author: SMITH, Judge.

text:
    Thomas Doylas SUTTON, Plaintiff-Appellant, v. Larry H. LANGLEY et al., Defendants-Appellees.
    No. 12866.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    En Banc. Rehearing Denied April 19, 1976.

    Writs Denied June 11, 1976.

      Booth, Lockard, Jack, Pleasant & LeSage by J. E. Bolin, Jr., Shreveport, for plaintiff-appellant.
    Mayer & Smith by Alex F. Smith, Jr., Sh-reveport, for defendants-appellants, John H. Thompson and Empire Ins. Co.
    Cook, Clark, Egan, Yancey & King by Benjamin C. King, Shreveport, for defendants-appellants, James M. Goslin and Interstate Fire & Cas. Co.
    Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Jr., Shreveport, for defendant-appellee, Commercial Fire & Marine Co.
    Lunn, Irion, Switzer, Johnson & Salley by Richard H. Switzer, Shreveport, for defendants-appellees, Continental Ins. Co. and James M. Goslin.
    Before PRICE, MARVIN and SMITH, JJ.

       Bolin, J. recused. Hall, J., dissented from denial to grant rehearing.

   SMITH, Judge.

This is a tort action, wherein Brenda Sutton, a guest passenger in a Volkswagen automobile, sustained rather serious injuries when the car left the highway and overturned several times. She was awarded $41,100 and her father was awarded medical and related expenses totaling $1,-481.85 by the trial court.

Defendants in the district court were the father of Mike. Ivey, driver of the Volkswagen; Larry H. Langley, driver of a mail truck; Johnny Thompson, the owner of the mail truck; James M. Goslin, Sheriff of Caddo Parish, where the accident occurred, and several insurance companies which had written automobile public liability policies or uninsured motorist protection for the several persons alleged to have been involved in the accident. Judgment below was against the driver, owner and insurer of the mail truck. These parties appealed. Brenda Sutton and her father also appealed as to the denial of their claims against the remaining defendants.

Approximately two hours before the accident, the mail truck, a. U/2 ton truck about eight feet in height, stalled on the highway because of ignition failure. The driver telephoned his employer over sixty miles away for a wrecker, which came the next morning. About an hour after the truck stalled, two Caddo Parish Sheriff’s deputies arrived and began to warn and divert traffic away from the stalled truck.

The highway in this area, U.S. 71 between Texarkana and Shreveport, is a relatively flat and straight two-lane road with a maximum paved surface width of 24 feet. The shoulders of the highway are not paved but are loosely graveled, being six to ten feet in width. The posted speed limit was then 60 mph. The truck stalled in the northbound lane. Some distance south of the stalled truck was a slight curve, the visibility through which was unimpaired, and the centerline had no accompanying yellow line indicating no passing. Except for head lights, the lights on the stalled truck, including top. clearance lights, were illuminated but became very dim because of the ignition failure.

The deputies ignited flares or fuzees. One was placed in front of the truck in the northbound lane and three were placed to the rear of the truck. One flare was on the tailgate of the truck, a second in a beer can near the center of the northbound lane approximately 40 feet south, and a third placed on the right-hand edge of the paved surface of the' northbound lane about 20 feet south of the second flare. One deputy, experienced with flares or fuzees, stated they could be seen from a quarter of a mile away on a dark and clear night.

The sheriff’s car was parked on the southbound shoulder a few feet away from the paved surface and a few feet south, but almost parallel with the stalled truck. The hazard lights of the sheriff’s car were engaged and blinking. The roadway was dry, although earlier rains had dampened the countryside which was essentially rural farmland and fields in the area of the accident scene. The night was dry, clear and dark, without moonlight.

At the time of the accident one deputy was in the sheriff’s car on the radio attempting to track down the wrecker supposedly sent by the truck owner. The deputy in the car saw the accident through his rear view mirror. The other deputy, who had stationed himself near the flare on the roadway behind the truck, was waving and attempting to signal and warn the approaching Volkswagen with a flashlight to which was affixed a red wand plastic cover 8-10 inches in length. His efforts with the flashlight proved futile and he hastily moved out of the way to avoid being struck by the Volkswagen, which ran over the two most southerly flares before leaving the roadway and overturning.

The Volkswagen was occupied by its 19 year old driver and his date on the front seat and by Miss Sutton and her date on the rear seat. The other occupants were all around 18 years old. They had left Texarkana about 7:30 P.M. and had journeyed approximately 70 miles to dance to live music at a Bossier City establishment. Each one had drunk one beer on the way to Bossier City.

While enjoying the music and dancing for about li/*j hours they consumed several mixed drinks. Miss Sutton had two such drinks. Mike Ivey testified he had a minimum of two drinks, a maximum of four, and his best recollection was that he had only three drinks while dancing. His blood alcohol, taken approximately one hour following the accident, was .12 grams percent alcohol. He gave no indication of driving under the influence of alcohol, even to other sheriff’s deputies who followed the Volkswagen for a short distance a few miles north of Shreveport and who came upon the scene shortly after the accident. These deputies were several hundred yards behind the Volkswagen when the accident occurred, but noticed the blinking lights of the parked sheriff’s car, one or more of the burning flares and the taillights of the Volkswagen when it went off the highway and overturned.

The only thing amiss in Mike Ivey’s driving up until this time was his missing the turn onto Highway 71 in Shreveport and having to stop and ask directions, a not uncommon occurrence for a sober and attentive driver in a strange city in the daylight. The Volkswagen was proceeding northerly at approximately 60 miles per hour. There was no interference by the lights of southbound traffic and no other immediate northbound traffic was ahead of or following the Volkswagen. All occupants were awake and conversing before the accident.

Mike Ivey testified he saw only what he described as a white light surrounded by a red light. To him this looked much like a motorcycle taillight with which' he was familiar. Both he and Miss Sutton testified he asked what it was or whether it was a motorcycle in the road ahead, to which she replied to the effect that it looked like a motorcycle. Mike Ivey stated he never saw the truck, the sheriff’s deputy with the flashlight, the flares or the sheriff’s car on the opposite shoulder. He said that he did not know the stalled truck was in any way involved in the accident until long after it occurred. He said he thought he had a “choice” of “wiping out” someone on a motorcycle or attempting to go around the motorcycle on the right. Miss Sutton said she saw only what she thought was a motorcycle and she did not see “anybody holding anything”. When Mike Ivey attempted to go to his right, he lost control and the Volkswagen left the highway, overturning several times and injuring its occupants.

Allegations of negligence were made against the driver and owner of the truck, against Mike Ivey and against the sheriff’s deputies. The trial court found the “proximate cause” of the accident to have been the negligence of the driver and owner of the mail truck and denied judgment against the other defendants. The trial court also rejected the defense of contributory negligence and assumption of risk pleaded by the several defendants as against Miss Sutton. We affirm in part, reverse in part and recast the judgment.

In considering the defense of Langley, driver of the mail truck, his employer and insurers, this court finds that the truck was a defective vehicle, known to the employer to be defective. It was sent on the highway in an unsafe condition, without flares, flags, flashlights or warning devices. Because of the company decision to send the truck out in this defective condition and the truck’s subsequent failure, it remained an obstruction in the highway for hours.

The Louisiana statutes impose obligations on persons who park vehicles on the main traveled portion of any highway and are “designed to protect life and property on the highways. It is a safety measure . . .” See Dixie Drive it Yourself System, v. American Beverage Company, 242 La. 471, 137 So.2d 298, 302 (1962); Williams v. Travelers Indemnity Company, 210 So.2d 58 (La.App. 1st Cir. 1968); Motors Insurance Corporation v. Thomas, 315 So.2d 411 (La.App. 3d Cir. 1975).

We recognize that violation of the statute does not, per se, render the offending party guilty of negligence constituting a legal cause of the accident. Kinchen v. Hansbrough, 231 So.2d 700 (La.App. 1st Cir. 1970), writ denied, 255 La. 1099, 234 So.2d 194. For the violation to be actionable negligence, it must have been the legal cause of the accident. Dixie Drive it Yourself System v. American Beverage Company, supra; Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972); Johnson v. St. Paul Mercury Insurance Company, 219 So.2d 524 (La.App. 3d Cir. 1969); Blanchard v. Wicks, 314 So.2d 366 (La.App. 4th Cir. 1975).

As stated by this court in Larkin v. United States Fidelity & Guaranty Company, 258 So.2d 132 (La.App. 2d Cir. 1972), if negligence is “to give rise to an action ex delicto under LSA-C.C. art 2315, it must be the proximate cause of the injury for which damages are sought.” There we said:

“Therefore, to constitute proximate cause as distinguished from remote cause, the negligent act must be the primary or moving cause of the injury, or that cause which in natural or continuous sequence, unbroken by any efficient or intervening cause, produces injury and without which the accident could not have happened, provided the injury is of such nature as to have been reasonably anticipated or foreseeable as the natural and probable consequence of the wrongful act." Id, p. 136

See also Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970), Rowe v. Travelers Insurance Company, 253 La. 659, 219 So.2d 486 (1969); Laird v. Travelers, supra.

In the instant case, since this identical difficulty had arisen before and no attempt had been made to remedy it, the truck driver and his employer should reasonably have anticipated that the truck would stall on the highway and thereby create a hazard to the traveling public. They should have recognized that the battery alone would not sustain the lighting system and should not have allowed the truck to depart the terminal in this condition. Reasonable precautions were not taken by the owner of the truck to prepare it properly for use on the highway. The driver of the truck did not employ adequate measures in parking the stalled vehicle or in warning approaching motorists of the mail truck after it had stalled in the lane of traffic. See Motors Insurance Corporation v. Thomas, supra. Particularly as to a guest passenger in another vehicle, these breaches of duty by the truck’s owner and driver were legal causes of the accident and are grounds for imposing liability.

