author: DOMENGEAUX, Judge.

text:
    LOUISIANA INTRASTATE GAS CORPORATION, Plaintiff-Appellant, v. Hazel Mary LEDOUX, Defendant-Appellee.
    No. 5954.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.

      Lewis & Lewis by John M. Shaw, Opelou-sas, Provosty & Sadler by LeDoux R. Prov-osty, Jr., Alexandria, for plaintiff-appellant.
    J. Lee Wimberly, Jr., Vidrine & Wimberly, Church Point, Albert J. Boudreaux of Pavy & Boudreaux, Opelousas, Devillier & Ardoin by David S. Cook, Guillory, McGee & Mayeux by Donald Mayeux, Eunice, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

This is one of seven expropriation eases filed by the plaintiff-appellant, Louisiana Intrastate Gas Corporation, against various defendant landowners for the expropriation of the defendants’ property in order to lay a gas pipeline. The other cases are Louisiana Intrastate Gas Corporation v. Ledoux, 347 So.2d 8 (La.App. 3rd Cir. 1977); Louisiana Intrastate Gas Corporation v. Manuel et al., 347 So.2d 8 (La.App. 3rd Cir. 1977); Louisiana Intrastate Gas Corporation v. Ardoin, 347 So.2d 9 (La.App. 3rd Cir. 1977); Louisiana Intrastate Gas Corporation v. Wimberly, 347 So.2d 9 (La.App. 3rd Cir. 1977); Louisiana Intrastate Gas Corporation v. Brown, 347 So.2d 10 (La.App. 3rd Cir. 1977); and Louisiana Intrastate Gas Corporation v. Guillory et al., 347 So.2d 10 (La.App. 3rd Cir. 1977).

The seven cases were consolidated for trial and remain so on appeal. The original issues at trial were substantially the same in all cases. This is also true concerning the remaining single issue on appeal. We will discuss the common issue herein. However, separate decisions are being handed down this date in each case.

The plaintiff in these consolidated cases is a Louisiana corporation and is organized for the purposes, among others, of constructing, operating, and maintaining pipelines for the transmission or transportation of natural gas and the products and byproducts thereof and the sale of natural gas for resale. The plaintiff is granted expropriation rights under the provisions of LSA-R.S. 19:2(5). See also LSA-R.S. 45:301 et seq., LSA-R.S. 30:501 et seq.

The pipeline which was to be laid down across the properties of the various defendants was to serve Quality Gas Corporation so that it might provide gas to Dresser Industries, Inc., which planned to locate a new plant in Eunice, St. Landry Parish, Louisiana. The cases were tried only on the “right to take”. The District Court Judge denied the expropriations finding that there was no public use or purpose for the taking as required by Article 1, Section 4 of the 1974 Louisiana Constitution. He dismissed all suits.

The plaintiff perfected appeals in all cases; however, prior to the hearing date before this court, it filed motions to dismiss the appeals on the basis that an agreement with Continental Oil Company was finally effectuated for a long term gas exchange and transportation agreement which will enable appellant to serve Quality Gas Corporation, which in turn would serve the site for Dresser Industries at Eunice, Louisiana, without the necessity of construction of the proposed pipeline involved in these cases. The landowners do not object to the dismissals of these appeals, and consequently we grant them herein.

At the trial on the district level defendants had prayed for attorney fees, but that issue was not passed upon by the trial court, and is before us now, via answer to the appeal filed by the landowners.

Appellees-landowners contend that they are entitled to reasonable attorney fees. That issue is the only viable one remaining in these appeals.

Citation is not necessary for the proposition that in order for the landowners to recover attorney fees, they must show that they are entitled to them contractually. by jurisprudence, by statute, or under the constitution.

The landowners do not claim that their rights to attorney fees are contractual, and we find no jurisprudence which allows them such fees.

Appellees suggest their rights emanate from Article 1, Section 4 of the 1974 Constitution, LSA-R.S. 19:9, and LSA-R.S. 19:201.

The pertinent portion of Article 1, Section 4 of the 1974 Constitution reads as follows:

Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. Property shall not be taken or damaged by any private entity authorized by law to expropriate, except for a public and necessary purpose and with just compensation paid to the owner; in such proceedings, whether the purpose is public and necessary shall be a judicial question. In every expropriation, a party has the right to trial by jury to determine compensation, and the owner shall be compensated to the full extent of his loss. No business enterprise or any of its assets shall be taken for the purpose of operating that enterprise or halting competition with a government enterprise. However, a municipality may expropriate a utility within its jurisdiction. Personal effects, other than contraband, shall never be taken.
...” (Emphasis ours).
LSA-R.S. 19:9 deals with the manner in which property is valued for the purpose of compensating the owner. By Act 11 of the Extraordinary Session of the 1974 Louisiana Legislature, Sub-section “B” was added to LSA-R.S. 19:9. That statute now reads fully as follows:
“§ 9. Measure of compensation
A. In estimating the value of the property to be expropriated, the basis of assessment shall be the value which the property possessed before the contemplated improvement was proposed, without deducting therefrom any amount for the benefit derived by the owner from the contemplated improvement or work.
B. The owner shall be compensated to the full extent of his loss.”

It appears that Sub-section “B” of the above statute was added by the Legislature to correspond with the emphasized portion of the Constitutional Article quoted here.

A mere reading of the- constitutional provision and LSA-R.S. 19:9 indicates that the phrase—“The owner shall be compensated to the full extent of his loss”—deals with a situation only when the property is taken or damaged. Here, the landowners’ property was not “taken”, nor was it “damaged”, consequently these referred to provisions offer no umbrage to the appellees herein. We are not here concerned with severance or consequential damages. There must be a taking to recover either. Severance damages are due when a portion of the condemnee’s property is taken and the remainder is damaged. Consequential damages come into play when an owner’s property is damaged by virtue of a taking from some other owner, and the public work contemplated by the taking specially damages the complainant’s property. For a more detailed discussion of severance and consequential damages, see Gulf States Utilities Company v. Cormier, 182 So.2d 176 (La.App. 3rd Cir. 1966); and Gulf States Utilities Company v. Comeaux, 182 So.2d 187 (La.App. 3rd Cir. 1966).

LSA-R.S. 19:201 reads in pertinent part as follows:

“A court of Louisiana having jurisdiction of a proceeding instituted by' the State of Louisiana, a parish, a municipality or an agency of any of them vested with the power of expropriation, to acquire real property by expropriation, shall award the owner of any right, or title to, or interest in such real property such sum as will, in the opinion of the court, reimburse such owner for his reasonable attorney fees actually incurred because of the expropriation proceeding, if the final judgment is that the plaintiff cannot acquire the real property by expropriation or if the proceeding is abandoned by the plaintiff. Any such award shall be paid from the same funds from which the purchase price of the property would have been paid . . .”

19:201 allows attorney fees under the specified conditions to an owner, only when the appropriating authority is the State of Louisiana, a parish, a municipality or an agency of any of them.

In these expropriation cases the expropriating authority is not the state, a parish or municipality or an agency of either, hence the provisions of LSA-R.S. 19:201 do not apply. The Legislature in enacting this section, for whatever reason, limited recovery of attorney fees to unsuccessful expropriation proceedings brought by the State, its political subdivisions and agencies. We are powerless to extend its provisions by analogy to expropriators not included within its scope. Private entities with power to expropriate are not subject to the penalty set out in LSA-R.S. 19:201.

Appellee also cites the case of Parish of Jefferson v. Harimaw, Inc., 297 So.2d 694 (La.App. 4th Cir. 1974) in furtherance of the contention that attorney fees are due. That case has no application herein, if for no other reason that the expropriating authority therein was a “parish” as contemplated by LSA-R.S. 19:201.

For the above and foregoing reasons it is ordered that this appeal be and the same is hereby dismissed. It is further ordered that the appellee’s prayer for attorney fees is denied.

All costs are assessed against plaintiff-appellant, Louisiana Intrastate Gas Corporation.

APPEAL DISMISSED.

      . Continental Oil Company by contract presently serves the City of Eunice with gas, and apparently prior to this agreement, the City of. Eunice, Continental and/or the plaintiff herein could not come to terms for the extra amount of gas over and above Continental’s contractual obligations, which was needed to serve the energy needs of Dresser.

      . We express no opinion as to whether Article 1, Section 4 of the 1974 Constitution would authorize attorney fees as being a portion of the “full extent of his loss” in the event of a successful “taking” or damaging as a result of a taking. Our reason for nonexpression in this instance is simply that any opinion regarding same would be dicta.

      . LSA-R.S. 19:8 and LSA-R.S. 48:453 provide for attorney fees under certain conditions when the compensation offered is less than that actually awarded. Neither statute can be applied herein. One applies to the “quick taking statute” and both anticipate reaching the question of just compensation. That latter stage was not reached herein.


source: Caselaw Access Project

license: Public Domain

text:
    LOUISIANA INTRASTATE GAS CORPORATION, Plaintiff-Appellant, v. Maxime LEDOUX, Jr., Defendant-Appellee.
    No. 5955.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Lewis & Lewis by John M. Shaw, Opelou-sas, Provosty & Sadler by LeDoux R. Prov-osty, Jr., Alexandria, for plaintiff-appellant.
    J. Lee Wimberly, Jr., Vidrine & Wimberly, Church Point, Albert J. Boudreaux of Pavy & Boudreaux, Opelousas, Devillier & Ardoin by David S. Cook, Guillory, McGee & Mayeux by Donald Mayeux, Eunice, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

For the reasons stated in the companion case of Louisiana Intrastate Gas Corporation v. Ledoux, 347 So.2d 8, in which a separate decision is being rendered by us this date, it is ordered that this appeal be and the same is hereby dismissed. It is further ordered that the appellee’s prayer for attorney fees is denied.

