author: SCHOTT, Judge. RED MANN, Judge

text:
    Edward W. WADSWORTH v. Bonnie Murphree, wife of Edward W. WADSWORTH.
    No. 7329.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Greenberg & Dallam (Roger I. Dallam), Gretna, for plaintiff-appellee.
    Rittenberg & Wilks (Dale C. Wilks), New Orleans, for Curators of Bonnie Mur-phree Wadsworth, defendants of reconvention-appellant.
    Lawrence J. Hand, Bernard E. Burk, A. J. Hollander, William E. Rittenberg and Dale C. Wilks, New Orleans, for defendant-appellee.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Appellants are the parents and curators of Bonnie Wadsworth, interdict. They have appealed from a judgment maintaining peremptory exceptions of prescription, res judicata and no cause of action filed by the interdict’s husband in response to a reconventional demand filed by the curators to annul a judgment of separation obtained by the husband on June 7, 1971.

Mr. and Mrs. Wadsworth separated on February 27, 1970, when Mrs. Wadsworth left the matrimonial domicile and went to Alabama. On February 4, 1971, the husband sued for separation on grounds of abandonment and an attorney was appointed curator ad hoc to represent the absent wife. After the curator filed a general denial an attorney representing Mrs. Wadsworth filed an answer with supporting affidavits alleging “That she is mentally incapable of assisting in the defense and that she cannot understand the nature of these proceedings.” The prayer was for a stay of the proceedings with an indefinite continuance. On May 31, 1971, the husband filed a supplemental petition seeking the separation on grounds of one year separation. Service was accepted by a new attorney for Mrs. Wads-worth who had just become replacement counsel of record.

On May 31, 1971, interrogatories were propounded to Mrs. Wadsworth through her new attorney. The answers, signed by the new attorney, admitted that the separation commenced on February 27, 1970. It was voluntary, no reconciliation had ever occurred, and the wife was aware that her husband was seeking a judicial separation on grounds of one year separation. Following the trial, at which Mrs. Wads-worth’s attorney was present, a judgment of separation was granted on June 7, 1971. In his reasons for the judgment now on appeal the trial judge observed that when the trial of the separation took place “no mention was made of Mrs. Wadsworth’s alleged mental condition although she was represented thereat by her attorney.”

On April 4, 1974, Mr. Wadsworth sued for divorce on grounds of living separate and apart for one year since the judgment of separation. Mrs. Wadsworth, for the first time represented by present counsel, answered, asserting that she was notoriously of unsound mind and incompetent at the time of the judgment of separation and that a petition for her interdiction had been filed. As plaintiff in reconvention she made the following allegations:

“I.
The judicial separation rendered on June 7, 1971, was obtained by fraud and ill practices and should therefore be annulled pursuant to Louisiana Code of Civil Procedure Article 2004.
“II.
The plaintiff in reconvention, herein, at the time of said judicial separation on June 7, 1971, was notoriously of unsound mind and incapable of comprehending the nature of the proceedings against her and therefore said judgment should be annulled pursuant to Louisiana Code of Civil Procedure, Article 2002 (1).”

In response to the reconventional demand Mr. Wadsworth filed peremptory exceptions of no right or cause of action, prescription of one year as to her action based upon LSA-C.C.P. Art. 2004 and res judi-cata. He also filed a dilatory exception challenging her procedural capacity, but this problem was cured when a judgment interdicting Mrs. Wadsworth was signed on June 10, 1974, and her curators became parties to the proceedings shortly thereafter. This appeal is by the curators from the judgment maintaining the peremptory exceptions and dismissing the action of nullity of the judgment of separation.

First, considering appellants’ action of nullity based on Art. 2002(1), it provides as follows:

“A final judgment shall be annulled if it is rendered: (1) Against an incompetent person not represented as required by law;”

And it should be considered in connection with Art. 733:

A mental incompetent has no procedural capacity to be sued.
“Except as otherwise provided in Articles 732, 4431, and 4554, the curator appointed by a court of this state is the proper defendant in an action to enforce an obligation against a mental incompetent or an interdict. If an incompetent has no curator, but is interdicted, or committed to or confined in a mental institution, the action shall be brought against him, but the court shall appoint an attorney at law to represent him.”

These articles do not provide a remedy to appellants considering the procedural background of the case. If Mrs. Wadsworth was a mental incompetent at the time she was sued for a legal separation the proper procedural device to assert her incompetency was the dilatory exception of lack of her procedural capacity to be sued. By her failure to plead the exception before answer the objection was waived. C.C.P. Art. 928, Nicosia v. Guillory, 322 So.2d 129 (La.1975). She appeared through counsel at the trial and made no issue of her incompetence. A mere allegation that Mrs. Wadsworth was a mental incompetent at the time of the judgment of separation does not bring the case'within the purview of Article 2002(1): She must also allege that she was not represented as required by law which she cannot because the record precludes such an allegation.

The other ground for appellants’ action of nullity is C.C.P. Art. 2004:

“A final judgment obtained by fraud or ill practices may be annulled. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.”

At the outset it must be noted that in none of the affidavits or pleadings is there an assertion that as of the time Mr. and Mrs. Wadsworth first separated she was insane. They speak only of mental problems prior to the judgment of separation and mental incompetency at the time of trial. Unless Mrs. Wadsworth was insane or incompetent when the separation occurred in February, 1970, the separation was voluntary and Mr. Wadsworth was entitled to a judgment even if she became insane or incompetent subsequent to their separation. Clark v. Clark, 215 La. 835, 41 So.2d 734 (1949).

Appellants charge Mr. Wadsworth with fraud or ill practices in that he took his judgment with full knowledge of her insanity. Nothing precluded him from doing so. If appellants had alleged that Mrs. Wadsworth was insane in February, 1970, that her separation was therefore involuntary, and that Mr. Wadsworth knew this when he alleged a voluntary separation appellants would come closer to stating a cause of action. Nowhere have they made such allegations.

In effect, appellants seek to accomplish with an action of nullity what should have been attempted in defense of the suit. They seek an annulment of the judgment of separation so that they can prove that the interdict’s separation was involuntary. Prior to the judgment of separation Mrs. Wadsworth had the benefit of the services of a curator ad hoc and two different attorneys. As evidenced by the affidavits filed with her first answer from her father, a physician, her cousin, an attorney in Alabama, and . another physician, her mental condition was a matter of general knowledge, but no one claimed then, nor does anyone claim now, that the initial separation was involuntary because of insanity. Nothing precluded her from then raising the issue in defense of the suit and an action of nullity should not become a substitute for a defense on the merits. See Steele v. Ruis, 202 So.2d 376 (La.App. 4th Cir. 1967).

Having concluded that appellants stated no cause of action it is unnecessary to address ourselves to the exception of prescription. Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

RED MANN, Judge

(concurring).

C.C.P. 928 should be interpreted as consistent with, rather than as overriding, C.C.P. 2002(1); and Nicosia v. Guillory is not controlling because the incapacity of insanity, unlike that of minority, is not cured by the coming of one’s birthday.

Nevertheless, a spouse who is not so notoriously insane (and therefore incompetent within C.C.P. 2002(1)) as to be recognizably incompetent to hire a lawyer in his or her own, behalf (especially to plead mental difficulty) is sane enough to voluntarily separate from the other spouse, and sane enough to stand in judgment.

For lack of an allegation that the separation-suit lawyers were not employed by and did not represent the wife, the recon-ventional demand does not state a cause of action.


source: Caselaw Access Project

author: LOTTINGER, Judge.

license: Public Domain

text:
    Norman P. BERMES v. Linda Payne FACELL.
    No. 10639.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.

      L. D. Sledge, Baton Rouge, for appellant.
    C. J. Hyde, III, Baton Rouge, for appel-lee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit by Norman P. Bermes, as petitioner, against Linda Payne Facell, as defendant, in which petitioner seeks recovery in the form of a diminution in price of a residence purchased from the defendant. The Trial Court rendered judgment in favor of petitioner and against defendant in the amount of $1,350.00, together with interest at the rate of seven (7%) per cent per annum from date of judicial demand until paid and for all costs. The defendant has taken this appeal.

The evidence discloses that on June 25, 1973, the petitioner purchased from the defendant a house located at 1777 Bellrose Drive, Sherwood Forest Subdivision, East Baton Rouge Parish, for the price of $37,000.00. The house contained approximately 1,800 square feet and was cooled by a three ton central air conditioning system. Prior to the sale, the petitioner and defendant had entered into a written purchase agreement which contained the following warranty: “Seller warrants all appliances, air conditioning, heating and plumbing and lighting fixtures to be in working order.”

Prior to the closing of the sale, petitioner requested that the defendant give him an express warranty to the effect that the air conditioning system would maintain a 20 degree differential between the inside and outside temperatures. The testimony is conflicting as to whether or not said warranty was given, however, the Trial Court held that the petitioner failed to prove by a preponderance of the evidence that any express warranty to this effect was made by defendant.

The evidence reflects that on Friday, June 25, 1973, petitioner moved his furniture into the house but did not stay there over the weekend. The house remained closed over the weekend with the air conditioning on and the thermostat set at 72 degrees. When petitioner returned to the house on Sunday afternoon, he discovered that the house was 78 degrees with an outside temperature of 90 degrees. The temperature rose to 83 degrees and stayed over 80 degrees until midnight. After checking the temperature differentials, the petitioner found that the best differential which the unit could maintain was 12 degrees.

The unit failed on August 15, 1973, because of a burned out capacitor., Cost of repair was $45.75. In an attempt to remedy the situation the petitioner caused a power air vent to be installed in the attic which increased the differential to 14 degrees.

The testimony of the experts showed that the air conditioning system was too small to cool a house of this size during the summer months. All experts agreed that a 31/2 ton unit was needed and that the three ton unit was inadequate. Eventually, petitioner replaced the three ton unit with a four ton Carrier brand unit at a cost of $1,930.00. A 3ton unit of the same brand would have cost $1,830.00. Another estimate received by petitioner was $1,450.00 for a four ton unit of another brand.