The sheriff’s deputies arrived at the scene of the stalled truck and acted responsibly to the circumstances. They reasonably anticipated the truck driver’s arrangements for a wrecker to be promptly implemented. They placed temporary warning devices in the road and attempted to divert traffic, which the truck driver failed to do. The lower court correctly found no actionable negligence on the part of the sheriff’s deputies constituting a legal cause of the accident.

The culpability of the owner and driver of the truck does not automatically exonerate the Volkswagen driver, Mike Ivey, or the uninsured motorist coverage carrier of liability herein. It was the combination of the negligence of the owner and driver of the truck and the negligence of the Volkswagen driver that produced the injury of which plaintiff complains. See Briley v. North River Insurance Company, 161 So.2d 449 (La.App. 1st Cir. 1964).

Before concluding that Brenda Sutton has a right to recover from her uninsured motorist insurer, it is necessary to determine whether Louisiana law or Texas law applies because of the Texas guest passenger statute. The applicable law is also relevant as to recovery from the insurer because in Louisiana “stacking” of such coverage is sanctioned while in Texas it is not. Defendant L. J. Ivey, who was sued for the damage allegedly caused by his minor son Mike, is a Texas resident. Plaintiffs are Texas residents.

In Johnson v. St. Paul Mercury, 256 La. 289, 236 So.2d 216 (1970), the Supreme Court held, over a well-reasoned dissent by Justice Sanders, that Arkansas law should be applied by Louisiana courts in a case involving two Louisiana residents and arising out of an accident in Arkansas. In effect the lex loci delicti rule in conflict of tort law cases was recognized in that case.

However, in the later case of Jagers v. Royal Indemnity Company, 276 So.2d 309 (1973), the Supreme Court, over the dissent of Justice Summers, abandoned the approach taken in Johnson, supra, and expressly overruled Johnson. There the court applied Louisiana law to a suit between two Louisiana domiciliaries arising out of a Mississippi accident. The Court did so by classifying that case as presenting a “false conflict”, i. e., that situation that arises when it is found that only a single state has an interest in the application of its law, and the other state has no interest in the application of its law in the case. We view this later expression to direct that the “interest analysis” theory for resolving choice of law problems in Louisiana is now the proper approach.

Without resorting to lex loci delicti reasoning, we determine that Louisiana tort law is properly applicable here. It cannot be said that this is a “false conflict” problem as was presented in Jagers, supra, because Texas does haveanj ntetesf in protecting the awards of accident vip-tims residing m thafstate” Louisiana gov-eNnuental'fhterestT'm- governing awards of victims of accidents occurring on its highways and, more importantly, involving other Louisiana residents, must outweigh the Texas interests in our opinion. This is especially true when those out-of-state residents voluntarily choose Louisiana courts as the -foruni'm whichrto assert their own interests. The policy of guest passenger statutes is to protect liability insurance companies against claims brought by guests in collusion with their host. As pointed out in Justice Sanders’ dissent in Johnson, supra, such a policy is primarily concerned only with suits brought in the guest passenger states affecting torts, guests, and insurance companies subject to the jurisdiction of the guest passenger state. Under the facts of the instant case such a policy will not be advanced by the application of Texas law.

The Supreme Court in Jagers, concluded that when the foreign state has no interest in Louisiana litigation, the application of Louisiana law by Louisiana courts will contribute much greater predictability, certainty, and constancy to the law. We believe the same to be true where the interests of Louisiana outweigh the interests of the foreign state as in the case here and we hold Louisiana tort law to be applicable.

In light of the modern choice of law approach taken by the Supreme Court in Ja-gers, supra, our evaluation of the significant relationship that Louisiana has to the transaction in the absence of a choice of Texas law by the parties, we are of the opinion that Louisiana law also applies as to the interpretation of the uninsured motorist coverage.

As Jagers, supra, evinced willingness to abandon rigid application of the lex loci delicti rule of Johnson v. St. Paul Mercury Insurance Company, supra, it must also have signified the end of rigid application of the lex loci contractus rule of conflicts of laws. The intent of the Restatement of the Law 2d, Vol. 1, Chapter 8, to accomplish just such a result is seen in the Introductory Note :

“2. The Changes.

The original Contracts Chapter has been changed in four principal ways. First, the original Restatement did not acknowledge any power in the parties to choose the applicable law. The presenc Chapter recognizes that the parties have such power subject to certain limitations (see § 187). Second, the present Chapter no longer says dogmatically that, in the absence of an effective law by the parties, the validity of a contract is governed by the local law of the place of contracting. Instead, the applicable law is now said to be the local law.of the state which, with respect to the particular issue, has the most significant relationship to the transaction and the parties (see § 188). Third, the original Restatement made a sharp distinction between matters of validity and matters of performance, stating that matters pertaining to damages, to sufficiency of performance and to excuse for nonperformance are governed by the local law of the place of performance rather than by the local law of the place of contracting. This distinction has now been abandoned, and in the present Chapter all issues involving contracts are said to be governed either by the law chosen by the parties or, in the absence of an effective choice, by the local law of the state which, with respect to the particular issue, has the most significant relationship to the transaction and the parties. Lastly, the original Restatement laid down rules applicable to the entire field of contracts and, except with respect to the location of the place of contracting, made no attempt to distinguish between particular kinds of contracts. Special rules for particular kinds of contracts are stated in Title B of this Chapter.”

In a pre-Jagers case, Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972), the Louisiana Supreme Court, with Justice Summers writing for the Court, held that Florida law applied to a standard form insurance contract between the insurer and Florida residents involved in an accident in Louisiana. The Florida residents there were suing their own insurer under uninsured motorist coverage as plaintiffs have done here. The Court applied the lex loci contractus rule. There were no dissents in that case but three justices concurred in result and another simply concurred. Justice Tate assigned reasons for concurring and pointed out, as had Justice Summers,' that the result in that case would have been the same no matter which state’s law was applied. Justice Tate expressed reservation about holding that Florida law applied to the standard form policy without first examining the pertinent interests of the two states.

We interpret lagers, supra, as authority for abandoning rigid application of the lex loci contractus rule. After examining the interests of Texas and Louisiana, we conclude that Louisiana interests must prevail in the instant case.

‘We recognize that Texas is not without any interests in the uninsured motorist coverage question. That interest lies in the possible effect the application of Louisiana law might have on insurance rates for such coverage written in Texas for Texas residents. However, it must be said that this interest is minimal when one is dealing with a standard form insurance contract written by an insurer who does business in several, if not all, the states. Also, it must be recognized that in our mobile society the insurer could not reasonably contemplate the insured driving only in Texas and being subject to Texas interpretations of the policy provisions at all times. When Texas’ interest is compared to Louisiana’s interest in the regulation of awards to victims on its highways, and in protecting persons on its highways from damage by uninsured motorists, and in equally assessing the burden of that award to all culpable parties, it must be concluded that the interests of Louisiana prevail. Louisiana standard-policy construction should apply in a Louisiana court in preference to the Texas construction of that policy. This conclusion is further buttressed by the recognition that Louisiana domiciliaries who are defendants in this case could be adversely affected by the Texas construction of the uninsured motorist provisions by limiting the fund from which plaintiffs claims are to be satisfied. ___

Having concluded that Louisiana law applies in this situation, we must examine the facts of this case with respect to the host driver’s liability, the cancellation of the insurance policy by Commercial Standard Fire and Marine Insurance Co., and the extent of uninsured motorist protection afforded plaintiffs by Commercial Insurance Company of Newark, New Jersey.

Mike Ivey was either negligent in failing to maintain a proper lookout or was sufficiently intoxicated to dull his senses to the potential danger and erode his judgment. Tests indicate he had .12 grams percent blood alcohol content. There was testimony that an average person of the same size and weight would experience slower comprehension and coordination as a result of that amount of alcohol. Mike Ivey was not expected to anticipate that an improperly lighted vehicle was stopped in his path. It is elementary that the requirement of flares and their presence on a public highway is for the safety of the traveling public. Flares indicate that there is potential danger. Mike Ivey should have noticed and heeded the flares. By his own admission he thought the flashlight he saw was a motorcycle.

This case falls into the group of cases in which a driver is held to be negligent in 'not seeing what a reasonably careful and prudent driver could and would have seen and avoided. Piggly Wiggly Op. Wrhse. v. Commercial Union Ins. Co., 174 So.2d 207 (La.App. 2d Cir. 1965).

As pointed out in Dixie Drive It Yourself System v. American Beverage Company, supra, 137 So.2d at p. 302, “it is clear that more than one legally responsible cause can, and frequently does, contribute to a vehicular collision.” In Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970) there were two causes in fact of the accident and both were held legally responsible for damages in solido. Briley v. North River Insurance Company, 161 So.2d 449 (La.App. 1st Cir. 1964).

The defense contends that plaintiff, Brenda Sutton, should be denied recovery because of contributory negligence or assumption of the risk in riding with an intoxicated driver.

There was no evidence that any of the occupants of the Volkswagen had sufficient alcohol to be intoxicated other than Mike Ivey. There is no evidence in the record to establish that Brenda Sutton knew or should have known Mike Ivey was intoxicated. Other persons who were associated with him on the evening of the accident indicated his behavior was normal. Two sheriff’s deputies observed his driving and found no cause to stop him. Thus this case is distinguishable from Berry v. Travelers Insurance Company, 273 So.2d 923 (La.App. 2d Cir. 1973) and from Marcotte v. Travelers Insurance Company, 258 La. 989, 249 So.2d 105 (1971). It was not shown here that Brenda Sutton knew or had any reason to believe that Mike Ivey was intoxicated. Smith v. Marquette Casualty Company, 247 La. 1054, 176 So.2d 133 (1965). Because of that fact, this case is also distinguishable from Irvin v. Savelle, 325 So.2d 866 (La.App. 2d Cir. 1976).

