author: BOLIN, Judge.

text:
    S. A. STEPHENSON d/b/a Stephenson Lumber & Supply, Plaintiff-Appellee, v. Lloyd C. SMITH, Defendant-Appellee, A. L. Rowan & Sons, Defendant-Appellee, Robert L. Rowan Contracting Agency, Defendant-Appellant.
    No. 12992.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 31, 1976.

      Bruscato & Loomis by Percy A. Ford, Jr., Monroe, for defendant-appellant.
    Hudson, Potts & Bernstein by James A. Rountree, Monroe, for defendant-appellee.
    Before BOLIN, PRICE and JONES, JJ.
   BOLIN, Judge.

Plaintiff sued a homeowner and his construction contractor for unpaid building materials. By a third party demand and a reconventional demand the contractor and homeowner litigated whether either or both could recover damages against the other under a building contract or for actions relating to the house construction. The lower court found the contractor had not complied with his contractual obligations and awarded the homeowner a portion of his claim plus damages for inconvenience. The contractor appeals and the homeowner answers seeking an increase in the award.

Lloyd Smith contracted with Robert L. Rowan Contracting Agency for Rowan to furnish materials and labor and build a shell home on property belonging to Smith. Rowan completed the frame and was finishing the roof when Smith discovered the pitch or height of the roofline varied. Smith was dissatisfied with the roof appearance and complained to Rowan who came to the site and started rebuilding the roof. Rowan then ordered the extra material for which this suit was brought. When Rowan had practically finished the roof he demanded that Smith pay him $1,800 for this extra work. Smith refused and Rowan walked off the job without completing the contract. Smith then hired workmen who, with Smith’s help, finished the work.

There are four issues on appeal, which will be set forth and discussed separately.

The first issue is whether there was an agreement between Smith and Rowan for Smith to pay Rowan an. additional $1,800 to make the changes in the roofline. The trial judge found that Rowan did some extra work with Smith’s knowledge. However, since it was also found that Smith had not agreed to pay for the extra work the burden was on Rowan to prove the value of this item. Rowan produced no evidence of the value of this work except his own unsupported demand for $1,800. The trial court correctly concluded this self-serving testimony was not sufficient to prove this item.

The second issue is whether Rowan substantially complied with the contract. If the builder substantially complies with the contract he may recover the full amount of the contract price and the owner is limited to reducing the amount by proving the cost of repairing or finishing the defective portion. Louisiana Civil Code Article 2769; Florida Ice Machine Corp. v. Branton Insulation, Inc., 290 So.2d 415 (La.App.4th Cir., 1974) and cases cited therein. The lower court found, since Rowan had left more than ten percent of the work unfinished, he had not substantially complied with the contract. We agree with this finding.

Where the contractor has not substantially performed a building contract he is limited to recovery on quantum meruit and the owner is entitled to be paid any costs incurred to complete the house in excess of the contract price. Keating v. Miller, 292 So.2d 759 (La.App.4th Cir., 1974), and cases cited therein. Cancelled checks totaling $4,929.59 given by Smith corroborated his testimony that it was necessary to spend that amount for materials and labor to complete work under the contract. The lower court gave Rowan credit for the unpaid balance due on the contract, which reduced the amount collectible by Smith to $1,757.59. We find this award to be correct.

In his answer to the appeal Smith claimed $1,200 for 45 days work allegedly performed by him in aiding the workmen in finishing the construction. The trial court found the evidence offered was insufficient to prove this claim which he disallowed. We are in accord.

The third issue is whether the court erred in granting Smith $1,000 for inconvenience, harassment and mental anguish allegedly suffered by him as the result of the breach of contract by Rowan. This type of award is authorized by Louisiana Civil Code Article 1934(3) and has been made in numerous cases. Cooperative Cold Storage Builders, Inc. v. Arcadia Foods, Inc., 291 So.2d 403 (La.App.4th Cir., 1974) and cases cited therein. However, in this case there is no evidence Smith suffered any damage. In fact most of the evidence relates to the inconvenience caused to his wife and the husband may not recover for mental anguish suffered by his wife. Since there was no evidence to support this award it was improperly allowed and the judgment is amended to delete this award.

The final issue is whether Rowan was incorrectly cast twice for the full amount of the building supplies. Judgment was rendered in favor of the materialman against Rowan, and Smith, in solido, for $1,832.25, the amount of the original plaintiff’s claim. This part of the judgment is not questioned. However, judgment was rendered in favor of Smith against Rowan for the same amount. There is no limiting or qualifying language in the judgment so if Rowan pays the materialman he will still be liable to Smith for a like amount. It is obvious this portion of the judgment was under the third party demand and should have limited Rowan’s liability to whatever amount Smith is required to pay the mate-rialman.

The first two paragraphs of the judgment are affirmed as written. Paragraph number three of the judgment is amended and recast as follows: there is judgment in favor of Lloyd C. Smith and against Robert L. Rowan d/b/a Robert L. Rowan Contracting Agency for whatever amount Smith pays Stephenson under paragraph one of this judgment; and there is further judgment in favor of Smith against Robert L. Rowan d/b/a Robert L. Rowan Contracting Agency in the amount of $1,757.59 plus legal interest from judicial demand until paid.

Appellant is cast for all costs.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    Samuel D. THOMPSON, husband of/and Joan Degeorge v. WAREHOUSE CORPORATION OF AMERICA, INC., et al.
    No. 7452.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.

      Donald F. Deboisblanc, New Orleans, for plaintiff-appellant.
    Francis G. Weller, Russell L. Dornier (Deutsch, Kerrigan & Stiles, New Orleans), for defendants-appellees.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   REDMANN, Judge.

A firefighter appeals from a summary judgment dismissing his action against a cotton warehouseman for injuries (including an acute myocardial infarction) sustained in fighting a fire in the warehouse.

The warehouse sprinkler system was partially inoperative because of closed valves that should have been open. The question is whether defendant is responsible for injuries resulting to a firefighter from its negligence in not having the valves open. We hold that negligent maintenance of a sprinkler system, which may result in a fire’s burning more fiercely or with denser smoke or otherwise more dangerously, is not a breach of duty — fault within La.C.C. 2315 — towards the firefighters who may come to fight the fire.

Plaintiff correctly argues that a firefighter is not without remedy for any risk whatsoever; see Langlois v. Allied Chemical Corp., 1971, 258 La. 1067, 249 So.2d 133. But we are unable to distinguish negligent sprinkler maintenance from ordinary negligence which might contribute to the start of the fire. We deem it unreasonable to hold that an owner owes it to firefighters not to let his building catch fire. To the contrary: it is the firefighters’ duty to the property owners (and neighbors) to save them from their negligence. In the absence of proof of personal negligence so gross as to be tantamount to arson or to trap-setting by the owner, we cannot hold a building owner liable to firefighters for negligence causing or worsening fire which caused the firefighters’ injury.

Affirmed.


author: BOUTALL, Judge.

text:
    Judith Drane deBOISBLANC v. Robert deBOISBLANC.
    No. 7460.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.
    Rehearing Denied Oct. 13, 1976.

      Reed, Reed & D’Antonio, Floyd J. Reed, Metairie, for Judith Drane deBoisblanc.
    Lillian M. Cohen, Dorothy F. Waldrup, New Orleans, for Robert deBoisblanc.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

After divorce and remarriage of both parties, the mother of the minor child of the marriage, Robert Marc deBoisblanc, brought a rule against her former husband for child support. The trial court awarded child support in the sum of $400.00 per month and further decreed that the father “is to pay all medical and dental expenses for the said minor and further that the said medical and dental expenses are to be arranged and handled by the defendant in New Orleans, Louisiana, with the exception of sudden emergency medical aid which might become necessary, for the said minor.” The mother appeals contending the amount of child support is too low and that the payment of medical expenses, etc. should be by a specified sum, rather than as set out in the trial court judgment.

The record shows that the net income of the father is some $44,000 per year, and on this basis, it would appear that he could afford to pay more child support than is fixed by the court. However, upon close examination of the expenses of child support urged by the mother, we are convinced that the amount awarded is within the discretion of the trial court. In the exercise of his discretion the trial court may have also considered that the mother is an attorney at law who gave up a position paying over $15,000 per year a little over a month before the rule was tried. It appears that she too can contribute to her child’s support. We do not find the amount of child support to be inadequate.

However, it is necessary to amend that portion of the judgment relative to medical and dental expenses. Ordinarily, the parent having custody has the authority to control the affairs and lifestyle of the child as a natural tutor or tutrix. R.C.C. Art. 157. The judgment provisions, that all medical and dental expenses with the exception of sudden emergency medical aid are to be arranged and handled by the father in New Orleans (the child is living with his mother in Ocala, Florida) infringe upon the sphere of parental authority. Unquestionably, the trial judge was attracted to such an arrangement by the fact that the father is a prominent dentist in New Orleans, who because of his profession, is able to determine which practitioners are capable of better treating the child and has the possibility of reduced fees for such services. The trial judge in his oral reasons for judgment stated the following:

“I prefer it to be if it is an emergency type medical thing that you have to have the child treated then very obviously whatever bills are reasonably incurred should be forwarded to him to take care of. On the orthodontist matter let’s use the good professional judgment that is already built into the family and let Dr. deBoisblanc make the choice of whom the child should receive such attention from and let him make the financial arrangements necessary to give this service. If he can get it for nothing, so much the better for him. And I so rule. * * * ”

The court’s main concern in a case such as this is the best welfare and interest of the child. We can perceive that arrangements for routine dental treatment, not on an emergency basis, may perhaps be better afforded to this child by his father or through his father’s arrangements, because his father is a dentist, and he too has the child’s welfare at heart. However, considering the physical distance between the two households, the difficulties of communication, and the varied and myriad medical problems faced by young children, we believe it necessary to require that the mother alone have authority over medical treatment of the child. On the other hand, because of the facts stated above, we believe it to be within the trial court’s discretion to permit this particular father a reasonable opportunity to make arrangements for dental treatment.