The defendant-appellant contends that the Trial Court erred (1) in holding that the condition of the air conditioning unit constituted a redhibitory defect or vice; (2) in the alternative, in failing to hold that the condition of the air conditioning unit was an apparent defect; (3) in the second alternative, in failing to hold that the conditions of the air conditioning unit was a latent defect declared by the vendor to the vendee; (4) in overruling appellant’s exceptions filed following refusal by the Court to allow appellant to file a third party demand; and (5) in awarding appel-lee the sum of $1,350.00 and assessing costs to appellant.

We agree with the decision of the Trial Court that there was no express warranty shown on the part of the defendant to the effect that the unit would maintain a 20 degree differential between the inside and outside temperatures. The answer to this question, however, is not really important in view of the well established jurisprudence in this state relative to the warranty by a seller against hidden defects in an article sold. This warranty is an implied condition of every sale. Rey v. Cuc- cia, La., 298 So.2d 840 (1974), reh. denied (1974).

The Civil Code Articles relating to the implied warranty against redhibitory defects, are as follows:

Article 2520: “Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.”
Article 2521: “Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”
Article 2541: “Whether the defect in the thing sold be such as to render it useless and altogether unsuited for its purpose, or whether it be such as merely to diminish the value, the buyer may limit his demand to the reduction of the price.”
Article 2544: “The action for a reduction of price is subject to the same rules and to the same limitations as the red-hibitory action.”

The Trial Court held that the inadequate and undersized air conditioning system constituted a vice or defect which rendered the use of the house so inconvenient or imperfect that the buyer would not have purchased it had he known of the vice or defect. The Court cited Cipriano v. Superior Realty & Construction Corp., 228 La. 1065, 84 So.2d 822, 826 (1955), reh. denied (1956), as follows:

“When a house is sold with a heating system already installed, the heating system forms as much a part of the house as does the foundation or the roof and is covered by the vendor’s warranty. If the heating system proves to have hidden vices which existed at the time of the sale and which were such as to render it useless and unsuited for its purpose, the buyer has an action for redhibition or diminution of the purchase price.”

We agree with the decision of the Trial Court that the effect of the insufficient capacity of the central air conditioning system was a vice or defect within the meaning of LSA-C.C. Art. 2520. Although it is true that the unit functioned properly for a three ton unit, the testimony shows that a three ton unit would not adequately cool the house. We feel that it is implied in the sale of the house with a central air conditioning system that the system is of adequate capacity to comfortably cool the house. Air conditioning in this day and age is almost a necessity. Certainly we do not feel that the petitioner would have purchased this house had he known that the unit installed therein was of insufficient size to properly maintain a comfortable temperature. A 12 degree, or even a 14 degree differential is insufficient to adequately cool a house in Baton Rouge during the summer months.

The next question considered by the Trial Court was whether the defect in this case was apparent within the meaning of LSA-C.C. Art. 2521. On this score, the Court cited Pursell v. Kelly, 244 La. 323, 152 So.2d 36, 41 (1963), reh. denied (1963), as follows:

“Article 2521 of the Civil Code excludes, from the vices for which redhibition may be demanded, apparent defects ‘that is, such as the buyer might have discovered by simple inspection * * * ’. Inspection, as defined by Webster’s New International Dictionary, 2nd Ed., means a strict or prying examination. This connotes more than mere casual observation; it envisages an examination of the article by the vendee with a view of ascertaining its soundness. However, the Code limits the exclusion of warranty to those defects discoverable by a simple inspection. This, it is manifest, relieves the buyer of examining the inner or hidden parts of the object of the sale for the purpose of ascertaining the existence of latent defects.” (Emphasis by Supreme Court).

We feel, as did the Trial Court, that the insufficient size of the air conditioning system was not apparent or discoverable by a simple inspection. An inspection of the unit by petitioner would have revealed that it was in working order. We do not feel, however, that petitioner was of such expertise in the air conditioning field as to determine by a simple inspection that this house would require 31/2 tons of air conditioning as opposed to three tons. Plaintiff did testify that once when he visited the house before the purchase, he noticed it to be warm inside and mentioned this to the defendant. The response was that the children were running in and out of the house, and it caused it to be warm. An ordinary, prudent buyer is not held to the standard that would be required of an expert in air conditioning.

The evidence, as testified to by defendant, discloses that she was uncertain as to what temperature differential the air conditioning system would maintain, and that, upon the advice of a real estate broker she only warranted that the unit was in proper working order. This indicates that petitioner at least made some attempt to determine beforehand whether this unit would adequately cool this particular house.

As to the third specification of error, the Trial Court’s failing to hold that the condition of the air conditioning unit was a latent defect declared by the vendor to the vendee, we do not agree. It is argued that since appellant warranted the air conditioning unit to be in good working order, she thereby gave formal notice to the appellee of the condition of the air conditioning unit, and that since this was the condition held to be the defect, the plaintiff cannot maintain such an action. The error is in not distinguishing between the working condition of the air conditioning unit per se and its ability to adequately cool the house in question. It is the inability of the air conditioning unit to adequately cool the house that was the defect, and this was not mentioned to the plaintiff.

On the morning of the trial the attorney for the defendant asked for a continuance in order that he might file a Third Party Petition, a Peremptory Exception pleading non-joinder of indispensable party and a Dilatory Exception pleading non-joinder of a necessary party. His contention was that Chet Homes, Inc., the builder of the house in question, is an indispensable party in this case and that if, indeed, the Court were to determine that the undersized air conditioning unit was a redhibitory vice or defect, then, and in that event, the defendant herein should have his recourse against the builder of the house. In support of his contention, he cites Civil Code Article 2531 which, subsequent to the filing of the petition in this matter, was amended to add the following provisions:

“In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller, and further provided that any provision of any franchise or manufacturer-seller contract or agreement attempting to limit, diminish or prevent such recoupment by the seller shall not be given any force or effect.”

This amendment has no bearing whatsoever on the present case which was filed prior to its enactment. Furthermore, in its reason for its refusing to permit defendant to file such pleadings, the Trial Court cited the many delays as well as the fact that the defendant had ample time since the filing of this suit to bring in any third party or file any exceptions which it deemed necessary. We feel, therefore, that the Trial Court was correct in so holding, and there was no abuse by the Trial Judge.

As we have stated before, the cost of the four ton unit which was installed by petitioner was $1,930.00. A 314 ton unit of the same brand would have cost $1,830.-00. An estimate of the cost of a four ton unit of another brand was $1,450.00.

The unit in the house at the time it was purchased was approximately seven years old and the testimony discloses that there is little or no market for a used central air conditioning unit. Petitioner did advertise the old unit for two months and, although it was in working order, petitioner could find no buyer.

The petitioner proved that it did repairs to the old system of $45.75 on September 12, 1973, for a starter relay and starting capacitor, and $34.50 on August 3, 1973, for another starting capacitor. Mr. Lá-veme, who did the repair work and who was qualified as an expert testified that these repairs could be caused by several things and that repairs of this sort were not uncommon for a unit of that age. The Trial Court refused to consider these repairs as an element in reduction of the price, and we concur in this refusal. The Trial Court then awarded $1,350.00 reduction after considering the overall evidence and exercising its limited discretion and setting a reduced sale price at the time of the sale. With this conclusion, we concur.

For the reasons hereinabove assigned, the judgment of the Trial Court is affirmed, all costs of this appeal to be paid, by defendant-appellant.

AFFIRMED.

      . LSA-C.C. Art. 2531 was amended by Act No. 673 of the 1974 Regular Session of the Louisiana Legislature. “All laws enacted shall go into effect at twelve o’clock, noon, on the twentieth day after the Legislature shall have adjourned. * * *.” La.Const. Art. 3, § 27 (1921). The Louisiana Legislature adjourned sine die on July 11, 1974, hence, the effective time and date was 12:00 noon, July 31, 1974. Suit was filed April 5, 1974, and trial commenced on February 3, 1975.


author: STOULIG, Judge.

text:
    The FIRST NATIONAL BANK OF JEFFERSON PARISH v. LOUISIANA PURCHASE CORPORATION, et al.
    No. 7578.
    Court of Appeal of Louisiana. Fourth Circuit.
    March 16, 1976.

      Casey, Babin & Casey, Joseph T. Casey, New Orleans, for plaintiff-appellee.
    Liska, Exnicios & Nungesser, Samuel Richard Exnicios, New Orleans, for U. L. Roy, defendant-appellant.
    Wiedemann & Fransen, Lawrence Wie-demann, New Orleans, for Eugene E. Schaefer, Jr., defendant-appellee.
    Post & Blaize, Daniel Post, Metairie, for Ken J. LaGrue, defendant-appellee.
    Gerald Schreiber, New Orleans, for William T. Campbell, New Orleans, defendant-appellee.
    Martin A. Welp, New Orleans, for Michael A. Bruno and John A. Beninate, defendants-appellees.
    Before REDMANN, LEMMON and STOULIG, JJ.
   ON MOTION TO DISMISS

STOULIG, Judge.

Plaintiff, First National Bank of Jefferson Parish, has filed a motion to dismiss the appeal of five defendants cast in judgment on a promissory note. The bank alleges appellants John A. Beninate, Michael A. Bruno, William T. Campbell, Ken J. LaGrue and Eugene E. Schaefer, Jr., voluntarily and unconditionally acquiesced in the judgment against them by paying the full amount due without obtaining a written reservation of rights to appeal..

Appellants resist and assert plaintiff’s counsel was advised on numerous occasions of their intention to appeal despite the fact of payment. Appellee denies ever receiving such notice. This conflict must be resolved in favor of the appellants, since the appellee, as the proponent of the motion to dismiss, bears the burden of establishing appellants’ intention to abandon the appeal by unconditionally acquiescing in the judgment.