This court does not find Brenda Smith negligent in failing to observe the truck ahead of the Volkswagen. A guest passenger is not required to monitor the operation of the vehicle in which she is traveling. Smith v. Marquette Casualty Company, supra. This is especially true when she is riding in the back seat. Bodan v. American Employers Insurance Company, 160 So.2d 410 (La.App. 2d Cir. 1964). Nor can it be said that Brenda Sutton’s failure to identify properly the obstruction in the road constituted contributory negligence on her part. Brenda Sutton did not know that Mike Ivey was unaware of the peril. The evidence reveals that he, in fact, mentioned seeing something in the road ahead immediately before the accident and that plaintiff also acknowledged its presence. Plaintiff, however, cannot be charged with contributory negligence because the driver of the vehicle failed to take proper action to avoid the peril. Plaintiff, herself, had no actual control of the vehicle. Further, the evidence reveals that plaintiff’s knowledge of the peril came too late to avoid the hazard or to warn effectively the driver of the vehicle. See Blashfield Automobile Law and Practice, 3rd ed., Vol. 5, § 215.15, @ pp. 341, 342, and Louisiana cases cited therein.

The defendants failed to prove that Brenda Sutton was contributorily negligent or that she had assumed the risk.

In this case the evidence establishes that there was fault on the part of the uninsured motorist Mike Ivey. It also establishes that the car he was driving at the time of the accident was an uninsured automobile as defined in the two policies allegedly in force at the time of the accident. Commercial Standard Fire & Marine Insurance Company, one of those insurers, contends that the policy issued by them had been cancelled before the accident. We must determine whether that cancellation had been perfected at the time of the accident.

We hold that Commercial Standard Fire & Marine Insurance Company had effectively cancelled their insurance coverage of plaintiff before the accident. The evidence preponderates in favor of this insurer’s contention that the notice was indeed mailed and was in fact received by Mr. Sutton.

It is necessary for the insured to rebut the presumption of delivery in order to make the cancellation ineffectual. Cuccia v. Allstate Insurance Co., 262 La. 545, 263 So.2d 884 (1972). The insured did not sustain that burden in the instant case. The affidavit of the agent for the insurer establishes that the notice was mailed properly stamped, on August 6, 1970 to the address shown on the policy, which was plaintiff’s correct address. The notice of cancellation itself was filed into evidence and clearly • shows the Fort Worth, Texas, stamp, the date August 6, 1970, as well as Sutton’s correct address. The only affirmative proof of nondelivery was the self-serving testimony of Mr. Sutton. The circumstances, most importantly the application (by Sutton’s insurance agent), for coverage with another insurer around the effective date of the cancellation, admittedly with the authorization of Sutton himself, and his admission that he did not intend to have two insurers, indicate actual receipt of the notice of cancellation. We find, therefore, that Sutton failed in his burden of proof of nondelivery sufficient to rebut the presumption of “notice” in the Louisiana sense.

As noted above, application was made by Sutton for insurance protection with another insurer, Commercial Insurance Company of Newark, N. J. Pursuant to this application, coverage was afforded by that company from August 18, 1970 to October 3, 1970. It was in effect at the time of the accident in which plaintiff was injured. That policy provided uninsured motorist coverage to plaintiff. There are three vehicles listed in the policy as being covered. Three separate premiums were paid for the $10,000/$20,000 coverage for each of the three vehicles. Under Louisiana law, the three $10,000 coverages should be “stacked”, to ' give a maximum of $30,000 coverage total. Wilkinson v. Fireman’s Fund Insurance Company, 298 So.2d 915 (La.App. 3d Cir. 1974); Bourgeois v. Government Employees Insurance Co., 316 So.2d 804 (La.App. 1st Cir. 1975).

Brenda Sutton suffered compression fractures of two thoracic vertebrae. This injury required hospitalization for about two weeks as well as necessitating her wearing a back brace for an extended period of time. The condition was painful and led to other relatively minor, but nevertheless painful, complications. She had lacerations on her ankle. A nerve was severed in her left foot causing numbness in that region. She also had lacerations on her knee. She had to wear a knee brace for approximately two months because of weakness of that knee.

As a result of her injuries, her activities in her senior year of high school were severely limited. She had to restrict her extracurricular recreational activities and abandon 'her piano studies. She entered college in pursuit of a degree in music but was unable to continue that study because of pain and discomfort resulting from her injuries.

None of the appellants complain that the amounts awarded by the trial court were an abuse of his broad discretion in evaluating damages. We feel the trial court award is supported by the evidence and is within the broad discretion allowed trial courts in this area.

For the foregoing reasons, the judgment of the lower court is affirmed in part, reversed in part and recast to read as follows :

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in soli-do and against John H. Thompson, Larry H. Langley, and Empire Insurance Company, and against L. J. Ivey:

(A) In favor of Brenda Gail Sutton for $41,100; and

(B) In favor of T. D. Sutton for $1,481.85, with legal interest of seven percent per an-num. from August 20, 1971, and for all costs, including appellate costs, and expert witness fees, which are hereby fixed at $100 each for Drs. Smith and Barnes.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the uninsured motorist protection provisions of that policy of automobile public liability insurance between Commercial Insurance Company of Newark, New Jersey, and Tommy Sutton are held and declared to afford coverage to Brenda Gail Sutton up to the maximum amount of $30,000, provided that in no event shall Brenda Gail Sutton be entitled to recover from any or all parties defendant or insurers more than $41,100, with interest as above provided, and judgment is rendered accordingly.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of all other defendants, namely Sheriff James M. Goslin, Continental Insurance Company and Interstate Fire and Marine Company, rejecting plaintiff’s demands.

AFFIRMED in part, REVERSED in part and recast.

      . LSA-K.S. 32:141; 32:367-8.

      . The Texas Guest Passenger law requires what is tantamount to gross negligence to permit recovery by a guest passenger, i. e., intentional fault or heedless or reckless disregard of others. Proof of simple negligence is not sufficient to permit the guest passenger to recover. Ann.Oiv.St. of Texas, Art. 6701b, § 1.


source: Caselaw Access Project

author: HALL, Judge.

license: Public Domain

text:
    Lucille WEBERT, Plaintiff-Appellant, v. ASSOCIATED INDEMNITY CORPORATION, Defendant-Appellee.
    No. 12865.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    En Banc. Rehearing Denied April 19, 1976.
    Ike F. Hawkins, Jr., Shreveport, for plaintiff-appellant.

      Lunn, Irion, Switzer, Johnson & Salley by Charles W. Salley, Shreveport, for defendant-appellee.
    Before BOLIN, HALL and MARVIN, JJ.
   HALL, Judge.

Plaintiff, Lucille Webert, sued defendant, Associated Indemnity Corporation, (it was stipulated at trial that the proper defendant is American Automobile Insurance Company) to recover workmen’s compensation benefits for total and permanent disability allegedly arising out of two accidents which occurred during the course and scope of her employment by American Linen Service, Inc. For oral reasons, not reflected by the record, the trial court rejected plaintiff’s demands. We affirm the judgment of the district court.

The factual issue presented by this appeal is whether plaintiff proved the alleged on-the-job accidents and a resulting work-related injury.

Plaintiff worked for American Linen Service, Inc. for approximately nine months. Her work at the time of the alleged accidents was “pitching sheets”, picking up sheets and handing them to coworkers who ran them through ironing machines. In doing this work, plaintiff stood behind and in close proximity to the co-workers, Ida Harris and Mattie Murray. E. P. (Rickie) Brocato, superintendent of the plant and plaintiff’s immediate supervisor, also worked in close proximity.

Plaintiff testified that on Wednesday, May 14, 1975, she was hit in the back by a cart full of wet sheets pushed by Brocato. She screamed and cursed, but got no apology from Brocato. She testified she talked to Miss Harris about Brocato’s failure to apologize or otherwise acknowledge the incident. She testified her back hurt her rather severely for a half hour or longer, but that the severe pain gradually became dull and she managed to continue working with the help of a rest during lunch, reclining on the seat of her car. She further stated she completed the working week, but felt it necessary to stay home and remain quiet throughout the weekend in order to rest.

Plaintiff testified that on Monday, March 19, 1975, about 11:30 in the morning she slipped in a puddle of water at her work station and almost fell, grabbing onto a storage cart for support. At this time she felt something tearing in her back and a sharp pain. She testified Ida Harris was looking right at her and said something to the effect of “be careful and don’t fall.” Plaintiff said that after about 30 minutes she went to Brocato to report her pain and ask permission to see a doctor but he would not listen, brushing her off and saying only that he could not afford any absentees that day. Plaintiff then went into American’s office and reported the accident to Gene Thoma, plant manager. She testified Thoma told her she could leave, but she had to call her brother to take her to the doctor. Thoma was not called to testify by defendants and it is to be presumed he would have verified plaintiff’s testimony about her report to him.

When plaintiff’s brother asked which doctor he should take her to, he was told to take her to Dr. Jason C. Sanders. He took her to Dr. Sanders directly from American’s plant.