All costs are assessed against plaintiff-appellant, Louisiana Intrastate Gas Corporation.

APPEAL DISMISSED.


text:
    LOUISIANA INTRASTATE GAS CORPORATION, Plaintiff-Appellant, v. Charles Burkinan MANUEL, et al., Defendants-Appellees.
    No. 5956.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Lewis & Lewis by John M. Shaw, Opelou-sas, Provosty & Sadler by LeDoux R. Prov-osty, Jr., Alexandria, for plaintiff-appellant.
    J. Lee Wimberly, Jr., Vidrine & Wimberly, Church Point, Albert J. Boudreaux of Pavy & Boudreaux, Opelousas, Devillier & Ardoin by David S. Cook, Guillory, McGee & Mayeux by Donald Mayeux, Eunice, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

For the reasons stated in the companion case of Louisiana Intrastate Gas Corporation v. Ledoux, 347 So.2d 8, in which a separate decision is being rendered by us this date, it is ordered that this appeal be and the same is hereby dismissed. It is further ordered that the appellees’ prayer for attorney fees is denied.

All costs are assessed against plaintiff-appellant, Louisiana Intrastate Gas Corporation.

APPEAL DISMISSED.


text:
    LOUISIANA INTRASTATE GAS CORPORATION, Plaintiff-Appellant, v. Whitney R. ARDOIN, Defendant-Appellee.
    No. 5957.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Lewis & Lewis by John M. Shaw, Opelou-sas, Provosty & Sadler by LeDoux R. Prov-osty, Jr., Alexandria, for plaintiff-appellant.
    J. Lee Wimberly, Jr., Vidrine & Wimberly, Church Point, Albert J. Boudreaux of Pavy & Boudreaux, Opelousas, Devillier & Ardoin by David S. Cook, Guillory, McGee & Mayeux by Donald Mayeux, Eunice, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

For the reasons stated in the companion case of Louisiana Intrastate Gas Corporation v. Ledoux, 347 So.2d 8, in which a separate decision is being rendered by us this date, it is ordered that this appeal be and the same is hereby dismissed. It is further ordered that the appellee’s prayer for attorney fees is denied.

All costs are assessed against plaintiff-appellant, Louisiana Intrastate Gas Corporation.

APPEAL DISMISSED.


text:
    LOUISIANA INTRASTATE GAS CORPORATION, Plaintiff-Appellant, v. Lee (Blanc) WIMBERLY, Defendant-Appellee.
    No. 5958.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Lewis & Lewis by John M. Shaw, Opelou-sas, Provosty & Sadler by LeDoux R. Prov-osty, Jr., Alexandria, for plaintiff-appellant.
    J. Lee Wimberly, Jr., Yidrine & Wimberly, Church Point, Albert J. Boudreaux of Pavy & Boudreaux, Opelousas, Devillier & Ardoin by David S. Cook, Guillory, McGee & Mayeux by Donald Mayeux, Eunice, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

For the reasons stated in the companion case of Louisiana Intrastate Gas Corporation v. Ledoux, 347 So.2d 8, in which a separate decision is being rendered by us this date, it is ordered that this appeal be and the same is hereby dismissed. It is further ordered that the appellee’s prayer for attorney fees is denied.

All costs are assessed against plaintiff-appellant, Louisiana Intrastate Gas Corporation.

APPEAL DISMISSED.


text:
    LOUISIANA INTRASTATE GAS CORPORATION, Plaintiff-Appellant, v. Bruce BROWN, Defendant-Appellee.
    No. 5959.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Lewis & Lewis by John M. Shaw, Opelou-sas, Provosty & Sadler by LeDoux R. Prov-osty, Jr., Alexandria, for plaintiff-appellant.
    J. Lee Wimberly, Jr., Vidrine & Wimberly, Church Point, Albert J. Boudreaux of Pavy & Boudreaux, Opelousas, Devillier & Ardoin by David S. Cook, Guillory, McGee & Mayeux by Donald Mayeux, Eunice, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

For the reasons stated in the companion case of Louisiana Intrastate Gas Corporation v. Ledoux, 347 So.2d 8, in which a separate decision is being rendered by us this date, it is ordered that this appeal be and the same is hereby dismissed. It is further ordered that the appellee’s prayer for attorney fees is denied.

All costs are assessed against plaintiff-appellant, Louisiana Intrastate Gas Corporation.

APPEAL DISMISSED.


text:
    LOUISIANA INTRASTATE GAS CORPORATION, Plaintiff-Appellant, v. Jennerson Marie Manuel GUILLORY et al., Defendants-Appellees.
    No. 5960.
    Court of Appeal of Louisiana, Third Circuit.
    May 13, 1977.
    Rehearing Denied June 24, 1977.
    Lewis & Lewis by John M. Shaw, Opelou-sas, Provosty & Sadler by LeDoux R. Prov-osty, Jr., Alexandria, for plaintiff-appellant.
    J. Lee Wimberly, Jr., Vidrine & Wimberly, Church Point, Albert J. Boudreaux of Pavy & Boudreaux, Opelousas, Devillier & Ardoin by David S. Cook, Guillory, McGee & Mayeux by Donald Mayeux, Eunice, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and ROGERS, JJ.
   DOMENGEAUX, Judge.

For the reasons stated in the companion case of Louisiana Intrastate Gas Corporation v. Ledoux, 347 So.2d 8, in which a separate decision is being rendered by us this date, it is ordered that this appeal be and the same is hereby dismissed. It is further ordered that the appellees’ prayer for attorney fees is denied.

All costs are assessed against plaintiff-appellant, Louisiana Intrastate Gas Corporation.

APPEAL DISMISSED.


author: WATSON, Judge.

text:
    Harry G. PROPHIT, Jr., et al. v. McSWEEN, BROOK AND BOLTON et al.
    No. 5977.
    Court of Appeal of Louisiana, Third Circuit.
    May 15, 1977.
    Rehearing Denied June 24, 1977.
    Burnett, Sutton, Walker & Callaway by Bobby D. Sutton, Shreveport, La., for plaintiff-appellant.
    Kramer & Davis by James D. Davis, Alexandria, for defendant-appellee.
    Before WATSON, FORET and HEARD, JJ.
   WATSON, Judge.

This is an appeal from a judgment denying plaintiff a refund of part of a legal fee. The fee was paid in advance to defendant attorneys, plaintiff being required to employ them by a lending institution to close the interim construction loan and the permanent loan on an apartment complex. The attorneys did not close the permanent loan because plaintiff secured financing from a different lending institution, which required its own attorneys. The trial court held that the defendant attorneys were entitled to retain their entire fee of $17,250, while plaintiff contends that it is entitled to a substantial refund.

Plaintiff is Prophit Associates, d/b/a Cypress Manor Apartments, a Louisiana partnership in commendam, appearing through its general partner, Harry G. Pro-phit, III, (hereafter Prophit); and the defendants are McSween, Brook and Bolton, a law partnership, and the individual partners, Harold B. McSween, Jack Pierce Brook and Frank R. Bolton, Jr.

In late 1972 or early 1973, Prophit approached Rapides Savings and Loan Association of Alexandria about permanent financing of an apartment complex in Monroe, Louisiana to be known as Cypress Man- or Apartments. A commitment was made by Rapides to lend $1,725,000 on certain terms and conditions, one of which was that Prophit pay a fee to Rapides for the one-year’s commitment and another that Pro-phit employ the law firm of McSween, Brook and Bolton to close both the permanent loan and the interim construction loan. Rapides was not providing the interim construction loan, which was being obtained by Prophit from Central Bank of Monroe. Prophit paid the fee for the commitment but had no obligation to accept or use the Rapides loan, Prophit in effect purchasing an option to obtain a loan. Prophit engaged McSween, Brook and Bolton to close the interim and permanent loans.

Prophit was billed for and paid the attorney’s fee to the defendant law partnership. A member of the firm, Jack Brook, testified that he commenced work on the closing of the construction loan and this loan was in fact completed although the permanent loan with Rapides was not. The record is not entirely clear as to what services attorney Brook performed. His testimony is uncertain as to what documents were prepared and what other activities he conducted, although it is reasonably established that he traveled to Monroe on two or three occasions; that he prepared certain forms in connection with closing the construction loan; and that he performed legal research on the subject of partnerships in commen-dam.

It is doubtful that Brook examined the title to the property. This constituted a major portion of the legal work to be done, but a Monroe attorney, John Parkerson, apparently did the title work because he caused to be issued a policy of title insurance and was paid $4,006.50, over and above the $17,250 presently in dispute. No title opinion by the defendant attorneys is in evidence and Brook admitted candidly that he did not recall preparing one.

Since Prophit did not use the Rapides loan for permanent financing, the defendant law firm was never called on to close the permanent loan. Prophit obtained a loan from a savings institution in Monroe which required that its Monroe attorneys be used.