We are of the opinion that the ruling in the case of Charles C. Cloy Gen. Con., Inc. v. DiVincenti Bros., Inc., 308 So.2d 493, 495 (La.App. 1st Cir. 1975), is dispositive of the issues raised in the motion:

“It is well established that appeals are favored in law and will be disallowed or declared abandoned only for substantial cause. Walker v. Jones, 253 La. 908, 221 So.2d 44.
“We find no merit in Contractor’s contention that where payment is made, acquiescence is established by appellant’s failure to reserve in writing, or otherwise, his right to appeal. The tenor of recent decisions establishes the rule that payment, even payment without express reservation of the right to appeal, does not per se constitute voluntary and unconditional acquiescence within the meaning of the term as employed in Article 2085, above. The unmistakable import of the latest decisions is that payment must be accompanied by intent to abandon the appeal, and that proof of such intent rests upon the party alleging abandonment. Henry Waters Truck & Tractor Co., Inc. v. Relan, La.App., 277 So.2d 463; Baker v. Nelson, La.App., 265 So.2d 825. To the same effect, see Culpepper v. Slater, La.App., 131 So.2d 76.”

Furthermore, we note that the case of Henry Waters Truck & Tractor Co., Inc. v. Relan, 277 So.2d 463 (La.App. 1st Cir. 1973), supports the position of appellant that a verbal notice of intent to appeal is sufficient proof that the appellant had not acquiesced in the judgment even though it had been fully satisfied.

Applying this jurisprudence to the facts of the instant matter we conclude that the motion to dismiss is without merit and must be denied.

MOTION DENIED.

      . Appellee obtained judgment in the sum of $37,192.09 against Louisiana Purchase Corporation, Overland-Louisiana, Overland Investment, Ltd., and Kenneth Whitfield, in addition to the five defendants named herein after a trial on the merits. Not involved in this motion to dismiss is the pending appeal of U. L. Roy from a third party judgment in favor of Eugene Schaefer, Jr.

      . These defendants are individual guarantors on the obligations of Louisiana Purchase Corporation with the First National Bank of Jefferson Parish under a continuing guaranty agreement and as such were decreed to be jointly, severally, and solidarily liable.


author: BEER, Judge.

text:
    Mrs. Lucinda Penny, widow of Albert PENNY v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 7298.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Kronlage, Dittmann & Caswell, Samuel E. Schudmak, III, New Orleans, for plaintiff-appellant.
    Floyd F. Greene, New Orleans, for defendant-appellee.
    Before SAMUEL, MORIAL and BEER, jrjr.
   BEER, Judge.

This is a damage suit by plaintiff-appellant, Mrs. Lucinda Penny, claiming negligence of defendant-appellee, New Orleans Public Service, Inc. (hereafter, NOPSI) in operating the bus on which she was a fare paying passenger. The trial court granted judgment in favor of NOPSI, dismissing her suit. From that judgment, she prosecutes this appeal.

Mrs. Penny testified that she boarded the bus at Broadway and Claiborne and had given the driver her transfer when the bus abruptly accelerated causing her to fall and sustain injuries to her left knee and back. She did not have chance to secure a seat because the actions of the bus driver in abruptly starting the bus prevented her from doing so. She contends that the sole cause of her fall was the sudden forward jerking movement of the bus.

Althea Sanders, an acquaintance of Mrs. Penny’s boarded the bus with her. She also testified to the abruptness with which the bus commenced its forward movement. She indicated the bus pulled away from the stop with a j erk.

Their testimony was contradicted by the bus driver, Mr. Wilton L. Hagardon. After Mrs. Penny boarded the bus he closed the door, checked to see if the light was in his favor and if traffic would allow him to proceed. He then proceeded at the normal and usual rate of acceleration. He did not see Mrs. Penny fall.

Another passenger, Emelda Williams, testified the bus had not actually started when Mrs. Penny fell. She indicated that Mrs. Penny took a few steps towards the rear of the bus and fell before the bus was in motion.

Sherwood Mitchell, NOPSI’s assistant equipment manager examined the bus several days after the accident to check for defects and smoothness of operation. After numerous tests, he found no abnormalities. There was no jerkiness in starting. On cross-examination, he acknowledged the possibility that work could have been performed on the bus before he examined it. He testified that the bus has a two speed automatic transmission that shifts into second gear at approximately twenty-three miles per hour. Due to its weight (11 tons) and engine power (200 horsepower) the bus necessarily accelerates at a slow rate from a stopped position.

NOPSI, a public carrier, is required to exercise the highest degree of vigilance and care to protect its passengers. However, bus drivers are not required to wait until passengers are seated before starting forward movement and the carrier will not be held liable for accidents resulting only from usual and ordinary movements incident to the beginning of forward motion from the bus stop. Johnson v. NOPSI, 293 So.2d 203 (La.App. 4th Cir. 1974). The trial court apparently determined that the bus’ movement was neither sudden, unusual, nor otherwise improper, and such a finding will not be disturbed unless manifestly erroneous. Robin v. NOPSI, 292 So.2d 926 (La.App. 4th Cir. 1974); Scott v. NOPSI, 176 So.2d 184 (La.App. 4th Cir. 1965).

The judgment of the Civil District Court, Parish of Orleans is affirmed at appellant’s cost.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Sidney J. SULLIVAN, Jr., et al., Plaintiffs-Appellants, v. Ruby P. WELCH et al., Defendants-Appellees.
    No. 5369.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.
    Rehearing Denied April 7, 1976.
    McCollister, Belcher, McCleary & Fazio by Neil H. Mixon, Jr., Baton Rouge, for plaintiff s-appellants.
    Brame, Bergstedt & Brame by David Fraser, Lake Charles, John Navarre, Oak-dale, for defendants-appellees.
    Before HOOD, GUIDRY and PETERS, JJ-
   GUIDRY, Judge.

This suit for damages arises out of a collision between a left turning automobile driven by defendant, Ruby Welch and insured by Zurich Insurance Company, and an overtaking and passing automobile driven by plaintiff, Catherine Sullivan. The district court held that the accident was caused by the negligence of the plaintiff, and that the defendant was free from negligence. Plaintiff appealed.

The accident giving rise to this litigation occurred on July 10, 1971, on U. S. Highway 165, just south of Oakdale, Louisiana. The plaintiff was proceeding north on Highway 165, while a good distance ahead of her the defendant drove onto Highway 165 from her private driveway and turned north. Directly behind Mrs. Welch was John Navarre who followed the defendant onto the same highway from the same driveway and turned north behind her. The defendant stated she did not see the plaintiff’s automobile as she entered the highway, but John Navarre said that he could just catch sight of the plaintiff’s car coming over the hill as he turned onto the highway.

Almost simultaneous with her entry onto Highway 165 Mrs. Welch, according to her testimony, decided she had to return home. With this in mind Mrs. Welch decided to turn around at a private driveway located some 450 feet distant from the driveway from whence she had come. Mrs. Welch engaged her directional signal indicating that she would execute a left turn and then checked to the front for oncoming traffic and to the rear for approaching traffic by use of her rear and side mirrors. Mrs. Welch saw no oncoming traffic and observed only the vehicle immediately behind her which was occupied by John Navarre. Mrs. Welch then commenced her turn into the aforesaid driveway, traveling at a speed of about 10 to 15 miles per hour.

John Navarre who was following close behind, about one car length, noticed that Mrs. Welch’s left turn signal was activated approximately 250 feet before she commenced her turn. At that point, according to his testimony Mrs. Sullivan’s car was rapidly approaching from the rear but was entirely within the north bound lane. Then Mrs. Welch began her angulated turn and just as the Welch vehicle was about to enter the driveway the Sullivan car pulled up even with him, and it was only a brief time before the crash. Mr. Navarre testified that the Welch vehicle began the left turn maneuver and pre-empted the south bound lane before Mrs. Sullivan began her passing maneuver. In this regard Mr. Navarre testified as follows (Tr. page 158):

“Q. All right. Now, Judge Navarre, are you able to tell the Court which vehicle crossed the centerline of 165 first, that is did Mrs. Welch cross the center line in her turning maneuver or did Mrs. Sullivan cross the center line in her passing maneuver ?
A. Mrs. Welch was beginning to turn and had gotten into the passing lane first.”

Mr. Navarre testified further that the Welch vehicle was in the south bound lane very near the west edge of the paved portion of the highway when the collision occurred. The right front of the Sullivan vehicle collided with the left front door of the Welch 2-door automobile.

Mrs. Sullivan testified that as she approached from the south and reached the crest of the rise she saw the two slow moving vehicles in front of her. She noticed the brake lights of the vehicle directly ahead come on. Mrs. Sullivan testified she was traveling at about 65 miles per hour prior to her approach of these two vehicles, and as she came up behind the Navarre car she reduced her speed to about 35 or 40 miles per hour. According to her version of what happened she then proceeded to pass the cars in front of her, noting that there was no oncoming traffic. As she began her passing maneuver Mrs. Sullivan pushed the accelerator all the way to the floor to engage the passing gear. At this time, according to Mrs. Sullivan’s testimony, Mrs. Welch was still in the north bound lane of travel. Mrs. Sullivan indicated that as she moved abreast of the Navarre car she noticed for the first time that the left directional signal on the defendant’s vehicle was engaged, she then applied her brakes. Thereafter, within a split second the collision occurred. Mrs. Sullivan’s testimony was corroborated by Mr. Kline, a passenger in the Sullivan car.

Trooper Brady of the Louisiana State Police testified that he was called to the scene following the accident. The automobiles had been moved when Trooper Brady arrived on the scene. His investigation disclosed the presence of four skid marks approximately 114 feet in length all located within the south bound lane. The officer testified further that Mrs. Sullivan admitted that she was traveling approximately 65 miles per hour when the accident happened.