Dr. Sanders testified he examined plaintiff on May 19 and each day thereafter until the 23rd, when he had her hospitalized at Doctor’s Hospital. While in the hospital until about June 10, 1975, she was x-rayed, received physiotherapy, and was placed in traction. Dr. Sanders said plaintiff gave a history of being hit by a cart in the lower back and of further hurting her back while picking up sacks of wet linen. He said she did not mention slipping on any water. His diagnosis was a moderately severe lum-bosacral sprain which would cause problems for a month or six weeks. Dr. Sanders, based on the x-rays, also thought it possible she had the beginning of a degenerated disc at the L-5 space. The doctor described plaintiff as a difficult patient with whom he could not establish rapport.

Plaintiff also offered the testimony of her brother and Lee Arthur Mayshack. Her brother testified she seemed to be in pain on May 19 when he took her to the doctor. Mayshack testified he saw her in the lunchroom for a few minutes on May 19, that she told him at that time she had slipped and hurt her back, and that she was crying when he spoke with her. Plaintiff complains of the trial court’s refusal to allow her to call Mayshack under cross-examination as an employee of the defendant’s insured. Plaintiff proceeded to examine Mayshack on direct examination and his knowledge of the situation was fully developed. Whether he was on direct or cross-examination is of no consequence.

Dr. V. Ward Barr, a neurosurgeon, examined plaintiff on June 26 and August 5, 1975. On the first examination, Dr. Barr’s impression was that she had nerve root irritation at the L-5, S-l level. Her history was compatible with a ruptured disc and he recommended hospitalization for a myelogram. After the second examination, the doctor was not convinced plaintiff’s apparent discomfort was anatomical and felt it might be on a functional basis. He still believed a myelogram would be helpful in making a diagnosis. The doctor thought she might be exaggerating, he thought she could do some of the tests 'but would not, and he had questions as to her credibility.

Plaintiff did not have the myelogram, testifying she could not afford further treatment in the absence of recovery in this suit.

Two other specialists saw plaintiff while she was in the hospital but neither was called to testify at the trial.

Defendant introduced the testimony of Brocato, Mattie Murray and Ida Harris. Brocato testified that on May 14 he did bump plaintiff with a barely moving cart, but he said the impact was slight and to her hip rather than her back. He stated plaintiff made no remarks at the time of this incident. He testified further that he could not recall whether there was water in the aisle where plaintiff said she slipped on the day of the alleged slip and fall, and that he did not witness any accident on that day. He did say that plaintiff reported to him that she had a catch in her side and he told her to go see a doctor. He made a report of this which was filed May 20 and made no mention of water on the floor.

Mattie Murray and Ida Harris both testified that they worked within a few steps of plaintiff. Both women testified there was no water on the floor on the 19th of May. Neither remembered plaintiff having any accident or complaining about any pain. Miss Harris testified that she did not hear plaintiff scream out on the 14th, nor did she see the cart incident of that day. She denied plaintiff made any remarks to her about the incident. Miss Harris categorically denied seeing or knowing anything about the accident of the 19th, as testified to by plaintiff. Miss Murray testified plaintiff told her on the 19th she had been sick over the weekend and told her she was sick and going home when she left on the 19th.

In a workmen’s compensation case, the burden is on the plaintiff to prove by a preponderance of the evidence the occurrence of an accident in the course and scope of employment and a resulting injury or disability. Dawson v. Western Electric Company, Inc., 273 So.2d 873' (La.App.2d Cir. 1973) writs refused, La., 275 So.2d 791. The testimony of the plaintiff as to the occurrence of an accident may be sufficient, if supported by surrounding and corroborated circumstances and if there is nothing to discredit the employee’s account of the accident. Blair v. Procon, Incorporated, 188 So.2d 676 (La.App.2d Cir. 1966); Campbell v. Travelers Insurance Company, 324 So.2d 26 (La.App.2d Cir. 1975). The trial court’s conclusion of fact is entitled to great weight, particularly where the findings of facts rest primarily on an evaluation of the credibility of the witnesses. Williams v. State Farm Mutual Automobile Insurance Co., 266 So.2d 718 (La.App.3d Cir. 1972); Carter v. Avondale Shipyards, Inc., 308 So.2d 472 (La.App.4th Cir. 1975).

Here, the trial judge rejected plaintiff’s demands. His judgment necessarily implies a conclusion that plaintiff either failed to prove the occurrence of the alleged accidents or failed to prove her injury resulted from the relatively minor incidents. The conclusions of the trial judge necessarily were based on a lack of credibility of plaintiff’s testimony.

There are inconsistencies and contradictions in the testimony of the witnesses tending to discredit plaintiff’s account of the alleged accidents. Although working in close proximity to plaintiff, Miss Murray, Miss Harris and Brocato deny any knowledge of the allegedly more serious accident of May 49. Miss Harris’ testimony that she knew nothing of the incident of the 14th and did not see the incident of the 19th is in direct conflict with the plaintiff’s testimony. The testimony of the coworkers that there was no water on the floor on the 19th is in direct conflict with plaintiff’s testimony. Brocato’s description of the incident of the 14th as being very minor is substantially in conflict with plaintiff’s version of the incident. The coworkers’ denial that plaintiff complained of pain in the days following the incident of the 14th is in direct conflict with plaintiff’s testimony. The testimony of both Dr. Sanders and Dr. Barr also casts doubts on plaintiff’s credibility.

With evidence in the record tending to discredit plaintiff’s testimony about the un-witnessed accidents, we find no manifest error in the judgment of the trial court.

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

Affirmed.


text:
    MAXWELL MOTORS, INC., Plaintiff-Appellee, v. Harold E. TOLAR, Defendant-Appellant.
    No. 12854.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    En Banc. Rehearing Denied April 19, 1976.
    Writ Refused June 15, 1976.
    Holloway, Baker, Culpepper & Brunson by Bobby L. Culpepper, Jonesboro, for defendant-appellant.

      Emmons, Henry & Reeves by Joseph A. Reeves, Jr., Jonesboro, for plaintiff-appel-lee.
    Before PRICE, HALL and SMITH, JJ.
   SMITH, Judge.

Suit was brought by Maxwell Motors, Inc. for the balance due on a note executed by defendant Harold Tolar on January 25, 1973 in the amount of $1,260 payable in 18 monthly installments of $70 each. Judgment was rendered in favor of plaintiff for $1,260 with 8% interest from maturity until paid and a sum equal to 25% of the principal and interest as attorney’s fees. Defendant perfected a devolutive appeal to this court. We affirm the judgment of the trial court.

Defendant purchased an automobile from plaintiff in 1972. A note was executed by defendant at that time for the balance of the purchase price and finance charges. Some time after that purchase defendant became unable to meet his financial obligations. In the latter part of 1972 defendant filed a petition in bankruptcy and was subsequently discharged from the obligation on the original indebtedness due plaintiff pursuant to an adjudication in bankruptcy.

On January 25, 1973 defendant executed a new note in the sum of $1,260. As security, he executed a chattel mortgage on the automobile which was still in his possession. The plaintiff has abandoned his attempt to enforce the mortgage after admitting informalities in its execution.

It is defendant’s contention that the note is void because of a failure of consideration. There is no merit to this contention.

Article 1757(2) of the Louisiana Civil Code defines a natural obligation as “one which can not be enforced by action, but which is binding on the party who makes it, in conscience and according to natural justice.” It is a well established principle of law that a discharge in bankruptcy does not extinguish or cancel the discharged debt, but merely serves as a bar to the legal enforcement thereof. Palmer v. Moore, 3 La.Ann. 208 (1848); Ludeling v. Felton, 29 La.Ann. 719 (1877); O’Neill v. D. H. Holmes Company, Ltd., 232 So.2d 849 (La.App. 4th Cir. 1970).

LSA-C.C. Art. 1759 provides:
“Art. 1759. Although natural obligations can not be enforced by action, they have the following effect [effects]:
“2. A natural obligation is a sufficient consideration for a new contract.”

We, therefore, hold that the execution of the note by Tolar, payable in a specified manner, is a legally enforceable obligation, the cause for which is the previous indebtedness owed to Maxwell Motors, Inc. Although he had been afforded a defense to the enforcement of that previous obligation, the natural obligation remained, and, having elected to revive it by signing the note, he is once again legally responsible for the balance due.

For the foregoing reasons, the judgment of the lower court is affirmed. Costs are assessed to appellant.

Affirmed.

      . Defendant’s maintaining possession of the automobile distinguishes the instant ease from those cases holding that where the debtor no longer has possession of the thing for which the debt was incurred but nevertheless executes a new note, there is a failure of consideration. See, e. g., Republic Finance of Gramercy, Inc. v. Davis, 289 So.2d 891 (La.App., 4th Cir. 1974), consideration was possession of furniture; Shreveport Auto Finance Corp. v. Harrington, 113 So.2d 476 (La.App., 2d Cir. 1959), judgment on the new note impermissible where creditor provoked sale without appraisement.


author: ELLIS, Judge.

text:
    SUGARLAND STATE BANK v. AETNA INSURANCE COMPANY.
    No. 10637.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    J. Winston Ardoin, Eunice, for appellant.
    Marian Mayer Berkett, and Charles Seaman, Jr., New Orleans, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge.

This is a suit by Sugarland State Bank to recover $65,000.00 and penalties allegedly due it under a Bankers Blanket Bond written by defendant Aetna Insurance Company. Plaintiff appeals from a summary judgment dismissing its suit.

On February 6, 1970, Sugarland accepted for collection an “International Cashiers Draft” dated February 2, 1970, made by the Bank of Sark, Ltd. to the order of Houston Aircraft Brokers, Inc., and endorsed by it in blank, in the face amount of $175,000.00. The Bank of Sark, Ltd. is located on the Island of Guernsey in the English Channel off the coast of France. The draft was presented for collection by Diamond Industries, Inc.