Prophit did not notify the defendant law firm that other financing had been found. However, there is evidence that attorney McSween, who was not only a partner in the law firm but also an official of Rapides, was made aware as early as June 22, 1973, that Prophit had obtained other permanent financing.

Prophit, through attorneys, requested a refund of a portion of the legal fee. When it was not forthcoming, Prophit sued. After certain preliminaries, defendant answered, contending that through no fault of theirs Prophit had obtained other financing and they had never been given the opportunity to complete their services although they stood ready, willing and able to do so.

Following trial, the trial court decided in favor of the defendant law firm and against plaintiff.

The issues to be resolved on appeal are: (1) whether plaintiff was entitled to discharge the defendant law firm prior to the completion of their services; and (2) if so, what is the quantum meruit fee which the attorneys are entitled to retain, or stated differently, what unearned portion of the previously paid fee should be restored to plaintiff.

As to the first issue, whether plaintiff was entitled to discharge the defendant law firm before their services had been completed, it is established that the appointment of an attorney is a mandate revocable at the client’s will. LSA-C.C. art. 3028; Barranger, Barranger and Jones v. Cromp, 286 So.2d 474 (La.App. 1 Cir. 1974) writ denied 288 So.2d 647 (La.); Smith v. Westside Transit Lines, Inc., 313 So.2d 371 (La.App. 4 Cir. 1975) writ denied 318 So.2d 43 (La.). The argument that the defendant law firm was ready, willing and able to perform or that Prophit discharged them because he found a better business deal does not override the basic concept that the client may discharge his attorney with or without reason. There is a suggestion of some fault on the part of plaintiff, but plaintiff merely got a better loan elsewhere and was entitled to discharge the prior attorneys, because he was required to use other attorneys by the second lending institution. LSA-C.C. art. 3030. Prophit had not selected the defendant law firm in the first instance, but was required to employ them.

The next question is what was the value of the services rendered by the defendant law firm, that is, how much of the fee are they entitled to retain and how much must they refund to Prophit. There is considerable testimony by attorney Brook in the record concerning the time which he spent on plaintiff’s business. However, if valued at Brook’s customary hourly rate, the total amount would be only three or four thousand dollars. A strict hourly computation would not take into consideration the size of the transaction or other factors making such a fee inadequate.

On the other hand, the conclusion stated, as dicta, by the trial judge in reasons for judgment that only two-and-one-half to four per cent of the work was left to be done on the contracted legal services, which would entitle Prophit to a refund of less than $690, is unconvincing.

The only expert testimony in the record concerning the value of the legal services or the amount of work left to be done is.the testimony of Charles Peatross, a Shreveport attorney, who was qualified as an expert in the closing of large construction loans. This expert estimated that fifty per cent of the work had been completed and fifty per cent remained. Since this is the only expert testimony in the record and since the evidence supports his conclusion, we find that, on quantum meruit basis, the defendant law firm is entitled to fifty per cent of the fee paid and plaintiff is entitled to a fifty per cent refund.

A law partnership is an ordinary partnership; and the partners are bound jointly, not in solido. Dyer v. Drew, 14 La.Ann. 657 (1859). The plaintiff is entitled to a judgment against the partnership and to a judgment jointly against the individual partners for each’s virile share. LSA-C.C. art. 2872; National Oil Works v. Korn Bros., 164 La. 800, 114 So. 659 (1927).

Therefore, the judgment of the trial court is reversed and it is ordered, adjudged and decreed that there be judgment herein in favor of Prophit Associates, d/b/a Cypress Manor Apartments, and against the partnership, McSween, Brook and Bolton, in the amount of $8,657, plus legal interest from date of judicial demand until paid, and for all costs, and against Harold B. McSween, Jack Pierce Brook and Frank R. Bolton, Jr., as partners, jointly for their individual share of the judgment, legal interest and costs. Costs, both on trial and appeal, are taxed against the defendants.

REVERSED AND RENDERED.

      . Suit was originally filed by Harry G. Prophit, Jr., et al but was amended to show the correct plaintiff as Prophit Associates.

      . This figure appears variously as $4,007, $4,006, and $4,006.50.


author: CULPEPPER, Judge.

text:
    Jo Ann S. BURLEIGH, Plaintiff and Appellant, v. ARGONAUT INSURANCE COMPANY et al., Defendant and Appellee.
    No. 5946.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1977.
    Rehearing Denied June 24, 1977.

      Vance R. Andrus, Lafayette, for plaintiff and appellant.
    Allen, Gooch & Bourgeois by Paul J. Breaux, Lafayette, for defendant and ap-pellee.
    Before HOOD, CULPEPPER and STOKER, JJ.
   CULPEPPER, Judge.

In this workmen’s compensation case the trial judge sustained defendant’s exception of prescription and dismissed plaintiff’s suit. Plaintiff appealed.

The issue is whether plaintiff’s injury “developed” within one year prior to the time she filed this suit.

The facts, as alleged in plaintiff’s petition, and as shown by her testimony at the hearing on the exception of prescription, are that plaintiff was employed as a practical nurse by the Acadia-St. Landry Hospital. While she was handling a patient on August 10,1974, the patient made an unexpected move and something “snapped” in plaintiff’s back, causing her great pain. Plaintiff kept on working, but the pain continued and intensified, and on August 14, 1974 she had to leave work because of pain and numbness in her back and legs. On August 16, 1974, she was admitted to a hospital where she was treated for five days. She returned to the same employment on September 16, 1974 and although she was able to perform her duties as a practical nurse, she continued to have pain and discomfort.

In November of 1974, she stopped working temporarily because she married on December 24, 1974. She did not return to work until June of 1975, at which time she was employed by Professional Health Services, performing essentially the same duties as a practical nurse which she had performed at the hospital, but she worked in the homes of the patients. She continued to work in this new employment until March 11, 1976. At that time, due to the increased pain in her back and leg, she became unable to handle the patients.

She testified she had been seeing Dr. Savoy, a chiropractor, and Dr. Frederick Mayer, a specialist in orthopedies, during the time she had been working for Professional Health Services. There is no evidence in the record as to the diagnosis or treatment by these physicians. However, plaintiff did testify that she was seen by Dr. Mayer as a result of appointments made for her by the defendant insurer. Dr. Mayer referred her to Dr. Oberdyke, who in turn sent her to Dr. Osborne, an orthopedic specialist in Shreveport. This latter physician treated her back condition with “electrical stimulation”. According to plaintiffs testimony, two electrodes were inserted in her back and two down her left leg, and these were connected to a battery which she wears around her waist. She says this treatment relieves her back pain.

About the end of March, 1976, plaintiff obtained employment in the office of Dr. Bergeron, an allergist. This new employment in the office did not require that she handle patients or use her back. She says she is unable, because of the pain in her back and her leg, to return to employment as a practical nurse requiring the lifting of patients.

There is no evidence in the record of any expert medical opinion or treatment, except that related by plaintiff in her testimony. Plaintiffs testimony is uncontradicted.

The prescriptive question involved is the development of injury rule set forth in LSA-R.S. 23:1209. This statute provides in pertinent part that all claims for workmen’s compensation payments prescribe one year after the accident, except that “where the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until the expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident.”

Plaintiff filed the present suit on July 1, 1976, which was more than one year but less than two years from the date of the accident.

In Hebert v. Hartford Accident and Indemnity Company, 331 So.2d 222 (La.App. 3rd Cir. 1976), writ refused, La., 334 So.2d 229, for the reason “On the facts found, no error of law.”, we construed the development of injury rule in a very similar factual situation. The majority found the following facts: Mr. Hebert, a policeman, injured his right knee in July of 1973 when he fell from his motorcycle. He was immediately disabled, was hospitalized twice and then treated on an outpatient basis until September of 1973, when he was released to resume his employment. He returned to work, first on a light duty basis and later to the full duties of a patrolman, which he was performing at the time he was injured. He continued working as a patrolman until March of 1974, and all during this time he was having intermittent pain, swelling and locking of the knee following strenuous activity. Finally, on March 12,1974, while on patrol duty, his knee became extremely swollen and he had to quit work. There was no new aggravating injury. Suit was filed on February 13, 1975, which was more than a year from the date of the accident and his initial disability but was within a year from the date he finally had to quit working on March 12,1974, and was within two years from the date of the accident. Although the writer of this review dissented on the facts, the court was unanimous in its holding as to the applicable law. We held that under the jurisprudence, beginning with Mottet v. Libbey-Owens-Ford Glass Company, 220 La. 653, 57 So.2d 218 (1952), the “development of injury” signifies something more than the initial occurrence of pain. The injury does not develop until the employee is disabled and this disability becomes manifest either to the injured employee or his employer. We then stated the rationale of the cited cases to be an effort to encourage rather than penalize an employee who seeks to continue working, despite what later turns out to be disability. In the situation where there is an initial manifestation of injury and of disability, but the employee is able to return to work, a new period of prescription of one year will nevertheless commence where there is either a new injury or a disabling remanifestation of the symptoms of the initial injury.

