her physical condition on the morning of April 11, 1970, and any act of defendants’ employees. Second, even if there should be some connection between the loss of Mrs. Guidry’s unborn child or her leg fracture and the fact that she got out of bed on the above date, the evidence nevertheless fails to show negligence on the part of defendants’ employees in failing to use guard rails on plaintiff’s hospital bed under the circumstances presented here.

A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. It is a hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental in-capacities as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care which it owes to a particular patient depends upon the circumstances and the facts of that case. Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974); DeBlanc v. Southern Baptist Hospital, 207 So.2d 868 (La.App. 4 Cir. 1968); Killgore v. Argonaut-Southwest Insurance Company, 216 So.2d 108 (La.App. 2 Cir. 1968); Smith v. West Calcasieu-Cameron Hospital, 251 So.2d 810 (La.App. 3 Cir. 1971).

A private hospital is not an insurer of a patient’s safety, and the rules as to the care required are limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen. Killgore v. Argonaut-Southwest Insurance Company, supra.

In the instant suit the evidence shows that Mrs. Guidry was relatively young and alert while she was in the hospital. There is nothing to indicate that she had been administered any drugs which would cause her to become disoriented, confused or mentally incapacitated. Plaintiffs testimony, m fact, emphasizes the fact that Mrs. Guidry had all of her mental faculties and was capable of making rational decisions while in the hospital. She knew that strict bed rest had been prescribed for her, and she stated that when Mrs. Cudges required that she get out of bed she protested. The hospital had no reason to believe that plaintiff would act irresponsibly because of panic or ignorance, particularly since she had experienced 15 pregnancies before this incident occurred, including one miscarriage. Considering Mrs. Guidry’s age, her physical condition and her alertness, it also would appear that guard rails would not have prevented her from getting out of bed if she had made up her mind to do so.

Under the circumstances presented here, we find that defendants were not negligent in failing to use the guard rails on plaintiff’s hospital bed.

Our ultimate conclusion, like that of the trial judge, is that the evidence fails to establish negligence on the part of defendants, or of their agents or employees, and that it does not show a causal connection between the loss of plaintiff’s unborn child or her leg fracture and any incident which may have occurred while she was in the defendant hospital. The trial judge held, correctly, therefore, that plaintiffs are not entitled to recover damages from defendants.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiffs-appellants.

Affirmed.


author: WATSON, Judge.

text:
    BUNGE CORPORATION, Plaintiff-Appellant, v. Cecil C. McGUFFIE, Defendant-Appellee.
    No. 5095.
    Court of Appeal of Louisiana, Third Circuit.
    July 30, 1975.
    Rehearing Denied Aug. 28, 1975.

      Leo Boothe, of Smith, Taliaferro, Sei-bert & Boothe, Jonesville, for plaintiff-appellant.
    Reeves, Lossin & Owens, by Jack F. Owens, Jr., Harrisonburg, for defendant-appellee.
    Before FRUGÉ, DOMENGEAUX and WATSON, JJ.
   WATSON, Judge.

Plaintiff, Bunge Corporation, a New York corporation, filed this suit against defendant, Cecil C. McGuffie, a resident of Catahoula Parish, Louisiana, to recover the sum of $5,187.61 in damages because of defendant’s alleged failure to deliver 3,304.21 bushels of No. 1 yellow soybeans, the balance under a contract for 6,000 bushels at $3.81 a bushel.

Defendant McGuffie reconvened for the difference between the contract and market prices on 1,986.79 bushels delivered and the market price or, in the alternative, the contract price on the last three loads of beans he delivered to plaintiff, for which he was not paid.

The trial court rendered judgment releasing defendant McGuffie from performing the unfulfilled balance of the contract and ordering Bunge Corporation to pay defendant the contract price for the last three loads of beans which defendant delivered under the contract, $3,398.22.

All costs in the trial court were divided between plaintiff and defendant.

Plaintiff Bunge has appealed suspensively from the adverse judgment.

Defendant McGuffie has answered the appeal.

Bunge Corporation filed a motion to dismiss the answer to the appeal on the ground that it was not timely, having been filed more than 15 days after the return date. LSA-C.C.P. art. 2133.

■ Defendant McGuffie contends that Bunge Corporation did not perfect its appeal because its petition for appeal did not bear a certificate of service on' opposing counsel as provided in Rule VI, Section 2, Uniform Rules — Courts of Appeal.