On the strength of the draft, and of a $75,000.00 note executed by Diamond, Sug-arland opened a checking account in the amount of $175,000.00 in Diamond’s name, with the understanding that a balance of at least $100,000.00 would be maintained until the draft was paid. The sum of $75,000.00 in the form of two cashier’s checks was immediately advanced to Diamond.

An inquiry to the Bank of Sark provoked a written assurance that “if check is sent in for collection as instructed, there should be no problems in collection.”

In the meanwhile, Sugarland obtained from Diamond its demand note for $175,000.00, dated February 6, 1970, which was held as additional collateral. The $75,000.00 note first obtained was either returned or destroyed. On March 17, 1970, the Bank of Sark advised Sugarland by telegram that payment had been stopped on the draft.

Sugarland attempted to recover its fundsr from Diamond, without avail. The indebtedness was then set up as a note account on the records of the bank, Diamond’s checking account closed out, and the balance therein applied on the note, leaving a balance of $65,000.00 due.

In November, 1970, judgment was obtained in a Texas court against Diamond, but execution never issued and nothing was ever recovered thereunder.

In early 197.1, the State Bank Examiners required that the $65,000.00 debit be eliminated, and the directors of the bank assumed the obligation on a pro rata basis. At some time in 1971, prior to September, John J. Prokop, then Executive Vice President of the bank, was interviewed by agents of the Federal Bureau of Investigation relative to the transaction.

In August, 1972, Aetna was notified of the loss and a claim was made under the blanket bond. Liability was denied, and this suit was instituted on June 27, 1974. We note that some of the principals of Diamond were tried and convicted of some Federal crime arising out of this transaction in the latter part of 1973.

All of the foregoing facts appear in affidavits and depositions filed in the record in support of, or in opposition to, defendants’ motion for summary judgment.

The motion is based in part on the following provision of the blanket bond:

“Section 3. At the earliest praticable moment after discovery of any loss hereunder the Insured shall give the Underwriter written notice thereof and shall also within six months after such discovery furnish to the Underwriter affirmative proof of loss with full particulars. Legal proceedings for recovery of any loss hereunder shall not be brought prior to the expiration of six days after such proof of loss is filed with the Underwriter nor after the expiration of twenty-four months from the discovery of such loss, except that any action or proceeding to recover hereunder on account of any judgment against the Insured in any suit mentioned in the Clause entitled Court Costs and Attorneys’ Fees, or to recover attorneys’ fees paid in any such suit, shall be begun within twenty-four months from the date upon which the judgment in such suit shall become final. If any limitation embodied -in this bond is prohibited by any law controlling the construction hereof, such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law.”

More specifically, the motion for summary judgment is based on the following grounds:

“1. Suit was not filed within twenty-four months from the discovery of the loss.
“2. No written notice of the loss was given within six months of the discovery of the loss.
“3. Sugarland failed to give the Underwriter written notice at the earliest practical moment after discovery of the alleged loss.
“4. The loss was occasioned by the non-payment or default of a loan which is expressly excluded from coverage; and
“5. The bank has no loss, having been fully reimbursed.”

The trial judge was of the opinion that there were questions of material fact as to the first four grounds, but granted summary judgment as to the last ground alleged.

The validity of the first three grounds alleged depends upon the time that the loss was discovered, since it is undisputed that no notice or proof of loss was furnished until August 24, 1972. Defendant contends that the loss was “discovered” as early as March 17, 1970, when Sugarland learned that payment was stopped on the draft, and certainly no later than early 1971, when the directors were forced to make up the deficit.

Plaintiff contends that the loss was not “discovered” until they learned that there was fraudulent activity on the part of Diamond. It is contended that this knowledge came to it as a result of conversations with other bankers, newspaper clippings and F. B.I. interviews, and that the bank did not know of the fraud until August, 1972, when it notified Aetna. The affidavit of John H. Dejean, president of Sugarland when the suit was filed, states that the bank did not know of the fraud until November, 1973, which is over a year after the claim was made.

The questions presented are of mixed law and fact, which we feel should be resolved after trial on the merits. Certainly there is a dispute as to the fact of when plaintiff had, or should have had, knowledge of the alleged fraud, which is one factor to be considered in making the decision herein.

The fourth ground alleged is based on the fact that, upon learning that payment had been stopped on the draft, Sugarland set up the debit on its books as a loan transaction and attempted to effect collection of the $175,000.00 note. It is argued that the bond does not cover losses from non payment of a loan. However, the affidavits of both Mr. Dejean and Mr. Pro-kop allege that the funds were advanced on the basis of the Bank of Sark draft and that the note was taken only as collateral security. They allege that no loan was ever made to Diamond or its representatives. There is, therefore, a dispute as to a material issue of fact relating to this point.

As stated above, the trial judge maintained the motion for summary judgment on the ground that the bank had recovered its loss from its directors, and therefore had no right to recover under the bond. However, Mr. Dejean’s affidavit states that the payments made by the directors “were in fact loans to the Bank by the directors and are to be repaid out of earnings of the Bank; therefore, a loss definitely has occurred, as alleged in the Petition.” This statement refutes Aetna’s contention that the bank has been made whole, and there is therefore, a dispute as to a material fact.

In ruling on a motion for summary judgment, we cannot weigh the evidence, nor may we concern ourselves with the probability of the success or failure of the parties. Summary judgment may be rendered only in the absence of dispute as to the material facts, and we have found such disputes to exist as to all grounds urged by the defendant.

The judgment appealed from is therefore reversed, and the case remanded to the trial court for trial on its merits. All costs of this appeal shall be paid by defendant, with the assessment of all other costs to await final determination of the case on its merits.

Reversed and remanded.


author: GLADNEY, Judge.

text:
    ROGER JOHNSON CONSTRUCTION CO., INC., Plaintiff-Appellant, v. BOSSIER CITY, Defendant-Appellee.
    No. 12802.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.
    En Banc. Rehearing Denied Feb. 9, 1976.

      Cady & Beard by Roy L. Beard, Shreveport, for plaintiff-appellant.
    Graham W. Rogers, Bossier City, for defendant-appellee.
    Before BOLIN, MARVIN and GLAD-NEY, JJ.
   GLADNEY, Judge.

Roger Johnson Construction Company, Inc. on December 22, 1972 contracted with the city of Bossier City for the construction of certain recreational facilities involving three sites or areas: Meadow-view-Swan Lake Area, Greenacres and Walbrook Park Area.

It was provided the contract should be completed within 140 days after “Notice to Proceed” given by the Engineer. Such notice was given December 27, 1972 and directed plaintiff to commence work on January 22, 1973. Later the contract was amended by extensions granted on May 15, 1973 and June 18, 1973 which extended the construction period from 140 to 200 days. The contract was substantially completed and accepted on August 31, 1973. The city has deducted $50 per day for 45 days beyond the specified 200 calendar days required for completion.

Plaintiff, contending the delays were caused by unforeseeable reasons beyond its control, such as acts of God, severe weather, etc., instituted the present suit to recover the $2,250 withheld. The district judge rejected plaintiff’s demands and it appeals.

The parties through stipulation agreed that the construction was not completed within the 200 day period but was completed after an additional 45 days. The parties agreed “that time is of the essence of each and every portion of this contract and of the specifications wherein a definite and certain.length of time is fixed for the performance of any act whatsoever; and where under the contract an additional time is allowed for the completion of any work, the new time limit fixed by such extension shall be of the essence of this contract.”

The contract set forth conditions wherein liquidated damages shall not be assessed, stating:

“ * * * Provided, that the Contractor shall not be charged with liquidated damages or any excess cost when the Owner determines that the Contractor is without fault and the Contractor’s reasons for the time extension are acceptable to the Owner; Provided further, that the Contractor shall not be charged with liquidated damages or any excess cost when the delay in completion of the work is due:

(a) To any preference, priority or allocation order duly issued by the Government ;

(b) To unforeseeable cause beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God, or of the public enemy, acts of the Owner, acts of another Contractor in the performance of a contract with the Owner, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and severe weather; and

(c) To any delays of Subcontractors or suppliers occasioned by any of the causes specified in subsections (a) and (b) of this article;

“Provided further, that the Contractor shall, within ten (10) days from the beginning of such delay, unless the Owner shall grant a further period of time prior to the date of final settlement of the contract, notify the Owner, in writing, of the causes of the delay, who shall ascertain the facts and extent of the delay and notify the Contractor within a reasonable time of its decision in the matter . . .”

The preceding paragraph requiring notice to the owner is inapplicable since extensions were informally given by the owner.

The primary issue presented by this appeal is whether appellant has demonstrated by a preponderance of the evidence there was lawful excuse for its nonperformance due to “severe weather.”

The contract contains no definition of “severe weather”. Ernest Ethridge, officer in charge of the Shreveport office of the National Weather Service, testified the term is used in his records to mean “thunderstorms” or “tornadic activity” and that during the period from January through August, 1973 there were only five days of “severe weather”. Manifestly, such usage has special significance without application herein. Our Civil Code declares the words of a contract are to be understood in the common and usual signification, without attending so much to grammatical rules as to general and popular use. C.C. Arts. 1946, 1953. It is obvious that usage intended by the parties herein involved implies bad weather which by reason of atmospheric conditions such weather is not reasonably fit or proper to permit the performance of the undertaking contemplated.

