author: LEMMON, Judge. BEER, Judge,

text:
    Verlina WELTON v. Dennis J. FALCON et al.
    No. 7619.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 14, 1976.
    Rehearing Denied Jan. 12, 1977.
    Writs Refused March 11, 1977.

      Daniel E. Becnel, Jr., Reserve, for plaintiff-appellee.
    Reuter & Reuter, Arthur C. Reuter, Jr., New Orleans, for Dennis J. Falcon and Jefferson Truck Lines, Inc.
    John J. Maxwell, Metairie, for State of Louisiana, Dept, of Highways.
    Before LEMMON, MORIAL and BEER, JJ.
   LEMMON, Judge.

Defendants Dennis Falcon and his employer have appealed from a judgment following a jury verdict which awarded plaintiff damages for injuries sustained in an intersectional collision. Issues on appeal include Falcon’s negligence and causation, plaintiff’s contributory negligence, the liability of the State of Louisiana, Department of Highways for a malfunctioning traffic signal, and excessiveness of the itemized damage award.

The accident occurred at 6:45 a. m. on a clear, dry October day at a two-highway intersection in Laplace. The signal light controlling traffic at the intersection was malfunctioning at the time. Falcon, traveling east on Highway 61 (Airline Highway) in a 55-foot long tractor-trailer unit which weighed 46,000 pounds including cargo, was faced with a flashing yellow light. Plaintiff, traveling north on Highway 44 (which became Highway 51 on the north side of the intersection) in a Chevrolet automobile, was faced with a steady green light.

At the intersection there were two 13-foot wide driving lanes for eastbound traffic on Highway 61, in addition to a left-turn lane cut into the neutral ground, while Highway 44 was a two-lane, two-way roadway. The right front of the truck struck the left side of the car broadside, and the two vehicles traveled together 130 feet on Highway 61 before coming to rest. At the point of impact the truck, which had been traveling in the right lane and had veered to the left prior to the collision, was straddling the center line of the two driving lanes on Highway 61. There was a 40-mile per hour speed limit zone on Highway 61 for at least 500 feet before the intersection.

Falcon’s Negligence

Falcon testified that he was driving about 40 miles per hour and slowed when he first observed the flashing yellow light about 200 feet before the intersection (although he later estimated the distance at 500 feet). He observed plaintiff’s car in a stopped position to his right, and when the car proceeded to cross the highway, he “hit (his) brakes with (his) foot as hard as (he) could hit them.” While he first stated that he was 75 to 100 feet from the intersection and traveling 25 to 30 miles per hour when he saw plaintiff’s car stopped and that he was “right there on the intersection” when plaintiffs “car come across”, he eventually confirmed upon being confronted with deposition statements that he was “a couple of truck distances, lengths of the truck” (110 feet) from the intersection when he hit his brakes. When asked if the brakes were locked continuously from the time of first application until the vehicles came to rest, Falcon answered, “I don’t know exactly. It happened so fast”. He estimated that his vehicle traveled 10 to 15 feet after impact, but declined to challenge the investigating officer’s measurement of 130 feet.

Falcon, faced with a flashing yellow light, had only a qualified right of way and had a duty to “proceed through or past such a signal only with caution”, a duty which suggests reduced speed and cautious lookout. See R.S. 32:234 A(2). This duty, however, was arguably reduced once Falcon observed plaintiff in a stopped position, because Falcon at that point was reasonable in believing that plaintiff was faced with a red light and would remain stopped.

Because of this reasoning and of the consideration that plaintiff’s case as to Falcon’s liability was based principally on excessive speed, our principal inquiry on review of the evidence as to Falcon’s liability is whether the record contains evidence sufficient to support the jury’s apparent finding that Falcon’s excessive speed was a legal cause of the accident.

The physical facts surrounding the accident were analyzed by Dr. I. Robert Ehrlich, an engineer accepted as an accident reconstruction expert. Ehrlich estimated the speed of the tractor-trailer unit immediately after impact by calculating the energy of motion used up in braking from that point to the point where the unit came to a stop, 130 feet down the concrete roadway. He applied the formula V = \ u g S (velocity in feet per second equals the square root of double the coefficient of friction, multiplied by the maximum rate of deceleration due to gravity, multiplied by the skidding or braking distance). The gravity factor, g, is a known constant (32.2 feet per second, which is the fastest rate at which an object can lose speed without encountering additional resistance), and the variable S was determined by reference to the officer’s measurement of 130 feet. Ehrlich assigned 0.65 as the coefficient of friction for the truck tires on the concrete roadway, noting that this figure was lower than the numerical expression of 0.75 which he would have used for an automobile on that surface, because of the hard, highly inflated tires used by trucks. (He pointed out, however, that the friction of the automobile being pushed sideways would have an additional retarding force.) The calculation indicated a speed immediately after impact of 73.8 feet per second, or approximately 50 miles per hour.

Although Ehrlich calculated Falcon’s speed at other points prior to impact, this crucial determination that Falcon was exceeding 50 miles per hour immediately after impact makes relatively unimportant the determination of his speed at any earlier point.

In attacking Ehrlich’s calculation of velocity immediately after impact, defendants did not challenge (either in cross-examination or by other expert testimony) the applicability of the formula used or the correctness of the coefficient of friction assigned. Rather, defendants attacked the calculation, both at trial and in argument in this court, on the basis that the evidence did not support a finding of a 130-foot braking distance.

Braking distance is the distance traveled while skidding or with maximum braking. The determination of braking distance properly includes consideration of all evidence of tires skidding on the road surface. Thus, our determination of whether the jury could attribute any weight to Ehrlich’s testimony depends upon the evidence supporting the braking distance utilized in his calculation.

The investigating officer did not identify a constant line of skid marks from the tractor-trailer, but did find some skipping marks made by the unit’s tires.

Ehrlich explained the effect of the absence of an identifiable line of constant skid marks, stating:

“There are skid marks. It seems like intermittent skid marks, as you very often find with trucks with hard highly inflated tires, as I made allowance for in the calculations.”
* ^ sfc sf: * ;}:
“Because of the hardness of the truck tires very often they don’t leave skid marks. Truck tires are very hard whereas passenger car tires are very reasonably soft. Try and put your fingernail into a truck tire. You can’t do it. You can do it in a passenger car. Truck tires are inflated to 80 to 100 PSI. That’s very hard. Most gasoline stations, the highest the pumps go up to is 35 PSI. You couldn’t even inflate it at a gasoline station.” (Emphasis supplied)

Observing that a braking vehicle (particularly a large tractor-trailer unit with highly inflated tires) does not necessarily leave skid marks, Ehrlich noted that the important question is whether braking occurred over the entire 130-foot distance. (Obviously, if the tires rolled rather than skidded over any substantial part of that distance, the calculation was inaccurate). He was satisfied from Falcon’s admission of applying his air brakes hard two truck lengths before the intersection that wheel locking and braking began sometime prior to impact (although there was no evidence presented of skid marks prior to impact), since an air brake system with front brakes becomes locked as soon as the brakes are applied.

As to whether braking continued after initial application, Ehrlich noted that a driver, once he had “put his brakes on full”, would hardly go “into an accident without his brakes on full unless he wants to hit somebody”, and that it was highly improbable under such circumstances that the driver would release his brakes and allow the vehicle to move freely until all energy of motion was dissipated. In this respect we note that Falcon did not know whether he released the brakes before the vehicles came to rest and significantly did not deny continued application.

On this evidence the jury could reasonably have concluded (1) that Falcon’s application of his brakes 110 feet prior to impact and his inability to bring the unit to a stop until he had traveled an additional 130 feet after impact indicates excessive speed and (2) that the absence of skid marks was adequately explained by Ehrlich. While reasonable men could very well have reached a different conclusion, we cannot say that the jury erred manifestly in reaching his conclusion on the evidence, particularly since there was no contradictory expert evidence.

Ehrlich’s testimony as to causation was also significant. He first calculated (using basically the same formula) that if the tractor-trailer unit had been traveling 40 miles per hour at impact, it could have braked to a stop in a distance of 82 feet. Then he opined that the accident would not have occurred as it did if the unit had been traveling within the posted speed limit.

Accepting Ehrlich’s calculation, we note that the tractor-trailer unit, if traveling at 40 miles per hour, could have stopped in 82 feet of braking, plus an additional 43 feet traveled at that speed during a % -second reaction time, or 125 feet after the driver perceived the necessity to apply the brakes. Using Falcon’s own testimony that he at least began to apply his brakes about 110 feet before the intersection, we hold that the jury could reasonably have concluded from the evidence that if Falcon had been traveling within the posted speed limit, he could have almost stopped the unit prior to the point of collision.