Accordingly, IT IS ORDERED that the judgment appealed from is affirmed insofar as it provides child support at the rate of $400.00 per month plus all medical and dental expenses, and it is amended to provide that the mother shall have control and authority over all medical and dental treatment except that she shall provide reasonable opportunity to Dr. deRoisblanc to provide dental treatment. As thus amended, the judgment appealed from is affirmed, each party to pay one-half of the costs of this appeal.

AMENDED AND AFFIRMED.


text:
    Priscilla Joy Everhart Bourgeois, wife of/and Albert John BOURGEOIS, III v. Dr. Julius DAVIS, Jr., et al.
    No. 7470.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.
    Rehearing Denied Oct. 13, 1976.

      David Gertler, Joseph M. Singerman, New Orleans, for plaintiffs-appellants.
    H. Martin Hunley, Jr., John M. Sartin, Jr., Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for defendants-appellants.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   REDMANN, Judge.

On defendants’ appeal we reverse an award of $7,500 plus special damages for an abdominal scar from indispensable surgery to save plaintiff wife’s life after a complication of non-negligent vaginal hysterectomy.

Plaintiffs picture their case as one of a woman who had a medical concern (permanent contraception) but whose paramount concern was scarlessness of the belly.

One could believe and understand that such a woman would reject ordinary tubal ligation because of its small scars— and would also reject a vaginal hysterectomy (or any other intra-vaginal surgery) if informed of the remote possibility that complications might require correction by abdominal incision. If such a woman advises her surgeon that she elects vaginal hysterectomy over ligation purely to avoid ordinary ligation’s minimal scarring, then the surgeon in all fairness would be obliged to advise her of the remote possibility that complications of vaginal hysterectomy might require remedy by abdominal incision. A patient so concerned for scarlessness might indeed choose non-surgical (and non-permanent) contraception over the possibility, even remote, of a scar from surgical contraception. The surgeon who denies such a patient such a choice breaches an obligation to that patient and if his breach causes her damage he is liable to her for that damage.

But our case is far, far different. At the outset, our patient did not choose hysterectomy over tubal ligation to avoid scars because she did not know until “today,” at the time of trial, that ordinary ligation entailed scars. She, therefore, cannot possibly be a patient who told her doctor that she preferred, in order to avoid scars of ligation, a vaginal hysterectomy.

Moreover, our case is not that of a woman whose sole medical concern was contraception. She had other medical problems: heavy menstrual flow of ten days’ duration followed by spotting, a fibrotic uterus with second-degree prolapse (cervix descending about two inches into the vagina), urinary incontinence under stress, a second-degree cystocele allowing the bladder to intrude into the vagina, and a relaxed perineum (not yet a rectocele). Thus, accepting that upon preliminary discussion plaintiff wife told defendant doctor that she did not want scars (and ignoring that her discovery deposition made no reference to any such discussion and her original petition asserted no such factual circumstance), the question is whether she has shown that she instructed the doctor not merely that she did not want surgery which by its nature would produce scars but that she did not want surgery which might through any complication subject her to any risk of scarring. (This is perhaps tantamount to saying she did not want surgery of any kind.) It is one thing to prefer simply not to have scars; it is another to prefer a life of discomfort and poor health over the remote possibility of a scar. The latter preference is unreasonable and cannot be inferred from a simple expression of a desire not to have scars, although one is free to have unreasonable preferences and one’s doctor, upon being informed thereof, is obliged not to substitute his reason for his patient’s unreason.

Plaintiff does not testify that she expressed her unreasonable preference. Moreover, the absence of any reference to her anti-scar stance in both her original simple malpractice petition and in her deposition makes it altogether unlikely that scarlessness could have been of such unparalleled importance to her.

Reversed at plaintiff’s cost.

      . Perhaps even if no scarring resulted he would be theoretically liable for the medical costs of the uninformedly-consented-to, thus effectively unconsented-to, operation, and for the assault upon her person — subject to credit for giving her the permanent sterilization she wanted at the price (including the “assault” and all pain and suffering) she wanted to pay — perhaps a net of zero.


author: SAMUEL, Judge.

text:
    Lanell N. WINDHAM v. SECURITY INSURANCE COMPANY OF HARTFORD and William Virgets.
    No. 7472.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.
    Rehearing Denied Oct. 13, 1976.

      Frank J. D’Amico, New Orleans, for plaintiff-appellee.
    Richards & Hoepffner, Charles E. Richards, New Orleans, for Bank of Louisiana, defendant-appellant.
    Before SAMUEL, GULOTTA and MORIAL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against three named defendants, Security Insurance Company of Hartford, William Virgets and Bank of Louisiana, seeking damages of $233,963.73 for personal injuries and property damages resulting from a rear end collision on February 9, 1973 when Virgets lost control of a vehicle owned by the bank. The defendant insurance company was dismissed for lack of coverage and Virgets was dismissed voluntarily by the plaintiff, leaving the bank as the only defendant.

After trial to a jury, a verdict was returned in favor of plaintiff for $55,500, and this verdict was made the judgment of the court. The defendant-bank has appealed, and plaintiff has answered the appeal seeking an increase in the award.

The record reveals Virgets was employed by the bank at the time of the accident. One of his functions was to handle, in connection with another employee, automobiles repossessed by the bank pursuant to loan foreclosures or forfeitures. In addition to handling the sale of repossessed automobiles, Virgets was entrusted with the duty of taking them to a repair shop to have repairs performed as needed in preparation for sale.

The bank admitted the negligence of Vir-gets in operating its automobile. The case was submitted to the jury on two special interrogatories regarding the issues of whether Virgets was in the course and scope of his employment by the bank at the time of the accident and the amount of plaintiff’s recovery should the jury find he was within the course and scope of that employment. These two issues are before us on appeal. The only other issue is the bank’s contention that the trial court erred in granting a jury trial.

We first consider the contention relative to jury trial. The order permitting trial by jury was appended to a supplemental and amending petition. When it came to the attention of counsel for the bank, he filed a motion to recall that order on the grounds it violated a court rule regarding placing cases on the call docket; the supplemental and amending petition came after the expiration of the time within which demand for jury trial must be made under LSA-C.C.P. Art. 1732; the jury costs required by LSA-R.S. 13:3105 had never been deposited by the plaintiff; and the trial court had not issued an order setting the amount of the bond to cover the additional costs and compensation to be paid to the jury, also as required by the same statute. After a contradictory hearing thereon, the motion was dismissed.

The contention comes too late. In the interest of judicial economy and fairness, we cannot allow the appellant to abide by the judgment dismissing the motion, try the case to the jury and then, after an adverse verdict and judgment, complain it should not have been tried to a jury. If the bank wished to complain about the ruling allowing jury trial, it should have done so prior to trial either by appeal or by an application for writs. Accordingly, we hold appellant has either acquiesced in that ruling or has effectively waived its right to so complain.

Virgets testified his use of the automobile on the day of the accident began for the dual purpose of bringing the bank’s repossessed automobile to a nearby garage for repairs and of transporting himself to a garage where his own automobile had been left. He testified the garage where he intended to leave the bank’s car was closed when he arrived so he went around the corner to the garage where his own automobile was located; he planned to leave the bank’s car there and take his own automobile home. However, when he arrived at the second garage, it also was closed. Thus, he was unable to leave the bank’s car and could not take his own. He also testified the only alternative left to him was to drive the bank’s vehicle from that spot to his home. The accident in suit occurred during that journey; he skidded into the rear of plaintiff’s automobile.

Virgets further testified he called John Manale, an assistant vice president of the bank, at about 3 p.m. to request a ride to the garage where he had left his automobile. Manale suggested Virgets take a Malibu automobile repossessed by the bank to the garage for repair. The garage was located a short distance from the garage in which Virgets’ automobile was parked. One of the reasons for Virgets’ request for a ride was the condition of the weather, that day being one of the infrequent times there was snowfall in New Orleans. Both garages had closed early because of the inclement weather.

Manale’s testimony contains a denial that he suggested Virgets take the bank’s automobile to be repaired. He stated affirmatively that if Virgets had asked him for a ride to the garage where Virgets’ car was located, he would have given him one.

The bank argues that even if Virgets’ testimony is accepted, as it obviously was by the jury, nevertheless he was not within the course and scope of his employment while driving the bank’s automobile from the garage to his home; that when Virgets reached the garage where the bank’s automobile was to be repaired his employment mission was accomplished; and any subsequent driving of the vehicle was outside the course and scope of his employment and only for his own convenience as a means of transportation in the inclement weather.

We cannot agree with the bank’s argument. The jurisprudence establishes that when an employee is driving his employer’s vehicle at the time of an accident he is presumed to be acting in the course and scope of his employment, and his employer will be responsible for damages sustained by third parties as a result of the employee’s negligence; this presumption is rebuttable by the employer, but only strong and convincing evidence will be sufficient to overcome the presumption.

There are no hard and fast criteria to determine whether an employee using his employer’s vehicle is acting within the course and scope of his employment; basically, each case must depend upon its own facts. Important considerations, however, are whether the employee was acting in the service of or about his employer’s business, and whether the vehicle was being used in such a manner as to benefit his employer.

In the present case, the conflicting testimony of Virgets and Manale was resolved by the jury in favor of the version given by Virgets. There is nothing in the record to show the jury was manifestly erroneous in making this decision, which must be accepted on appeal in view of the discretion afforded finders of fact in Louisiana.

According to Virgets’ testimony, it is clear his mission would have ended upon reaching the garage where the bank’s automobile work was to be done if that garage had been open for business. Virgets then would have been under the obligation to leave the vehicle at that garage and he could have proceeded around the corner for a short distance to obtain his own automobile. However, when Virgets arrived the garage was closed and he was unable to leave the vehicle at that location. He attempted to remove his car from the other garage where it was parked, but that garage also was closed. Consequently, Vir-gets did not have the option of placing the bank’s vehicle in either garage. Hence, insofar as is shown by the record, he appears to have been faced with the choice of either taking the automobile home or parking it unguarded on the public street where it would have been susceptible to theft or damage by vandalism. Under these circumstances the choice made by Virgets in taking the automobile to his home, where it would be safe, was in the interest of his employer, to his employer’s benefit, and was well within the discretion afforded Vir-gets in managing the sale of repossessed automobiles for the bank.