To establish its contention the delays were due to unforeseeable reasons beyond its control, and particularly because of severe weather conditions, the contractor pointed out that the impact of weather conditions on the progress of the work went beyond mere interference by falling rain as the water content or wet condition of the soil would not permit the laying of asphalt, or the doing of preliminary soil preparations. Roger Johnson testified that he visited the job sites regularly and that he was personally acquainted with the progress or lack of progress of the work. He gave as his reasons for delay the inability to get compaction of the sub-grade because it was wet. He said particular emphasis should be given to the declarations in Change Orders No. 1 and No. 2 whereby the calendar days of construction were increased “due to unusually wet weather conditions.” Dewey Johnson was likewise of the opinion the work was prevented because of weather conditions. David Isabell, a subcontractor who came on the job about the middle of May at the Swan Lake Area and Walbrook Park Area sites, testified he was “supposed to take it at rough grade and fine grade it out and put the base and the asphalt on it.” His work commenced on the Swan Lake tract on May 14 and was completed about July 3; Walbrook Park was started on July 10 and finished about August 8-31. He said he didn’t work constantly because rains would delay soil tests, but a fair amount of the delay was due to wet weather.

The appellant placed primary reliance as to the climatic issue on Ernest Ethridge, officer in charge of the Shreveport office of the National Weather Service. The data derived from Ethridge’s testimony concerning rainfall is as follows :

MONTH NORMAL RAINFALL ACTUAL RAINFALL DEVIATION FROM NORM

Jan. 4.04 5.65 . +.85

Feb. 3.71 1.52 —2.57

March 4.10 5.01 +.86

April 5.19 6.44 +1.87

May 5.04 2.00 —2.79

June 3.34 5.84 +2.50

July 2.89 7.63 +3.88

Aug. 2.68 • .77 —1.78

30.99 +2.82

An analysis of the data supplied by appellant’s witness thus indicates that over the entire eight month period, January through August, 1973 there was a “plus departure” of 2.82 inches. The total normal rainfall for the period is 30.99 inches.

Mike Vercher, the inspector on the job, testified his log disclosed that there were only thirty-eight (38) days during the entire period of the contract when the contractor was unable to proceed with the work.

Albert Bergamini, a civil engineer, was the project engineer on the Bossier City job. He testified that from the inspection report he tabulated the days when it was too wet to work. He also totaled thirty-eight days lost to wet weather from January 23 to July 16. He expressed the opinion the job could have been completed in the one hundred and forty days contemplated by the contract. Mike Vercher concluded that the cause for the delay was lack of sufficient personnel and that on most occasions work was progressing on one site only, although there were three sites requiring work.

The opinion of the trial judge held that the preponderance of the evidence showed that this job could have been timely completed by plaintiff by using sufficient crews on all sites .on the days during which work could have progressed. Plaintiff’s demands were denied.

We have reached the same conclusion and the judgment will be affirmed.


author: HALL, Judge. SMITH, Judge

text:
    Cortez Burns ARMOUR, Plaintiff-Defendant-in-Reconvention-Appellee, v. SHONGALOO LODGE NO. 352, FREE AND ACCEPTED MASONS, Defendant-Plaintif-in-Reconvention-Appellant.
    No. 12859.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    En Banc. Rehearing Denied April 19, 1976.

    Writ Granted June 15, 1976.

      Leon M. Pliner, Shreveport, for defendant-plaintiff-in-reconvention-appellant.
    Kitchens, Benton & Kitchens by John B. Benton, Jr., Minden, for plaintiff-defendant-in-reconvention-appellee.
    Before PRICE, HALL and SMITH, JJ.

       Marvin and Smith, JJ., dissented from denial to grant rehearing.

   HALL, Judge.

Shongaloo Lodge No. 352, Free and Accepted Masons, defendant and plaintiff-in-reconvention, appeals from a judgment in favor of Cortez Burns Armour, plaintiff and defendant-in-reconvention, declaring null and void a lease contract entered into by plaintiff’s father, Andrew Clark Burns, and the Masonic Lodge in 1950 for a term of 99 years, covering the second story of a two-story frame building owned by Burns in the Town of Shongaloo, Webster Parish, Louisiana, for use by the Lodge as a meeting place. For reasons expressed in this opinion we affirm the judgment of the district court.

Plaintiff as sole heir of her father and mother and as present owner of the property filed suit against the Masonic Lodge seeking to have the lease contract declared null and void because of lack of a serious consideration and because the lease contains no fixed and determinate price. The Lodge answered the suit asserting that the obligations of the Lodge contained in the lease contract, with which it has fully complied, constituted legal cause or consideration for the contract. Alternatively, the Lodge asserted the validity of the contract as an onerous donation inter vivos. By reconven-tional demand the Lodge sought specific performance of the lessor’s obligations contained in the contract relative to maintenance and repair of the first story of the building.

In well considered written reasons for judgment, the district court held the lease contract was not supported by a serious consideration and was invalid and unenforceable. Defendant’s reconventional demand was rejected.

The contract in question, in authentic form, is described in its preamble as a “contract of lease.” The contract recites that Andrew Clark Burns is the owner of a lot of ground in Shongaloo, located at the northeast corner of the intersection of Highway 70 and Highway 66, on which he is constructing the bottom or first story of a frame building suitable for the placing of a second story by the Masonic Lodge to be used exclusively and solely for a meeting place for the said Masonic Lodge. The agreement provides that the Lodge is to have the exclusive use and control of the upper or second story of the said building, “and the same is hereby leased and rented to them for a period of NINETY NINE (99) YEARS from the date of this contract.” The contract recites that Burns and his heirs and assigns shall have the sole and exclusive use and control of the lower or first story of the building to use as they see fit. It is provided that as further consideration of “this lease” the Lodge, in addition to building the upper or second part, agrees to pay the taxes on the second story as same may be equitably apportioned and also to keep same in repair and to keep the roof on the building free from leaks, and also to make such repairs to the second story as may be necessary to keep it in suitable use as a Lodge room for use and control of the said Masonic Lodge. Burns bound himself to keep the foundation of the building in good and substantial repair and condition and to keep the posts, walls and studding of the ground or first story of the building in such condition that they will at all times substantially support the said upper or second story. It was agreed that in the event the building was destroyed by fire or an act of God that the lease would terminate and become null and void.

The evidence discloses that prior to 1950 the Lodge occupied the second story of a similar building known as the Roseberry Building in Shongaloo. Due to a highway construction project the Roseberry Building had to be torn down and the Masonic Lodge was paid $1,500 for its agreement to move from those premises. Burns, an active and devoted Mason who had been Worshipful Master of the Lodge for several terms, desired to provide a meeting place for the Lodge in Shongaloo to assure the continuation of Masonic activities in that area, and perhaps to provide a memorial to himself and his Masonic endeavors. The “contract of lease” was entered into between Burns and the Lodge. Burns constructed the lower story and the Masons, using their money they received from the Roseberry Building, their own labor, and materials gathered and purchased by them, constructed the upper story.

Since completion of the building the Masonic Lodge has occupied and used the upper story as a meeting place, maintaining the upper story in excellent condition and making repairs and improvements from time to time. During the years they kept the roof free from leaks, put on a new roof in 1973, installed a modern kitchen, modern bathrooms, and central heating and air conditioning.

Burns operated a grocery store in the lower story until 1953 when he leased it to a Mr. Matthews, who operated a grocery story and filling station in the lower story until Matthews’ death in 1974. Burns died in 1955. Matthews paid $25 per month rent during the time he occupied the first story of the building.

The evidence discloses that the ground floor and its supporting components have not been maintained and are in a bad state of repair. It would cost in excess of $18,500 to put the ground floor in good condition. The construction expert who testified about the cost of repairs was of the opinion it would not be economically feasible to make such repairs to this old frame building.

In holding the lease invalid for want of serious consideration, the district court relied heavily on Northeast Louisiana Detachment of Marine Corps League v. City of Monroe, 253 So.2d 107 (La.App.2d Cir. 1971), writ refused, 260 La. 18, 254 So.2d 619. The Marine Corps League case is closely in point. In that case the City of Monroe leased to the Marine Corps League a tract of land for a term of 99 years. The consideration stipulated in the lease was an initial payment of $1 by the lessee, an obligation to build a building of undetermined value for the lessee’s use, and an assumption of liability for all claims arising out of the lessee’s own use of the premises. The Marine Corps League actually erected a building at a cost of $8,000. This Court held the lease to be invalid and unenforceable under general principles of Louisiana law dealing with leases and obligations and also under the constitutional prohibition against loaning or granting public property for private purposes. This Court found there was no advantage to the lessor-City by reason of the lessee’s construction and maintenance of a building for its own exclusive use. The applicable legal principles were discussed as follows:

“A lease is a synallagmatic contract by which one party gives to the other the enjoyment of a thing ‘at a fixed price.’ LSA Civil Code Article 2669. Three elements are essential to a valid lease— the thing, the price and the consent. LSA Civil Code Article 2670. Article 2671 provides that the price should be certain and determinate’ and Article 2674 requires a ‘certain stipulated price.’ Article 2464 sets forth the essential elements of the price of a sale and requires that the price must be ‘certain’, ‘fixed and determined’ and, most significantly, ‘serious’ and ‘not to be out of all proportion with the value of the thing.’ The civil law doctrine embodied in Article 2464 applies to all other contracts as well as to sales. Blanchard v. Haber, 166 La. 1014, 118 So. 117 (1928).”

The principles applied in the Marine Corps League case are applicable to the instant case. The obligations of the Masonic Lodge under the lease contract are of no significant, substantial or serious economic or pecuniary benefit or advantage to the lessor. The agreement by the lessee to construct and keep in good repair the second story of the building for its own exclusive use and control for a term of 99 years, long beyond the economic life of of the building, is of no benefit to the owner of the property. The agreement to pay such taxes as may be apportioned to the upper story is of no consequence, particularly in view of the fact that no taxes have actually been assessed against the upper story or paid by the Masonic Lodge during the years. The obligation to keep the roof on the building free from leaks is of some small economic advantage to the lessor, but the evidence discloses that less than $300 has been expended by the Lodge in this respect over the 25 years since the lease contract was executed.