The trial judge after evaluating all of the evidence determined, as aforesaid, the accident in question was caused solely by the negligence of the plaintiff, Mrs. Sullivan. After consideration of the record and for the reasons hereinafter fully set out we conclude that the trial court erred in finding the defendant without negligence. We determine that the defendant was negligent and that her negligence was a proximate cause of the accident. We also find that plaintiff was contributorily negligent and accordingly affirm the decision of the trial court.

As hereinabove set out the testimony of the parties and witnesses reflects two versions of the accident which are diametrically opposed. The trial judge accepted the defendant’s version of the accident as corroborated by Mr. Navarre. We conclude that the trial court committed manifest error in so doing in that the uncontro-verted and established physical facts indicate rather conclusively that the plaintiff’s car had to be in the passing lane for a period of time, however short, before the defendant, Mrs. Welch, began her left turning maneuver and therefore should have been seen by her.

The uncontradicted physical facts are: (1) The plaintiff’s automobile left 114 feet of skid marks in the passing lane; (2) The point of impact was located at the west edge of the south bound lane; (3) although there is no evidence regarding the exact width of the highway the record reveals that it was a normal two lane road, about 2<y in width (TR. Pg. 177); and (4) the right front of plaintiff’s automobile hit the left door of the defendant’s 2-door vehicle.

With the above physical facts in mind, and considering the fact that defendant crossed the highway at a slight angle, we conclude that defendant traveled a distance of not more than 12' at an admitted speed of 10-15 miles per hour. At 10 miles per hour a motorist will travel 14.7 feet per second and at 15 miles per hour one will travel 22 feet per second. Defendant traveled less than 12 feet after commencing her left-turning maneuver in that all agree that uie impact occurred at the west edge of the south bound lane. From these facts we can ascertain' that at very most it took one second for Mrs. Welch to execute the turn from her position in the north bound lane to the point of impact, a distance of about 12 feet. Assuming that Mrs. Sullivan’s top speed during her passing maneuver was 65 miles per hour she would traverse a distance of 95.5 feet per second, and certainly less than this while her automobile was braking. At full braking the plaintiff left 114 feet of skid marks all in the south bound lane. It is clear then, that from the time Mrs. Sullivan applied her brakes to the point of impact took well over one second.

We conclude from the above that approximately one second prior to the accident Mrs. Welch, at best, had just begun her turning maneuver, while Mrs. Sullivan had, at this time, already begun to brake. The plaintiff was obviously in the passing lane and braking as the defendant started her left turn.

The duties imposed on a left-turning motorist are well established in the jurisprudence of this state. In the recent case of Bamburg v. Nelson, 313 So.2d 872 (La. App. 2nd Cir. 1975), the court stated:

“Although the driver making a left turn who is involved in an accident is not deemed ipso facto negligent, the cases which characterize the maneuver as dangerous and setting forth the duty of the left-turning vehicle are numerous. The duty of the left-turning motorist is twofold, the first being to give a proper signal, and secondly to make proper observation that the turn can be made without endangering an oncoming or overtaking vehicle. See Lewis v. Liberty Mutual Insurance Company, 215 So.2d 138 (La. App. 3rd Cir. 1968). A left turner must not only give an adequate signal of his intention but also make adequate observation to his rear to ascertain that the turn can be safely made. Ardoin v. Chachere, 207 So.2d 574 (La.App. 3rd Cir. 1968).”

. Although Mrs. Welch may have complied with the first duty imposed upon her by law in giving a signal she did not in our opinion, fulfill the second duty, that of making proper observation and keeping proper lookout. Mrs. Welch testified she looked in her rear view and side mirrors but, did not see the Sullivan vehicle and did not know of its presence until the collision occurred. The physical facts clearly indicate that the Sullivan vehicle had preempted the passing lane. Mrs. Welch, had she been keeping a proper lookout should have observed the Sullivan vehicle, for it was there to be seen and in not doing so she breached her duty to observe for overtaking traffic.

“The duty of observation is the same for both the motorist who discovers the overtaking vehicle and the one who does not.” (Bamburg v. Nelson, supra, pg. 875.)

We find therefore the defendant, Ruby P. Welch guilty of negligence which is a proximate cause of this accident.

A more difficult question concerns whether the plaintiff, overtaking motorist, was guilty of any negligence which contributed to the accident.

The record reflects that prior to Mrs. Sullivan’s approach of the two vehicles driven by Mr. Navarre and defendant that she was traveling at a speed estimated by her at 65 miles per hour on a highway with a posted limit of 45 miles per hour. Mrs. Sullivan was aware that the vehicles ahead of her were traveling at a slow rate of speed, and admitted to seeing the brake lights of the car directly in front of her come on. Upon her approach of the two vehicles, and prior to her overtaking them Mrs. Sullivan testified she reduced her speed to about 35-40 miles per hour. At this time the plaintiff did not see, according to her, the left turn signal engaged on the defendant’s vehicle. Mrs. Sullivan stated she first noticed the left turn signal, after she had begun her passing maneuver and was abreast of the Navarre car. We conclude that Mrs. Welch, as she and Mr. Navarre testified, had engaged her turn signal prior to Mrs. Sullivan’s passing maneuver, and that Mrs. Sullivan saw this signal immediately upon her entry into the passing lane. We reach this conclusion because Mrs. Sullivan said that upon commencing her passing maneuver she pressed the accelerator all the way to the floor to engage the passing gear, hoping that she could beat Mrs. Welch to the driveway. When Mrs. Sullivan engaged the passing gear, although Mrs. Welch was entirely within the north bound lane, she knew Mrs. Welch intended to turn. Certainly there was no reason for Mrs. Sullivan to press her accelerator all the way to the floor if this were not the case since she was already traveling at a speed that would easily allow her to overtake the two vehicles. Mrs. Sullivan in beginning her passing maneuver was obviously cognizant of Mrs. Welch’s turning signal, but engaged her passing gear in a rash attempt to overtake Mrs. Welch. The accident could have been averted had it not been for Mrs. Sullivan’s attempt to beat Mrs. Welch to the driveway and in so doing Mrs. Sullivan acted with utter disregard of the danger ahead. We therefore find Mrs. Sullivan guilty of contributory negligence which bars recovery by the plaintiff.

Furthermore, the plaintiff, by her sudden engagement of the passing gear rapidly and unnecessarily increased her forward motion which resulted in her traveling at an excessive rate of speed. The posted speed limit was 45 miles per hour, a speed at which the plaintiff was nearly traveling prior to her engagement of the passing gear. Considering these facts, the 114 feet of skid marks made by her vehicle prior to impact, and the reaction time necessary for Mrs. Sullivan to commence the “heavy braking” which she used in making the skid marks, convinces us, as it did the trial judge, that the speed of the Sullivan vehicle was excessive and negligent.

The plaintiff contends that the trial court erred in exempting John P. Navarre, a witness for defendant, from its order of sequestration. John P. Navarre, a defense witness, was enrolled as defense counsel for Mrs. Welch. We acknowledge the Disciplinary Rules of the Louisiana Code of Professional Responsibility provide that a lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he will be called as a witness. Whether or not John P. Navarre violated these rules is not a question before this court, instead the question presented herein is did the trial court abuse its discretion in exempting Mr. Navarre from its order of sequestration.

Article 2283 of the Civil Code provides in pertinent part:

“ . . . being employed as a counsellor or attorney, does not disqualify him from being a witness in the cause in which he is employed.”

Article 1631 of the Louisiana Code of Civil Procedure states:

“On its own motion the court may, and on request of a party the court shall, order that the witnesses, other than parties, be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interest of justice, the court may exempt any witness from its order. As amended Acts 1966, No. 36, sub. sec. 1.”

The trial judge has great discretion in the manner in which proceedings are conducted before his court, and it is only upon a gross abuse of that discretion that appellate courts have intervened. State of Louisiana in the Interest of Brecheen, 264 So.2d 779 (La.App. 1st Cir., 1972). We find no gross abuse of that discretion by the trial judge.

For the reasons herein set out, the judgment appealed from is affirmed. Costs in the trial court and in this court are to be borne one-half by plaintiffs-appellants and one-half by defendants-appellees.

AFFIRMED.


author: LEMMON, Judge.

text:
    Betty Sanchez NEFF v. Gerald Franklin NEFF.
    No. 7396.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 24, 1976.

      Greenberg & Dallam, Roger I. Dallam, Gretna, for plaintiff-appellee.
    Gerald Franklin Neff, in pro. per.
   ON MOTION TO DISMISS

Before LEMMON, MORIAL and BEER, JJ.

LEMMON, Judge.

This case is before us on a motion to dismiss the appeal.

When the appellant filed a timely appeal, the trial court set the return date for October 6, 1975. On that date the clerk applied for and obtained an extension to October 10, 1975 for the reason that “payment was received on return date.” The record on appeal was lodged in this court on October 10, 1975.

The appellee now moves to dismiss the appeal, citing cases which have dismissed appeals because of failure by the appellant to pay the costs timely. In each of the cited cases the record on appeal was not lodged in this court before the return day or the extended return day, and the appeal was dismissed because the irregularity, error or defect was shown to be imputable to the appellant who failed to pay the costs timely.

In the present case an extension of the return day was obtained timely, and the record on appeal was lodged in this court on the extended return day. Although the appellant did not pay the cost of preparing the record of appeal at least three days prior to the return day, he did pay the cost more than three days prior to the extended return day.

Furthermore the question of dismissal of an appeal on account of the appellant’s failure to timely pay the costs and fees required by C.C.P. art. 2126 has become moot, inasmuch as the proper appeal bond was timely filed, the record on appeal was lodged on or before the extended return day, and the filing fee required by this court was paid at the time the record on appeal was lodged. Matlock v. Allstate Ins. Co., 153 So.2d 776 (La.App. 3rd Cir. 1963); Fruehauf Trailer Co. v. Baillio, 252 La. 181, 210 So.2d 312 (1968); XXIX La.L. Rev. 269, 293 (1969).