Within a few months after our decision was rendered in Hebert, our brothers of the Second Circuit reached the same conclusion in Harris v. Seaboard Fire & Marine Insurance Company, 337 So.2d 262 (La.App., 2d Cir. 1976), writ refused, La., 339 So.2d 853, for the reason “No error of law.” In Harris the rule is succinctly stated as follows:

“In a workmen’s compensation suit for disability benefits, the disabling injury does not fully develop until the workman cannot perform his duties and the prescriptive period does not commence to run until discontinuance of employment, subject to the requirement that suit be filed within two years after the date of the accident. In a suit for total and permanent disability benefits the disabling injury does not develop until the workman becomes finally unable to perform his duties and the prescriptive period does not commence to run until the workman’s employment is finally discontinued. If the workman is temporarily unable to perform his duties or temporarily ceases working, the prescriptive period does not commence.”

Applying these rules to the above stated facts, as disclosed by the pleadings and by the testimony of plaintiff at the hearing on the exception of prescription, the disabling injury did not fully develop until plaintiff finally became unable to perform her duties in March of 1976. Prescription did not commence at the time of the initial manifestation of the injury and disability immediately following the accident. Plaintiff does not contend that there was any new aggravation of the initial injury. But her uncontradicted testimony is that after returning to work she continued to work with pain in her back and leg until on March 11, 1976 she finally had to terminate the strenuous duties she was performing. Under these circumstances, prescription did not begin to run until March 11, 1976, and this case filed on July 1, 1976 was within one year from the development of injury.

The defendant relies on Guillory v. Maryland Casualty Company, 227 So.2d 620 (La.App. 3rd Cir. 1969) and several other cases involving similar facts. In Guillory, the initial injury was on August 7, 1967 when plaintiff fell and twisted his knee. He quit work on September 1, 1967, which was about three weeks after the accident, and went to teach in a high school. The facts found were that the injury and the disability were manifest and developed at the time he quit work. Plaintiff did not consult a physician until November 13,1967, at which time the diagnosis was that he was disabled. He filed suit on October 31, 1967, which was more than a year from the time he quit work, but was less than a year from the time the physician made the diagnosis of disability. The court held the prescription of one year commenced from the time plaintiff had to quit work, rather than the time the physician diagnosed the disability. Thus, Guillory is distinguished from the present case, in which suit was filed within one year from the time plaintiff finally became disabled and left her employment.

Defendant also argues that the decision by the trial judge is based on controversial findings of fact and the trial court’s evaluation of the credibility of the plaintiff. The only findings of fact by the trial judge are contained in a brief statement dictated into the record at the conclusion of the hearing on the exception of prescription. The judge states that although he finds plaintiff is disabled at the present time, he had no alternative but to follow the law as established by the Third Circuit Court of Appeal. It may be that at the time the trial judge decided the present case on September 23, 1976, he was not aware of the very recent decision by this Court in Hebert v. Hartford, supra. Nevertheless, under the facts of the present case and the applicable law as stated in the Hebert case from the Third Circuit and in the Harris case from the Second Circuit, the exception of prescription must be overruled.

For the reasons assigned, the judgment appealed is reversed and set aside. The exception of prescription and/or peremption filed by the defendant is overruled. The case is remanded to the district court for further proceedings in accordance with law and the views expressed herein. All costs of this appeal are assessed against the defendant-appellee.

REVERSED AND REMANDED.

HOOD, J., concurs in the result.


author: HOOD, Judge.

text:
    John H. HODNETT, Plaintiff-Appellant, v. Lola HODNETT, Defendant-Appellee.
    No. 5967.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1977.
    Rehearing Denied June 24, 1977.

      Hagood, Moss & Fitzgerald by David S. Fitzgerald, Jr., Lafayette, for plaintiff-appellant.
    John Rixie Mouton, Lafayette, for defendant-appellee.
    Before HOOD, CULPEPPER and STOKER, JJ.
   HOOD, Judge.

Plaintiff, John H. Hodnett, obtained the issuance of a rule directing defendant, Mrs. Lola Hodnett, to show cause why the alimony payments which he previously had been ordered to make should not be eliminated or reduced. Judgment was rendered by the trial court reducing the alimony payments from $285.00 to $230.00 per month. Plaintiff appealed.

The issue presented is whether defendant is entitled to recover alimony from her former husband, and if so, whether the award of $230.00 per month is excessive.

A judgment was rendered on December 18, 1970, decreeing a divorce between the parties and ordering plaintiff to pay to Mrs. Hodnett alimony and child support in the amount of $350.00 per month. The child became emancipated shortly thereafter, and judgment was rendered on March 23, 1971, ordering plaintiff to pay alimony to Mrs. Hodnett in the amount of $285.00 per month.

Plaintiff instituted this action on July 14, 1976, seeking to be relieved completely from the payment of alimony to his former wife, or alternatively to have the amount of the earlier award reduced. He contends that he is entitled to that relief because his former wife, due to a change in circumstances, now has sufficient means for her support.

Mrs. Hodnett is presently employed and she has a net income of $71.00 per week from that employment. She also earns $6.00 per day for working as a sitter about four months out of each year. She has no other income.

She owns the home in which she lives in Lafayette. That horpe is worth $41,000.00, but it is affected by a mortgage which secures the payment of a debt of about $10,000.00, and defendant testified without contradiction that “It needs a roof very bad and it needs a good paint job.” A small building, described by defendant as a “shack,” is located behind her home. Mrs. Hodnett rented that building out as an apartment three or four years ago, but it has not been occupied since that time, except that defendant’s daughter lived in it for about three months in 1975. Defendant indicated that she is not willing to rent it again, since it is located within 20 feet of her back door.

Mrs. Hodnett has no dependents. She bought a 1974 Toyota automobile in 1975, and she makes payments of $100.00 per month on the purchase price. She has a balance of about $200.00 in her checking account. She does not have a savings account of any kind, and she owns no stocks or bonds or any other assets.

Defendant submitted a list of her expenses, showing that she needs $569.13 per month for her support. It appears to us that she is reasonable and conservative in her claims. No effort was made by plaintiff to contradict her testimony as to her needs.

Mr. Hodnett receives a gross income of $1,746.76 per month. He remarried on March 23, 1973, and he and his second wife have a two-year-old child. His wife is a nurse, and she has a substantial income in addition to that of plaintiff. Her earnings in 1976, up to the time of the trial, averaged about $579.00 per month.

The trial judge found that Mrs. Hodnett needs $570.00 per month for her support, and that she has an income of approximately $340.00 per month. He rendered judgment, therefore, ordering plaintiff to pay alimony to defendant in the amount of $230.00 per month.

Plaintiff does not contend on this appeal that he is financially unable to make the alimony payments which he previously was ordered to pay. He takes the position only that defendant now has sufficient means with which to meet her needs. His principal argument is that Mrs. Hodnett has an equity in her home of $31,000.00, or at least of $25,000.00, after deducting closing costs and realtor’s fees following a sale of the premises, and that “the equity in her home must be considered with her income as ‘all of her means.’ ” He concedes that defendant should not be forced to sell her home, but he argues that she should be considered as receiving income in the amount which she would receive if she should sell it and invest the proceeds of that sale. He contends that if she would sell and invest the purchase price, she would receive an income of about $109.37 per month from the investment, and she would be relieved of the burden of making payments on the mortgage note and other maintenance expenses, which amount to $179.25 per month. His argument, as we understand it, is that in computing the amount of alimony which plaintiff should be condemned to pay, we should deduct $180.00 from defendant’s claimed living expenses, and we also should include in our computations a finding that she has an additional income of $109.37 per month. We do not agree with that argument.

A wife is not required to sell her home or to deplete her assets entirely before she is entitled to alimony under LSA-C.C. art. 160. Gautreaux v. Cormier, 315 So.2d 164 (La.App. 3 Cir. 1975); Procell v. Procell, 226 So.2d 590 (La.App. 2 Cir. 1969); Morgan v. Morgan, 260 So.2d 336 (La.App. 4 Cir. 1972); Latour v. Guilbeau, 256 So.2d 731 (La.App. 3 Cir. 1972). This is true particularly, we think, in a case such as the instant suit, where the wife is occupying the real property she owns as her home. By doing so she eliminates from her living expenses the cost of renting an apartment or another home, which may offset all or at least a part of the income she would derive from the leasing or sale of her property.

We distinguish the cases relied on by plaintiff. In Gautreaux v. Cormier, supra, for instance, the residence building owned by the wife was income producing property. She was not using it and did not need to use it as her residence. We held that under those circumstances the wife should be credited with receiving the income which the property would bring if leased to a tenant, but that she should not be required to sell the property. In Frederic v. Frederic, 302 So.2d 903 (La.1974), and in Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950), the wife had substantial assets, including cash, or bonds, or other income producing capital, and the Supreme Court merely applied the established rule that all of the wife’s assets, as well as her income, should be considered in determining whether she has sufficient means for her support.

We have considered all of the wife’s assets in the instant suit, which consist largely of her equity in the property occupied by her as her home. We find that that property is not an income producing capital asset. The income which she might obtain by vacating the homeplace and renting or selling it may be offset by the rental she would have to pay for another place in which to live. We hold that under the circumstances presented here defendant should not be compelled to sell or rent her home, and she should not be credited with the income she would be able to derive from it in the event she should rent or dispose of it.

We also cannot agree with plaintiff that Mrs. Hodnett should be required to rent the apartment located behind her home, or that she should be credited with “a reasonable amount for said rent.” Since the apartment is near defendant’s back door, we think it must be treated as a part of the residence. The facts do not show that that apartment ever became an income producing capital asset, separate from the residence. Under the circumstances presented here, we conclude that defendant should not be required to rent out rooms in or parts of the residence she occupies as a home, or that she should be credited with the amount of rent she could obtain in the event she should rent them to tenants.