In summary Falcon admitted he braked 110 feet before impact and declined to deny that he continued braking (while pushing plaintiff’s car sideways) an additional 130 feet after impact. Therefore, the jury could reasonably have found, based primarily on Falcon’s own testimony, (1) that Falcon’s speed was much greater than 40 miles per hour when plaintiff moved into the intersection and (2) that if Falcon had been traveling within the speed limit, the accident would not have occurred as it did. We therefore affirm the jury’s determination that Falcon’s excessive speed was a legal cause of the accident.

Plaintiffs Contributory Negligence

Plaintiff entered Highway 44 at a point one block from the intersection and observed that the light was green. As she approached the intersection, she slowed and then stopped, looking to her left and then to her right. Seeing no oncoming traffic, she then proceeded onto Airline Highway, where she was immediately struck.

The evidence that plaintiff had a green light is overwhelming. Because she had a green light, she had no duty to look down the highway to her left or to discover approaching traffic not yet within the intersection. Bourgeois v. Francois, 245 La. 875, 161 So.2d 750 (1964); Correge v. Webb, 284 So.2d 355 (La.App. 4th Cir. 1973), cert. den. 286 So.2d 664.

Defendants argue, however, that plaintiff’s act of stopping at the intersection and looking for oncoming traffic imposed a duty upon her to discover the approaching truck. This is a miscomprehension of the theory of legal duty. Because a motorist who does not have the right of way at an intersection has a duty both to look and to discover traffic approaching on the favored road before entering the intersection, he is liable for an ensuing collision if he looks but does not discover approaching traffic, since he fulfilled only a portion of his duty.

In the present case, however, plaintiff had the right of way because of a green light. She had no duty to look for or to discover vehicles approaching the intersection, since she could legally rely on crossing traffic to be faced with a red light. She was obliged only to look for and yield to crossing vehicles if they were already lawfully within the intersection. R.S. 32:232(l)(a).

While plaintiff’s act of stopping may have misled Falcon into not slowing from his excessive speed, that act at most could be considered a cause-in-fact of the accident. However, liability does not flow from every cause-in-fact of an accident, but only from those which involve violation of a duty. Thus, while plaintiff may have owed a duty to a motorist following behind her not to stop at a green light, she owed no such duty to a speeding motorist approaching the intersection from a different highway, and her act of stopping did not constitute a violation of duty to that motorist. Furthermore, plaintiff’s act of looking to her left when faced with a green light did not create a duty to discover vehicles not lawfully in the intersection, where no such duty otherwise existed.

Perhaps if plaintiff had actually discovered the approaching truck, our evaluation of the reasonableness of her conduct would be different. But tort liability is founded on violation of a duty, and we decline to impose liability here on a motorist because she failed to discover what she had no duty to discover.

Liability of Department of Highways

The evidence overwhelmingly established that the traffic light signaled green for plaintiff and flashing yellow for Falcon. Since more probably than not the accident would not have occurred if the signal light had operated properly, the malfunction was a cause-in-fact of the accident. Vidrine v. General Fire and Cas. Co., 168 So.2d 449 (La.App. 3rd Cir. 1964). The critical question is whether the Department was responsible for the signal’s failure to operate properly.

Ten days before the accident the same signal light had stuck, and Department employees reported they “replaced a 658 controller and dual left turn control” and reset and checked the timing. Seven hours before the accident the light went out completely, and Department employees replaced a broken wire in the disconnect hanger, thereafter resetting the breaker and checking the operation.

After the accident a repairman found that relays in the 658 controller had gone bad, causing the lights to stick, and he replaced the controller. There was no investigation of the defect in the controller, which was sent to Baton Rouge for repairs.

The Department contends that it did not cause the defect, and that since it received no notice of the specific malfunction prior to the accident, it cannot be held liable for failing to repair a malfunction of which it was not aware.

The Department, of course, should not be held responsible for all signal light malfunctions. For example, the evidence in this case indicates that the signal’s being completely out seven hours before the accident resulted from a high object striking the disconnect hanger, causing a wire to break. Thus, the cause of that malfunction was perhaps the act of a third party.

However, the malfunction which contributed to this accident was caused by a defect in the controller. There is no suggestion that this defect is attributable to a third party. Furthermore, although malfunctions in mechanical equipment admittedly occur in the absence of negligence, the circumstance that the defective controller had been installed only ten days earlier and supposedly checked seven hours earlier strongly indicates that the controller either was improperly installed or checked, or was defective when installed. Since the Department maintains, repairs and installs controllers and other integral parts of the signal, defects due to improper maintenance, repairs or installations are reasonably attributable to the Department.

In a tort case found on negligence a plaintiff must prove negligence and causation by a preponderance of the evidence, direct and circumstantial. The plaintiff has successfully borne this burden when the evidence taken as a whole indicates that the particular defendant’s negligence was the most plausible or likely cause of the casualty and that no other factor can as reasonably be ascribed as the cause. Boudreaux v. American Ins. Co., 264 So.2d 621 (La.1972); Hanover Ins. Co. v. Jacobson-Young, 294 So.2d 564 (La.App. 4th Cir. 1974).

In the present case the most plausible explanation of the malfunction was defective maintenance. Since the malfunction was a cause-in-fact of the accident, we conclude that the Department’s failure to properly maintain the signal light was a concurrent legal cause of the accident.

Damages

In the October 8, 1974 accident plaintiff sustained multiple displaced fractures of the ribs on the left from the third rib through the eighth, two fractures of the pelvis, one fracture of the tibia and two of the fibula, a brain concussion, lacerations of the scalp, fractured and dislocated toes, a crushed heel bone, and multiple soft tissue, tendon and muscle injuries of the leg and foot. Reduction of the fractures and de-bridement were accomplished under general anesthetic.

Plaintiff’s hospitalization lasted two months. During this period two additional surgical procedures were performed, one to debride additional dead tissue in the foot and ankle and the other to graft skin onto that area. She was in a cast thereafter for an additional five months, and at time of trial one year after the accident she was still using crutches.

Plaintiff stated that she cried and screamed with pain in the hospital and that since her discharge she has had constant pain in her foot and leg and daily headaches.

The attending physician, a hospital resident in orthopedic surgery, testified that at time of trial plaintiff’s foot was swollen, that her ankle had no motion whatsoever and that it was “highly unlikely” she would ever walk without pain or would ever have functional use of the foot and ankle. At plaintiff’s last scheduled visit he suggested amputation below the knee to alleviate the pain, since the extremity was essentially useless.

At the time of the accident plaintiff was 51 years old and had a life expectancy of 26 years. She had been divorced for 22 years and had supported herself by constant employment.

The jury awarded plaintiff $300,-000.00 in general damages. After reviewing the record and the evidence apparently accepted as credible by the jury, we cannot say that this substantial award is an abuse of the much discretion conferred by C.C. art. 1934(3).

As to future medical expenses, the doctor estimated $756.00 in surgical fees and ten days of hospitalization in connection with the amputation. He also estimated the cost of an artificial limb at $650.00, to be replaced every three years. An expert in actuarial science calculated $4,385.00 as the present value of a fund which would pay $650.00 every three years and $25.00 (for medical examinations) every two years over a period of 26 years. Since there is no other evidence of medical expenses, we must reduce the jury award of $75,000.00 for that item of damages to $5,141.00.

Plaintiff’s earnings prior to the accident were shown to be $360.00 per month for the 17-month period ending April, 1974 and thereafter to be $300.00 per month, plus $50.00 per week at a second job. The actuarial expert also calculated that a present fund of approximately $53,000.00 would be required to pay $360.00 per month over a period of 14 years and one month (plaintiff’s work-life expectancy), if that fund earned 5Vz interest and was exhausted at the end of the period. He applied a factor of 2% per year for periodic salary increases, but did not apply an inflation factor, nor did he consider the fact that income tax must be paid on earnings.

The jury awarded $65,000.00 for loss of wages and of earning capacity. This loss, of course, cannot be computed with mathematical certainty, although the calculations of the actuarial expert merit substantial consideration by the trier of fact. Other appropriate factors for consideration include plaintiff’s condition prior to the accident, her work record and amount of earnings in previous years, and the probability of her earning similar wages over the remainder of her work life except for the injury. Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (La.1968).

Here, the actuarial expert performed several calculations to estimate the present value of plaintiff’s impaired earning capacity (and those using lower interest rates indicated a higher value). However, on the calculation deemed appropriate by the expert, the value was $53,000.00. Since the jury’s award was significantly higher than the value advanced by plaintiff’s own expert, we conclude that this record does not support the higher award and reduce the amount of the judgment for this item of damages to $50,000.00.

Expert Fees

Defendants finally contended that the trial court abused its discretion in fixing expert fees.