Appellee’s real complaint is that the trial judge granted an extension of the return day. Appellee did not apply for supervisory writs from the granting of that order. Nevertheless, even if we consider this motion as an application for supervisory writs, there is no showing that the record was otherwise ready for filing on the return day, or that the amount of costs had been determined by the Clerk in advance of the return day, or that the return day was extended solely because of failure of the appellant to pay the costs earlier, or that the trial judge otherwise abused his discretion in granting the extension. See Succ. of Abraham, 136 So.2d 471 (La.App. 3rd Cir. 1962).

The motion to dismiss is denied.

MOTION DENIED.


author: PETERS, Judge ad hoc.

text:
    Harry COUVILLION et ux., Plaintiffs-Appellants, v. ST. PAUL FIRE AND MARINE INSURANCE CO., Defendant-Appellee.
    No. 5365.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1976.
    Rehearing Denied April 7, 1976.
    Gold, Hall, Hammill & Little by Edward E. Rundell, Alexandria, for plaintiffs-appellants.
    Provosty & Sadler by David P. Spence, Alexandria, for defendant-appellee.
    Before GUIDRY, HOOD and PETERS, JJ.
   PETERS, Judge ad hoc.

This is a medical malpractice suit. Defendant 'filed a peremptory exception of prescription which was sustained and plaintiff appealed.

Plaintiff, Mrs. Couvillion, consulted Dr. Joseph Villard, defendant’s insured, on March 15, 1974 concerning a drainage problem in her left ear. Mrs. Couvillion had undergone a mastoidectomy of the left ear in 1953 and had experienced drainage in the ear since that operation. Dr. Vil-lard scheduled plaintiff for a surgical revision of the left mastoidectomy on March 19, 1974. During the course of surgery he severed a left facial nerve, resulting in partial paralysis of the left side of plaintiff’s face. Plaintiff realized the next morning the left side of her face was paralyzed and Dr. Villard told Mrs. Couvilli-on either the following day or the following week that the paralysis was a result of the surgery. Plaintiff testified Dr. Villard told her the facial nerve would grow back; Dr. Villard testified he told Mrs. Couvil-lion he did not know if her facial function would return. Dr. Villard placed plaintiff on a program of physical therapy. Over a period of time the muscle tone in her face gradually returned until she had recovered about 90% of her facial function. However, the feeling in her face never returned. Mrs. Couvillion continued under Dr. Villard’s treatment until January, 1975. In June, 1975, plaintiff consulted another doctor and he informed her that her facial paralysis was permanent. A third doctor subsequently confirmed this diagnosis. Plaintiff filed this suit on September 2, 1975.

Plaintiff argues that prescription did not run against her claim because Dr. Villard led her to believe that the damage caused by the surgery was not permanent. Plaintiff contends that her claim is not barred by prescription because Dr. Villard never told her the paralysis was permanent and continued to treat her and to tell her that her facial function was returning. Plaintiff relies upon the case of Perrin v. Rodriguez (La.App. Orleans, 1934), 153 So. 555.

In Perrin, the court held prescription would not run against a claim for negligence when the doctor who is guilty of negligence continues to treat the patient and conceals from him the fact that the doctor has negligently injured him. The defendant in that case, a dentist, had pulled several of his patient’s teeth and had fitted dentures. When he pulled the teeth, the dentist negligently left parts of the roots of those teeth embedded in the jawbone. The patient suffered for over a year and was continually treated by the dentist during that period. The dentist believed the pain was caused by ill-fitting dentures and treated his patient accordingly. The patient had no way of knowing the dentist’s negligence was the cause of his pain.

The instant case is distinguishable from Perrin in that Dr. Villard, unlike the dentist in Perrin, did not conceal the fact that his actions during surgery were the cause of Mrs. Couvillion’s paralysis. Counsel for plaintiff concedes that this distinction exists but argues the Perrin rationale should cover the present situation because the permanent nature of the paralysis was concealed from plaintiff.

We cannot accept this argument. The basis for the Perrin rule is that prescription should not run as long as the tortfeasor has concealed from the victim the fact that he has suffered an actionable injury. Thus, in Perrin the court held prescription does not begin to run when a doctor conceals from his patient the fact that the patient has suffered an injury or conceals the fact that the injury was caused by the doctor. In the instant case, both Mrs. Couvillion and Dr. Villard testified that Dr. Villard told Mrs. Couvillion soon after the operation the paralysis was caused by the surgery. Even if he had not told her the paralysis was permanent, he told her that he had caused a paralysis to the left side of her face and she knew, or should have known, at that time that she had a cause of action for negligence. Therefore, prescription began to run against plaintiff’s claim almost immediately after the surgery. Even though plaintiff did not then realize the full extent of the damage (i. e. its permanent nature) prescription began to run against the entire claim when Mrs. Couvillion became aware of the injury resulting from the tortious conduct. Duhon v. Saloom (La.App. 3rd Cir., 1975), 323 So.2d 202; Lucas v. Commercial Union Insurance Company (La. App. 1st Cir., 1967), 198 So.2d 560.

For the reasons assigned, the judgment of the lower court is affirmed at plaintiff-appellant’s costs.

Affirmed.


author: BOUTALL, Judge.

text:
    Anthony J. BRUNO, Jr., Individually and in his capacity as Natural Tutor of his minor child, Randy Bruno v. Reed R. DANIELS and State Farm Mutual Automobile Insurance Company.
    No. 7326.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Stephen B. Murray, Murray, Murray & Ellis, New Orleans, for Anthony J. Bruno, Jr., plaintiff-appellant.
    C. Gordon Johnson, Porteous, Toledano, Hainkel & Johnson, New Orleans, for Reed R. Daniels and State Farm Mut. Automobile Ins. Co., defendants-appellees.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This case involves, an intersectional collision between a car and a bicycle. Plaintiff, Anthony Bruno, Jr., individually and as tutor for his minor son Randy Bruno, has sued defendants Reed Daniels and State Farm Mutual Automobile Insurance Company, claiming damages for personal injuries to his son Randy Bruno. Plaintiff requested and was granted a jury trial. The jury returned a verdict favorable to defendants and a judgment was granted dismissing plaintiff’s case. Plaintiff has appealed this judgment.

The facts show that Kelly Daniels, defendant Reed Daniels’ minor son, was driving the family station wagon on Deerfield Street. His speed was approximately 15 to 20 miles per hour and he was moving in the direction of the intersection of Deer-field and Dolphin Streets. Seated next to Kelly Daniels was his friend Ricky Duf-rene. As the car was approximately 60 yards from the intersection both boys noticed a long-haired bike rider in a school driveway to their left. This boy later turned out to be Michael Bruno, Randy’s uncle. As the car got very close to the intersection a bicycle driven by Jeffery Champagne collided with the side of the car. Riding on the handlebars of the bicycle was Randy Bruno, plaintiff’s son. Jeffery and Randy were in pursuit of Michael when the accident occurred. Young Randy Bruno broke his leg severely in the collision.

Dolphin and Deerfield Streets form a T intersection. Deerfield is the favored, right-of-way street and Dolphin St. traffic is controlled by a stop sign at the intersection. Directly across Deerfield from Dolphin Street is a church-school complex. A large six foot high hedge runs parallel to Deerfield Street, ending with an 8 to 9 foot high palm tree at the sidewalk on Dolphin. It is from behind this hedge and palm tree that the bicycle suddenly appeared.

The evidence shows that the Daniels car was moving at a slow rate of speed, and that Kelly Daniels brought the car to a stop in the center of the intersection only 10 to 15 feet from the point of impact. The bicycle, on the other hand, was traveling in the wrong lane, was moving at a fast rate of speed (for a bicycle) and failed to stop at the stop sign.

There is no pertinent conflicting evidence in this case. The sole issue on appeal is the type of duty to be placed on a driver, such as Kelly Daniels, given the circumstances he was presented. Plaintiff contends that the defendants owed him the highest degree of care because of the circumstances. These circumstances are the church-school area (an area children are known to frequent); the fact that Kelly Daniels was familiar with this area, the fact that Kelly Daniels saw other children in the area (Michael Bruno) and the fact that he knew his vision would be obstructed by the hedge. Defendants point out that the accident occurred during the summer and not during a school zone time. Kelly stated that he had reduced his speed because of the area. The evidence is also clear that none of the four boys involved in the accident saw each other prior to the impact, except perhaps a fraction of a second prior to impact.

The law as to the duty of care under such circumstances is quire clear. In the recent case of Buckles v. Fox, 296 So.2d 339 (LaApp. 4th Cir. 1974), this court had occasion to affirm a statement of the law made by our brethren of the First Circuit in the case of Campo v. Vampran, 183 So. 2d 57 (La.App. 1st Cir. 1966). In that case it was stated:

“ ‘ “The duty to exercise greater than ordinary care to avoid injury to a child does not become operative or exist in favor of such child until his presence is known or should have been known under the existing facts of the particular case to the operator or driver of a motor vehicle. The motorist, upon discovering the presence of children in his path of travel or in a position where they could become imperiled, is under a duty to exercise the highest degree of care to avoid injury to them. Each case must be adjudged on the facts peculiar to it. No one case is absolutely controlling of another, as few cases are identical factually.” ’ ”
“ ‘Our examination of the jurisprudence shows that in practically every case where a defendant motorist was exonerated from negligence in striking a child there was proof by the motorist that the child had emerged from a concealed position.’ ” (Citations omitted.)

This statement points up two situations. If the driver notices children playing near the street then he is under a duty of great care as to them. If, for example, he sees children playing on the left side of the street and a child darts into his path from the right, he owes that child only a duty to exercise ordinary, reasonable care, unless he should have expected the child to be in that position. The duty of great care arises only upon the driver becoming aware of the child or under circumstances where he should have been aware of the child. The facts in this case evidence no such awareness.