The agreement in this case actually contains no fixed, determined or certain “price”, described as an “absolutely necessary” element of a lease in LSA-C.C. Art. 2670. The “price”, if any at all, is not “serious” and is “out of all proportion with the value of the thing.” This is particularly true when viewed in light of the extremely long term of the lease (99 years) and in view of the onerous obligations upon the lessor to maintain the foundation, posts, walls and studding of the first story in good and substantial repair so that they will substantially support the second story. It is to be noted that the Lodge has had the use and enjoyment of the premises for more than 25 years at little or no economic benefit to the owner, and a continuation of the lease agreement will result in substantial economic expense and loss to the owner.

The principal thrust of defendant’s argument is that the true “legal cause” or “motivating factor” for the granting of the lease, sufficient to support its validity, was the strong personal desire of Burns to assure the continuation of a meeting place for the Masonic Lodge and the Lodge’s obligation to maintain the second story for suitable use as a Lodge meeting place, which it has done.

While such personal gratification may have been the motivating factor or true cause for the owner entering into the agreement, such does not constitute a certain, fixed, determined and serious price required by the Articles of the Civil Code as an essential element of a lease contract. Article 2671 provides that the price should be certain and determined, and should consist of money or a certain quantity of commodities or a portion of the fruits.

Defendant further contends that although no rental is stipulated in the lease the lease is valid as a “paid up” lease, the price being the value of the labor and materials supplied by the Lodge in constructing the second story of the building at the outset of the lease term. It may well be that an agreement by a lessee to construct a building or part of a building of a certain value on a lessor’s property could, in an appropriate case where the lessor derives some benefit from the construction during or upon termination of the lease period, be considered a fixed, serious price. In this case, however, as previously discussed, the lessee was to have the exclusive use and control of that part of the building constructed by it for a period of 99 years, beyond the reasonable economic life of the building. The construction of the second story of the building was of no economic benefit to the owner and, therefore, was not a fixed, serious price.

Defendant also contends the contract is valid as a joint venture. The contract is specifically denominated and intended to be a lease and must stand or fall under the requirements of law with respect to leases. This contention is without merit.

Defendant further contends that even if the court cannot uphold the agreement as a lease, the court should look to the true intention of Burns and hold the agreement to be a valid onerous donation inter vivos. Defendants cite Nofsinger v. Hinchee, 199 So. 597 (La.App. 1st Cir. 1941) which upheld a conveyance of property as a valid donation where the act of conveyance was in the form of a sale and was in authentic form. It was established in that case that the recited consideration was not, in fact, paid and that the trans-ferors intended to make a gratuitous transfer of title to honor their mother’s wishes.

A lease is a synallagmatic contract whereby one party gives to another the enjoyment of a thing at a fixed price. By definition a lease is not a gratuitous contract. Like a sale, it requires a price. In Nofsinger and similar cases, it is not the sale which is declared valid, but the conveyance of ownership, which can be accomplished gratuitously by donation. A lease, with its reciprocal rights and obligations, cannot be created gratuitously. A price, fixed and serious, is an essential element, without which there is no lease.

Defendant’s argument that the contract in this case is a donation leads to the question — a donation of what? Defendant suggests it is a donation of a usufruct or right of use or of habitation under LSA-C.C. Arts. 533 et seq. or 626 et seq. An owner might grant a usufruct or right of use or habitation of property by donation. However, to hold in this case that the owner made a donation of a usu-fruct or right of use or habitation of the second story of the building would be to completely rewrite the purported contract and change substantially the rights and obligations of the parties. This the court cannot do. The clear intent of the contract is to create a lease, and, as stated above, the contract must stand or fall on the requirements of law related to leases. An essential requirement of lease being absent, the contract is null.

The holding that the lease is null, void and unenforceable necessarily requires the conclusion that the Lodge is not entitled to specific performance of the owner’s obligations to keep the foundation, posts, etc. in good condition. The reconventional demand was properly rejected.

The right, if any, of defendant to remove the improvements placed by it on the premises or to recover the value thereof has not been made an issue in this proceeding and we express no opinion in this regard.

Likewise, prescription has not been pleaded by defendant and is not an issue in this case. Compare Lee Lumber Co., Ltd. v. International Paper Co., 321 So.2d 42 (La.App. 3d Cir. 1975).

For the reasons assigned, the judgment of the trial court annulling and setting aside the agreement between Andrew Clark Burns and Shongaloo Lodge No. 352, Free and Accepted Masons is affirmed at appellant's costs.

Affirmed.

SMITH, J., dissents and assigns written reasons.

SMITH, Judge

(dissenting).

I agree with the majority opinion that a lease requires a “fixed price” to be a valid enforceable obligation. I also agree that a fixed price must be “certain and determinate” and “serious”, i. e., not out of all proportion with the value of the thing, and that the civil law doctrine embodied in Article 2464 of the Louisiana Civil Code applies to all other contracts as well as sales. Northeast Louisiana Detachment of Marine Corps League v. City of Monroe, 253 So.2d 107 (La.App. 2d Cir. 1971).

The majority errs in evaluating the obligations imposed on the lessee in light of the economic conditions of 1976. The lease was consummated in 1950. The nature of the “price” should be judged according to the economic conditions at the time the lease was signed.

The evidence reveals that by contract with Andrew Clark Burns, the Shongaloo Lodge No. 352 was granted a 99 year lease. Under the terms of the agreement, Andrew Clark Burns recited that he was constructing a 30 x 60 foot building and that it was suitable for having a second story. Under the agreement the Shongaloo Lodge was to place a second story on the building to be used exclusively for a meeting place for the Lodge.

The Lodge did expend more than $1,500, which it had received for its old Lodge, and other money to construct the second floor of the building. The labor for the building construction was donated. The Eastern Star Auxiliary raised money for the project by serving meals to the Lions Club and other projects. No record was kept as to what the total construction cost was.

The Lodge was obligated to maintain the second floor of the building and the roof and pay any taxes due on it. This obligation has been met to date. However, Mr. Burns, the lessor, died about 1953 and practically no repairs or maintenance work has been done since 1953 on the lower half of the building, although Burns agreed to maintain the foundation and first floor.

After Mr. Burns’ death the lessees have been allowed to occupy the premises without protest from plaintiff for over 20 years.

In December of 1974, the present suit was filed by Mr. Burns’ heir to annul the contract.

The $18,000 cost of repairs to the lower story of the building appears burdensome at this time. However, it is probable it would not have been so, had the lessors performed through the years. It is also true that the replacement cost of the second floor, $29,000 would not have been contemplated in 1950.

However, as counsel for the defense point out, the law is that parties may contract as they please, provided the cause is lawful, not contrary to public policy, or forbidden by law, moral conduct or public order, and they should be held to their contract, even though the contract is unreasonable. Mente & Co. v. Roane Sugars, Inc., 199 La. 686, 6 So.2d 731 (1942); Leon v. Dupre, 144 So.2d 667, (La.App. 4th Cir. 1962).

This case is not one where there is a total lack of consideration as in Paige & Wells v. Scotts’ Heirs, 12 La. 490 (1838); or no price as in University Publishing Co. v. Piffett, 34 La.Ann. 602 and McCain v. McCain Bros., 165 La. 884, 116 So. 221 (1928). If this contract is annulled the $29,000 second story belongs to plaintiff.

The principle of law on which this suit is founded can be analogized to the law on lesion. Article 1870 of the Louisiana Civil Code provides that lesion is proven by establishing the value as of the date of the contract, and how much the price was less than the value as of the contract date.

There is no testimony as to the value of a 99 year lease in 1950, to attack the consideration given.

The majority decision results in the lessor receiving the benefit of an improvement to her property which has a replacement cost of over $29,000.

Whatever the construction cost and value of a 99 year lease was in 1950, the holding in this case appears contrary to the case of Mills v. Thomason, 211 So.2d 790 (La. App.2d Cir. 1968) where it was stated:

“Both parties to the lease contract have fully performed under its terms for more than 23 years. Such would render it too late for the appellee to repudiate her obligations under the lease contract.”

More recently this court upheld a 99 year lease in the case of McCain v. Continental Can Co., Inc., 299 So.2d 454 (La.App. 2d Cir. 1974). In that case the sum of $25 per acre for the entire term of 99 years was paid together with the promise to pay taxes annually. This court pointed out that the lessor received benefits amounting to serious consideration, i.e.:

(1) immediate use of the rents (here immediate use of the Lodge’s money and labor to improve his property);
(2) payment of taxes (same as to Lodge here on the property leased);
(3) retention of minerals; and
(4) prospective return of the improvement in good condition after 99 years.

For the foregoing reasons, I respectfully dissent.

      . LSA-C.C. Arts. 2669, 2670, 2671, 2674.

      . LSA-C.C. Art. 1860.


author: PETERS, Judge ad hoc.

text:
    LAFAYETTE MOTOR COMPANY, INC., Plaintiff-Appellee, v. David W. BREAUX, Defendant-Appellant.
    No. 5395.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Joseph A. Koury, Lafayette, for defendant-appellant.
    Davidson, Meaux, Onebane & Donohoe by L. Lane Ray, Lafayette, for plaintiff-appellee.
    Before HOOD, GUIDRY, and PETERS, JJ.
   PETERS, Judge ad hoc.

This property damage suit arose out of a collision between a Volkswagon being driven by defendant and a Simca being towed by plaintiff's wrecker. The accident occurred on I — 10 in Calcasieu Parish. Plaintiff’s wrecker operator, Overton Senegal, was towing the Simca backwards, i. e. the rear end of the Simca was suspended in the air by a winch and boom at the rear of the wrecker and its front wheels were on the highway. Defendant’s car collided with the Simca, rendering the Simca a total loss. Plaintiff sued defendant for $1500.00, the value of the Simca.