In the instant suit, we conclude that defendant is without sufficient means for her support, and that she is entitled to alimony under LSA-C.C. art. 160.

The trial judge is vested with much discretion in fixing the amount of alimony which the wife should receive, and the award of alimony made by him will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. Johnson v. Johnson, 293 So.2d 213 (La.App. 3 Cir. 1974); Cormier v. Cormier, 345 So.2d 228 (La.App. 3 Cir. 1977). We find no abuse of discretion on the part of the trial judge in this instance.

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

AFFIRMED.


author: HEARD, Judge. WATSON, Judge,

text:
    Alex THIBO et ux., Plaintiffs-Appellees, v. AETNA INSURANCE COMPANY et al., Defendants-Appellants.
    No. 5965.
    Court of Appeal of Louisiana, Third Circuit.
    May 20, 1977.
    Rehearing Denied June 24, 1977.
    W. Gerald Gaudet, of Voorhies & Labbe, Lafayette, Pugh, Buatt, Landry & Pugh, by L. G. Pugh, Jr., Crowley, for defendant-appellant.
    Edwards, Stefanski & Barousse, by Homer E. Barousse, Jr., Crowley, Ronald J. Bertrand, Rayne, for plaintiff-appellee.

      Before HOOD, CULPEPPER, WATSON, FORET and HEARD, JJ.
   HEARD, Judge.

This is a suit for personal injuries sustained by Katherine Thibo, wife of Alex Thibo, while she was dressing Kevin Free-land, the minor 3-year-old child of Barton Freeland, Jr. The plaintiff, Katherine Thi-bo, was employed by the Barton Freelands as a cook and housekeeper, for the take-home wages of $53.00 per week. Her duties included taking care of the defendants’ 3-year-old Mongoloid child, Kevin. The testimony revealed that Kevin is a strong, hyperactive child. The plaintiff testified he had to be watched constantly, and that she often had to chase and wrestle with him in the course of caring for him. On November 13, 1974, plaintiff was injured while attempting to dress the child. Kevin was standing on the bed and plaintiff was holding him with one hand, as usual, while reaching for his socks with the other. While plaintiff was off balance, Kevin jerked suddenly and plaintiff, an exceptionally large woman, was pulled sharply onto the bed. She stated she heard a “popping” sound and began to feel a pain in her back. Between November of 1974 and April of 1975, plaintiff visited several physicians, including a neurologist and an orthopedist. She was hospitalized for nine days, and was out of work for five months. At the time of trial, she was working as a cook at approximately the same pay she received before. She testified that she continues to suffer with her back. The trial court held that pursuant to the decision of the Supreme Court in Turner v. Bucher, 308 So.2d 270 (La.1975), appellants were strictly liable for any injuries caused by the children at the home and granted judgment against the father and homeowner and Aetna Insurance Company as his homeowner’s insurer. From this judgment defendants have appealed.

The contentions of appellants are (1) The trial court erred in holding that the rationale of Turner v. Bucher, supra, applied in this case, and (2) that plaintiff assumed the risk of the accident which was a natural and ordinary risk of her occupation.

The responsibility of the parents of minor children is set forth in C.C. Art. 2318, which states:

“The father, or after his decease, the mother, are responsible for the damage occasioned by their minor or unemanci-pated children, residing with them, or placed by them under the care of other persons, reserving to them recourse against those persons.”
“The same responsibility attaches to the tutors of minors.”

The Supreme Court held in Turner v. Bucher, supra, that under C.C. art. 2318, if the act of the child would be delictual if it were not for his age, the parent with whom he resides is legally at fault and therefore liable for the damage occasioned by the child’s act. This liability may be escaped when the parent shows the harm was caused by the fault of the.victim, by the fault of a third person, or by a fortuitous event. The court further stated that its holding in that case was limited to a situation where the victim is unwarned and unsuspecting of any impending harm from the acts of a child.

In the case of Fontenot v. Soileau, 336 So.2d 1006 (La.App. 3rd Cir. 1976), this court refused to apply the doctrine of strict liability imposed on the animal owners under Article 2321 and Holland v. Buckley, 305 So.2d 113 (La.1974). In this case, a child was injured when he was thrown from a horse while performing his duties as exercise boy. This court held that he had assumed the risk when he accepted employment as exercise boy, and that the harm suffered was encompassed by the ordinary risks of his occupation.

The plaintiff in this instant suit had been employed by the defendants for more than six months and part of her duties was caring for this Mongoloid child. She readily admitted that he was hyperactive and that she often had to wrestle with him and chase him about the house. When asked:

“Q. You had to wrestle with him every time?”
“A. Oh, yes, sir. Even to bathe him. You had to hold him in the tub, keep him from eating the soap . . . . He was happy and frisky all the time.”

In the case of Turner v. Bucher, supra, the plaintiff was struck from the rear by the bicycle being ridden by the child. She had no knowledge of the child as he approached her on the bicycle. She was unwarned and unsuspecting of any impending harm from the child.

In the present case, the plaintiff knew of the propensities of the child and we find that the holding of Turner v. Bucher, supra, does not apply to these facts.

We find that the present case is governed by the holding in Fontenot v. Soileau, 336 So.2d 1006 (La.App. 3rd Cir. 1976).

For the foregoing reasons, the holding of the trial court is reversed and set aside and that there is judgment in favor of the defendants, Aetna Insurance Company and Barton Freeland, Jr., and against Alex Thi-bo and his wife, Katherine Thibo, rejecting their demands. All costs of this appeal are assessed against plaintiffs-appellees.

REVERSED AND RENDERED.

FORET and CULPEPPER, JJ., concur in the result.

WATSON, J., dissents and assigns reasons.

WATSON, Judge,

dissenting:

Katherine Thibo was employed by the Freelands to perform duties as a housekeeper and to assist in taking care of Kevin, a three-year-old retarded child suffering from Down’s syndrome. Kevin was a strong, hyperactive child weighing about 37 pounds, who suffered from mental deficiency. Among other things, he was unable to talk.

On the date of the accident, Katherine was dressing the child; he was standing on the bed; she was holding him with one hand and reaching for his socks with the other. Kevin jerked suddenly and plaintiff experienced a twist and slip, as she described it, although it is not clear whether she fell across the bed.

When the child jerked her, Katherine suffered at least a severe lumbro-sacral sprain and possibly a ruptured inter-vertebral disc.

In this suit against her employer and her employer’s liability insurer, Katherine claims damages under the theory of strict liability as announced in Turner v. Bucher, 308 So.2d 270 (La., 1975).

The trial court found for the plaintiff and awarded her $11,000 in general damages plus specials.

The majority holds that Turner v. Bucher, supra, does not apply and that the claim is governed by Fontenot v. Soileau, 336 So.2d 1006 (La.App. 3 Cir. 1976).

The theory of the majority is that plaintiff’s claim is barred by assumption of the risk. Fontenot v. Soileau, supra, held that the young man injured in that case assumed the normal risks of his employment as an exercise boy, and this included the possibility of being thrown from a horse.

Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971) sets out the rules concerning assumption of risk in a strict liability case. I will quote at some length from Langlois:

“A plaintiff who with full knowledge and appreciation of the danger voluntarily exposes himself to the risks and embraces the danger cannot recover damages for injury which may occur.
“(4) We have here found absence of negligence, but we have found that the defendant is legally at fault. We must examine the plaintiff’s appreciation and knowledge of the risks, his ability to avoid or minimize the risks, and whether he has consented to encounter the risk. The interests of the parties must be balanced. Plaintiff is not required to surrender valuable rights and privileges because defendant’s conduct threatens him. Yet if the plaintiff could readily avoid or mitigate the damage caused by defendant’s conduct and he knows how to do so, he cannot act in such a manner as to invite injury.” 249 So.2d 140-141

While Katherine knew the three-year-old child she was dressing was an active and frisky child, it cannot be fairly said that she knowingly exposed herself to the risk and embraced the danger of sustaining a severe back injury by undertaking to dress the child. Nor did she act in a manner as to invite injury. Katherine did not “. . . embrace a known danger with that consent required by law to bar . . . recovery . . . ” in the language of Langlois. 249 So.2d 141.

The evidence leaves some doubt whether the action of Kevin Freeland was a cause-in-fact of Katherine Thibo’s injury and whether Kevin’s act would have been negligent and substandard if performed by an adult. Turner v. Bucher, supra. However, these are primarily questions of fact on which the determinations of the trial court should prevail, absent manifest error. Certainly, if an adult were holding Katherine’s hand when she was turned in an awkward position and suddenly gave a strong jerk in such a manner as to wrench her back, this would have constituted a tort, probably intentional but at least negligent.

Therefore, I conclude that the present case falls under the Turner v. Bucher rule of strict liability and that the trial court judgment should be affirmed.


author: GUIDRY, Judge. DOMENGEAUX, Judge, WATSON, Judge,

text:
    Lee Edgar PETITE, Plaintiff-Appellee, v. Doris M. RICHARDSON et al., Defendants-Appellants.
    No. 5979.
    Court of Appeal of Louisiana, Third Circuit.
    May 20, 1977.
    Rehearings Denied June 24, 1977.
    Domengeaux, J., filed opinion concurring in part and dissenting in part and voted for rehearing.
    Watson, J., filed opinion dissenting in part and concurring in part and voted for rehearing.