The second issue for our consideration is the propriety of the jury’s award of $55,500. The evidence shows plaintiff experienced abdomen and back pain together with pain radiating down the posterior aspects of both thighs. A myelogram and disogram were performed on plaintiff, and they revealed a ruptured L-5 disc on the right. A laminectomy was performed to have the ruptured disc removed and plaintiff underwent psychiatric consultation and treatment for postoperative depression. Her pain persisted after the disc was removed, and it became necessary to perform a facetectomy on her. The operating neurosurgeon described a facetectomy as a surgical procedure to relieve persistent pain and back spasm on patients who do not have nerve pain. While the disc removal relieved the nerve root irritation and consequently nerve pain, the second procedure was done specifically to relieve plaintiff’s remaining back pain. The facetectomy consisted of placing a series of needles into plaintiff’s back adjacent to the facets of the spine. However, it is true, as the bank contends, that plaintiff’s underlying medical condition had been present for a period of years prior to the accident.

The $55,500 award includes special damages, such as medical and hospital expenses and loss of wages, and the record contains no information regarding the jury’s conclusions as to the amounts of those special damages. While the record contains insufficient proof as to some of those damages, particularly, at least in part, the claim for lost wages, we believe the total amount of proven special damages to be approximately $6,500, so that the total award for pain and suffering was $49,000. Under all of the facts above set forth, we cannot say this amount is either so excessive or so inadequate as to constitute an abuse of the wide discretion afforded the jury by LSA-C.C. Art. 1934(3).

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

AFFIRMED.

      . Plaintiff seeks an increase to $233,000.

      . In many instances our appellate courts have granted applications for writs from orders maintaining or denying prayers for trial by jury. See, for example, Talley v. Friedman, 255 La. 735, 232 So.2d 495; Barberito v. Green, La.App., 258 So.2d 582, reversed on other grounds, 275 So.2d 407 (La.); Scott v. Hardware Mutual Insurance, La.App., 207 So.2d 817; Hicks v. Board of Supervisors of Louisiana State U., La.App., 166 So.2d 279.

      . For example, see Duffy v. Throwbridge, 335 So.2d 30 of the docket of the Supreme Court of Louisiana, handed down June 30, 1976.

      . Cofield v. Burgdorf, 238 La. 297, 115 So.2d 357; Fackrell v. Gulley, La.App., 246 So.2d 368; Longoria v. Progressive Mutual Insurance Company, La.App., 204 So.2d 93; Raney v. McDaniel, La.App., 165 So.2d 593; Simms v. Lawrence Bros., La.App., 72 So.2d 538; Coon v. Monroe Scrap Material Co., La.App., 191 So. 607.

      . Wright v. Romano, La.App., 279 So.2d 735.

      . See Wright v. Romano, supra, footnote 5; O’Brien v. Traders and General Insurance Company, La.App., 136 So.2d 852.

      . Canter v. Koehring Company, 283 So.2d 716 (La.App.1973); see also Schlesinger v. Fontenot, 235 La. 47, 102 So.2d 488.

      . Virgets testified he had taken a bank automobile home once before over night because he had an appointment to transfer the vehicle the next morning. While this solitary instance is not determinative, it nevertheless indicates another way in which a bank employee could use a bank’s repossessed vehicle for the benefit of his employer and thereby be within the course and scope of his employment.

      . See Revon v. American Guarantee & Liability Insurance Company, 296 So.2d 257 (La.App.1974).


text:
    Ernestine Behre, wife of/and John BEHRE v. William E. BILLINGSLEY et al. Donna G. Schaefer, w/o and Charles W. SCHAEFER, Jr. v. William E. BILLINGSLEY et al. Gerard F. MAXWELL, Sr., and Gerard F. Maxwell, Jr. v. William E. BILLINGSLEY et al. NORTH RIVER INSURANCE COMPANY v. John C. BEHRE et al.
    Nos. 7481-7484.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.

      Gillespie & Jones, Lyman L. Jones, Jr., Metairie, for Ernestine Behre, wife of/and John C. Behre, plaintiffs-appellees.
    Thomas L. Giraud, Salvador M. Cusimano and Charles A. Verderame, New Orleans, for Charles and Donna Schaefer, plaintiffs-appellees.
    Bienvenu, Foster, Ryan & O’Bannon, Robert N. Ryan, Frederick R. Campbell, New Orleans, for Charles W. Schaefer, Jr., Donna G. Schaefer and Hanover Ins. Co., defendants-appellees and third party defendants-appellees.
    John F. Fox, Jr., New Orleans, for Gerard F. Maxwell, Sr. and Gerard F. Maxwell, Jr., defendants-appellees.
    Vance E. Ellefson, of Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for Zurich Ins. Co. and Gerard F. Maxwell, Jr., defendants-appellees.
    Jack M. Alltmont, Sessions, Fishman, Ro-senson, Snellings & Boisfontaine, Edward P. Lobman, New Orleans, for William E. Billingsley, Billingsley & Associates and North River Ins. Co., defendants-appellants.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   BOUTALL, Judge.

These consolidated cases involve a multi-vehicle accident that occurred on Interstate-10. The drivers of the four cars involved in this accident were William Bill-ingsley, John Behre, Donna Schaefer and Gerard Maxwell, Jr. In these suits Behre has sued Billingsley and his insurer. Schae-fer sued Billingsley, and Maxwell and their insurers and Behre. Maxwell sued Billings-ley and his insurer and Schaefer and her insurer. North River Insurance Company, Billingsley’s insurer, sued Behre, Schaefer and Maxwell for the damage to the Bill-ingsley car. North River also filed third party demands against Behre, Schaefer and Maxwell.

The trial court found William Billingsley to be the sole cause of the accident and granted relief to the parties on that basis. The third party demands by North River Insurance Company and its petition for damages were dismissed. Billingsley and North River Insurance Company have appealed and we affirm.

This accident occurred at 10:40 P.M. on January 11, 1973. It was cold and had been snowing or sleeting since 8:00 P.M. that night. Shortly after this accident occurred all overpasses on the Interstate highway were closed due to accumulations of ice. This accident occurred on the Transcontinental Drive overpass of the Interstate-10 highway.

The evidence in this case consisted of the testimony of the investigating police officer, photographs taken at the scene and later, and the testimony of all the drivers and passengers and of Mr. Schaefer who arrived at the scene about one minute after the accident occurred. As the trial judge correctly pointed out, almost any conclusion as to how the accident occurred could be arrived at from the evidence presented. The trial judge made the decision that the accident occurred through the negligence of Billingsley and we feel the record supports that determination.

Rather than go through a detailed analysis of each driver’s testimony and point out inconsistencies and omissions, we will simply reconstruct how the accident must have occurred.

As the four ears approached the overpass, Billingsley was travelling behind Behre in either the right or center lane. Maxwell was somewhat behind them in the center lane. Schaefer was in the left lane. As the Behre car started up the overpass Mr. Behre noticed a car ahead of him fishtailing and looking as if it might go out of control. At this point Mr. Behre braked his car slightly. Billingsley noticed Behre’s tail lights and attempted to turn his car into another lane and brake. Billingsley lost control of his car and it smashed violently into Behre. The impact caused the Behre car to go out of control and it angled to the left across the highway, smashing violently into the right rear of the Schaefer car in the left lane. The Behre and Schaefer cars spun out of control and finally came to rest next to the left railing past the crest of the overpass. Meanwhile, the Billingsley car was turning or turned sideways athwart the center lane. Maxwell collided with the right side of the Billingsley car. This impact sent the Billingsley car all the way down the overpass to where it finally came to rest on the grassy shoulder of the road 150 feet from the end of the overpass. The impact with the Billingsley car caused Maxwell to lose control and he spun into contact with the Schaefer car. This light contact caused the Maxwell car to careen from the left side of the highway to its final resting place against the right side railing facing traffic.

We arrive at the above description of the accident by relying on three major pieces of evidence: The final resting place of the ears, the extent and areas of damage on the four cars, and the consistent and corroborated testimony of the drivers other than Maxwell.

No one driver’s story tells of all the collisions. As in most multi-vehicle collisions the drivers remember only bits and pieces of the accident, mostly parts involving their own ear. The testimony of Billingsley, Behre and Schaefer presents a sketchy, piecemeal, but plausible explanation for the accident. It is only Maxwell’s testimony which, if fully believed, results in the accident requiring one or two extra, unidentified and unknown cars. Briefly, Maxwell testified that as he began his ascent of the overpass he saw a car spinning out of control ahead of him and also the Schaefer car. He states that his efforts to avoid a collision caused him to lose control of his car and strike the Schaefer car. He bounced off the Schaefer car across to the right side of the highway. Since he was facing traffic he attempted to get out of the car but couldn’t since the door was jammed. As he was contemplating moving the car another car struck him headon. The next thing Maxwell remembers is waking up in the hospital. He was found unconscious on the ground below the overpass.

If Maxwell’s version of the accident is accepted, then a fifth car was involved in the collision, one that wasn’t found at the scene. Also, his version fails to explain how the Billingsley car received severe damage to the right side. As to Maxwell’s intimation in his testimony that the headon collision with the mysterious car caused him to be thrown out of the car and over the railing, we find this story also lacking in credibility. The police officer testified that someone at the scene told him that Maxwell had slipped trying to get out of his car and fallen over the railing. The police officer could not remember who told him this or when he heard it. Mr. Schaefer, who came upon the accident after it occurred and before the police arrived, testified that he went to the Maxwell car and no one was in it. However, the door was jammed very close to the railing and the window by the railing was rolled down. We believe that Maxwell in a dazed condition exited his car through the window, slipped and fell to the ground below.