Plaintiff cites this court to numerous cases in which the duty placed upon the defendant was that of great care. In every case cited, except one, the defendant had seen the child playing in or near the street prior to impact. In the other case, Moore v. Mouledous, 30S So.2d 717 (La. App. 4th Cir. 1974), the driver did not see the child prior to impact, however, the circumstances of that case were vastly different. In Moore the child was struck in mid-block of a school zone on a school morning. The driver had just seen two other children dart out from this same area and the driver was speeding through the school zone. Clearly, these facts call for the imposition of a duty of care greater than that imposed on the usual driver. In the present case the circumstances placed Kelly Daniels under a duty of ordinary, prudent operation of his car. There is no doubt that he discharged that duty.

Defendant has pointed out several cases very similar factually to the case at bar. We particularly note Percle v. Employers-Commercial Union Companies, 292 So.2d 314 (La.App. 1st Cir. 1974), in which a motorbike suddenly appeared from behind a hedge and ran into a car. The result in Percle was the same as that adjudged by the jury in this case and we find no error in that determination.

Plaintiff makes an alternative argument in favor of the doctrine of comparative negligence. While we note that this doctrine has not been applied by the courts in Louisiana, we find this case particularly ill suited for such an argument. The great weight of the evidence shows no negligence at all on the part of defendants.

For the foregoing reasons the judgment of the trial court is affirmed. Appellant is assessed costs.

AFFIRMED.


text:
    Heyward E. MENASCO, Individually and on Behalf of his minor son, Paul D. Menasco and Margaret Menasco v. Lee PEYTON, Individually and as Legal Guardian of Pat Peyton, et al.
    No. 7301.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.

      C. Monk Simons, III, New Orleans, for plaintiffs-appellees.
    James J. Morse, New Orleans, for defendants-appellants.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   LEMMON, Judge.

In this appeal from a judgment awarding damages for injuries sustained by Paul Menasco, defendants question only the amount of general damages assessed. Plaintiffs answered, seeking an increase.

The eight-year-old boy was struck by defendants’ car while he was riding a bicycle on September 13, 1973. He sustained fractures of the tibia and fibula a few inches above the ankle joint, numerous bruises and contusions, and loosening of several teeth. He also experienced blockage of the ears.

After the leg fracture was reduced under anesthesia, the boy was confined to bed at home in a cast, then was allowed to move about in a wheel chair, and eventually resumed weight hearing on crutches and undertook prescribed physical therapy. He returned to school in January with limited mobility. On August 9, 1974, the orthopedic surgeon discharged the boy with a prognosis of eventual complete return of joint motion and muscle strength, with no permanent residual disability, although he was still experiencing hip pain at the time of discharge.

A hearing test the month after the accident revealed a loss of hearing of high tones in both ears, a loss which the otolaryngologist considered negligible as to any effect on the child’s ability to hear spoken words. While the doctor opined that the hearing loss from the injury would not improve or worsen, he pointed out that there was a definite present loss in both ears and that the additional loss of hearing incident to the normal aging process would cause the boy’s hearing in later years to be a little worse than that of an average male of the same age.

A pediadontist testified that the boy complained for several weeks after the accident of considerable discomfort from the trauma to the teeth. He treated the boy for six months, noting at that time that there was some diminishing vitality, which did not approach the point of necrosis. He advised periodic checking until the teeth were fully developed, but was optimistic that there would be no permanent damage.

Total medical bills amounted to over $1,000.00.

On appeal defendants contend that the trial judge abused his discretion in assessing $20,000.00 in general damages for these injuries, none of which caused any substantial permanent disability. We disagree.

The hearing loss, though of minor consequence at the youngster’s present age, will cause him to have less than normal hearing in later life. The injury to the teeth, in addition to causing substantial pain after the accident, will continue to require frequent precautionary examinations and apprehension of necrosis until maturity. The leg fracture caused considerable early pain, anguish and inconvenience, and was still causing some associated pain and atrophy one year after the accident.

While we may have affirmed a lesser award, as was done in the cases cited by defendants, we cannot say that this award was so excessive as to constitute an abuse of the much discretion accorded the trial judge by C.C. art. 1934(3). Neither can we say, however, on the basis of this record that the award was so inadequate as to constitute an abuse of discretion.

The judgment is affirmed.

AFFIRMED.

      . The doctor testified:
      “(I)t is a definite hearing loss in both ears of what we would consider a slight degree but as he gets older he will lose a little hearing through the normal processes of aging as each person does decade after decade so that a sixty year old man would normally have hearing about like lie lias now. So Ms hearing is comparable to a fifty to sixty year old man so his hearing would be a little worse when he’s fifty or sixty than the average male . . . .”
      (Emphasis supplied)


author: GULOTTA, Judge.

text:
    AMERICAN RENT ALL, INC. v. James J. CULOTTA.
    No. 7300.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Satterlee & Mestayer, Henry F. Mestayer, New Orleans, for plaintiff-appellee.
    Zeringer & Zeringer, Harold J. Zeringer, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

Defendant appeals from a judgment rendered against him, individually, in the sum of $836.80 for the unpaid balance due for the rental of furniture. It is defendant’s contention that the rental agreement was made by him in his capacity as president of Tide Rock Village Apartments, Inc., an apartment complex in Biloxi, Mississippi, and the furniture was transported and used by the Mississippi corporation in Biloxi. According to defendant, the trial judge erroneously cast him individually for a corporate debt. We do not agree. Accordingly, we affirm.

The rule is well established that it is the agent’s duty to disclose his capacity as agent of a corporation if he is to escape personal liability for contracts made by him. Prevost v. Gomez, 251 So.2d 470 (La.App. 1st Cir. 1971). Also well established is the rule that the agent bears the burden of proof of showing that' he was purchasing in his corporate, not individual, capacity. See Chartres Corporation v. Twilbeck, 305 So.2d 730 (La.App. 4th Cir. 1974). Applying the jurisprudence to the instant case, we conclude defendant did not bear the burden of showing disclosure to plaintiff that purchases were made in defendant’s corporate capacity.

Not disputed in the record is the fact that defendant personally contacted plaintiff with regard to the rental of the furniture; that bills were sent for the furniture rental to defendant at his address in Jefferson Parish; and, that the furniture was transported to the corporation in Biloxi, Mississippi. Significantly, the bills and invoices, some of which indicated that the billing was to be made to James J. Culotta, were not made out in the corporate name but in the name of “Tide Rock Village Apartments”. The designation “Inc.” or “Corp.” does not appear on any documents in the record. Also significant is the absence in defendant’s testimony that he advised anyone at American Rent All, Inc. that he was acting in his corporate capacity. He did, however, testify that he was, in fact, acting in his corporate capacity.

Audrey E. Carnaby, plaintiff’s employee, testified that all of the arrangements for the rental of the furniture were made with defendant. According to her testimony, she was instructed by defendant to ship the furniture to Mississippi and to bill defendant for the rental charge. This testimony was not denied by defendant.

We reject defendant’s contention that payments made for the rental through the corporate, not personal, bank account, together with his testimony that he was acting in his corporate capacity as president of the corporation, are sufficient to carry the burden of disclosure. See Jahncke Service v. Heaslip, 76 So.2d 463 (La.App. Orl.1954); Wilson v. McNabb, 157 So.2d 897 (La.App. 1st Cir. 1963); Prevost, supra; Chartres Corporation, supra.

The judgment is affirmed.

AFFIRMED.


text:
    HAUSMANN’S, INC. v. John R. NEYREY.
    No. 7281.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.

      Jordan Brown and Philipp A. Seelig, New Orleans, for plaintiff-appellee.
    John R. Neyrey, in pro. per.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   LEMMON, Judge.

John Neyrey has appealed from a judgment rejecting his demand for the return of certain jewelry pledged to secure a debt, or for the value of the jewelry, plus damages.

This litigation started when Hausmann’s, Inc. filed suit to collect a debt due by Ney-rey on an open account. A default judgment was rendered on September 11, 1968 in the amount of $7,140.00.

Neyrey testified' that his attorney withdrew from the case on September 20; that there was then pending a loan transaction, involving two lots in Danny Park, and it was necessary to remove the inscription of the judgment in favor of Hausmann’s in order to complete the loan; that on September 21, he employed another attorney, Jacob Karno, and authorized him to offer the pledge of two men’s rings, valued at a total of $2,100.00, and the mortgage of certain property on Citrus Road as security for the satisfaction of the judgment, if Hausmann’s would erase the inscription without prejudice to the judgment; that Hausmann’s refused the offer, but counter-offered to do so if Neyrey would pledge one man’s ring and one lady’s ring, with a total value of $5,750.00; and that he reluctantly accepted that offer.

On September 27, 1968 Neyrey executed the act of pledge, which recited that he pledged the described jewelry to secure payment of the judgment on or before December 30, 1968, and that in case of default Hausmann’s could dispose of the property without recourse to judicial proceeding and apply the sale proceeds to Neyrey’s indebtedness. No mention was made of a mortgage on the Citrus Road property.

At the time of executing the act of pledge, Neyrey paid $700.00 on the indebtedness.

On October 4, 1968 Neyrey executed a conventional mortgage on the Citrus Road property in favor of Hausmann’s in the amount of $6,480.00. The act, passed before Karno, recited that Hausmann’s loaned Neyrey $6,480.00 and that Neyrey executed a promissory note in that amount, payable on demand after December 30, 1968. The mortgage contained no reference to the earlier judgment or to the act of pledge.

The central dispute in this case is whether the debt secured by the pledge was paid off by the proceeds from the mortgage loan which created a new debt, as Neyrey contends, or whether the pledge and mortgage both constituted security for satisfaction of the judgment, as Hausmann’s contends.

Neyrey’s contention is based on his testimony that when the act of mortgage was passed, Hausmann’s issued him a check in the amount of $6,480.00, which he endorsed back to Mr. Hausmann. He further testified that the “funds at that time were specifically to be applied to the outstanding judgment thereby releasing the pledge and the jewelry subject to the pledge.”