      McLure & McLure by T. C. McLure, Jr., Alexandria, for defendants-appellants.
    Joseph P. Williams, Andrew Vallien, Natchitoches, for plaintiff-appellee.
    Sam Nelken, Natchitoches, for third party plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX, WATSON, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

The above numbered and entitled matter and the case entitled Johnson et al. v. United Services Automobile Association, 347 So.2d 31, No. 5980 of the docket of this court, were consolidated for trial in the lower court. We decide both of these cases today. The facts and law common to both are set forth herein, however, those facts and questions of law peculiar only to the case of Mrs. Annie A. Johnson, et al. versus United Services Automobile Association, supra, are set forth in a separate opinion which we likewise hand down this date.

These consolidated cases arise out of a collision between a left turning automobile driven by Annie Johnson and an overtaking and passing automobile being driven by Doris Richardson. Following said collision the vehicle being driven by Doris Richardson veered off the highway and struck two parked automobiles owned by Lee Edgar Petite.

This suit was instituted by Lee Edgar Petite to recover property damage caused to his two automobiles as a result of the alleged negligence of both Doris Richardson and Annie A. Johnson. Also joined as defendants are United Services Automotive Association, insurer of the Richardson vehicle and Southern Farm Bureau Insurance Company, insurer of the Johnson vehicle. Defendants, Annie Johnson and her insurer, Southern Farm subsequently filed a third party demand against Doris Richardson and her insurer, United Services. Third party plaintiffs, alleging the negligence of Doris Richardson as the sole cause of the accident, pray that there be judgment against the third party defendants for damages which may be incurred by them as a result of the principal demand of Lee Edgar Petite.

We note that the companion suit, supra, is an action brought by Annie Johnson, her husband, Woody Johnson and her daughter, Audrie Johnson (a guest passenger in the Johnson vehicle), seeking damages for personal injuries, property damage, and medical expenses, all incurred as a result of the alleged negligence of Doris Richardson. Defendants in the companion suit, Doris Richardson and her insurer, United Services, answered generally denying the allegations contained in the plaintiffs’ petition, and pleaded contributory negligence of Annie Johnson as a bar to plaintiffs’ recovery. Further, defendants reconvened against Annie Johnson and her husband seeking to recover property damage sustained by the Richardson vehicle.

At the time of the accident the two vehicles involved, a 1969 Ford driven by Annie Johnson and owned by her husband, Woody Johnson, and a 1971 Oldsmobile driven by Doris Richardson, were traveling west on Louisiana Highway 119. The accident occurred when Annie Johnson, while attempting to turn her vehicle left off of Highway 119 into her private driveway, collided with a vehicle being driven by Doris Richardson. Doris Richardson was attempting to pass the Johnson vehicle. As a result of the impact the Richardson vehicle veered off the highway, across an adjacent ditch, and struck two parked vehicles, one being a 1971 Chevrolet, the other being a 1967 Ford. Both of these latter vehicles were owned by the plaintiff, Edgar Petite. The accident occurred at 12:15 P.M. on October 28, 1975 in the rural village of Natchez, Natchitoch-es Parish, Louisiana. Weather conditions were clear and dry. Louisiana Highway 119 is a two laned black top thoroughfare. Continuing in a westerly direction from the scene of the accident the highway is a straightaway situated in an area of flat level land. Only a small ditch separates the highway from the adjacent property. The posted speed limit is 55 miles per hour.

Mrs. Johnson testified that prior to the accident she and her daughter, Audrie, had been shopping at a grocery store which is about Vioth of a mile east of her residence. The grocery store is located at the T intersection of Louisiana Highways 119 and 494. She stated that after leaving the store she stopped before entering the highway, then turned onto Louisiana Highway 119 and proceeded in a westerly direction towards her home. Mrs. Johnson testified that she noticed the Richardson vehicle stopped at the T intersection and that as she went on the Richardson vehicle turned left behind her.

Mrs. Johnson, who was traveling at about 20-25 miles per hour, stated that about 90 yards from her driveway she engaged her left turn directional signal. At this time she also looked back and saw the Richardson vehicle behind her. As she approached her driveway she slowed .the vehicle to a near stop and again looked in her rear view mirror where she saw the Richardson vehicle following one car length behind. Mrs. Johnson stated that she did not think Mrs. Richardson was going very fast. Prior to executing her left turn Mrs. Johnson stated that she did not see any directional signal on the Richardson vehicle indicating an intention to pass, nor did she hear a horn blow. Mrs. Johnson did not testify that she looked to her left and rear just prior to commencing her left turn. To the contrary Mrs. Johnson testified as follows:

“A. Yes, I looked just about when I got ready to put my signal lights on. I looked back. She was still coming behind me. And when I got ready to make my turn, I looked again to see were she trying to pass but she was and I didn’t see her.”

Audrie Johnson, a guest passenger in the Johnson vehicle, corroborated most of the testimony of her mother. She stated that her mother had engaged the left turning signal and after coming to a near stop was fixing to turn when they were hit. Audrie testified as to the location of the two vehicles just prior to the collision as follows:

“Q. I believe you said that you were not driving and about all you knew about this accident is your Mother slowed down to turn in her driveway and just as she was turning, these two cars hit together?
A. Yes.
Q. Is it true that Mrs. Richardson’s car was beside your Mother’s car when the two cars ran together?
A. Mmm
Q. Did you say yes?
A. Yes.”

Both witnesses, Annie and Audrie Johnson, indicated that the signal and brake lights on the Johnson vehicle were working before and after the accident.

Following the collision, Mrs. Johnson said that she saw the Richardson vehicle keep going. Woody Johnson, who was inside his house at the time of the accident, testified that when he heard the impact of the cars he looked through the window and saw the Richardson vehicle jump the ditch in front and travel about 50 feet when it struck the two Petite cars. Woody Johnson thereafter inspected the scene. He testified that the car driven by his wife, was located directly opposite his driveway. It was on the right side of the highway with the left front wheel barely across the center line. Mr. Johnson’s testimony in this regard which we consider to be most important, was as follows:

“It was on the right side with the left front wheel just across the line a little piece.”

Mrs. Johnson herself testified that the point of impact was approximately 3 feet over the center line.

Willie Hamilton, Chief of Police of the Village of Natchez, investigated the accident shortly after it happened. His report of the accident indicated that the two vehicles had folded together side by side. He stated that Mrs. Johnson’s car was sideswiped in the rear about where the gas inlet is located. The investigating officer opined that after the impact the Johnson car was knocked slightly to the right and then stopped while the Richardson vehicle continued on to the far left. Hamilton testified that it looked as though Mrs. Richardson tried to avoid hitting Mrs. Johnson and took to the ditch. He stated that the Richardson vehicle traveled approximately 240 feet from the point of impact to the point where it hit the Petite cars.

Officer Hamilton’s testimony reflects that at the accident scene he spoke with Mrs. Richardson who was still in her car when he arrived. He asked her if she was hurt to which she replied she was not. Hamilton testified that at this time he observed that she had a small dog in the car. The dog was laying on the floor of the car near the accelerator. Mrs. Richardson told him that the dog had been injured near her residence by a tractor and she was en route to a veterinarian to have the dog treated. Hamilton testified that she told him she was in a hurry. The officer stated that he observed that the dog was wounded near the back legs and was bleeding.

Officer Hamilton also spoke with Mrs. Johnson who told him that when she began to turn she did not know whether Mrs. Richardson was behind her or not. Hamilton testified that Mrs. Johnson had complaints of pain in her neck.

The testimony of Doris Richardson reflects that prior to the accident she was traveling on Louisiana Highway 494 and as she approached the T intersection with La. 119 she noticed the Johnson vehicle turn from the corner grocerty store and head down La. 119. Mrs. Richardson, who stopped at the intersection, testified that she turned left unto La. 119 directly behind Mrs. Johnson. She stated that Mrs. Johnson was traveling very slowly and estimated her speed to be about 20 miles per hour. Shortly after the turn, and seeing no traffic either to the rear' or the front, Mrs. Richardson testified she then put on her directional signal and honked her horn. She then proceeded to pass Mrs. Johnson. Mrs. Richardson stated that at this time she did not see a left turn signal operating on the Johnson vehicle, nor did she see the vehicles brake lights come on. Mrs. Richardson testified that she pulled entirely into the passing lane, moderately accelerated, and was about even with the Johnson vehicle when suddenly Mrs. Johnson began to make her left turn. Mrs. Richardson stated that she attempted to veer left so as to avoid the Johnson vehicle but was unable to do so. Mrs. Richardson stated that the Johnson vehicle struck her vehicle on the right front fender sending her vehicle to the left off the highway and into an adjacent ditch. As she hit the ditch she accelerated. She testified that either her foot slipped off the brakes and hit the accelerator or her little dog fell from the seat and hit the accelerator. Mrs. Richardson’s vehicle continued straight on until it struck the Petite’s cars.

Mrs. Richardson related that at the time of the accident she was on her way to the veterinarian with her injured dog. The dog had been hit by a tractor and although she was concerned she stated that the dog was not critically wounded or bleeding. The dog was bruised. Mrs. Richardson testified that just prior to the automobile accident her dog had been lying down beside her on the seat. She stated it would get up and limp around. She was watching the dog as well as talking to it.