We hold, as did the trial court, that the proximate cause of this accident was the negligence of Billingsley in failing to keep his car under proper control in view of the then existing circumstances. Costanza v. Barker, 255 So.2d 255 (La.App. 1st Cir. 1971); Chastain v. Allstate Ins. Co., 212 So.2d 243 (La.App. 2nd Cir. 1968).

For the above reasons the judgments of the trial court are affirmed. Appellants are to pay all costs.

AFFIRMED.

      . The Maxwell-Billingsley collision came so quickly after the first collision that Maxwell did not have the time and distance (on an icy surface) to avoid it. While Mrs. Schaefer testified that her car had come to a stop before the Maxwell-Schaefer cars and that that collision occurred “three to five seconds at most” after the Behre-Schaefer collision, she also described the time between seeing the Behre car angling toward her and that first collision as “seconds”.

      . No one remembers seeing the Billingsley car after its initial impact with the Behre car. Yet, the damage to the car evidences two serious collisions, one to the front and one to the right side. Additionally the damage to Billingsley’s side and Maxwell’s front is so severe as to make it unlikely that any vehicle causing that damage could have continued on its way.


text:
    TEXHOMA CONTRACTORS, INC. v. SOUTHERN SHIPBUILDING CORPORATION.
    No. 7512.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.

      Wayne C. Guidry, Grand Isle, Alma L. Chasez, New Orleans, for plaintiff-appellant.
    Michael J. Paduda, Jr., Bogalusa, for defendant-appellee.
    Before SAMUEL, GULOTTA and MORIAL, JJ.
   SAMUEL, Judge.

Plaintiff, Texhoma Contractors, Inc., filed this suit against Southern Shipbuilding Corporation seeking $30,000 in damages for the alleged wrongful conversion of tackle and appurtenances from a drilling barge sold by defendant to plaintiff. Plaintiff also obtained a writ of sequestration by which it took the tackle and equipment into its possession.

Defendant answered, denying any conversion of property and asserting it had sold plaintiff only the barge and not the tackle and appurtenances. Approximately three months later defendant filed a motion to dissolve the writ of sequestration and sought damages in the amount of $33,000. The writ was dissolved on defendant’s contradictory motion, and the question of damages (including attorney’s fees) was referred to the merits for trial.

Following a trial on the merits, judgment was rendered in favor of defendant, dismissing plaintiff’s suit and awarding defendant $15,000 in damages. Plaintiff has appealed from that judgment.

The drilling barge, the Chris Zeppa, was owned by the defendant, and held out by it for sale. When representatives of the plaintiff first saw the barge, it was floating. Subsequently, but prior to the sale, it sank in Sawmill Pass in the Rigolets area east of Lake Pontchartrain.

The plaintiff corporation is owned by Harold Schertler. However, prior to the sale in suit his brother, John Schertler, primarily was interested in acquiring the barge for its salvage or scrap value. The evidence indicates the two brothers agreed to split the profits from the venture, with Harold to furnish the money and John to furnish the labor. On April 5, 1974, the Schertler brothers went to the defendant’s place of business for the purpose of purchasing the barge. The defendant originally asked $75,000 for the barge, but the Schertler brothers said they were incapable of paying more than $60,000, that price was agreed upon, and the following document was executed:

Defendant admits receipt of the entire $60,000 purchase price. The first $5,000 was paid as earnest money to induce the defendant to raise the barge from the bottom of Sawmill Pass, and the remaining $55,000 was paid by certified check on April 15, 1974, after the barge had been raised. Plaintiff contends it purchased the entire barge, including the tackle and appurtenances allegedly taken by defendant. Numerous items were sequestered, but the primary items relative to defendant’s damage claim are two ten ton cranes and two anchor winches.

Defendant offered testimony which established uniformly an agreement by it to sell only the barge, retaining the right to remove any tackle or appurtenances which might be useful to it. Defendant’s employees explained that the original purchase price was $75,000 and it agreed to reduce the price to $60,000 upon condition it could remove from the sunken barge whatever equipment might be useful to it, including the cranes and winches. Defendant’s employees further testified some copper cable alleged to be missing had been stolen sometime prior to the sale.

Defendant also offered the testimony of John E. Hart and Lee F. Richardson, both of whom stated they had endeavored to purchase the barge from the defendant at one time or another. Hart testified the purchase price quoted to him was $55,000 for the barge alone with all appurtenances stripped therefrom. Richardson testified he attempted to purchase the barge on the day plaintiff made its purchase, and he was prepared to pay $75,000 for the barge alone, excluding any tackle, equipment or appurtenances.

The testimony of Harold and John Schertler was diametrically opposed to that offered by the defendant. They testified they negotiated for and bought the barge in its condition as it was on April 5, 1974, subject only to the raising of the vessel and the other terms provided in the bill of sale. Both testified it was their intention to salvage or otherwise dispose of and sell the ship’s equipment and machinery, and much emphasis was placed on the value of approximately 900 feet of copper cable which John Schertler stated he saw prior to the time the vessel was raised from the water.

John Schertler further testified he discovered the equipment and tackle were missing on either April 15, 1974, when the barge was raised, or the following day. When Harold Schertler was informed by his brother of the missing tackle and equipment, he proceeded to inspect the area by airplane, at which time, visually from the air, he located the objects on the premises of the defendant’s shipyard in Slidell, Louisiana.

Plaintiff argues the trial court committed error by permitting introduction of testimony regarding contract negotiations and intentions of the parties prior to the execution of the sale in order to determine exactly what was sold thereby. It cites Baton Rouge Sash & Door Co., Inc. v. Saale, as authority for the rule that when verbal negotiations are incorporated in a written agreement the contract evidences the total understanding of the parties and neither may rely upon prior discussions or understandings to change the terms of the document. It further argues that any ambiguity in the written bill of sale should be interpreted against the defendant, since it was defendant’s employee who prepared the sale document.

It is undisputed the document evidencing the sale was prepared by defendant’s employee on the same day an agreement was reached and while plaintiff’s representative and defendant’s employees waited. This is not a situation where great time, effort, and consideration was given to drafting a contract to favor one party or another, and a simple reading of the contract reveals that fact on its face. Under these circumstances, more applicable to the present case is the exception to the general rule which permits parol evidence when the terms of the written agreement are ambiguous and susceptible of more than one interpretation. Where the intent of the parties cannot be ascertained from the language employed, parol evidence is admissible to clarify the ambiguities and to show the intentions of the parties.

In the present case, there was clearly ambiguity regarding the intention of the parties to include in the sale the ship’s gear, appurtenances, and tackle. The trial judge properly took evidence on this issue in order to reach a conclusion as to the meaning and the intention of the parties. Taking this evidence did not contradict the terms of the contract but instead merely supplemented and clarified the intention of the parties.

Having taken this evidence, the trial judge was faced with serious issues of conflicting fact. On the one hand, defendant offered testimony showing only the barge and not the tackle and appurtenances were included in the sale. On the other hand, plaintiff offered evidence showing the parties intended to purchase the vessel together with all of its tackle and appurtenances. The only possible exceptions in plaintiff’s evidence were the two cranes. In this regard, John Schertler testified defendant’s representative discussed the possibility of removing the two cranes but the issue rested there with no final determination ever having been made.

Thus, the trial judge was faced with a question of fact, a resolution of which was dependent upon his evaluation of the conflicting testimony, and his resolution of that conflict cannot be reversed since- it is not manifestly erroneous. We consequently affirm the holding that the items sequestered by plaintiff were and remained the property of the defendant and that plaintiff executed a wrongful sequestration of defendant’s property.

However, the award of $15,000 for damages is erroneous and must be amended. The finding of damages is based primarily upon defendant’s deprivation of use of the two ten ton cranes and two anchor winches by plaintiff’s wrongful sequestration. The facts show the cranes and winches were mounted on the then sunken drilling barge on April 5, 1974 when plaintiff purchased the barge. The barge was not raised until April 15, 1974, and then only after plaintiff made an earnest deposit of $5,000. The sequestration suit was filed on May 2, 1974, but defendant’s rule to dissolve the sequestration was not filed until August 12, 1974.

These circumstances raise doubt regarding the immediacy of defendant’s need for the two cranes. Nevertheless, defendant’s employees and especially Charles E. Cunningham, its executive vice president, testified the two cranes were needed by the defendant in order to comply with a contract for the construction of two tugboats. This contract, according to Cunningham, contained a $200 per day demurrage clause, but since the delivery date had not been reached at the time of the trial, he could only estimate the three month demurrage clause by the sequestration of $200 per day, resulting in total damage of $18,000 per vessel or $36,000 total.