R.S. 13:3666 authorizes additional compensation for witnesses called to testify to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations and to state the results thereof. The expert need not answer hypothetical questions in stating opinions and conclusions, but he is not entitled to a fee if he merely gives testimony as to facts and circumstances which could be stated by a lay witness.

The sum of $100.00 was awarded to each of the three investigating officers who testified. Deputies Nuncio and Gray, although qualified as “experts” in accident investigation, testified solely as to facts and were not asked to give opinion evidence. Trooper Aubert’s only stated “opinion” was the point of impact, which in effect was nothing more than an identification of the place where he found scuff marks and debris.

We must set aside the fixing of the fees for these witnesses, whose testimony required no greater expertise than that possessed by a lay person. We acknowledge the compelling argument advanced by plaintiff and others that officers who perform a substantial number of investigations should be compensated for their appearance in court when off duty. This is a problem, however, which addresses itself to the employing agency or to the legislature. The present statute authorizing compensation for expert witnesses simply does not offer the solution for this problem or comprehend compensation for this type of testimony.

Ernest Huval, the actuarial expert, was awarded $1,000.00, although he testified that he had charged only $200.00 for the court appearance and $200.00 for his examination and analysis of the facts and his calculation, plus travel expenses from Baton Rouge of about $25.00. While great discretion is accorded the trial judge in awarding expert fees, the award to the litigant cannot exceed the amount charged the party by the expert. Accordingly, we must reduce the award to $425.00.

Dr. Clark Gunderson, the orthopedic resident, was also awarded $1,000.00. He testified that he left New Orleans for the trial in Edgard at noon and estimated that he would reach New Orleans on the return trip at about 6:00 p.m. However, he lost no time from his scheduled work at Charity Hospital, having made up the hours at another time, and he was not scheduled that day to be at his private practice clinic.

We acknowledge the substantial problem of presenting expert medical testimony at a trial in a rural parish and are disinclined to reduce reasonable fees charged by medical experts who testify at such trials or to exclude from consideration for compensation the time spent by the expert in traveling to and from the courthouse. This doctor, however, did not state the fee that he charged, and the evidence to support the fee which plaintiff requested the court to fix did not indicate that such a substantial fee was in order. Furthermore, the doctor admitted he suffered no economic loss. Accordingly, we reduce the fee to $250.00.

Finally, Dr. Ehrlich, the accident reconstruction expert, was awarded $1,000.00. He testified that his fee was $400.00 per day away from his New Jersey home (as compared to $300.00 there) in addition to $230.00 for travel and hotel expenses. He spent one day in preparation and part of one day in court.

A litigant need not use local expert witnesses, but is not entitled to additional fees if he uses out-of-state experts where local ones are available. In such a case the court should set the expert fee according to the standard of the fee charged by local experts, and the litigant who chooses non-local experts must pay the difference.

In this case we will allow one day for preparation and one day for court appearance at $300.00 per day.

Decree

For these reasons, that portion of the judgment of the trial court which dismissed the State of Louisiana, Department of Highways, is reversed, and it is now ordered that judgment be rendered on the third party demand in favor of defendants Dennis J. Falcon and Jefferson Truck Lines, Inc. and against the State of Louisiana, Department of Highways, granting judgment over against the third party defendant for contribution.

The judgment of the trial court is further amended so as to decrease the award to plaintiff to the sum of $355,141.00 and to recast the award of expert fees as follows:

Mr. Ernest Huval $425.00
Dr. Clark Gunderson $250.00
Dr. I. Robert Ehrlich $600.00

As modified and amended, the judgment is affirmed.

REVERSED IN PART AND RENDERED, AMENDED AND AFFIRMED IN PART.

BEER, J., dissents and assigns reasons.

BEER, Judge,

dissenting.

I respectfully dissent.

Mrs. Welton came to a full stop and was able to see “a great distance up the road” before proceeding into the intersection and being struck.

This unusual action, at an intersection where she had a clear signal to proceed by reason of a green traffic signal, caused her to be the unwitting victim of her own misplaced caution. Her unexplained decision to completely disregard the green traffic signal and to proceed in the unusual manner that she has described in her own testimony was, I believe, a cause in fact of the accident. Her decision to come to a full stop when she was being signalled to proceed set in motion a sequence of bizarre and unfortunate events that has culminated in her serious and permanent injury. She unintentionally but nevertheless clearly misled the oncoming driver, Falcon, who, under the circumstances confronting him, had solid reason to believe that the traffic signal light that controlled Mrs. Welton’s movements was showing her a red signal. Thus, the combination of circumstances confronting Falcon as he proceeded toward the intersection were such that it would be unreasonable to require him to reduce his rate of speed. Furthermore, the record does not, in my view, support the expert testimony with regard to alleged excessive speed on the part of Falcon.

This was a most unfortunate accident involving a lady for whom all must have respect and compassion. Also, it seems to me that she has been entirely truthful in her testimony.

Nevertheless, I feel compelled to respectfully dissent for the reasons noted above.

      . While the Department’s expert in maintenance and operation of traffic signals opined that it was impossible for a green light to show in one direction at the same time a yellow light showed in the other, a deputy sheriff had just observed the entire situation and was reporting the malfunction when the collision occurred. Other witnesses corroborated the deputy’s testimony, and there was no conflicting eye witness testimony.

      . We do not by this quotation mean to attribute unwarranted certitude to the deposition estimates. We simply note the later testimony, which is obviously more accurate. If plaintiff took approximately two seconds to move from the stopped position to the point of impact (as established by expert testimony conceded to be correct on that point), then Falcon had to be some distance (depending on speed) back from the intersection when plaintiff’s car began to come across.

      . This basic formula for estimating speed from braking distance applies when the road is straight and level and the decelerating vehicle has not struck another object. 1 Lacy, Scientific Automobile Accident Reconstruction, Ch. 6, p. 581 (1964, 1975). The same formula was applied by Ehrlich in the present situation (after impact) to determine the speed of the truck immediately after impact by reference to the “distance from the point that you’re interested in to when it stops.”

      . Ehrlich also calculated that the velocity of the 46,000-pound tractor-trailer was slowed about three miles per hour by impact with the 3,800-pound automobile, indicating a speed immediately before impact of about 53 miles per hour.

      . We are impressed, as apparently was the jury, by Ehrlich’s qualifications, including his Ph.D. degree in engineering, his position as Dean of Research at Stevens Institute of Technology, his extensive list of technical publications, and his experience in accident reconstruction both on behalf of large manufacturing companies and of tort victims.

      . This testimony also demonstrates that any after-impact braking distance greater than 82 feet would indicate an impact speed greater than 40 miles per hour.

      . Defendants’ brief challenged Ehrlich’s statement that the weight of the vehicle does not affect braking distance. Since the mass pushing forward on braking is equal to the mass pushing downward, the mass factor cancels out in the equation. (1 Lacy, supra, Ch. 6, pp. 561, 563). Ehrlich explained that differences in required stopping distance between trucks and cars are due to differences in composition and inflation of tires and other factors which affect the coefficient of friction in the formula.
      Again, there was no contradictory expert testimony on this point or on the calculation of the required stopping distance for this unit at that speed.

      . Although this consideration is not essential to our decision in this case, it is arguable that the Department (which must exercise a high degree of care to prevent any traffic signal malfunctions) is absolutely liable, without proof of specific negligence or of notice of the malfunction, for a traffic light which indicates a signal to proceed to motorists in both directions. Since this particular malfunction is a trap for motorists and obviously creates a far greater risk than one in which ail lights are nonfunc-tioning or one in which a stop signal shows or blinks in at least one direction, the Department must exercise an extremely high degree of care (and perhaps has an absolute duty) to prevent such a malfunction.

      . Plaintiff testified that she had decided to consent to the amputation because she could not bear the constant pain. Her appearance at oral argument revealed that amputation had been performed.

      . Past medical expenses consisted solely of hospitalization and treatment at Charity Hospital. Although the hospital was timely notified, no intervention was filed prior to trial.

      .We note, but reject, defendants’ contention that the expert’s use of the $360.00 figure was unjustified, because it did not consider plaintiffs expenses in traveling a substantial distance to earn income at the most recent job. She had no such expense at the earlier job. Moreover, at the time of the accident, plaintiff was earning over $500.00 per month, when the second job was considered.

      . Thus, we are not presented with the frequently occurring problem as to whether investigating officers are qualified by extensive experience in accident investigation to give conclusions from the facts learned in a routine investigation. While experience in accident investigation may bear on the weight to be accorded to the witness’s statement of facts learned in the investigation, that experience alone does not qualify a witness to give opinions in accident reconstruction based on special study in the sciences of physics and engineering. It is indeed highly questionable that experience in accident investigation qualifies a witness to answer any questions calling for conclusions of opinions.