We here note that, in connection with the damage to Mrs. Johnson’s car, Southern Farm Bureau introduced into evidence as its Exhibit 1, a photograph of Mrs. Johnson’s car taken shortly after the accident. Our review of the photograph shows that the major damage to the car is located over the left front fender and left front door, with scratches and minor dents on the back door. We can discern no damage to the rear area of the car near the gas inlet.

In regards to the plaintiff’s claim it was stipulated at the trial of this matter that property damage to Mr. Petite’s 1971 Chevrolet Impala amounted to $1200.00.

The testimony of Richard Hatch, an automobile salesman, was introduced in connection with his examination of the plaintiff’s other car, the 1967 Ford. Mr. Hatch testified that the car was a total loss and that the value of the vehicle as of October 1975 was about $525.00 to $550.00. Plaintiff testified that the car had not run since the date of the accident. There is no other evidence in the record relating to Petite’s property damages.

The trial judge in brief written reasons concluded as follows:

“The Court accepts the testimony of Annie A. Johnson and plaintiff’s witnesses, and find the cause of the accident was the defendant driver being in a hurry. Because of a previous injury to her dog, the defendant was rushing the bleeding and moaning dog to a veterinarian when she tried to overtake and pass the slower moving plaintiff’s vehicle, which had taken every precaution prior to commencing a left turn.”

Accordingly, judgment was rendered in the instant suit in favor of plaintiff, Edgar Lee Petite and against Mrs. Richardson and her insurer, United Services in the principal sum of $1,749.00.

In the companion matter, Mrs. Annie A. Johnson, et al. v. United Services Automobile Association, supra, the trial court rendered judgment in favor of the plaintiffs and against the defendants as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Annie A. Johnson, and against the defendant, Doris M. Richardson and her insurer, United Service Automobile Association, in the full sum of $2,500.00.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Audrie Johnson, and against the defendant, Doris M. Rihcardson (sic), and her insurer, United Service Automobile Association, in the full sum of $750.00.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of the plaintiff, Woodie (sic) Johnson, and against the defendant, Doris M. Richardson, and her insurer, United Service Automobile Association, in the full sum of $48.00 for Dr. Kaufman’s bill; $468.60 for damage to his car and $15.00 travel expenses for his wife’s visit to the doctor .
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the re-conventional demand of Doris M. Richardson and her insurer, United Service Automobile Association, made against Annie A. Johnson, Woodie (sic) Johnson, and their insurer, Southern Farm Bureau be dismissed.”

Mrs. Richardson and her insurer timely perfected appeals in both suits. None of the other parties appealed or answered the appeal of Mrs. Richardson and her insurer, United Services.

Appellant contends that the trial court erred in finding her negligent and Mrs. Johnson free from negligence. We agree that the trial court manifestly erred in finding Mrs. Johnson free from negligence. However, we conclude from our review of the record that the accident in question and resulting damage was caused by the joint negligence of both drivers.

It is well established in the jurisprudence of this state that a motorist who attempts to make a left turn from a public highway is required to ascertain in advance that the way is clear and that the turn can be made safely and without endangering overtaking or oncoming traffic. The failure of a left turning motorist to make such a determination and to exercise the required degree of caution before undertaking to make= such a turn constitutes negligence. Sonnier v. Hardware Mutual, 242 So.2d 900 (La.App. 3rd Cir. 1971). The duty of the left turning motorist is two-fold, first to give a proper signal,, and secondly to make proper observation that the turn can be made without endangering oncoming or overtaking vehicles. Bamburg v. Nelson, 313 So.2d 872 (La.App. 2nd Cir. 1975).

It is likewise well established that a motorist in judging whether a left turn can be made in safety has the right to assume that the following traffic will observe all the duties imposed upon it by law and common sense and is keeping a proper lookout. Faulkner v. Ryder Tank Lines, Inc., 135 So.2d 494 (La.App. 2nd Cir. 1961) writs denied February 2, 1962; Worley v. Heinen, 280 So.2d 301 (La.App. 1st Cir. 1973) writs refused September 14, 1973.

Our review of the record reveals that although Mrs. Johnson may have complied with the first duty imposed upon her by law in giving a signal she did not fulfill the second duty, that of making proper observation and keeping a proper lookout. As quoted hereinabove Mrs. Johnson admitted at one point in her testimony that as she got ready to turn she looked in her rear view mirror and didn’t see the Richardson vehicle. This testimony is further substantiated by the fact that after the accident Mrs. Johnson told the investigating officer that she did not know whether Mrs. Richardson was behind her or not. Further the record reveals that Mrs. Johnson had only just begun her left turning maneuver when the accident occurred. She stated that the point of impact was three feet across the center line in the passing lane of travel. Mr. Johnson, who viewed the scene immediately after the accident testified that only the left front wheel was across the center line “a little piece”. Somewhat contradictorily, Mrs. Johnson repeatedly asserted that she was sideswiped in the back of her vehicle near the tank gas inlet. Her own testimony and that of her husband regarding the point of impact, and an examination of a photograph of the Johnson car following the accident clearly indicates that the collision actually occurred around the left front fender and door of her automobile.

Mrs. Richardson stated that she had already entered the passing lane and was even with the Johnson vehicle when Mrs. Johnson turned into the right side of her automobile. The physical evidence, as here-inabove discussed, bears this out. Additionally the testimony of Audrie Johnson, a guest passenger in the Johnson vehicle stated that the Richardson vehicle was beside the Johnson vehicle when the cars collided.

Considering all of the evidence we are convinced that the Richardson vehicle preempted the passing lane prior to Mrs. Johnson’s attempted left turning maneuver; that Mrs. Richardson was along side of the Johnson vehicle when Mrs. Johnson commenced her turn; and, the front sides of the two cars collided some three feet across the center line in the passing lane of travel. Mrs. Johnson, had she been keeping a proper lookout should have observed the Richardson vehicle in the passing lane, for it was there to be seen, and in not doing so she breached her duty to observe for overtaking traffic. We find therefore that Annie A. Johnson was guilty of negligence which was a proximate cause of the accident. We find the trial court’s conclusion to the contrary manifestly erroneous.

We next consider whether, Doris Richardson, the overtaking motorist, was guilty of negligence which was a joint and concurrent cause of the accident.

Although Mrs. Richardson testified that she did not see any signal or brake lights engaged on the Johnson vehicle, we determine, as did the trial court, that Mrs. Johnson did in fact timely engage her directional signal indicating her intention to execute a left turn. Mrs. Johnson simultaneously slowed her vehicle almost to a stop. Mrs. Richardson confirms this latter fact. Mrs. Johnson had the right to assume that Mrs. Richardson would observe all of the duties imposed upon a following motorist including the duty to keep a proper lookout.

The record reveals that prior to the automobile accident Mrs. Richardson was very concerned about her injured dog which she was taking to a veterinarian. She told the investigating officer at the accident that she was in a hurry. Mrs. Richardson admitted watching and talking to the dog.

We conclude that the evidence demonstrates that the accident occurred, at least in part, because of Mrs. Richardson’s attempt to pass the Johnson vehicle without proper lookout and with disregard of the danger ahead. Clearly Mrs. Richardson, who was cognizant of the fact that the Johnson vehicle had slowed to a near stop, should have noticed the signals given by the Johnson vehicle. They were there to be seen indicating Mrs. Johnson’s intention to turn. Mrs. Richardson was inattentive, being pre-occupied with the condition of her dog, and proceeded to pass in disregard of this impending dangerous situation. Accordingly, we find Mrs. Richardson guilty of negligence which negligence was a joint and concurrent cause of the accident.

We recognize that in the instant matter the appellants, Doris Richardson and her insurer, filed no third party demand seeking contribution against their co-defendants, Annie A. Johnson and her insurer, Southern Farm Bureau. Nevertheless, we determine on the basis of well settled legal principles that the appeal taken by Doris Richardson and United Services Automobile Association brings their co-defendants, Annie A. Johnson and Southern Farm Bureau before this appellate court. Such an appeal was tantamount to a third party action. Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (La.1968). Accordingly it is proper for us to consider the liability of Annie A. Johnson and Southern Farm Bureau as concerns the instant suit.

For the above and foregoing reasons the judgment of the trial court rendered in favor of Edgar Lee Petite is amended as follows: It is ordered, adjudged and decreed that there be judgment in favor of Edgar Lee Petite and against Doris Richardson, United Services Automobile Association, Annie A. Johnson, and Southern Farm Bureau Insurance Company, in solido, for the sum of $1749.00 together with legal interest from date of judicial demand until paid and all costs of these proceedings.

All costs of these proceedings on appeal are to be borne by Doris Richardson and her insurer, and Annie A. Johnson, and her insurer.

AFFIRMED AS AMENDED.

DOMENGEAUX, J., concurs in part and dissents in part and assigns reasons.

WATSON, J., concurs in part and dissents in part and assigns written reasons.

DOMENGEAUX, Judge,

concurring in part, and dissenting in part.

I agree with the majority opinion to the extent that it affirms the District Court which found actionable negligence on the part of Mrs. Richardson, the driver of the passing vehicle. I agree with the awards made in the District Court except in the case of Audrie Johnson as is explained in my concurring and dissenting opinion in the companion case, # 5980, 347 So.2d 31.