The trial judge cited the case of Ralph’s Fleet, Inc. v. American Marine Corp., which involved a claim for damages by a shipyard for wrongful sequestration of a crane. In that case the court addressed itself to the question of damages when loss of use and other subjective factors incapable of mathematical calculation were involved. The court made the following statement at page 321:

“There is no proof in the record of any kind showing how much appellant would be entitled to for the use of the switch tracks, and we doubt if anyone could say with any precision or certainty what amount should be allowed. This is one of those cases which infrequently arises in which it is impossible for one to prove his damage or for the court to assess the amount with exactness. But the bare fact that appellant cannot establish with certainty the amount of damages suffered by it occasioned by plaintiff’s having used the facilities will not suffice to discharge the plaintiff from liability when it is clear that under the law appellant is entitled to some compensation. Under these circumstances, the court should fix the quantum of such damages as best it can with the record before it, and such assessment should be ‘as in cases of offenses, quasi offenses, and quasi contracts’ wherein ‘much discretion must be left to the judge or jury.’ ”

The instant case is not one where all areas of damage are subjective and impossible to prove with certainty. Here, the trial judge admitted over objection of plaintiff’s attorney the testimony of Charles E. Cunningham regarding damages, and relied upon that testimony, without requiring defendant to introduce or produce the contract for the construction of the two tugs containing the demurrage clause or any bills involving the cost of adapting an alternative crane for use on the tugboat contract. Cunningham’s pertinent testimony is quoted as follows:

“By Mr. Crow:
Q Would you explain what went into converting this one crane that you had so it could be used for the construction of these two vessels?
A Well, it was a steam crane which you can’t use. I mean, we bought a diesel engine, torque converter.
Q Do you recall what the cost of buying the diesel engine was?
A Yes. I could say close, within a couple of hundred dollars. $8,000. The sprockets and chains, shafts and bearings, probably another three.
Q What other costs?
A The track, I bought the track from United Scrap. I didn’t buy it from them, I traded them some. I raised a barge for him in exchange for the track. I haven’t raised the barge. I’m going to this week, next week, which is probably going to cost $5,000, $6,000. The ties we had to buy. I don’t know how many we bought. Cross-ties, I think $10 apiece, and the number I don’t know. We have a record of it; 200, something like that.
Q Have you ever been able to use either of these cranes in any construction at Southern Shipbuilding?
A We haven’t tried since — we haven’t used them. We’re not going to take the money and set something up to use it and then we lose them and they get them back.
Q What would it cost to set those two cranes up so they could be utilized?
A Eight, ten thousand dollars.
Q What was Southern intending to use the winches for?
A Same thing. We were going to put them on a barge, put the winches on the barge with it, to move it, moor it in a certain position along the bank to handle steel for these boats.
Q Has Southern ever utilized these two winches for that purpose?
A No, sir.
Q Why not?
A Same reason.
Q Which is what?
A Too expensive to set them up and not own them.
Q What would it cost to set those two winches up so they would be operable?
A Probably a couple of thousand dollars.”

The foregoing testimony by defendant’s executive vice president shows two areas of grave doubt. First, if the cranes and winches had not been sequestered, defendant would have expended the sum of $10,-000 to place the cranes in operating order and $2,000 to make each of the two sequestered winches operable. Even accepting Cunningham’s testimony without supporting documents, the maximum cost to convert the steam railroad crane into a diesel powered crane was $19,000, only $5,000 more than the cost of converting the sequestered equipment. This difference in cost is in no way definitive, however, since Cunningham could not state the exact cost of a future raising of a sunken barge to which his company agreed in exchange for the railroad tracks upon which the railroad crane was placed. If this $6,000 element of damage is removed, the cost of converting the railroad crane closely approximates the cost of placing the sequestered cranes and winches in operating order for use upon a barge.

This case is much different from the facts in the case relied upon by the trial judge. Here there are few subjective elements involved. Since defendant paid to have the steam railroad crane converted into a diesel crane, it should indeed have evidence of payment of the cost in its possession. However, no receipts, cancelled checks, or other documents were introduced or produced to substantiate Cunningham’s admitted “estimate” of damages. Moreover, the existence of a demurrage clause in a contract and the effect thereof are not subjective factors; that contract could easily have been offered in evidence at the trial. Without the benefit of supporting documents, Cunningham’s testimony should not have been admitted over plaintiff’s objection.

The other area of grave doubt shown by Cunningham’s testimony is the question of whether defendant would ever have used the sequestered cranes and winches on the tugboat contract. By Cunningham’s own admission, the cranes had not been converted for use in defendant’s shipyard after release of the writ of sequestration, and the only reason given for such non-use was the futility of investing additional money to rehabilitate the sequestered equipment when title to it was still in dispute. An important distinction is involved here. We have affirmed the trial court’s holding that the sequestration was improvidently issued. However, there can be no doubt the plaintiff had a legal right to place at issue the title to the equipment by filing a suit. The evidence offered by plaintiff was strong, and the trial court was obliged to make a difficult decision in determining the intention of the parties. Cunningham’s testimony clearly shows the mere placing at issue of title to the cranes in the plaintiff’s law suit was critical in defendant’s determination not to use the cranes for any purpose until the suit had been finally resolved. Under these circumstances we can only conclude the cranes probably would not have been used by the defendant even in the absence of their sequestration; and the damages under discussion are solely for wrongful sequestration.

A conceivable area of subjective damage in the present case revolves around the possibility that defendant would not meet the delivery deadline on its alleged tugboat construction contract and thereby incur damages under the $200 per day demurrage clause. Cunningham’s testimony established one tug’s hull and housing had been completed at the time of trial and the vessel was in the water. The other was in an undescribed state of completion. It is most difficult to presume in advance of the alleged deadline for delivery that the demur-rage clause would be invoked. This would be true even if that contract and its demur-rage clause had been proved and, as has been pointed out, the record contains no such proof.

In view of all of these circumstances, only a nominal award for damages should be made. We feel the sum of $2,000 would be adequate.

Under Article 3506 of the Code of Civil Procedure the court may allow damages for the unlawful issuance of a writ of sequestration, together with attorney’s fees, for the services rendered in connection with the dissolution of the writ. Attorney’s fees in this situation are regarded as an element of damages whether the writ is dissolved on contradictory motion or after trial on the merits. In the present case, the writ was dissolved upon defendant’s motion prior to trial. The only issue at the trial was a determination of the amount of damages and the amount of attorney’s fees sustained as a result of the sequestration.

No evidence was offered regarding the value of the services rendered by defendant’s counsel. This court has authority to make an award of attorney’s fees in this situation by applying its knowledge of the extent of the services rendered and the value thereof to the record before it. Since Article 3506 allows attorney’s fees only “for the services rendered in connection with the dissolution of the writ”, and since the writ was dissolved on motion before trial on the merits, we are of the opinion that an award of $1,000 would adequately compensate defense counsel for drafting the answer, the rule to dissolve the sequestration (which substantially tracked the language of the answer previously filed by him), and the time expended by him in the trial of the rule. All proceedings subsequent to the dissolution of the writ involved primarily the issue of the ownership of the sequestered equipment and the issue of defendant’s wrongful conversion of the equipment, and attorney’s fees are not allowed for services in this connection.

For the reasons assigned, the judgment appealed from is amended by reducing the amount of damages awarded defendant from $15,000 to $3,000. As thus amended, and in all other respects, the judgment is affirmed. Costs of this appeal are to be paid by the defendant-appellee.

AMENDED AND AFFIRMED.

      . La.App., 298 So.2d 115.

      . Kuhn v. Stan A. Plauche Real Estate Company, 249 La. 85, 185 So.2d 210; Edwards v. Terminix 57, Inc., La.App., 292 So.2d 851.

      . Civil Code Article 2276; Gulf States Finance Corp. v. Airline Auto Sales Inc., 248 La. 591, 181 So.2d 36; Snow-White Roofs, Inc. v. Boucher, La.App., 182 So.2d 846; Marcann Outdoor, Inc. v. Hargrove, La.App., 140 So.2d 815; see also Atlas Lubricant Corp. v. Federal Ins. Co. of N. J., La.App., 293 So.2d 550.

      . See Canter v. Koehring Company, La.App., 283 So.2d 716.

      . La.App., 157 So.2d 317.

      . This is true except for the cost of the track, which Cunningham testified was exchanged for the future raising of a sunken barge.

      . Gallagher v. Gallagher, La.App., 190 So.2d 916; see also Redding v. Cade, La.App., 158 So.2d 880; American Legion v. Southwest Title & Ins. Co., La.App., 207 So.2d 393, annulled on other grounds, American Leg. Ed Brauner Post v. Southwest T. & I. Co., 253 La. 608, 218 So.2d 612.


author: SCHOTT, Judge.

text:
    Miriam J. Mauthe, wife of and Christopher C. FERRIS v. Roy L. PRICE.
    No. 7532.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.
    William J. Manion, Metairie, for plaintiffs-appellants.
    Montgomery, Barnett, Brown & Read, Thomas N. Lennox and Nathan T. Gisclair, Jr., New Orleans, for defendant-appellee.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiffs have appealed from a judgment maintaining an exception of lis pen-dens filed in response to their “Petition for Breach of Contract” on August 28, 1975. Giving rise to the exception was a suit by the same plaintiffs against the same defendant, initiated in July, 1972, by the filing of a “Petition of Suit in Negligence.” Now the question is whether the trial court correctly applied the following provisions of LSA-C.C.P. Art. 531:

“When two or more suits are pending in a Louisiana court or courts on the same cause of action, between the same parties in the same capacities and having the same object, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925 . . ”

In both cases the cause of action is the same. Plaintiffs allege that defendant, an attorney at law, was retained by them to clear some tax sale problems from a land title and that he failed in the performance of his duty to his clients with resulting damage to them. We have noted that the same parties are involved and they are in the same capacities in both suits, and both suits have the same object, namely, the recovery of compensatory damages.

The different titles placed on the petitions are of no moment since it is the factual allegations of the petition which identify the cause of action. See Official Revision Comment (b) to C.C.P. Art. 862. The original articles of plaintiffs’ original petition contained the allegations that defendant was retained by plaintiff as their attorney and he misrepresented them in that capacity. If these allegations were not as clear as they should have been any deficiency was cured with a supplemental petition filed in those original proceedings in October, 1975, which amplified and explained those original allegations.

Accordingly, the judgment appealed from is affirmed, plaintiffs to pay all costs including the cost of this appeal.

AFFIRMED.


text:
    Hugh ADDISON v. CHECKER CAB COMPANY.
    No. 7571.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.

      Alford & Caruso, Walter T. Gamard, II, New Orleans, for plaintiff-appellee.
    Pitard, Pitard & Porobil, James G. Ma-guire, New Orleans, for defendant-appellant.
    Before GULOTTA, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Defendant has appealed from a judgment for damages suffered by plaintiff as a result of an accident which occurred while he was a passenger in defendant’s taxicab. At issue are liability and the amount of general damages awarded.

The cab had been proceeding on North Claiborne Avenue in New Orleans and struck the right rear of an automobile operated by one Willie Howard, Jr. At the scene of the accident, North Claiborne was a divided street' consisting of two traffic lanes and one parking lane on each side of a neutral ground. Howard entered North Claiborne in the path of the cab from the Tennessee Street crossing of the neutral ground.