      . Since the dissenting judge agrees with the modification of the judgment as to reduction of the amount of special damages and the liability of the Department of Highways, there is no basis to submit this case for reargument to a five-judge panel under La.Const.1974, art. 5, § 8(B).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Julius E. GATES, Plaintiff-Appellee, v. Nina GATES, Defendant-Appellant.
    No. 13178.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 3, 1977.
    Hudson, Potts & Bernstein by James A. Rountree, Monroe, for defendant-appellant.

      Charles E. Joiner, West Monroe, for plaintiff-appellee.
    Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ.
   PER CURIAM.

After a preliminary review of the record this court notified appellant, through counsel, of a probable lack of jurisdiction due to failure of the appellant to timely perfect the appeal and ordered the appellant to show cause within ten days why the appeal should not be dismissed. Appellant’s response conceded that under the uniform jurisprudence in this state this court lacks jurisdiction in the instant case.

The judgment denying appellant a separation was signed and filed on September 9, 1976. Notice of judgment was not required and there was no application for a new trial. The appeal bond was not filed until November 9,1976, after the thirty-day period for perfecting the appeal had expired. See LSA-C.C.P. Art. 3942. Since the appeal was not timely perfected, it is dismissed at appellant’s costs.

Appeal dismissed.


author: PER CURIAM. PER CURIAM.

text:
    Mr. Joseph P. KRIEG v. Jack SCIORTINO.
    No. 8318.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 6, 1977.
    Rehearing Denied Jan. 12, 1977.
    Joseph S. Russo, Jefferson, for defendant-appellant.
    Raymond A. Milly, Metairie, for plaintiff-appellee.
   ON MOTION TO DISMISS

Before LEMMON, STOULIG and BEER, JJ.

PER CURIAM.

This matter comes before us by reason of motions to dismiss filed in behalf of plaintiff-appellee.

An examination of the record indicates that defendant-appellant did not file a verification of his answer until three days after filing the bond as security for the appeal. Thus, there was no verification in the record which is properly before us on appeal, and there has been no timely compliance with the oath requirement of C.C.P. Article 4735 (see Alexander v. Williams,, La.App., 205 So.2d 456), and the suspensive appeal must be dismissed at appellant’s cost. It is so ordered.

APPEAL DISMISSED.

ON MOTION FOR REHEARING

PER CURIAM.

In response to the application for rehearing filed in behalf of appellant, we amend our order of January 6, 1977, so as to dismiss the suspensive appeal, but we maintain the appeal as devolutive inasmuch as the order of appeal and the bond were filed in time sufficient to preserve appellant’s right to devolutively appeal. In all other respects, the application for rehearing is denied.

ORIGINAL ORDER AMENDED; REHEARING DENIED.


author: JONES, Judge.

text:
    Jereane Boyd ARNTSON, Plaintiff-Appellant, v. James L. ARNTSON, Defendant-Appellee.
    No. 13087.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    Mecom, Scott & Woods by B. J. Woods, Shreveport, for plaintiff-appellant.
    Glenn F. Armstrong, Bossier City, for defendant-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff wife sued her husband for a separation based on cruel treatment. Defendant answered, denying the cruel treatment, and reconvened for a separation based on abandonment. The lower court rejected the wife’s demands and rendered judgment in favor of the husband. Plaintiff appeals. We affirm.

Mrs. Arntson urges the trial court erred in not awarding her a separation based on cruel treatment. Alternatively, she argues the trial court should have awarded a separation based on Civil Code Art. 138(9), living separate and apart for one year. She also claims Mr. Arntson was not entitled to a separation based on abandonment.

Plaintiff admits she left the matrimonial domicile on July 19, 1974 and has not returned. However, she asserts she had a “lawful cause” in leaving, and also that she has offered to return, either of which assertion, if proven, would be a defense to the husband’s reconventional demand wherein he seeks a separation for abandonment under LSA-C.C. Art. 143.

An examination of the record shows plaintiff’s allegations of cruelty were generally based on incidents that covered a period extending over several years. These acts of cruelty included charges her husband associated with other women, refused to take her on trips, and told her he didn’t love her. Her proof of these allegations, most of which were denied by her husband, consisted largely of her uncorroborated testimony.

The trial judge found Mrs. Arntson did not prove cruelty on the part of her husband by a preponderance of the evidence and failed to prove she attempted to return to the matrimonial domicile.

In her testimony, Mrs. Arntson claimed she tried to return to her husband’s home four different times and, until April 14, 1976, would have returned, but now (at the time of trial) would not. Mr. Arntson stated his wife could have come back, and he never kept her out or refused to allow her to return. Their daughter, Kathleen, age 26, had moved in with Mr. Arntson approximately one year before trial. She stated her mother had never tried to return during that time.

The trial judge’s evaluation of the testimony is entitled to great weight. Based on this court’s review of the record, there is no manifest error in his findings of fact. Leriche v. Leriche, 303 So.2d 250 (La.App., 2d Cir. 1974).

The husband was entitled to a separation based on abandonment when his wife left the matrimonial domicile without lawful cause. Kleinpeter v. McCulloh, 312 So.2d 146 (La.App., 1st Cir. 1975); Burnett v. Burnett, 324 So.2d 622 (La.App., 2d Cir. 1975). There is no merit to plaintiff’s contention the separation should have been based on living separate and apart for one year.

For the foregoing reasons, the judgment appealed from is affirmed, appellant to pay all costs of this appeal.

      . Art. 143. Abandonment.
      “Separation grounded on abandonment by one of the parties can be admitted only in the case when he or she was withdrawn himself or herself from the common dwelling, without a lawful cause, has constantly refused to return to live with the other, and when such refusal is made to appear in the manner hereafter directed; provided, however, that separation grounded on abandonment may be the object of a reconventional demand in any suit for separation from bed and board.”


author: MARVIN, Judge.

text:
    Marvin T. BLANDINO, Plaintiff-Appellant, v. BROWN ERECTION COMPANY, INC., et al., Defendants-Appellees.
    No. 13088.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.

      Hal V. Lyons, Shreveport, for plaintiff-appellant, Marvin T. Blandino.
    Joseph R. Bethard, Shreveport, for inter-venor-appellant, Travelers Ins. Co.
    Blanchard, Walker, O’Quin & Roberts by Neilson S. Jacobs, Shreveport, for defendants-appellees, Brown Erection Co., Inc. and Bituminous Casualty Corp.
    Before BOLIN, MARVIN and JONES, JJ.
   MARVIN, Judge.

Plaintiff Blandino, an ironworker, was injured when a cable on a crane boom extension failed and the load which the crane was lifting fell on a joist on which plaintiff was standing, causing plaintiff to fall about 20 feet to the ground.

Plaintiff sued Brown Erection Company (which had rented the crane to plaintiff’s employer, Atkinson Company) and its liability insurer in tort. The workmen’s compensation carrier of plaintiff’s employer intervened for amounts paid to or for the injured employee under the Workmen’s Compensation Law. Jury trial, demanded by plaintiff, resulted in a verdict rejecting plaintiff’s demands (10-2) against defendants. On plaintiff’s appeal of the judgment below, we affirm.

Plaintiff asserts numerous errors, including legal insufficiency of the charge below to the jury and contends that his motion for a new trial should have been granted below. Plaintiff complains in this latter respect that the one male juror unduly influenced, commandeered and dominated the eleven female jurors.

Plaintiff’s employer rented the crane from defendant Brown Erection Company to lift bundles of metal decking to the second floor of a building under construction on which plaintiff was working. The crane boom (70 feet) was fitted with a 20 foot extension, called a “jib.” The jib was connected to the boom with one large bolt. A support cable extending from a cable spool at the base of the boom to the end of the jib maintained the jib’s rigidity at any angle set by the crane operator.

The crane had successfully lifted one bundle of decking from the ground to the second floor. When the second bundle was being lifted the jib support cable snapped or broke. This caused the jib to swing downward and the weight of the bundle to fall onto a joist on which plaintiff was standing. The jolt or impact caused plaintiff to fall about 20 feet to the ground and resulting disabling injuries. The respective angle-radius of the boom and jib, the procedure followed by the crane, the weight of the bundle (approximately 3600 lbs.), the position in which the bundle was to placed, were similar on the first and second lift.

The defendants’ crane operator, who was “leased” with the crane, was under the supervision and control of the foreman of plaintiff’s employer who was directing the crane operator for the purposes of the lift. The crane operator was legally a borrowed employee of plaintiff’s employer. Benoit v. Hunt Tool Co., 219 La. 380, 53 So.2d 137 (1951) and B. & G. Crane Service v. Thomas W. Hooley & Sons, 227 La. 677, 80 So.2d 369 (1955).