I disagree that there is manifest error on the part of the District Judge who found that the driver of the left turning vehicle, Mrs. Johnson, was free of negligence.

The left hand turn phase of this case presents a close question. It is axiomatic of course that one executing such a turn must not do so until it is clear and safe. The majority opinion quotes from Mrs. Johnson’s testimony, presumably to point out that she did not make the last necessary rear view mirror surveillance before turning. Her quoted testimony, considered alone, possibly suggests that. The whole of her testimony on that phase of the question suggest otherwise. It reads:

“A. Yes, I looked just about when I got ready to put my signal lights on. I looked back. She was still coming behind me. And when I got ready to make my turn, I looked again to see were she trying to pass but she was and I didn’t see her.
Q. Was she trying to pass you?
A. No.
Q. She was how far behind you then?
A. I’d say about a car length or two, maybe.
Q. What part of the road was she in?
A. She was in the right lane right behind me.
Q. And how fast was she going?
A. Well I couldn’t tell it exactly.
Q. Did she look like she was going about your speed or faster or slower?
A. I really couldn’t tell how fast she was behind me.
Q. You are saying then that as you began your turn, you looked and there she was behind you?
A. Yes, she was coming behind me.”

Additional testimony by Mrs. Johnson reads as follows:

“A. I saw her at the stop sign and then I looked back. About 90 yards from my driveway she was still coming behind me. I put my signal lights on and just as I got ready to make my left turn, I looked back. I didn’t see her in the left side trying to pass.
Q. Did you see her at all?
A. I saw her when I looked back.
Q. Where was she when you saw her?
A. She was right behind me.
Q. Now how did you see her?
A. Through my rear view mirror.
Q. The rear view mirror?
A. Yes.
Q. The rear view mirror is located inside the car or .
A. Yes.
Q. ... on the side of the car?
A. The inside.
Q. Could you estimate the distance from your car when you saw her through the rear view mirror?
A. It was about a car length.
Q. One car length?
A. Yes. I’d say about — you mean when I looked back and she was behind me?
Q. Yes, ma’am.
A. Yes.”

Again, she testified as follows:

“Q. Did this accident happen on a blacktop, hard surface road?
A. Yes, sir.
Q. And I believe you said there were no cars coming.
A. No.
Q. Was it your intention to turn into your driveway at your home?
A. Yes.
Q. How long had you been aware that Mrs. Richardson or that some car was behind you?
A. I knowed it ever since we got to the stop sign. We both had made it to the stop sign and she was coming on behind me and I put my signal lights on I’d say about 90 yards from my driveway and just as I got ready to turn, I looked to see was she in the left lane trying to pass me .
Q. Right. Did you say just as you got ready to turn, you looked?
A. Yes.
Q. Now up until that time, you hadn’t looked in back' of you, had you?
A. No.
Q. When you looked, what did you see?
A. She was behind me you know in the same lane I was.”

Mrs. Johnson’s testimony, considered as a whole, may not necessarily be interpreted as meaning that she did not look to the rear before turning.

There is a reasonable basis in the record to conclude that Mrs. Richardson suddenly began her passing maneuver after, or at the same time Mrs. Johnson began her left turn.

The trial judge accepted the testimony of Mrs. Johnson and her witnesses. This he has a right to do. Additionally, the physical facts of the accident do not preclude a conclusion that Mrs. Johnson complied with the duties imposed upon her by law before commencing her left turn maneuver.

I suggest that the majority opinion in reversing the purely factual findings of the district judge violates the principle of appellate review of facts as mandated in Canter v. Koehring Company, 283 So.2d 716 (La.1973).

I would affirm the trial court judgment which held that the sole proximate cause of the accident herein was the negligence of Mrs. Richardson.

WATSON, Judge,

dissenting in part and concurring in part:

On the issue of liability, I disagree with the decision of the majority to reverse a purely factual case in a clear substitution of judgment by this court for that of the trial court. I would affirm the liability decision of the trial court. Additionally, on this issue I adopt the reasons assigned by Do-mengeaux, J., in his dissent.

The only points with which I concur are: (1) the affirmance of the award to Lee Edgar Petite; and (2) the reversal of the $750 award to Audrie Johnson for which I find no basis, either in fact or in law.

Therefore, I respectfully dissent in part and concur in part.


author: GUIDRY, Judge. DOMENGEAUX, Judge,

text:
    Mrs. Annie A. JOHNSON et al., Plaintiffs-Appellees, v. UNITED SERVICES AUTOMOBILE ASSOC., Defendant-Appellant.
    No. 5980.
    Court of Appeal of Louisiana, Third Circuit.
    May 20, 1977.
    Rehearings Denied June 24, 1977.

      McLure & McLure by T. C. McLure, Jr., Alexandria, for defendant-appellant.
    Joseph P. Williams, Andrew Vallien, Natchitoches, for plaintiff-appellee.
    Sam Nelken, Natchitoches, for third party plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX, WATSON, GUIDRY and ROGERS, JJ.
   GUIDRY, Judge.

For the reasons assigned in the companion case of Petite v. Richardson, et al., 347 So.2d 23, Docket No. 5979, we have concluded that the accident giving rise to this litigation was proximately caused by the joint and concurring negligence of the plaintiff, Annie A. Johnson and the defendant, Doris Richardson. Defendants having pleaded the contributory negligence of Mrs. Johnson as a defense, the judgment rendered by the trial court in the instant suit in favor of Annie Johnson and Woody Johnson, husband and wife, and against defendants, Doris Richardson and United Services Automobile Association must be reversed and set aside. We here note that having determined that the accident was in part caused by the negligence of Annie A. Johnson, such determination precludes any recovery on the part of her husband, Woody Johnson for medical expenses and property damage sustained, as the wife’s negligence is imputable to the husband. Masters v. State Farm Insurance Company 266 So.2d 508 (La.App. 4th Cir. 1972).

Further, for the reasons hereinabove set forth, we find that the reconventional demand of the defendants, Doris Richardson and her insurer, was properly dismissed by the trial court.

The sole remaining issue in this case is the quantum of the award made by the trial court in favor of Audrie Johnson, a guest passenger in the Johnson vehicle.

The trial court awarded Audrie Johnson $750.00 in general damages. Appellants question this award urging that there is no evidence to support the same.

The record reflects that Audrie Johnson was not physically injured. She sustained not even the slightest bruise or contusion. She required no medical attention of any kind and sought none. Her demand for damages is supported solely by her own testimony to the effect that although she was not injured she was upset for about two hours post accident. We opine that the degree of emotional trauma sustained by Miss Johnson was extremely minimal and was clearly by her own admission of very short duration. Miss Johnson offered no corroborative evidence to support her claim of being upset. None of the other witnesses who testified, including Au-drie’s mother and father, even mentioned her being upset or that she exhibited signs of emotional trauma.

Based upon the above evidence, which we deem insufficient, we find that the trial court abused its great discretion in awarding Audrie Johnson general damages. Simply stated, Audrie Johnson has failed to carry her burden of proving that she sustained a compensable injury.

For the above and'foregoing reasons and those that have been set forth in the companion case of Petite v. Richardson et al., 347 So.2d 23, Docket No. 5979, the judgment of the trial court in favor of Annie A. Johnson and Woody Johnson, husband and wife, and Audrie Johnson, against Doris Richardson and her insurer, United Services Automobile Association is reversed and set aside. It is ordered, adjudged and decreed that there be judgment in favor of Doris Richardson and United Services Automobile Association and against Annie A. Johnson and Woody Johnson, husband and wife, and Audrie Johnson, dismissing the demands of the latter with prejudice. It is further ordered, adjudged, and decreed that the judgment of the trial court dismissing the recon-ventional demand of Doris Richardson and United Services Automobile Association is affirmed.

All costs of these proceedings in both the trial court and on appeal are to be borne equally by the plaintiffs-appellees and the defendants-appellants.

REVERSED IN PART; AFFIRMED IN PART.

DOMENGEAUX, J., concurs in part and dissents in part and assigns reasons.

WATSON, J., concurs in part and dissents in part for reasons assigned in No. 5979,347 So.2d 23.

DOMENGEAUX, Judge,

concurring in part, and dissenting m part.

For the reasons assigned in my concurring and dissenting opinion in the companion case of Petite v. Richardson, et al., 347 So.2d 23, our docket number 5979, I would affirm the trial court judgment which held that the sole proximate cause of the accident herein was the negligence of Mrs. Richardson. Accordingly, I would affirm the awards granted Mr. and Mrs. Johnson.

Concerning the award of $750.00 made to the passenger in the Johnson vehicle, Au-drie Johnson, I disagree with the majority opinion that she is not entitled to any recompense. I do agree that the extent of her emotional trauma and duration thereof was minimal. Nevertheless, I would award her $100.00, feeling that a reduction is in order as being within the contemplation of the not yet reported Louisiana Supreme Court case of Schexnayder, et ux v. James R. Carpenter, handed down May 16, 1977, So.2d (La.1977), which case is further explanatory of Coco v. Winston Industries, Inc. 341 So.2d 332 (La.1977). See Speight v. Southern Farm Bureau Ins. Co., 254 So.2d 485 (La.App. 3rd Cir. 1971) for authority to make nominal award to Audrie Johnson.