The evidence consisted of the testimony of plaintiff, defendant’s driver, Felix Le-Beau, the other driver, Willie Howard, Jr., and the investigating officer. The following is a summary of their testimony:

Plaintiff: When he first saw Howard’s car it was coming out of the neutral ground at Tennessee Street at a distance of ten or twelve feet away from the cab. When the vehicles came into contact Howard had completely turned so that the front part of the cab hit the right rear of the car. Before the accident happened, the cab was in the left lane alongside the neutral ground. The cab driver put on his brakes before the impact and skidded a short distance.

Defendant’s Driver: He had been proceeding along North Claiborne Avenue approaching Tennessee Street when Howard, without stopping in the neutral ground, swerved in front of him and pulled to the extreme left on Claiborne in the path of his cab. He first saw the Howard car when he was thirty feet from it. He applied his brakes when he was still twenty feet from the car. At all times his cab was in the left lane. His cab struck Howard’s car in its rear.

Willie Howard, Jr.: He came out of the neutral ground at Tennessee Street and made a left turn into Claiborne. He had seen the cab when it was over a block away from the intersection, so that he reasoned he had time to make his turn. After doing so, he was in the right lane and realized the cab was also in the right lane, so that he turned toward the left lane. His car was struck in the rear when he reached the middle of the block.

Investigating Officer: He had no independent recollection of the accident, but he made out a report at the time which plaintiff offered into evidence. This report shows the accident location as in the right lane of Claiborne, fifteen feet from its intersection with Tennessee Street and the cab’s skid marks of ten feet before the impact. The impact was on the rear of Howard’s car. The report shows that Le-Beau told him he was on North Claiborne Avenue in the right lane when Howard pulled out into his path, he applied his brakes but couldn’t avoid contact, and that Howard told him he was turning left from Tennessee Street, he slowed for the stop sign and turned when he was struck by the cab which he did not see.

In order to determine the liability of defendant to its passenger, we apply the principles that as a common carrier defendant is held to the highest degree of care in transporting its passenger, but it is not an insurer of his safety, and if defendant’s driver was guilty of the least negligent act contributing to the collision defendant would be liable to plaintiff. Duane v. Toye Bros. Yellow Cab Company, 148 So.2d 451 (La.App. 4th Cir. 1963).

The testimony of the four witnesses was unclear, self-contradictory and conflicting. Howard’s testimony that he was in the middle of the block when struck in the rear by the cab was absolutely false in the light of the police report offered in evidence by plaintiff himself. This police report more nearly corroborates the testimony of Le-Beau and plaintiff to the general effect that Howard suddenly pulled into LeBeau’s path when there was not enough distance for LeBeau to avoid a collision.

In the light of these considerations it is difficult to rationalize the judgment of the trial court but there is one uncontradicted circumstance which supports a reasonable inference of negligence on LeBeau’s part. The collision did not take place until Howard’s car had completed its turn and straightened out in the roadway ahead of LeBeau. Prom this and LeBeau’s statement that he did not see the car until he was within thirty feet of it the trial judge must have inferred that LeBeau was inattentive to his driving and therefore negligent in some slight degree.

Considering Canter v. Koehring, 283 So.2d 716 (La.1973), we must therefore affirm on the principle that the evidence furnishes a reasonable factual basis for the trial court’s finding and that a reasonable inference should not be disturbed upon review.

We next consider the $6,000 award for general damages. Plaintiff was a 74 year old night watchman whose duties entailed riding his bicycle around the wharves while he made his rounds. On November 9, 1974, the second day after the accident he saw his physician who found contusions of the right shoulder, left upper arm and an abrasion of the left shin. The doctor administered a tetanus injection and a muscle relaxant, and he advised diathermy. When he next saw plaintiff on November 11 the shoulder had improved but the shin abrasion had become infected. This infection persisted over a long period of time and caused plaintiff much pain. Prom November 11 until February 28 plaintiff was treated on twelve occasions and was advised not to go to work but to keep off his leg and to elevate it. On the last visit of February 28 the physician still did not advise plaintiff to return to work. Plaintiff testified that his pain prevented him from-returning to work until March 30. Relatives testified that plaintiff suffered severely during this period of time and required medication and compresses to be applied daily from the first visit to the doctor until he returned to work. At the trial, held almost eleven months after the accident, plaintiff testified that his leg still gave him trouble, and the trial judge observed that there was scaling and discoloration in the area where the abrasion was located. The trial judge was apparently convinced that plaintiff had some residual pain and had suffered considerably as a result of the accident in making the award for general damages. We cannot say that he abused his discretion in making the award.

Accordingly, the judgment appealed from is affirmed at defendant’s cost.

AFFIRMED.


text:
    Calvin Francis MacCRACKEN v. DEPARTMENT OF POLICE.
    No. 7574.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.
    Robert F. Fleming, Jr., Kiefer, Glorioso & Fleming, New Orleans, for plaintiff-appellant.
    Philip S. Brooks, Michael A. Starks, New Orleans, for defendant-appellee.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

A New Orleans police officer appeals from the Civil Service Commission’s upholding of his suspension for 90 days for having, at a Fraternal Order of Police dance, “consume[d] alcoholic beverages to the extent that his behavior [had] become obnoxious, disruptive or disorderly”, quarrelled or fought with another officer (his captain), and disregarded “instructions” of his captain, all in violation of departmental regulations. We affirm.

We first reject, as unsupported by the wording just quoted, appellant’s argument that he could not have violated the alcohol regulation unless he became “intoxicated” and the Commission declined to find that he did. Appellant does not dispute that his behavior became obnoxious, disruptive or disorderly, and any consumption of alcohol producing this effect is prohibited by the regulation.

Appellant argues that he did not violate “instructions” (the regulation’s word) because no direct orders were given him. Instructions were, however, given by his captain to him in person in clear language, that he remove himself from the area of a broken-bottle-assault by a non-policeman at the dance, and then, outside after the dance, that he go home; and those instructions were disregarded, with reviling and threat of beating the captain.

Appellant argues, further, that the regulations’ wording is unconstitutionally vague or overbroad, and that constitutional guarantees of freedom of speech protect his off duty “verbal statements.” These arguments are answered by Arnett v. Kennedy, 1974, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15.

Appellant argues that he was denied a polygraph test, but he wanted it to cover only two uncritical areas of the case. We see no prejudice to him by refusal of the test.

Appellant argues that his captain was precluded from conducting the investigation by a regulation that “a member [of the department] shall take no action in a matter normally within the scope of his duties to which he is an interested or involved party . . . .” Under appellant’s interpretation, no superior reviled by an officer could ever take action. The customary interpretation of the department, as testified to, is to the contrary, as is our own. Although the immediate suspension came from the captain, the ultimate confirmation of suspension and the fixing of its term came from the superintendent. We therefore find no prejudice in the captain’s participation in the initial suspension and the departmental investigation.

Affirmed.


author: SCHOTT, Judge. REDMANN, Judge

text:
    Rowena SPENCER, M. D. v. Harry A. BURGLASS.
    No. 7576.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.
    Rehearing Denied Oct. 13, 1976.

      Michael H. Bagot and John H. Gniady, New Orleans, for plaintiff-appellant.
    Harry A. Burglass and James O. Manning, Metairie, for defendant-appellee.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff, a physician, seeks damages for embarrassment, discomfort and lost time against defendant, an attorney. She alleges that defendant filed a suit against her in the Civil District Court for the Parish of Orleans, in which suit one Stephen Lester Parker, individually, and for and on behalf of the child, Adam Parker, sought damages against her and her insurer resulting from her negligence as a physician or medical malpractice in operating upon and damaging the body of the Parker child. Alleging that she won the medical malpractice case, plaintiff further alleges that defendant called only two witnesses, both doctors, at the trial of the malpractice case and they both testified favorably to her. She alleges that the records of the hospital, produced at the malpractice trial, showed that four doctors who had examined the child found no damage to his body in any way. The petition further contains the following pertinent allegations:

“VII.
Neither Dr. Charles Wasserman nor Dr. Harold M. Albert were consulted by defendant regarding Civil Action 488-060 prior to the date of trial which failure was a violation of the duty owed by the defendant to the public at large and specifically to your petitioner, Dr. Rowena Spencer.
“VIII.
Your petitioner shows that it is the duty of an attorney-at-law effectively to prosecute on behalf of his clients such rights or causes of action as they may have, and it is also his duty to refrain from frivolously filing suits which have no basis in law or in fact.
“XII.
That it is hereinabove alleged that petitioner’s entire loss was caused by the failure of Defendant, Harry A. Burglass, to interview and consult with his witnesses prior to the filing of suit or trial, the failure to determine the physical condition of the child, Adam Parker, by competent medical advice, the failure to determine from competent medical authority the proper procedure concerning the physical condition of the said child at the time in question and the breach of the general duty owed by defendant, Harry A. Burglass, to the public at large and particularly to your petitioner, Dr. Rowena Spencer.”

When this matter was before us previously, Spencer v. Burglass, 288 So.2d 68 (La.App. 4th Cir. 1976), the appeal was dismissed because the trial court had maintained an exception of no cause of action and had granted plaintiff time in which to file supplemental and amended pleadings under penalty of dismissal. But no dismissal had been ordered by the trial court so that the judgment then appealed from was not final. However, a subsequent judgment of the trial court dismissed plaintiff’s suit at her cost and it is this judgment which is now on appeal by plaintiff.

Plaintiff contends that she states a cause of action by her allegations that defendant owed an affirmative duty to her and to the public at large to refrain from filing groundless litigation, and that he breached this duty. Alternatively, she contends that while the word “malice” is not used in her petition, her allegations imply malice and support an action for malicious prosecution.

Taking the second contention first, in a recent discussion of malicious prosecution as a cause of action in Johnson v. Pearce, 313 So.2d 812 (La.1975), the Supreme Court reiterated that one of the elements necessary to support a malicious prosecution case is the presence of malice therein. In Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2nd Cir. 1975), it was said that malice exists where the charge is made with knowledge that it is false or with a reckless disregard as to whether it is false or not.