To first consider the procedural issues raised, the question of whether the answer to the appeal was timely filed is moot, since we find McGuffie entitled to no relief other than that granted by the trial court.

As to the contention that plaintiff’s petition for appeal did not bear a certificate of service, this is not required by LSA-C.C.P. art. 1312. The petition for appeal is filed in the trial court, is not “ . . . . filed originally in this court, . ” and thus is not covered by Rule VI, Section 2, Uniform Rules — Courts of Appeal.

Bunge Corporation contends that the trial court erred in releasing McGuffie from performance of the unfulfilled balance of the contract; in admitting parol evidence to vary a written contract between the parties; in denying Bunge damages for breach of contract; and in requiring Bunge to pay McGuffie for the last three loads of soybeans delivered.

Defendant McGuffie contends that- the contract is invalid and that he should receive the fair market value of all the beans delivered under the contract rather than the contract price. Defendant McGuffie also contends that Bunge breached the contract by withholding payment for the last three loads of beans and that its action entitles McGuffie to damages. Last, defendant contends that all court costs -in the trial court should be assessed against plaintiff Bunge, the trial court having erred in dividing them between the parties.

The facts are relatively simple. Jack Bonner',’ manager of the Bunge Corporation’s Jonesville, Louisiana plant, contacted defendant McGuffie in Enterprise, Louisiana by telephone in February, 1973 and advised McGuffie that beans were $3.81 a bushel. Bonner then prepared Bunge Corporation’s purchase contract No. 3808 which provided for 6,000 bushels of #1 yellow soybeans at $3.81 a bushel to be delivered at Jonesville, Louisiana in October and November. Bonner did not discuss the terms of the contract with McGuffie. This contract was signed by Florence K. Studebaker, a secretary and bookkeeper authorized to sign contracts for Bunge Corporation, and the contract and a copy were sent to McGuffie, the original requesting “Please sign duplicate and return”. A copy of the purchase contract executed by defendant McGuffie on February 7, 1973, is in evidence as P-1. Bunge Corporation’s leger sheet shows that defendant McGuffie failed to deliver 3304.11 bushels on this agreement. A letter in evidence as P-3 written by Bonner to McGuffie on November 18, 1973, states that it confirms McGuffie’s advice to Bunge on November 17 that he would not complete delivery under his contract. The letter states that the market price of soybeans on November 17 was $5.38, and the difference between the contract and market prices due Bunge was $5,187.46.

The record also reflects that Bonner and McGuffie had a conversation in May, 1973. Bonner said they discussed whether or not McGuffie would be able to deliver under the contract because of crop conditions in the area, but that McGuffie did not cancel the contract at that time. Bonner emphasized that he was not aware until November 17 that McGuffie did not intend to fulfill the terms of the contract. McGuffie testified that he told Bonner in May that all his farm land was under water. According- to McGuffie, Bonner said that it would cost McGuffie $2800 to get out of the contract. McGuffie had everything mortgaged and no crop insurance and could not pay the $2800. McGuffie said he could have paid the interest on his farm mortgage if he had received payment .for his last three loads of beans.

McGuffie farms 685 acres of land and had been selling beans to Bunge Corporation for six or seven years. According to McGuffie, when he first discussed contracting with them, a Mr. Hardy of Bunge asked how many acres he had in order to fix the amount of the contract. McGuffie said he did not deliver the balance of the beans under the contract because he didn’t make them. The land was flooded and he was unable to plant or harvest. The Parish had been declared a disaster area by the President of the United States.

Both Bonner and McGuffie testified that McGuffie was not paid for his last three loads of beans, despite McGuffie’s demand for payment. The beans were delivered prior to November 17. Bonner testified that he told Miss Studebaker not to pay for these beans after checking with his supervisor, Leo Ehlinger, in Rayville, Mississippi. The practice had been for payment to be made when the beans were delivered to the elevator.

It was stipulated that the market price of beans on November 17, 1973, was $5.38 a bushel.

The only other witness, Pastor Jack Crews of the New Ouachita Baptist Church, testified that he was a nextdoor neighbor of McGuffie and the water got to 62 feet above sea level in front of their houses. The entire area was described as a lake.

The Bunge Corporation’s purchase contract provides “Destination Weights & Grades To Apply”. It has various conditions and terms which are part of the contract. Among these conditions and terms are the following:

“* * * * * *
3. Buyer reserves the right, without further notice to Seller, to cancel, extend time, or to fill here or elsewhere at Buyer’s option, any contract not filled within contract time, and any loss resulting therefrom to be paid by Seller.
12. Buyer’s performance under this contract is contingent upon conditions beyond Buyer’s control such as, but not limited to, labor disputes and disturbances, embargo delays, accidents, fire, delay or non-performance of carriers, acts of God, or war.”