Where an employee of A is injured because of the direct negligence of B (i. e., the failure of equipment negligently maintained by and leased by B to A), the injured employee may recover from B notwithstanding that one or more of B’s employees have been loaned to A and were under the direction and control of A. The injured employee’s recovery in such cases is not based on the negligence of B’s employee loaned to A, but on B’s negligence. Jenkins v. Dixie Rental Tools and Casing Crews, Inc., 283 So.2d 271 (La.App. 1st Cir. 1973), Lyons v. Jahncke Service, Inc., 125 So.2d 619 (La.App. 1st Cir. 1960).

As an appellate court, we are required to review the record from a factual viewpoint and to render any judgment which is just, legal and proper. LSA— Const.1921, Art. 7, § 29; LSA-Const.1974, Art. 5, § 10, LSA-C.C.P. Art. 2164. The ultimate factual inquiry is whether or not plaintiff has proved facts by a preponderance of the evidence from which we may find or infer a legal basis for imposing liability on Brown Erection Company, owner of the crane.

Our review of the record convinces us that plaintiff proved only that the jib support cable snapped. The principal owner and manager of Brown Erection Company testified and produced corporate business records to establish that the jib support cable was replaced with new cable four months prior to the accident. This cable generally lasts for about two years before it becomes worn and weakened. An expert witness who examined the crane and the broken cable following the accident negatived the existence of any defects, nicks, cuts or ravelling in the cable. Brown’s employee, who operated and maintained the crane, testified that he found no defects in the crane or cable before or after the accident complained of.

Plaintiff did not prove by a preponderance of the evidence that the cable failed because of any defect. Plaintiff also did not negative the existence of other factors which may have caused the cable to fail from which we could reasonably and logically infer that the accident would not have happened except for the fault and neglect of Brown Erection Company. Town of Slidell v. Temple, 246 La. 137, 164 So.2d 276 (1964); Perkins v. Texas & New Orleans Railroad Company, 243 La. 829, 147 So.2d 646 (1962); LeBlanc v. Travelers Insurance Company, 291 So.2d 817 (La.App. 4th Cir. 1974). The expert witness who examined the broken cable could surmise as the only reason for the failure, the crane must have been “overloaded.” Brown’s employee (the driver of the crane) said that he suggested to Atkinson’s foreman that the bundles of decking should be split or divided (so as to reduce the weight). According to Brown’s employee, the Atkinson Company foreman responded that it could not be done because it would take too much time and trouble. Considering these factors, it could be found it was more probable than not that the cable failed because it was overloaded by the fellow employees of plaintiff.

Plaintiff’s motion for a new trial alleged that the one male juror (1) refused to allow a secret written ballot; (2) advised the other jurors that plaintiff did not “deserve” disability; (3) advised that Brown Erection Company did not have to maintain its equipment in good shape, and (4) advised that one of plaintiff’s witnesses lied on the witness stand because he “smiled.”

C.C.P. Art. 1814 reads:

“A new trial shall be granted if it be proved that the jury was bribed or has behaved improperly so that impartial justice has not been done.”

Improper behavior by a jury is not defined but must be determined by the facts and circumstances of the particular case.

Plaintiff’s allegations, if true, reflect only that the male juror was a highly opinionated person. The presence on a jury of a highly opinionated person does not constitute improper behavior so as to preclude achievement of impartial justice within the meaning of C.C.P. Art. 1814. The lower court did not err in denying plaintiff’s motion of a new trial based on these allegations.

In obedience to constitutional and statutory mandate, we have reviewed the record from a factual standpoint under correct and appropriate legal principles. Art. 5, Section 10(B), La. Constitution 1974; C.C.P. Art. 2164. Even assuming arguendo that the lower court improperly instructed the jury, the record does not support a reversal of the judgment below or a remand for a new trial. Our factual review convinces us the result is correct.

At appellants’ cost, judgment is

AFFIRMED.


text:
    James E. BECK, Plaintiff-Appellee, v. Caroline W. BECK, Defendant-Appellant.
    No. 13090.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.

      Kitchens, Benton & Kitchens, by John B. Benton, Jr., Minden, for appellant.
    Fish & Montgomery by John W. Montgomery, Minden, for appellee.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

The husband instituted this action against his former wife to obtain custody of their youngest child, a seven-year-old son. The lower court changed custody to the father and the mother appeals.

The only issue is whether the lower court erred in granting a change in custody of a seven year old boy when the mother admittedly had been living in open concubinage for some four or five months when the change of custody suit was brought. We affirm the lower court.

The mother was awarded custody of the child in a separation obtained by her on November 7, 1974. The father was awarded custody of the two other minor children in the same judgment. The parties were divorced about a year later, and custody of the children remained the same. The father sought the change in custody about six months after divorce.

The mother and her paramour have or had the same employer. She admits she allowed her paramour to move into the house trailer she occupied with her young son and that she and her paramour engaged in sexual relations. Although she testified this arrangement was to only be a temporary one, the paramour remained for four or five months, and did not move out until after service of the Rule in this case. Her paramour is a married man, judicially separated from his wife.

Proof of one act or several acts of adultery with the same paramour does not necessarily render morally unfit a mother who is otherwise suited for custody. However, where the mother has recently lived in open and public adultery with her paramour for a substantial period of time, in total disregard of the moral principles of our society, the mother is generally held morally unfit for custody. Monsour v. Monsour, 339 So.2d 488 (La.App., 2d Cir. 1976).

The mother admitted she never thought her arrangement with her paramour was right, and she knew it was morally wrong. However, she claims because her son never saw her and the man in a state of undress, or while engaged in sexual matters and because her son had no knowledge of sexual matters, she didn’t think this activity harmed the boy in any way. We disagree.

The testimony at trial established the child is extremely intelligent and was fully aware that the man was living with his mother. It is within common knowledge and experience that a child learns by example, especially from his parents. Such utter disregard for moral guidance and social standards can have but ill effect on the young son. Tuggle v. Tuggle, 235 So.2d 166 (La.App., 2d Cir. 1970).

Defendant urges although she has been guilty of immoral conduct, she has redeemed herself by requiring her paramour to move out of her trailer, and discontinuing sexual relations with him. We do not feel such actions, performed only after service of the Rule, are sufficient to show she has redeemed herself, or are an indication that she would provide continuing good moral guidance for her young son.

“Past misconduct forms an important consideration in determining the present suitability of a parent . . ..”
Borras v. Falgoust, 285 So.2d 583, 588 (La.App., 4th Cir. 1973)

The mother also argues the father has not shown he is in a position to provide the proper environment should a change in custody be upheld. She introduced evidence the father takes Darvon regularly without a prescription. There is no evidence the taking of this medication has any adverse effect on his performance as a father. The evidence established the father is able to provide a proper home for the boy. The trial court noted the father had custody of the boy practically every weekend since the separation, as well as the permanent custody of the other two children of the marriage.

The trial court found the best interests of the minor would be served by awarding custody to the father. The determination of the trial judge is entitled to great weight upon appellate review. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). We agree with his decision.

The judgment appealed from is affirmed, appellant to pay all costs of this appeal.

Affirmed.

      . A medical doctor testified Darvon is a synthetic pain medication, stronger than aspirin but weaker than codeine, and is not a controlled narcotic, although a prescription is required. He further stated the amount being taken by the father was not excessive provided he had a reason for taking it. The father testified he took it for pain emanating from an old knee injury.


author: BOLIN, Judge.

text:
    In the Interest of Zennie Donna Marie SHUMAKER. Dorothy Shumaker FITZGERALD, Respondent-Appellant, v. LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION, Petitioner-Appellee.
    No. 13092.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    George E. Harp and Tommy K. Cryer, Shreveport, for respondent-appellant.
    George F. McGowin, Baton Rouge, for petitioner-appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

Respondent appeals from an order of Caddo Parish Juvenile Court declaring her nine-year-old daughter an abandoned child within the meaning of Louisiana Revised Statutes 9:403(A). No reasons were assigned by the juvenile judge other than a statement in the preamble of the decree that “the best interest of the child supports an order of abandonment.” We reverse.

The sole issue is whether it was proved the actions of the mother manifested an intention to permanently avoid all parental responsibility so as to justify a finding that the child was abandoned under the statute.

The child was born in Georgia in August 1967. When the baby was four months old the father secured a divorce from respondent and custody of the child. In March 1973 the father by notarial act surrendered the child for adoption to Caddo Parish Family Services [La.R.S. 9:402], which has had her custody since.