Plaintiff contends that the quoted paragraphs of her petition are tantamount to allegations that defendant filed the suit with malice, that is, with knowledge that the allegations of malpractice on the part of plaintiff were false or with a reckless disregard as to whether those allegations were false or not. This proposition is simply not supported by the plain wording of plaintiff’s petition.

When the paragraphs of plaintiff’s petition quoted above are analyzed it appears that defendant is charged with, 1) frivolously filing the suit and 2) failing to interview witnesses before he filed suit or tried the case and 3) failing to obtain “competent medical advice” in violation of a “general duty” owed to the public in general and plaintiff in particular.

There are no factual allegations to suggest that when defendant filed his client’s suit he knew the allegations were false or that he had a reckless disregard as to whether the allegations were false or not. On the contrary, plaintiff’s allegations are to the effect that defendant simply did not know enough about the case at the time he filed it and now in retrospect plaintiff would say this was malice on defendant’s part. If that be so many a successful lawsuit would never have been or never would be filed because oftentimes the case comes to the attorney just prior to prescription date and the evidence is not discovered and developed until after the suit is filed. We therefore conclude that the allegation of “frivolously filing suits” cannot be construed as an allegation of malice.

Next, we consider whether defendant’s alleged failure to interview his witnesses prior to trial constituted malice. We can construe this allegation to mean negligence or ineptitude on defendant’s part in his trial preparations and perhaps, if this caused the loss of the case, this failure might provide a basis for an action in malpractice against him by his client, but we cannot construe the naked allegation to imply that defendant’s failure to interview his witnesses before trial constituted a reckless disregard as to whether his client’s (not his) charge of malpractice against plaintiff was false or not. In other words this allegation simply does not imply malice on defendant’s part.

Finally, there is the allegation that defendant failed to obtain “competent medical advice,” etc. Does this constitute an allegation of malice? It would seem that an affirmative answer to this query would mean that before the attorney brings a malpractice case to trial he must find a medical person who supports the attorney’s theory or that of his client, who is willing to testify favorably and who is “competent” by someone’s (plaintiff’s?) standards. If he finds no such person but he nevertheless, places whatever evidence he can before the court perhaps relying on circumstantial evidence, reasonable inferences and common sense and perhaps realizing that he will probably lose, he runs the risk of having his conduct branded as malicious. When the bald allegation in question is considered in this light it can hardly be construed as one alleging malice. At worst, the allegation is that defendant went to trial with a poor case and got his just desserts, to wit, he lost. If that constitutes malice, the courtrooms are full of malicious attorneys. This we cannot accept.

Furthermore, the notion that defendant as the attorney for the party in the malpractice case was guilty of malicious prosecution seems to distort the role of an attorney in any case. The suit was filed by the attorney only in a technical sense since he may have signed the petition, but it was in fact an action instigated and carried on by the plaintiff in that malpractice case himself. We must assume that this plaintiff thought his child had been damaged by the doctor irrespective of the fact that no doctor agreed with him. He was intent upon placing the facts before a judge or jury for a judicial determination as to whether the doctor had failed in her duty toward the child. His attorney, defendant herein, was simply the instrument through which he invoked the judicial determination and in the absence of some allegation which would support specific malice by this attorney motivating him to persuade his client to initiate and continue his malpractice case against the doctor, no cause of action is stated against defendant as an attorney for malicious prosecution.

Plaintiff’s principal contention is that defendant somehow breached a duty he had to her to avoid filing, or at least continuing with, the prosecution of a suit he knew or should have known was frivolous and could not be successful. To establish the alleged duty plaintiff cites the oath taken by an attorney upon his admission to the practice of law which includes:

“You will not counsel or maintain any suit or proceeding which shall appear to you to be unjust, nor any defense except such as you believe to be honestly debatable under the law of the land;”

Plaintiff also cites Canon 30 from the Canons of Professional Ethics which were in effect at the time the medical malpractice suit was filed against her. Canon 30, captioned Justifiable and Unjustifiable Litigations, provides:

The lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or to injure the opposite party or to work oppression or wrong, . His appearance in Court shall be deemed equivalent to an assertion on his honor that in his opinion his client’s case is one proper for judicial determination.”

Plaintiff has cited no authority for her proposition that these standards provide her with a cause of action under a general tort or negligence concept. In order to establish liability on that theory plaintiff must allege and prove that defendant’s filing the suit against her was a cause in fact of her alleged damages, that defendant breached a duty which created the very risk which the duty was designed to prevent and that defendant was negligent in filing the suit and/or trying the case against her. See Prattini v. Whorton, 326 So.2d 576 (La.App. 4th Cir. 1976) for discussion and application of duty-risk principle.

When plaintiff’s petition is evaluated in the light of this principle we must conclude that she fails to state a cause of action. This conclusion is based primarily on the failure of the petition to allege any facts to support the proposition that defendant’s duty under Canon 30 and his oath was designed solely to prevent the risk of plaintiff’s being piqued at being sued. This would be an over simplification of the ethical complexities which govern the lawyer’s conduct to his client, the court and the public.

For example, we have already indicated that defendant’s initial filing of the suit can hardly be regarded as a breach of duty because this presupposes that he should have known at that early state of the litigation that no convincing evidence could be discovered or developed. But when the time came for the trial of the case, and he still had no evidence, his duty to plaintiff to drop the case was tempered by such considerations as are found in Canon 42 which was also binding on defendant as was Canon 30, and which provided:

“Withdrawal from employment as attorney or counsel. The right of an attorney or counsel to withdraw from employment, once assumed, arises only from good cause. Even the desire or consent of the client is not always sufficient. The lawyer shall not throw up the unfinished task to the detriment of his client except for reasons of honor or self-respect. If the client insists upon an unjust or immoral course in the conduct of his case, or if he persists over the attorney’s remonstrance in presenting frivolous defenses, or if he deliberately disregards an agreement or obligation as to fees or expenses, the lawyer may be warranted in withdrawing on due notice to the client, allowing him time to employ another lawyer. So also when a lawyer discovers that his client has no case and the client is determined to continue it; or even if the lawyer finds himself incapable of conducting the case effectively. Sundry other instances may arise in which withdrawal is to be justified. Upon withdrawing from a case after a retainer has been paid, the attorney shall refund such part of the retainer as has not been clearly earned.”

It becomes obvious that defendant’s problem was far more complicated than plaintiff alleges it to have been. She would fault defendant for bringing his client’s case to trial, in reality for not withdrawing from the case before trial, because of his duty to her. But she makes no allegation that such a withdrawal was possible or at least practical in the light of defendant’s duty to his client under the quoted canon. Perhaps the defendant, more than anyone, wanted to get out of this case, because no attorney enjoys the prosecution of a case in which he has little or no confidence. But under Canon 42 his freedom to withdraw was tempered by the interests of his client, subjective considerations of honor and self-respect and an evaluation of his client’s subjective motives for pursuing the litigation and then the canon says he “may be warranted in withdrawing.” This permissive, not directive or mandatory, withdrawing is then applied to the situation where “a lawyer discovers that his client has no case and the client is determined to continue it.”

Thus, defendant violated no duty in the final analysis under plaintiff’s allegations because even accepting everything she alleged as true and interpreting her allegations to mean that defendant at some point discovered that his client had no case, Canon 42 merely permitted, but did not require, defendant to withdraw.

If we were to hold that plaintiff states a cause of action against defendant in this case we would have to consider our opinion in the light of the following from Johnson v. Pearce, supra:

“As a general proposition, therefore, public policy requires that all persons shall fully resort to the courts for redress of wrongs, and the law protects them when they act in good faith upon reasonable grounds in commencing either a civil or criminal proceeding.”

Surely, in any case where a suit is filed by a defendant who was vindicated in a contested case against the attorney for the plaintiff some consideration must be given to the “chilling effect” such an action might have on the basic right of a citizen to seek redress in court for what he considers to be a wrong.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, J., dissents with written reasons.

REDMANN, Judge

(dissenting).

Louisiana’s law is not the common law. Louisiana’s law is found in its Civil Code and its other statutes. The Civil Code, art. 2315, obliges one to repair damage caused by his fault. This is a public policy of Louisiana, declared by our legislature. There is no Code article or statute relieving liability for fault-caused damage in certain cases because of lack of malice. Liability is imposed whenever the complained-of behavior was both fault and causative of the damage.

The skeleton concept of fault takes flesh from other public policies. One such policy is our society’s demand that courts be open to remedy injury, La.Const. art. 1, § 22. One with even the least cause to call another to court must be able to do so in freedom, unmenaced by liability, in case one loses, for the other’s resultant damages (other than certain costs, which we routinely award). Because of the dominance of the policy of courts’ being open, the policy of liability for fault-caused damage cannot include taking another to court within its fault-concept, unless there is no arguable justification for having done so. ( Arguable justification is all that can be asked consistent with the open courts policy: a plaintiff need not have any particular probability of winning. And no arguable justification, in Louisiana, is the only meaning attributable to the sometimes-parroted common-law “malicious prosecution” elements of “without probable cause” and “with malice.” (See Jones v. Simonson, La.App.1974, 292 So.2d 251.) “Malicious prosecution” may be a convenient shorthand description in Louisiana — like “malpractice” or “slip and fall” —but it is not law in Louisiana; it is not a legislative limit on the legislation of C.C. 2315. “Without probable cause” indicates (perhaps understates) the necessary limitation of “fault” to bringing suit without arguable justification. But “with malice” is insupportable except insofar as it strengthens or illuminates “without probable cause,” to clarify that the asserted cause must be so improbable that merely having brought or tried the wholly unfounded suit indicates a malice.