We do not find it necessary to consider the validity of the contract. McGuffie, despite his contention of its invalidity, performed under the contract until November 17 and apparently had no objection to it prior to that time. Although the contract has many terms making it more onerous to McGuffie than Bunge, the parties were mutually satisfied with it over a period of many years.

We find no error in the trial court’s admission of parol evidence to ascertain the meaning of the contract and the intent of the parties, although we do not find it necessary under the facts presented to resort to parol evidence to interpret the contract. LSA-C.C. art. 1950.

The basic questions for decision are:

(1) whether McGuffie was properly awarded the value of the last three loads of beans delivered;

(2) whether McGuffie breached the contract entitling Bunge to damages; and

(3) .whether court costs were properly assessed by the trial court.

By the uncontroverted evidence of all of the witnesses, McGuffie delivered three loads of beans to Bunge prior to November 17 for which Bunge refused to pay. Clearly, Bunge had no right to accept the beans and refuse payment. Although the contract does not state that payment was to be paid on delivery, there is no question that this was the custom. There is nothing in the contract to the contrary. Bunge had always paid on delivery and had an obligation to continue to do so. This was understood practice to the extent that Bonner checked with his superior before deciding not to pay McGuffie for his last three loads. Not only is McGuffie now entitled to the contract price of those beans, as awarded by the trial court, but Bunge’s refusal to pay for the beans at the time of their delivery was a breach of the contract which excused McGuffie from any further deliveries. LSA-C.C. art. 2487 provides:

“Art. 2487. Delivery excused until payment of cash price
Art. 2487. The seller is not bound to make a delivery of the thing, if the buyer does not pay the price, and the seller has not granted him any term for the payment.”

This article has been interpreted in many cases similar to the instant one to justify failure to make future deliveries under a contract. In Smith v. Anders, 148 La. 474, 87 So. 241 (1921), the Supreme Court stated the rule of law:

“It is well settled that a buyer cannot maintain an action for damages for the seller’s failure to fulfill a contract to sell and deliver goods, if the buyer was in default by failing to pay promptly, at the 'time stipulated, for the goods that were delivered under the contract.” 87 So. 243

In Bryan v. Holland, 137 La. 512, 68 So. 845 (1915), a case squarely in point to the instant appeal, plaintiff buyer sought damages for defendant seller’s failure to deliver the balance of the timber due under a contract. It was held that since buyer had failed to pay seller the full amount due for the timber delivered, the buyer could not recover damages for the seller’s refusal to further perform. To the same effect is J. H. Garrison & Son v. Sherill Hardwood Lumber Co., 156 La. 147, 100 So. 253 (1924).

Although Bunge attempted to place McGuffie in default by Bonner’s letter of November 18, Bunge was itself in default when the letter was written. LSA-C.C. art. 1913 requires:

“Art. 1913. Tender of performance as prerequisite for putting in default
Art. 1913. In commutative contracts, where the reciprocal obligations are to be performed at the same time, or the one immediately after the other, the party who wishes to put the other in default, must, at the time and place expressed in, or implied by the agreement, offer or perform, as' the contract requires, that which on his part was to be performed, otherwise the opposite party will not be legally put in default.”
“There may not be a putting in default where the party who attempts to put the other in default has himself breached the contract by failure to make payment.” Williams Lumber Co. v. Stewart Gast & Bro., 21 So.2d 773 at 779 (La.App.Orl. 1945); writ denied.

Under the circumstances, we find no merit to defendant McGuffie’s plaim for damages from Bunge, and we find that the trial court correctly awarded McGuffie judgment for the three loads of beans.

We find the apportionment of costs by the trial court to be within its discretion. .

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of the appeal are assessed against plaintiff-appellant, Bunge Corporation.-

Affirmed.

      . The printed contract was furnished by Bunge and is, apparently, a standard form used by this large corporation in several states. The record indicates the form has been amended for current use. (TR. 63)

      . LSA-C.C. art. 1950
      “Art. 1950. Common intent prevails over literal sense of words
      Art. 1950. When there is anything doubtful in agreements, we must endeavor to ascertain what was the common intention of the parties, rather than to adhere to the literal sense of the terms.”