In February 1976 the agency notified the mother that an abandonment proceeding would be filed as it had not heard from her since November 1974. The petition for abandonment was filed in March 1976. An attorney was appointed to represent the mother, an opposition to the petition was filed, and the mother appeared and testified in the hearing in May 1976. The decree of abandonment was signed June 15, 1976.

The mother, who lives in Georgia, was first notified of her daughter’s whereabouts after the father had voluntarily surrendered the child to the agency in March 1973. In October 1973 the agency commenced abandonment proceedings which were dismissed when the mother appeared and opposed the action. At that time she was not allowed to see the child. Soon thereafter the agency directed a letter to the mother advising her that since she knew Donna was in the foster care of the agency it was making demand on her for monthly contri-buttons to help support the child. The mother responded and during the period from October 1973 to November 1974, she made fourteen weekly payments of $10 each. The last such payment was received in November 1974. The mother was never under court order to make support payments.

During the interim from October 1973 to November 1974, the mother wrote the agency social worker four letters, in two of which she inquired about Donna’s health and expressed her love for Donna and her desire to have her back; in one she asked that the agency arrange to let her visit with Donna and requested a picture of the child. In the fourth letter the mother told the agency she was ill but she would send money to catch up the weekly payments as soon as she could. On December 10, 1974, the case worker wrote the mother telling her Donna was getting along fine and that a recent medical report showed there was nothing to worry about.

The only personal contact the mother had with Donna was an hour and one-half visit in July 1974, which was arranged through the agency. Although the mother had neither written nor called the agency concerning her daughter since November 1974, she contacted her minister who wrote to the agency and to Caddo Legal Aid on her behalf on January 15, 1975. These letters are admissible in evidence for the limited purpose of corroborating the testimony of Mrs. Shumaker that she had contacted the minister about helping her. In response to one of the letters, the Children’s Case Supervisor wrote the minister on January 17,1975, assuring him the agency would not attempt to force the mother to support Donna in view of her difficult circumstances. The supervisor expressed the hope that the minister would continue to help the family and would be able to help them see “that for Donna to remain in foster care would be best.”

Appellant blames her apparent lack of concern for her daughter over the 15-month period prior to this proceeding on the various misfortunes which had befallen her during that time. She testified she lost her job and was unable to continue making the weekly payments; that she was involved in litigation in another state trying to regain custody of two of her other children; that her present husband was out of work and they were financially unable to travel from Georgia to Shreveport to visit Donna; that the agency was uncooperative and “did not want her to get Donna back.” She testified the agency would not send her a picture nor tell her how to regain custody of .the child.

The cases cited on behalf of appellant repeat the admonition that failure or even refusal of the parent to support a child is not sufficient cause to justify a decree of abandonment; that the evidence must clearly show a manifestation of intent to permanently avoid all parental responsibility; and all reasonable doubt should be resolved against entering such a decree which is in derogation of the natural rights of legitimate parents. In the Interest of Jackson, 312 So.2d 912 (La.App. 4th Cir., 1975); Henderson v. Spears, 292 So.2d 801 (La.App. 1st Cir., 1974); In re State ex rel. Sharp, 219 So.2d 317 (La.App. 1st Cir., 1969); State in Interest of Fischbein, 194 So.2d 388 (La.App. 4th Cir., 1967).

In each of the above cited cases the court found the circumstances failed to justify a decree of abandonment. Particularly appropriate to this case is the opinion in In Re Jackson, supra, which we think expresses the underlying purpose of Louisiana Revised Statutes 9:401-407:

“ . . . [A] decree of abandonment, which irrevocably breaks one of the closest and most fundamental human relationships, must be based on evidence of circumstances clearly manifesting the parent’s intention to permanently evade all parental duties. . . .all reasonable doubt should be resolved against entering such a decree.”

Appellee agency contends the court should strictly construe that part of R.S. 9:403 which provides that if the parent has refused to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid all parental responsibilities, the child shall, after proceedings as hereinafter set forth, be considered an abandoned child. The four months referred to in the statute is the minimum period of non-support which must elapse before the agency has the right to institute abandonment proceedings. This provision must be read with the qualifying clause that the failure to support must be “under circumstances showing an intention to permanently avoid all parental responsibilities.” The burden is on the state to prove affirmatively both of the above requisites before the parent will be held to have forfeited his parental right to the child.

Cited by appellee as being analogous to this case is the case of In the Interest of Vines, 130 So.2d 445 (La.App. 2nd Cir., 1961). There the juvenile court had found the children were neglected and had placed them with the Department of Public Welfare more than four years prior to the abandonment proceeding. During that period the parents made no effort to support the children nor did they express any love, affection or concern for their welfare. Under those facts the court declared the children abandoned. No such extreme circumstances exist in this case.

Appellee further contends the ruling of the trial judge should be affirmed since he was in a better position to evaluate the best interest of the child due to his “total overview” of the conduct and credibility of the parties. While we agree the juvenile judge’s ruling should be accorded great weight, we conclude that the conduct of the mother, about which there is no factual dispute, does not support a finding that the child was abandoned under the statute.

The agency has provided this court with a supplemental brief urging the affirmance of the juvenile court decree on the basis that the best interest of the child supports an order of abandonment. State of Louisiana in the Interest of Thoman, 253 La. 496, 218 So.2d 571 (1969) is cited for the proposition that the court may rest its finding solely on a consideration of the best interest of the child. That case arose under entirely different circumstances and involved the custody of a child who, in the legal custody of its mother, had been declared to be neglected, under La.R.S. 13:1570, and had been placed in the temporary custody of a children’s home, which action was opposed by the father.

There is little similarity, either in purpose or effect, between the abandonment proceeding under R.S. 9:403 and one in which a court finds a child neglected and in need of protection of the juvenile court under R.S. 13:1570. We have been cited to no authority, nor has independent research revealed any, by which the courts may, after considering only the best interest of the child in a contested action, declare a child abandoned under R.S. 9:403.

Considering all the circumstances, we conclude the actions of the mother do not manifest an intention to permanently avoid all parental responsibility for the child.

The decree of abandonment is reversed and the action is dismissed.

      . R.S. 9:403
      A. If any child has been deserted for a period of at least four months by his parent and the whereabouts of his parent are unknown and the parent has made no provision for the child’s care, or the parent has refused to provide for the care and support of the child for a period of at least four months under circumstances showing an intention to permanently avoid all parental responsibilities, the child shall, ... be considered an abandoned child. However, this Part shall not be construed to require physical care of a child by a parent to whom custody has been denied or from whom custody has been removed by a court of competent jurisdiction. (Emphasis supplied)


text:
    Patsy P. DYESS, Plaintiff-Appellant, v. F. C. DOYAL, Jr., Administrator of the Division of Employment Security, Department of Labor, State of Louisiana and Western Electric Co., Inc., Defendants-Appellees.
    No. 13095.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.

      Hamilton & Sermons by Joel M. Sermons, Shreveport, for plaintiff-appellant.
    Tucker, Martin, Holder, Jeter & Jackson by Jeffrey P. Victory, Shreveport, for defendant-appellee, Western Elec. Co., Inc.
    Marion Weimer, James A. Piper, James A. McGraw, Baton Rouge, for defendant-appellee, Administrator of the Louisiana Dept, of Employment Security.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

Patsy Dyess, while on maternity leave as an employee of Western Electric Company, applied for reinstatement and was offered suitable employment. For compelling personal reasons she was unable to report for work until a union strike was in progress at Western Electric, at which time she did not return to her job because she did not want to cross the picket line. Defendant administrative agency denied her unemployment benefits, finding her refusal to return to work was “without good cause”. The district court affirmed plaintiff’s disqualification for benefits and she appeals. We reverse.

The primary issue is whether claimant was disqualified for unemployment benefits under Louisiana Revised Statutes 23:1601(3) because she failed without good cause to accept suitable work when it was offered to her by Western Electric.