The record contains no evidence directly contradicting Neyrey’s statement that a check was issued and endorsed back, but Mr. Hausmann’s denial that there was ever any agreement for the pledge to be released upon execution of the mortgage can fairly be construed as denying the issuance of a check in accordance with the agreement.

In support of its contention, Hausmann’s points out that its attorney sent Neyrey a certified letter on January 7, 1969, notifying him of his default on the pledge agreement and reminding him of the mortgage “in addition to the above pledge”. Since Neyrey admittedly did not respond to the letter and did not personally inquire about the pledged property until July, 1972 (when he was informed that the property had been sold), Hausmann’s argues that Neyrey’s failure to inquire about the property for over three years indicates he could not have believed that the debt secured by the pledge had been paid and the property released. Hausmann’s also points out that on a list of creditors, prepared in connection with the 1970 foreclosure on the Citrus Road property, Neyrey noted as to Hausmann’s mortgage claim of $6,480.00: “Balance overstated — should be reduced by recovery from jewelry pledged”. Finally, Hausmann’s urges that a letter from Kar-no to its attorney, dated September 27, confirms the agreement for Neyrey to execute the pledge (prepared by Hausmann’s attorney), make a partial payment of $700.-00, “and further give to you a mortgage in the immediate future as soon as I have obtained a description of the said property and prepared same.”

The only evidence supporting Neyrey’s position is (1) the mortgage, prepared by Neyrey’s attorney on’ a standard form, which referred to “borrowed money this day loaned and advanced” rather than to property sold on credit and converted into a judgment, thus when literally read indicating that a new debt was created, and (2) Neyrey’s testimony that the check issued at the passing of the mortgage paid off the earlier debt. However, all other evidence, as well as logical reasoning, cries out for a contrary conclusion.

For us to accept Neyrey’s position, we would have to conclude Hausmann’s rejected an offer-for pledge of $2,100.00 in jewelry and the mortgage (in addition to retaining the judgment) and then two weeks later (after receiving jewelry of much greater value in pledge) agreed to accept the mortgage as the only security and to release the pledge and the judgment. Such reasoning defies logic.

Also overwhelmingly persuading in this regard is the mute evidence (1) that Ney-rey did not attempt to recover the jewelry until more than three years later and did not seek to have the judgment marked satisfied until this suit was filed, and (2) that Neyrey noted the anticipated reduction of the mortgage balance “from jewelry pledged”.

The evidence greatly preponderates in favor of a conclusion that the mortgage was executed solely to secure payment of the 1968 judgment. Since we conclude the debt secured by the pledge was not paid by the proceeds of the mortgage loan, we find .no error in the trial judge’s ruling that Hausmann’s properly sold the pledged jewelry and applied the proceeds to the indebtedness. C.C. art. 3165.

Invoices indicated the jewelry originally sold for $5,525.00. In addition, Haus-mann’s received $932.50 from the concur-sus proceeding in the foreclosure on the Citrus Road property. The total of $6,457.50 (plus the $700.00 payment) does not quite equal the principal amount of the 1968 judgment, but the trial judge in decreeing satisfaction of the judgment observed that “equity has been done all the way around”. Hausmann’s has not by appeal or answer to the appeal questioned that portion of the judgment.

The judgment is affirmed.

AFFIRMED.

      . This offer was made by Karno’s letter of September 21.

      . This sum, according to Hausmann’s attorney, reflected credit for the $700.00 payment (alleged in the pleadings to be $660.00).

      . This letter was introduced by Neyrey with the contention (but no other evidence) that two attorneys listed on the letterhead were not practicing with the firm on September 27, 1972 (the names on the letterhead were different from those on the September 21 letter), thus implying that Karno actually prepared the letter at a later date.
      The indirect implication is that Neyrey’s former attorney manufactured evidence against him. If there is proof of this, other consequences may follow in other forums. As to the merits of this case, however, Neyrey’s. attack on the letter can only defeat its value as evidence against him and cannot constitute evidence in his favor. In determining the sufficiency of Neyrey’s evidence as plaintiff, we simply disregard the September 27 letter in view of other overwhelming evidence as to the intention of the parties.

      . In this regard we note that Neyrey issued a subpoena to Hausmann’s for production of all checks in. connection with the October mortgage loan, but did not request a return on this portion of the subpoena, nor did he question Mr. Hausmann on this phase of the transaction.

      . The fact that Hausmann’s authorized erasure of the judgment after receiving the jewelry in pledge, but before the mortgage was executed, further indicates the creditor did not place much reliance on the security afforded by the mortgage.

      . The judgment appealed from also decreed the 1968 judgment satisfied.

      .In this respect Mr. Hausmann had no record or independent recollection at trial of the disposition of the jewelry six years earlier, but he did testify that such jewelry could not be sold as new and therefore would not have brought the same price as new jewelry.


author: STOULIG, Judge. LEMMON, Judge

text:
    Joseph F. LABADOT v. Charlotte Anderson LABADOT.
    No. 7273.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.

      Law offices of Sidney D. Torres, III, Chalmette, Stanford L. Raborn, Baton Rouge, for plaintiff-appellee.
    Charlotte Anderson Labadot, in pro. per.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

Appellant, Mrs. Charlotte Labadot, has appealed from a judgment overruling her exception of lis pendens and from a judgment granting a divorce to Joseph Labadot and rejecting her request for alimony on a finding she was not free from fault.

At the outset it should be noted that appellant has represented herself throughout this litigation, despite the repeated urging of the trial judge that she obtain counsel to represent her because of the seriousness of the issues. He pointed out “a little knowledge is a dangerous thing” and offered to continue the case so that Mrs. La-badot could retain an attorney.

The trial court properly overruled the exception because there is no evidence in the record to support appellant’s contention there was a suit of the same nature pending in Orleans Parish when her husband filed his suit in St. Bernard Parish.

Mrs. Labadot maintains that she filed suit for divorce in the Civil District Court for the Parish of Orleans at 8 a. m. on March 10, 1975, while her husband’s suit, according to the entry of the deputy clerk, was filed in the Twenty-fifth Judicial District Court for St. Bernard Parish at 8:30 a. m. that same day. In support of her contention that her suit was filed prior to that of her husband, she attempted to introduce in evidence an uncertified and undated copy of her petition for divorce allegedly filed in Orleans Parish. In sustaining the plaintiff’s objection to its admissibility, the trial judge suggested it be filed in the record as a proffer.

Even had Mrs. Labadot introduced a certified copy of the Civil District Court proceeding to substantiate her time-date filing claim, her exception would have been waived because she failed to plead it before filing her answer and/or she permitted the matter to be tried on the merits. Lis pendens, a declinatory exception, must be pleaded "prior to answer” under C.C.P. art. 928. (Emphasis added.) Further, even had she filed timely, her participation in a trial on the merits would have constituted a waiver.

This case graphically demonstrates the pitfalls of self-representation. Appellant contends she had had two attorneys and could no longer afford professional services; therefore, she was forced to represent herself. We question the sincerity of this claim because at one point in the record she stated one of her reasons for not working is that it took her away from her legal research. She adamantly refused to follow the court’s suggestion to obtain counsel. However when most of the evidence was submitted, she changed her mind and requested a continuance. Plaintiff’s objection to a continuance was sustained.

Mrs. Labadot’s submissions to this point consisted of a combination of lengthy argument and irrelevant and inadmissible statements. While the court has the responsibility of guarding the rights of unrepresented litigants, it nonetheless owes some duty to the represented adversary. When Mrs. Labadot finally decided to heed the judge’s advice, the trial was almost over, and under the circumstances, the plaintiff and his attorney had a valid objection to having to rerun the entire performance.

In the course of the proceeding, the trial judge refused Mrs. Labadot’s request to cross-examine the plaintiff. This is error. While we commend his restraint and his efforts to elicit competent evidence from Mrs. Labadot to support her claims of freedom from fault by proving her husband’s wrongdoing, it was improper for him to take over appellant’s cross-examination. It is beyond dispute that the trial judge has the right to control the nature, extent and character of cross-examination; however, he cannot deprive a litigant of the procedural right of cross-examination in the interest of judicial economy and other well-intentioned motives.

In any event, the evidence on fault is inconclusive, but Mr. Labadot’s judicial admission that his wife was without fault precludes introduction of any evidence tending to establish her fault. Allegation V of plaintiff’s petition concedes her freedom from fault:

“Neither petitioner, Joseph F. Labadot nor defendant, Charlotte Anderson Laba-date was guilty of any fault at the time of their separation.”

As the record is now constituted, a determination of what amount of alimony Mr. Labadot should be condemned to pay, if any, is difficult to ascertain. Therefore, we remand this matter for further proceedings consistent with the views herein expressed and strongly suggest, as did the trial judge, that Mrs. Labadot obtain counsel.

For the reasons assigned, the judgment appealed from is reversed insofar as it decrees Charlotte Labadot not entitled to alimony “due to mutual fault”; affirmed insofar as it grants plaintiff a divorce; and remanded for further proceedings consistent with the views herein expressed. Cost of the appeal is to be borne by appellant.

REVERSED IN PART; AFFIRMED IN PART; AND REMANDED.

LEMMON, J., concurs with written reasons.

LEMMON, Judge

(concurring).

I concur in the result because the husband’s testimony that his wife “wasn’t a good housekeeper” is insufficient to support a finding of fault on her part. Thus the wife “has not been at fault” and is entitled to alimony under C.C. art. 160.

I have misgivings, however, about our decision on the exception of lis pendens. The wife’s objection based on the pendency of another action was contained in her answer. I interpret C.C.P. art. 928’s requirement that the declinatory exception be pleaded prior to answer as prohibiting the filing of the exception after answer is filed and not as prohibiting the filing of the exception contemporaneously with the answer. Nevertheless, since the matter has been fully tried by both parties and since the wife is not prejudiced by the overruling of the exception because of the result reached by this court, I concur in the decree.

      . C.C.P. art. 925.