Our predecessor court, speaking in the common-law phrases, has ruled that malice may be inferred “from proof of the lack of probable cause.” Buisson v. Prestia, La.App.Orl.1950, 45 So.2d 531, 533. We have ourselves awarded damages for an unjustifiable detention which was neither a “false” arrest nor a “malicious” prosecution, in Firstley v. Bill Watson Ford, Inc., La.App. 1972, 268 So.2d 314. If, as Jones suggested, 292 So.2d at 253, “malicious prosecution could be found in Firstley from the unconcern with which the dealer loaned to an innocent party a car previously reported stolen,” malice can in our case be found from the unconcern with which defendant lawyer prosecuted an action against our plaintiff without (as I construe the present petition) any evidence whatsoever.

It requires little to defeat an action like the present one. One obvious possibility is that, at trial or by motion for summary judgment, defendant would present evidence tending to establish that there was medical malpractice (despite defendant lawyer’s failure to present that same evidence at the malpractice trial). But the question before us is only whether the petition sufficiently states a cause of action to allow trial to be had. In my opinion it does.

The petition alleges that plaintiff operated on the Parker child on February 27, 1968; that on February 19, 1969 (eight days before tort prescription was to accrue), defendant lawyer filed suit for the Parkers, “based upon malpractice, and chargpng] your petitioner with negligence in operating upon the minor child . . ., and [based?] on damage to the child’s body”; that defendant lawyer at the malpractice trial called only two witnesses, both doctors who testified plaintiff’s treatment was proper and that they could detect no damage to the child; that neither witness had been consulted by defendant prior to trial; that plaintiff’s damages were caused by defendant’s failure “to interview and consult with his witnesses prior to the filing of suit or trial, [his] failure to determine the physical condition of the child” etc.; that the first suit ended in judgment for our plaintiff doctor on April 6, 1971.

We had summarized the present petition, on the earlier appeal, as alleging defendant “had both filed and tried a medical malpractice suit without . . . ever having any medical expert evidence of malpractice,” 288 So.2d 68 (nor, I now add, any evidence of “damage to the child’s body”). The allegations of “negligence in operating” are of a kind that require some sort of medical testimony, unless the operating produced some self-evident anomalous result (e. g., the wrong leg cut off). The allegation of “damage to the child’s body” might have been proved without medical evidence: but the present petition alleges “failure [by defendant lawyer] to determine the physical condition of the child” (and further alleges that the two doctor witnesses “could detect no damage to the child”), thus fairly asserting that defendant lawyer did not even inquire into the child’s alleged bodily damage (which was non-existent). In sum, the present petition alleges substantially that defendant lawyer had no medical evidence and no non-medical evidence of medical malpractice or of res-ipsa-type or other self-evident physical injury, yet not only filed but also tried the suit.

As to the filing of the suit a few days before prescription would have barred it, no cause of action is stated. For all that is alleged, defendant lawyer may not have been retained until about the time of the filing, when he had no practical choice other than to file to preserve the client’s claim from prescription. The lawyer must be allowed to place some credence in the client’s assertion of facts supporting the claim, and therefore could have acted reasonably in filing the suit.

As to the trying of the suit, however, a different view should prevail. Over three years passed between filing and trying the suit, during which defendant lawyer should have informed himself of the facts of the case, by obtaining some evidence, medical or lay, tending to support the claim. Had defendant sought evidence, he would (apparently) have learned that there was no evidence of malpractice or physical damage to the child: and had he learned this, he would have known he was obliged, by the general legal duty not to injure another, C.C. 2315, at least to withdraw from the proceeding against our plaintiff.

The petition may be vague; but it states a cause of action. The judgment appealed from should therefore be reversed.


text:
    Marjorie Cobb, wife of and Arthur J. MOSS v. The TRAVELERS INSURANCE COMPANY.
    No. 7579.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.

      McPherson & Abadie, Thomas E. Stire-walt, Jr., New Orleans, for plaintiffs-appellants.
    Jones, Walker, Waechter, Poitevente, Carrere & Denegre, John C. Combe, Jr., New Orleans, for defendant-appellee.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiffs have appealed from a judgment dismissing their claim for damages resulting from an accident which occurred on Arabella Street in New Orleans when plaintiff’s vehicle, driven by Mrs. Moss, collided with an automobile driven by defendant’s insured.

Since the two drivers were the only witnesses and since they gave conflicting versions of how the accident happened we may be presented with a simple credibility call by the trial judge, as to which there is no basis for a reversal. The drivers did agree, however, that plaintiff’s car was not moved before plaintiff’s husband and a police officer arrived; yet plaintiff presented neither of these witnesses and the trial judge may have simply concluded that plaintiff did not carry her burden of proof by a preponderance of the evidence.

Defendant’s driver testified: He pulled away from a stop at the curb in front of his home, proceeded along the street for almost 100 feet at ten miles per hour when his car was struck by Mrs. Moss’ car coming from the opposite direction; there was room for her car to pass his but she veered over into his lane; Mrs. Moss was not looking ahead of her but was looking down as she proceeded toward defendant’s car. This testimony supports the rejection of plaintiff’s demands.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


text:
    Isaac H. SOILEAU v. CHET AND KENNYS AUTO PARTS, INC., et al.
    No. 7734.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.
    Rehearing Denied Oct. 13, 1976.

      Orlando G. Bendana, New Orleans, for plaintiff-appellant.
    Wood Brown, III, Montgomery, Barnett, Brown & Read, New Orleans, for defendants-appellees.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   REDMANN, Judge.

From a judgment rejecting his workmen’s compensation claim for failure to prove that work caused his heart attack, plaintiff appeals.

Plaintiff first noticed chest pain on a Sunday morning at home. He went to a hospital where, after a normal electrocardiogram and in the absence of other symptoms, gastritis was the diagnosis (angina pectoris is the hindsight diagnosis). Despite advice to rest at home, plaintiff returned to his work as manager of an auto parts store, working five and a half days a week. Monday morning two weeks later, while being driven to work, plaintiff had an acute myocardial infarction resulting in disability.

Had the heart attack occurred at work, or had it followed closely upon some identifiable beginning at work, plaintiff would recover. But we cannot disagree with the trial judge’s conclusion that work-causation was not shown. The two weeks of work between initial pain and infarct did not, according to the preponderance of the evidence, more probably than not cause the infarct.

Affirmed.


text:
    Edward James DANIELS, Jr. v. FINE PAPERS, INC., and Westchester Fire Insurance Company.
    No. 7798.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1976.

      Wood Brown, III, New Orleans, for defendants-appellants; Montgomery, Barnett, Brown & Read, New Orleans, of counsel.
    Orlando G. Bendana, New Orleans, for Edward James Daniels, Jr., plaintiff-appel-lee.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

This is a workman’s compensation case. Edward J. Daniels, Jr. suffered an accident during the scope and course of his employment on October 9, 1973 while working for Fine Papers, Inc. He was sent to Dr. Dab-ney Ewin for treatment and the doctor diagnosed his injury as a- strain of the pec-toralis muscle on the left, placing the situs of pain some two inches from the sterno-clavicular joint. He saw Daniels again on October 13 and October 18th, and on that date he noted that the pain had localized over the sterno-clavicular joint but noticed no swelling at that point. At a subsequent visit on December 12, .1973 he noted that the joint was swollen and sent him to Dr. Rufus Alldredge, an orthopedic surgeon, for consultation. It was the conclusion of both doctors that there was no dislocation or subluxation of the joint, but that Daniels had suffered a strain of the musculature in that area. During the course of this treatment, Daniels continued to work at his job, and was in considerable pain. He testified that the pain was such he could no longer bear it and quit the job in December 1973. At the time of trial it is conceded, and demonstrated, that Daniels does indeed have a dislocation of the sterno-clavicular joint and is presently disabled. The issue here is whether plaintiff has proven a con-nexity between his present condition and the prior accident. The trial court held that he had and granted disability. The employer and its insurer have appealed.

We affirm the finding of disability as work and accident related. Without going into a detailed particularization of the testimony of each doctor who testified, we are convinced that the record shows that this man exhibited the symptoms of sublu-xation of the sterno-clavicular joint at least by October 18, 1973, and has consistently received treatment for pains in that area ever since. Unfortunately, the actual sub-luxation was not able to be clinically demonstrated by motion of the joint or by x-rays, until he was examined by other doctors over a year later. It is noteworthy that the original examining physicians testified that sometimes the motion cannot be demonstrated, and all concede that the x-rays do not always show the upward displacement as occurred here. We believe the plaintiff to have carried the burden of proof.

Appellant next raises the issue of credit for the wages paid during that period when plaintiff continued to work. The trial court awarded compensation beginning October 9, 1973, the date of the accident. Plaintiff testified, without contradiction, that he worked in pain from that time until December, 1973 when the pain was so severe he could no longer continue to work. During this period of time, plaintiff was paid his hourly salary for the time he actually worked, and was not paid for nonworking hours. He was even docked for the time he took off to attend the doctor’s office. Presumably the trial judge believed that he was working in severe pain during this period sufficient to be classified as disabled. We find no error in the judge’s determination.

Appellant urges error in the trial court judgment in that the trial court did not order plaintiff to undergo a surgical operation for his injuries. Plaintiff testified that he was willing to undergo surgery but could not afford it himself, and the record is clear that he was never offered surgery by appellant. There is simply no unreasonable refusal to accept surgery in the record of this case. See Bass v. Service Pipe Trucking Company, Inc., 289 So.2d 78 (La.1974).

The last issue before us is the question of penalties and attorney’s fees which were refused by the trial court and is before us by answer to the appeal. The trial court first awarded, then on rehearing, refused the award. The question is a rather close one. We think the critical time to be in December of 1973. At that time the doctors were of the opinion that there was definite pain and tenderness and a little swelling over the left sterno-clavicular joint, and that the ligaments of this joint had been sprained. It was thought that the joint would be sore for some time, but that the employee should continue to work and the matter would clear itself up. Dr. Ewin reported that the pain had become minimal and believed that the man should return to work. However he neither returned to work nor returned for treatment for some eight months. In view of these facts, we believe the appellants to have reasonably refused compensation.

For the reasons above stated, the judgment appealed from is affirmed.

AFFIRMED.