As the findings of facts of the administrative agency, if supported by sufficient evidence, are conclusive (R.S. 23:1634), we set forth the findings and opinion of the Appeals Referee which decision was affirmed by the Board of Review:

“The claimant worked for the employer 1 year and 4 months as a bench worker. She was scheduled to work from 7:00 a.m. until 3:30 p.m. Monday through Friday and was paid $3.11 per hour. On Sept. 29, 1973, the claimant was granted a one year maternity leave of absence. Following the birth of her child she applied for reinstatement on May 14, 1974. At that time no work was available and she was put on a work waiting list. She then filed an Unemployment Insurance claim. “At about 9:00 p.m. on July 31,1974, Miss Lightfoot, personnel interviewer, telephoned the claimant offering her reemployment. The new work was as a packer on the night shift from 11:00 p.m. until 7:00 a.m. at the same rate of pay as her old job plus a 10% shift differential. The claimant agreed to accept the new employment, but told Miss Lightfoot that her baby was ill and she would have to consult the baby’s doctor before setting an actual date to come back to work. The next morning the claimant telephoned Miss Lightfoot saying she had not been able to reach the baby’s doctor but she would call back later. Miss Lightfoot advised her to come in that afternoon at 1:15 p.m. and take a physical. The claimant did not report for her physical but attempted to come to the company the next day instead. However, that day she did not report because in attempting to leave her children with a friend, her car became stuck. During this time her telephone was out of order and she did not call in. She planned to report to the company on Monday, August 5, but a picket line went up on Sunday, August 4, 1974, by IBEW Local 2188. The claimant is a member of this local and did not want to cross the picket line.
“R.S. 23:1601(3) provides that a claimant shall be disqualified for failing, without good cause, to apply for available, suitable work when so directed, or to accept suitable work when offered. This disqualification shall continue until such time as the claimant has returned to work and earned wages equivalent to ten times the weekly benefit amount, and must then be separated under non-disqualifying circumstances.
“Even though the shift was changed from days to nights, by her own admission, she deemed the work suitable. That is, she wanted the job and verbally accepted the offer. Compelling personal circumstances of her baby’s illness prevented her from reporting to work before the strike. The following week she failed to report to work because of the strike. Work was available for her both before and during the strike and since the work was suitable for the claimant, her failure to follow through on her application for this employment was without good cause within the meaning of the Louisiana Employment Security Law. The determination of the Agency is correct. She is not entitled to benefits.” (Emphasis supplied)

An examination of the quoted portion of R.S. 23:1601(3) reveals the only part applicable to this case is “or [failed without good cause] to accept suitable work when offered him [her].” On this crucial question we conclude the facts found by the Appeals Referee do not support his decision. The referee found that the reason claimant did not report for her physical examination or otherwise accept employment with the company before the strike was because her car became stuck and her telephone was out of order. When the administrative agency found these compelling personal reasons were not good cause for failing to accept suitable employment when offered, it committed an error of law. We find plaintiff had good cause for failing to accept suitable work on August 1 and 2, 1974.

We find no error of law in the determination that plaintiff was disqualified for receiving benefits beginning Monday, August 5, 1974 because she, as a union member, would not cross the picket line. This disqualification shall continue for each week which the administrator finds the unemployment is due to the strike or labor dispute.

Senegal v. Lake Charles Stevedores, Inc., 250 La. 623, 197 So.2d 648 (1967) held that a stevedore was interested in a labor dispute and was ineligible for unemployment benefits under R.S. 23:1601(4) because, even though he was not a member of the striking union, he received the same wages as union members, he made no attempt to cross the picket line, and as a result of the strike he received the same increase in pay as union members.

The claimant, who admitted being a member of IBEW and who refused to cross the picket line, did not meet her burden of proving that she was not interested in or participating in the strike. Her interest in the strike disqualified her from unemployment benefits from August 5, 1974 through the duration of the strike.

We do not have sufficient evidence to determine whether or not claimant once again became entitled to benefits after the strike ended.

The judgment is reversed and the case is remanded to the Board of Review to grant relief in accordance with this opinion and, additionally, to determine whether or not claimant again became eligible for benefits after the strike of IBEW ended.

Reversed and remanded.

      . R.S. 23:1601 provides in part as follows:
      An individual shall be disqualified for benefits:
      * >ít * * if! *
      (3) If the administrator finds that he has failed, without good cause, either to apply for available, suitable work when so directed by the administrator or to accept suitable work when offered him, or to return to his customary self-employment (if any) when so directed by the administrator . . . (Emphasis supplied)

      . R.S. 23:1601(4)
      For any week with respect to which the administrator finds that his unemployment is due to a labor dispute which is in active progress at the factory, establishment, or other premises at which he is or was last employed; but such disqualification shall not apply if it is shown to the satisfaction of the administrator that he is not participating in or interested in the labor dispute which caused his unemployment. . . .


author: PRICE, Judge.

text:
    Dewey B. BURT and Hazel G. Burt, Plaintiffs-Appellants, v. AETNA LIFE & CASUALTY INSURANCE COMPANY et al., Defendants-Appellees.
    No. 13096.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    Law Offices of Robert P. McLeod by Robert P. McLeod, Monroe, for plaintiffs-appellants.
    Theus, Grisham, Davis & Leigh by Stephen E. Broyles, Monroe, for defendants-appellees.
    Before PRICE, HALL and JONES, JJ.
   PRICE, Judge.

Mrs. Hazel Burt was awarded the sum of $1,500 as general damages, and $63.60 for loss of wages caused by an intersectional automobile collision in the city of Monroe on December 2, 1974. Her husband was awarded $170.35 for her medical expenses. Mrs. Burt has appealed requesting an increase in the amount awarded her for pain and suffering. Aetna Life and Casualty Insurance Company, the liability insurer of the automobile which struck the car Mrs. Burt was driving, has stipulated its liability, and the sole issue is the amount of damages she has sustained.

There was no physical injury to Mrs. Burt in the accident. Her sole complaint is that she sustained an emotional trauma which has caused her to have headaches, gastric upset, and extreme nervousness.

Mrs. Burt was treated by her family physician, Dr. S. I. Courtman, on the date following the accident for a complaint of headaches and nervousness. He prescribed a muscle relaxant, another drug to relax spasm of the stomach, and an anti-depressant for her nerves. On subsequent visits to Dr. Courtman, Mrs. Burt complained she had become very disturbed and emotionally upset when riding in or driving an automobile. She also complained that she developed stomach pains and had regurgitated her food on several occasions following the accident. The testimony of Dr. Courtman shows Mrs. Burt was previously under his care for a nervous condition. His testimony indicated the accident probably caused an aggravation of her existing anxiety complex. He felt she had substantially recovered from the accident-related symptoms by July, 1975.

Mrs. Burt missed six half-days of work because of headaches she related to the accident.

While the award of $1,500 by the trial court for plaintiff’s pain and suffering may be in the lower range for such an injury, it is well within the realm of a reasonable award, and does not constitute an abuse of the discretion of the trial court.

The judgment appealed is therefore affirmed at appellants' costs.


text:
    Dan W. STEWART, III, Plaintiff-Appellant, v. Don Wilton AVERY et al., Defendants-Appellees.
    No. 13099.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.

      Stewart & Stewart by Dan W. Stewart, III, Minden, for plaintiff-appellant.
    Campbell, Campbell & Johnson by Cecil P. Campbell, Minden, for defendants-appel-lees.
    Fish & Montgomery by John W. Montgomery, Minden, for Webster Parish District Clerk of Court, third party plaintiff-appellee.
    Before PRICE, HALL and JONES, JJ.
   JONES, Judge.

Dan W. Stewart brought a possessory action against Don Wilton Avery and Louie B. Moore on December 2, 1970. Judgment was rendered and signed on April 12, 1973, in favor of plaintiff and casting defendants with costs. The judgment fixed the expert witness fee of Doyle P. Sanders in the amount of $150 and taxed it as cost.

On May 14, 1976 the Clerk of Court filed a Rule against plaintiff Stewart and defendants Avery, et al., seeking payment of accrued court costs, alleging they remained unpaid even though written demand had been made more than ten days prior to filing of the Rule. Costs of the original suit were itemized in the Rule as follows:

Clerk’s fees $ 33.00
Sheriff’s fees 28.50
Court Reporter’s fees 10.00
Doyle Sanders (survey) 150.00
Witness fees 2.00
$223.50

The Clerk acknowledged advance deposits by plaintiff of $118.88, leaving a balance due of $104.62. The Clerk also asked for reasonable attorney’s fees to be fixed by the court and taxed as costs of the Rule. The authority for the Clerk’s action is contained in LSA-R.S. 13:843 . At the trial of the Clerk’s Rule a judgment was rendered against plaintiff, Dan W. Stewart, III for $104.62, the amount of accrued court cost not covered by his prior advance, together with $150 as fee for the Clerk’s attorney and for cost of those proceedings. The trial court upheld exceptions of no cause or right of action and exceptions to service filed by defendants. Stewart appeals. The Clerk has neither appealed nor answered Stewart’s appeal.

Stewart urges it is inequitable to allow a trial judge, not the trial judge of the original case, to compel him to pay costs when defendants Avery and Moore were cast with costs in the original proceeding. Stewart misinterprets the action of the trial court. The defendants in the original proceeding, after being cast for costs, remain ultimately liable for those costs. The issue here is whether plaintiff remains primarily liable to the Clerk for costs accrued during the suit after defendants were cast for costs in a final judgment and, if so, whether the Clerk has established that the element of cost he seeks to collect is of the type for which he is entitled to seek payment.