      . C.C.P. art. 928 provides in part: “The declinatory exception and the dilatory exception shall be pleaded prior to answer or judgment by default.”

      . O.C.P. art. 1631.

      . This action was commenced by the husband’s filing a petition for divorce based on their living separate and apart for two years. He also alleged, irrelevantly, that neither party was guilty of fault. The wife’s answer admitted all the allegations except the one concerning fault. She filed no reconventional demand, but prayed (in the alternative to dismissal of the petition) for “the opportunity with due proof to show her need of alimony
      At the trial the husband and wife both testified fully, without objection, on the issue of fault, and statements by the trial judge made it clear that all parties intended for alimony to be at issue.


author: STOULIG, Judge. BOUTALL, Judge

text:
    In the Matter of ADOPTION OF Joe Brian WILLIAMS.
    No. 7251.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Milling, Benson, Woodward, Hillyer & Pierson, John C. Christian, Elizabeth Ridnour Haak, New Orleans, for appellants.
    A. M. Trudeau, Jr., New Orleans, for appellee.
    Before SAMUEL, BOUTALL and STOULIG, JJ.
   STOULIG, Judge.

A review of the proceedings discloses, and supplemental briefs confirm, there was no signed judgment (an indispensable prerequisite for a valid appeal) when the record was lodged in this court. (Pearce ex rel. Livestock Sanitary Board v. Johnson, 250 So.2d 567 (La.App. 3rd Cir. 1971): and Mossler Acceptance Co. v. Moliere, 181 So. 228 [Orl.La.App.1938]). Accordingly we dismiss this appeal without prejudice.

APPEAL DISMISSED.

BOUTALL, Judge

(concurring).

I agree that a written, signed judgment is an indispensable prerequisite for a valid appeal in a case of this type (the dismissal of a petition for adoption after hearing on the merits) and that dismissal of the appeal without prejudice is a proper result. However, in this case we are informed in brief that the law does not require a written, signed judgment in a case such as this. If this proposition is correct, then our dismissal for lack of such a judgment in the record is erroneous. In light of the allegations contained in brief, the action we take here, although correct, will appreciably lengthen the amount of time necessary to final adjudication of the rights of the litigants. Under these particular facts, a speedier and less costly result could be achieved by a remand ordering the trial court to sign a judgment.


author: REDMANN, Judge.

text:
    Sandra P. ROBINSON et al. v. GENERAL MOTORS CORPORATION et al.
    No. 7192.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Benjamin J. Birdsall, Jr., Birdsall, Al-verez & Rodriguez, New Orleans, for plaintiffs-appellants.
    Gordon F. Wilson, Jr., Dodge, Friend, Wilson & Spedale, New Orleans, for defendants-appellees Shirley H. Bordelon and St. Paul Fire & Marine Ins. Co.
    Peter L. Bernard, Jr., Jerry L. Saporito, Bernard, Micholet & Cassisa, Metairie, for defendant-appellee General Motors Corp.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   REDMANN, Judge.

A jury answering “interrogatories” “award [ed]” to each of three personal injury plaintiffs the exact amount of medical expenses and, for one plaintiff, lost wages, but for each plaintiff awarded “none” as damages for pain and suffering. Plaintiffs appeal from the judgment against their host driver and her insurer for the amount of those “awards”, seeking increase in quantum.

Juries have “much discretion”, C.C. 1934(3), in assessing non-pecuniary damages. “The question”, states Bitoun v. Landry, La.1974, 302 So.2d 278, 279, “is not whether a different award might have been more appropriate, but whether the award of the trial court can be reasonably supported by the evidence and justifiable inferences from the evidence before it.”

The inferences which the jury may have made in this case — and it is not our function to agree or disagree, but only to decide their reasonable supportability — include that all testimony of pain and suffering was exaggerated (e. g., blood “gushing” from one plaintiffs bleeding nose, compared to the doctor’s description of a “tiny laceration”), and that, for one plaintiff, actual hospitalization for 12 days (at least in part because of a pre-existing and unaffected heart condition) and loss of wages for six weeks, and, for all plaintiffs, additional medical examinations and treatment for neck and back pains three and a half months after the accident (when all three went to the same doctor at the same time) could not fairly be attributed to the accident.

Perhaps the jury felt that by awarding the full amount of medical expenses and lost wages, including those not due to the accident — a total of $1,592 for Mrs. Pas-qua, $224 for Mrs. Morrissey and $173 for the mother of nine-year-old Robinson — it was sufficiently compensating for both legitimate pecuniary losses and for pain and suffering as well. Perhaps those same amounts in a general verdict could pass muster as within the jury’s much discretion, on the theory that, in effect, the jury refused much of the medical expenses and lost wages as uncaused by. the accident, and included general damages of about $1,000 to Mrs. Pasqua and about $100 each to Mrs. Morrissey and young Robinson.

But we do not have a general verdict, and an award of “none” as damages for pain and suffering is not an exercise of discretion as to amount but a refusal of an award. If a jury deems missing work or incurring certain medical expenses unjustified, it may disallow those items, but it may not refuse general damages to plaintiffs with objective injuries.

Mrs. Pasqua had a broken nose and bruised chest, Mrs. Morrissey a bruised leg and lower ribs with costal con-dyle separation, and young Robinson a visible bump on the head, and should receive some reparation for those general damages. There is, however, no complaint of any erroneous instruction of the jury or any other impropriety which would suggest we disregard altogether the jury’s discounting of plaintiffs’ injuries. We therefore fix general damage awards towards the lower limits of the much discretion C.C. 1934(3) grants.

The judgment is amended to increase the award to Mrs. Pasqua by $1,000, that to Mrs. Morrissey by $750, and that to Mrs. Robinson by $100 for her child.


author: LEMMON, Judge. GULOTTA, Judge

text:
    Raoul E. DRANE v. CITY OF NEW ORLEANS.
    No. 7445.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.

      Martin A. Welp, New Orleans, for plaintiff-appellant.
    Philip S. Brooks, City Atty., Jackson P. McNeely, Asst. City Atty., New Orleans, for defendant-appellee.
    Before LEMMON, GULÓTTA and STOULIG, JJ.
   LEMMON, Judge.

.Plaintiff’s appeal in this workmen's compensation case questions a judgment maintaining exceptions of prescription and no cause of action.

Plaintiff, a fireman, alleged in his petition filed on June 26, 1972 that he suffered a job-connected heart attack on March 20, 1968, after which he was placed on active duty, sick leave status, that he never returned to work thereafter, and that on October 9, 1970 he was retired by the City of New Orleans on a disability pension. He further alleged:

“V
“Thereupon your petitioner inquired of the Superintendent of the Fire Department Chief Heid concerning workmen’s compensation benefits and was advised that he had no cause of action.
“VI
“Petitioner relied upon the department’s word and assumed that he could not recover, however, upon learning of the content of the Acts 1968, No. 337, Revised Statute 33:2581, petitioner now feels that he is entitled to workmen’s compensation for total and permanent disability.”

Thus, plaintiff’s petition, filed more than four years after his disabling heart attack, was prescribed on its face. Under such circumstances a compensation claimant faced with an exception of prescription has the burden of proving that the claim was not prescribed. Heymann v. Dixie Leasing Corp., 250 So.2d 118 (La. App. 4th Cir. 1971).

To avoid dismissal because of prescription, plaintiff argues in this court that he was led to believe his claim for compensation did not have to be filed while he was on active duty collecting full wages as sick pay, similar to the situation in Dupa- quier v. City of New Orleans, 260 La. 728, 257 So.2d 385 (1972). However, plaintiff did not allege this lulling in support of his cause of action. More importantly, even if plaintiff (by amended pleadings and proof) could overcome the running of prescription through October 1, 1970, when payment of full wages was discontinued, he did not file the petition until almost two years thereafter.

The only reason stated in the petition for plaintiff’s withholding suit until after October 1, 1970 was that the fire chief advised him he had no cause of action. This is not a sufficient reason to prevent the running of prescription.

A statement by the employer’s representative that the employee has no valid claim is entirely different from one that the employee will be taken care of [as in Landry v. Ferguson, La., 279 So.2d 185 (1973)], or one that compensation will be paid without suit. The latter statements to the employee indicate that the employer has recognized the claim, and an employee alleging late filing on account of such statements would assert a cause of action to estop the employer from pleading prescription.

However, a statement by an employer’s representative that the employe? has no valid claim is the equivalent of the employer’s denial of the claim. Such a statement would serve to notify the employee that he cannot rely on receiving compensation without suit and that he must seek legal advice or pursue his claim otherwise than through amicable settlement with the employer.

The allegation that such a statement was made thus does not reasonably excuse the delay in filing suit until after the prescriptive period had run.

The judgment is affirmed.

AFFIRMED.

GULOTTA, Judge

(concurring).

I concur with the result.

A petition seeking workmen’s compensation benefits filed more than two years after plaintiff suffered a heart attack (which caused the disability) and more than one year after plaintiff had been retired on a disability pension fails to state a cause of action because it has prescribed on its face. When it is apparent from the allegations in the petition that a cause of action is prescribed, plaintiff must allege sufficient facts to show an interruption of prescription. In the instant case, plaintiff failed to allege an interruption was caused, either by representation or action of his employer which lulled him into a belief that compensation benefits would be paid. Under the circumstances, the petition does not state a cause of action.

      . In the Dupaquier case the court recognized that “payment of unearned wages during disability is treated as workmen’s compensation, and one-year prescription runs from the last payment”, but nevertheless decided the case on the basis that plaintiff withheld suit until after his sick leave expired in reliance on misinformation released by Fire Department officials.

      . Thus, plaintiff’s petition did not state facts necessary to overcome the prescription apparent on the fact of the pleading. His argument, however, indicates the grounds of the objection raised by the exceptions (on this point) may possibly be removed by amendment, under which circumstances the court is mandated to order amendment. C.C.P. art. 934.

      .Plaintiff introduced no evidence at the trial of the exception of prescription.