It has long been established in our jurisprudence that plaintiff is primarily liable for all costs incurred until judgment is rendered and costs are cast. As stated in Crespo v. Viola, 152 La. 1088, 95 So. 256 (1922):

“The plaintiff is therefore primarily bound for the costs in every suit which he brings, and the defendant owes no costs until he is cast. C.P. 549; Fink, Execu tor, v. Martin, 10 Rob. 147 (Bk. 19 Reprint Ann.) and authorities cited in notes. The reason for this rule of law is that the plaintiff is the party provoking the litigation and until he has obtained a judgment against defendant, who is brought into court, not voluntarily, but by the suit, has no right to tax the latter with costs. Plaintiff commences the proceedings requiring the services of the officers of the court, and should therefore pay for them until it has been otherwise decreed. Then, too, the judgment which he obtains carries with it the costs, becomes his property, and having paid the costs, he may recover the same in the execution against defendant.” Id. p. 257.

Under LSA-R.S. 13:843, the Clerk may demand security for court costs, and may demand payment of accrued costs when any cost advance paid by plaintiff, as required by R.S. 13:842, is exhausted. Examples of these costs are sheriff’s fees, witness fees, Clerk’s fees, expert witness fees where the expert is appointed by the Court under LSA-C.C.P. 192, etc.

The provisions of LSA-R.S. 13:843, however, do not apply to all expenses which may possibly be taxed as Court costs in the final judgment. See Romero v. Romero, 232 So.2d 572 (La.App., 3d Cir. 1970). Those costs a defendant might be obliged to pay out prior to final judgment and for which he might be allowed to have taxed as costs against the plaintiff in a final judgment are not those included under this provision. Romero v. Romero, supra. An example of the costs not covered under R.S. 13:843 are fees of expert witnesses, auditors, surveyors or other scientists who defendant might employ in his defense of the suit. Cf. Whitson v. American Ice Company, 164 La. 283, 113 So. 849 (1927).

The casting of defendants with costs in a signed judgment does not operate to relieve the plaintiff from his primary liability to the Clerk of Court for accrued cost. The effect is only to place the ultimate liability upon the party cast, and to allow plaintiff to obtain reimbursement for his cost by execution of his judgment.

This result is essential. The Clerk must have the right to hold plaintiff, even after judgment assessing costs has been rendered, in order to provide maximum assurance that the court costs will be paid. There is always the very real possibility a defendant judgment debtor cast for cost will be insolvent or reluctant to pay (as was the case here). These are risks which must be assumed by the party provoking the lawsuit, and not by the Clerk.

Further, the right to collect the costs under the terms of the judgment belong to the party in whose favor it was rendered. An expert witness whose fee was taxed as costs cannot execute on the judgment. Couvillion v. Smiley, 194 So.2d 106 (La.App., 1st Cir. 1966). Since defendants were dismissed by the trial court on exceptions, and the Clerk neither appealed nor answered Stewart’s appeal, the question of whether the Clerk may also be entitled to a judgment for costs against the party cast is not before us.

In the situation before us, the major expense is the cost of Doyle Sanders’ expert witness fee, which is unpaid. With the exception of this item of expense, all accrued costs are covered by plaintiff’s cost advance.

The record contains no transcript of testimony that was produced at the trial of the Rule. The Clerk’s petition alleges Doyle Sanders was an expert appointed by the court. The deposition of Wallace Milford, which was taken in connection with the trial of the original possessory action and which is in the record, contains an indication that a plat prepared by Sanders had been introduced into evidence by defendant.

There is no evidence in the record establishing with certainty whether Sanders was a court-appointed expert or one offered by defendant. Only if Sanders is the former is •the Clerk entitled to seek payment of his fee as accrued court cost. Otherwise his fee is not an element of court cost for which plaintiff is liable.

Because of his uncertainty, we reverse and remand to the trial court for the purpose of ascertaining whether Doyle Sanders is a court-appointed expert or not. If he is court-appointed, the trial court should reinstate its original judgment. If not, the Clerk’s demands should be rejected at his cost.

Reversed and remanded.

      . § 843. Security for cost; collection of accrued costs; employment of counsel
      “The clerk of court may demand security for costs at the time the suit is filed.
      “After any cost advance furnished under R.S. 13:842 has been exhausted, all accrued costs shall be paid by the party primarily responsible therefor, or by the surety on any bond for costs furnished by him, upon receipt of the clerk’s demand for payment thereof supported by an itemized account of these accrued costs approved by the judge. If these accrued costs are not paid within ten days of the demand for payment, judgment therefor may be rendered against the party, and against the surety on any cost bond furnished by him, by rule returnable not less than two judicial days from the date of service upon the defendants in rule and the clerk may employ an attorney at law to assist him in filing and trying said rule or rules, and the fee of the attorney employed for that purpose shall be fixed by the district judge before whom the rule is tried and shall be taxed as costs along with the cost of hearing the rule.”


text:
    John PARKER, Plaintiff-Appellant, v. CONTINENTAL INSURANCE COMPANY et al., Defendants-Appellees.
    No. 13103.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 10, 1977.
    Kelly & Ware by Donald G. Kelly, Natch-itoches, for plaintiff-appellant, John Parker.
    Lunn, Irion, Switzer, Johnson & Salley by Richard H. Switzer and Jack'E. Carlisle, Jr., Shreveport, for defendants-appellees, Continental Ins. Co. and John W. Price.

      Before HALL, MARVIN and JONES, JJ.
   MARVIN, Judge.

A pedestrian plaintiff appeals from a judgment rejecting his demands for personal injury damages against the defendant automobile driver and his liability insurer. The issues are factual. We affirm.

The accident occurred immediately south of Bossier City on a clear, dry, dark night about 8:00 p. m. on U.S. Highway 71. Defendant was driving southerly in the westernmost southbound lane of the highway at about 45-50 miles per hour, within the speed limit, and with his lights on dim. The highway is four lanes, straight and level, separated by a neutral ground 45 feet in width.

Plaintiff ran from a position on the easternmost shoulder, and into the path of defendant’s automobile. Plaintiff had been a guest passenger in an automobile which apparently had overheated and stopped on the northbound shoulder. He was crossing the highway to obtain water for the cooling system of the car from a retail establishment west of the highway. Plaintiff testified he had waited for other vehicles to pass before he started out into the highway and eventually into the path of the defendant’s car.

Defendant testified that the pedestrian suddenly ran in front of him and that he did not have time to apply his brakes so as to cause the car to skid.

This area of the highway is sparsely populated but well traveled. Defendant and his guest passenger, plaintiff and his driver, and a state trooper who investigated, testified as to the liability issues and what was said by the parties or witnesses immediately afterward. The trooper testified that plaintiff was wearing clothing similar to a dark colored khaki-type work uniform.

A pedestrian attempting to cross a roadway at any other point than within a marked crosswalk or at an intersection is required to yield the right of way to all vehicles on the highway. Pedestrians are also charged with the responsibility of seeing what they should have seen in the exercise of due care. Plaintiff was clearly negligent under the circumstances here. R.S. 32:213; Ortego v. State Farm Mutual Automobile Ins. Co., 295 So.2d 593 (La.App. 3d Cir. 1974); Welch v. Mayhall, 325 So.2d 741 (La.App. 1st Cir. 1976).

Operators of motor vehicles are likewise under a duty to keep a vigilant lookout and to see that which he should have seen in the exercise of reasonable care. R.S. 32:214; Jackson v. Cook, 189 La. 860, 181 So. 195 (1938); Welch v. Mayhall, supra. A motorist, on the other hand, may assume the road is safe for travel and is not charged with the duty of guarding against unusual or unexpected obstructions which he has no reason to anticipate he will encounter on the highway and which, under the circumstances, are difficult to discover. Vowell v. Manufacturers Casualty Insurance Co., 229 La. 798, 86 So.2d 909 (1956); Welch v. Mayhall, supra.

The trial court resolved all factual issues against plaintiff. The record supports the trial court. Defendant cannot be held to have anticipated the unusual — a pedestrian running or speedily walking across a four-lane well traveled highway into the path of his automobile. Defendant was simply not negligent in causing the accident.

Plaintiff also urges us to apply the last clear chance doctrine. This doctrine is applied to absolve a plaintiff of his negligence in cases where a defendant is negligent. The doctrine is not applied in cases where defendant is found not to have been negligent. Poret v. Spencer, 277 So.2d 689 (La.App. 2d Cir. 1973); Welch v. Mayhall, supra.

Factual determinations of the trial court are entitled to great weight by appellate courts. Canter v. Koehring, 283 So.2d 716 (La.1973).

At appellant’s cost, judgment is

AFFIRMED.