Defendant’s version of the accident differed from the story offered by plaintiff’s witnesses. The trial court accepted plaintiff’s version and awarded plaintiff the $1500.00 prayed for. Defendant appealed. We are convinced by the evidence that the trial court was correct and therefore affirm the lower court judgment.

Senegal testified he was driving approximately 50 M.P.H. when he heard a “boom” type noise and his head popped back. He stopped his truck and discovered that defendant’s Volkswagon had hit the Simca, which was no longer suspended from the boom but was sitting on all four wheels a few feet behind the wrecker. Senegal noticed that the safety chains which linked the Simca to the wrecker were still connected and were in good condition. He also noticed there was a paint mark, the same color as the paint on the Simca, on the wrecker’s boom, about nine feet above the ground. Photographs taken by the investigating officer show an indentation on the Simca’s trunk lid that apparently was caused by the impact of the Simca with the boom. Two other witnesses corroborated Senegal's testimony that there was paint on the boom matching the Simca’s paint.

Defendant testified he was following the Simca at a distance of some five to six car lengths when the Simca came loose from the wrecker. Defendant claims Senegal stopped suddenly after the Simca fell, making it impossible for defendant to avoid a collision. Defendant stated he veered to the right in an attempt to avoid the collision. He further testified that the left, or driver’s side, of his car struck the Simca. He claims the Simca was on all four wheels, in the highway, when he hit it.

The preponderance of the evidence indicates defendant struck the Simca as it was being properly towed down the highway. If the Simca had fallen from the boom before the collision, as contended by defendant, it could not have struck the boom some nine feet above the ground. Furthermore, Senegal testified he had been driving a wrecker for forty years and had never dropped a towed car. It is obvious the Simca was still suspended from the boom when defendant hit it, causing it to swing forward on the winch cable and to strike the boom. We are convinced the Simca fell from its towing position after defendant’s car struck it.

Not only is Senegal’s version of the accident consistent with the physical evidence and the testimony of two other witnesses, but the testimony of defendant appears to be highly suspect. Although defendant testified the left side of his car struck the Simca, the photographs taken by the investigating officer show clearly that all the damage to the Volkswagon was on the right side. The photographs also show defendant’s car struck the right front fender of the Simca. Since the Simca was being towed backwards, its right front fender was to defendant’s left as he approached. These facts, coupled with the fact that the right side of defendant’s Volkswagon was damaged, cast doubt on defendant’s story that he veered to the right before the accident. It appears he actually attempted to pass the Simca and wrecker on the left.

All the believable evidence indicates defendant negligently drove his car into the Simca as the Simca was being correctly towed down the highway. There is no credible evidence to indicate any negligence on the part of Senegal.

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

Affirmed.


author: WATSON, Judge.

text:
    Early PAPILLION, Plaintiff-Appellant, v. Walter COMEAUX et al., Defendants-Appellees.
    No. 5386.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Edward D. Rubin, Lafayette, for plaintiff-appellant.

      Guillory, McGee & Mayeux by A. Frank McGee, Eunice, Davidson, Meaux, Onebane & Donohoe by Timothy J. McNamara, Lafayette, Ware & Bertrand by Ronald J. Bertrand, Rayne, for defendants-appellees.
    White & Pitre, by Joshua J. Pitre, Ope-lousas, for plaintiff-appellee.
    Before HOOD, WATSON and CU-TRER, JJ.
   WATSON, Judge.

Appellant, Early Papillion, neither appeared nor filed a brief in this case prior to the time the case was called for oral argument. Pursuant to Rule VII, Section 5(b), Uniform Rules, Courts of Appeal, this appeal is considered abandoned, and is hereby dismissed át appellant’s cost.

Appeal dismissed.


text:
    Early Charles PAPILLION et al. v. Walter COMEAUX et al.
    No. 5387.
    Court of Appeal of Louisiana, Third Circuit.
    April 14, 1976.
    Edward D. Rubin, Lafayette, for plaintiff-appellant.
    Guillory, McGee & Mayeux by A. Frank McGee, Eunice, Davidson, Meaux, Onebane & Donohoe by Timothy J. McNamara, Lafayette, Ware & Bertrand by Ronald J. Bertrand, Rayne, for defendants-appel-lees.
    White & Pitre by Joshua J. Pitre, Ope-lousas, for plaintiff-appellee.
    Before HOOD, WATSON and CU-TRER, JJ.
   WATSON, Judge.

Although this case was consolidated for trial purposes with Papillion v. Comeaux, et al., La.App., 330 So.2d 349, No. 5386 on the docket of this court, and the record was filed in this court on appeal, no appeal was taken or perfected in this proceeding. No appearance has been made and no brief has been filed in this matter, and, insofar as the appeal is pending in this court, it is considered abandoned and is hereby dismissed.

Appeal dismissed.


author: LOTTINGER, Judge.

text:
    Mrs. Virginia WILKINSON, femme sole v. The TRAVELERS INSURANCE COMPANY et al.
    No. 10572.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Writ Refused April 23, 1976.
    See also La.App., 330 So.2d 355.
    Charles W. Franklin and Arthur H. Andrews, Baton Rouge, for Virginia Wilkinson.
    J. Marvin Montgomery, Baton Rouge, for Marathon Glenn Hawkins.
    William A. Norfolk and W. Arthur Abercrombie, Jr., Baton Rouge, for Travelers Indem. Co., Retail Clerks Intern. Assn, and Retail Clerks Union, Local 1691.
    Mary Olive Pierson, Baton Rouge, for Retails Clerks Union, Local 1691.
    Before ELLIS, LOTTINGER and SAR-TAIN, JJ.
   LOTTINGER, Judge.

This is a suit for damages for personal injuries received by the plaintiff, Mrs. Virginia Wilkinson, a guest passenger in an automobile involved in a collision. This case is one of three consolidated for trial before a jury on January 14-17, 1975. The jury determined that the driver of the automobile in which the plaintiff was a passenger was negligent, his negligence was the proximate cause of the accident, but found that the plaintiff had assumed the risk of the accident. Judgment was rendered dismissing her suit, and she has perfected this appeal.

The record points out that the collision occurred at approximately 1:20 a. m. on November 3, 1970, on Airline Highway just south of its intersection with Good-wood Boulevard in Baton Rouge. Marathon Glenn Hawkins was driving an automobile which beonged to V. C. Hudgins and both Hudgins and plaintiff-appellant, Mrs. Virginia Wilkinson, were passengers. The vehicle driven by Hawkins rear-ended a tractor-trailer truck owned by Bulk Transport, Inc., killing Hudgins and injuring both Mrs. Wilkinson and Hawkins. Both Hudgins and Hawkins had been at the El Centric Lounge from about 6:00 p. m. on November 2 to less than five minutes before the accident. Mrs. Wilkinson joined them there at about 9:30 p. m. Hawkins and Hudgins both belonged to the Retail Clerks Union Local 1691. Mrs. Wilkinson and the heirs of Hudgins filed separate suits against Hawkins, Retail Clerks Union Local 1691, Retail Clerks International Association and The Travelers Indemnity Company. Bulk Transport, Inc. also filed suit against the same defendants for its damages, and the three suits were consolidated for trial.

There was testimony that Hawkins, the driver, was not drinking alcoholic drinks on the night in question due to the fact that he had a tooth pulled a few days prior to this time, and was not feeling well. On the other hand, and without going into detail, there was testimony that Hawkins had to be helped out of the bar at closing time by Mrs. Wilkinson and Hudgins and that there was a smell of alcohol on Hawkins’ breath following the accident.

Plaintiff-appellant contends (1) that the jury erred in finding that Mrs. Wilkinson had assumed the risk of the accident, (2) that the Court erred in not properly and adequately instructing the jury with respect to the affirmative defense of assumption of risk, and(3) that the Court erred in refusing to submit this action to the jury on a general verdict form.

As to the specifications of error concerning the Trial Judge’s instructions to the jury and his refusing to submit the action to the jury on a general verdict form, we are of the opinion that in light of the Supreme Court’s recent decision of Gonzales v. Xerox Corporation, La., 320 So.2d 163 (1975) there is no need for us to determine whether the Trial Judge was in error or not. Even if we would find the Trial Judge in error, under the holding of Gonzales, supra, rather than remanding for a new trial, we are compelled to render a decision.

In Gonzales, supra, the Trial Judge refused to give a requested special charge to the jury. This Court decided the Trial Judge was in error and remanded for a new trial. 307 So.2d 153 (La.App. 1st Cir. 1974).

Mr. Justice Calogero, speaking for the Supreme Court in Gonzales, said:

“While the trial court remains the original forum for resolving factual and legal issues, the Louisiana Constitution expressly extends the jurisdiction of appellate courts in civil cases to the review of facts as well as law. Accordingly, appellate courts render judgments on the merits when the trial court has made a consequential but erroneous ruling on the exclusion or admission of evidence. Likewise, when an appellate court has all • the facts before it, a trial judge’s erroneous instruction to the jury does not warrant-a remand.
“In addition to the constitutional authority, and consistent with it, there is a very practical consideration which encourages our appellate courts to exercise their jurisdiction to review factual findings : judicial economy. When the entire record is before the appellate court, remand for a new trial produces delay of the final outcome and congestion of crowded dockets while adding little to the judicial determination process. Although the appellate court does not gain the benefit of personally viewing the witnesses, it does have a complete record and the constitutional authority to decide.
“Substantial deviation from the rule that appellate tribunals with a complete record before them review facts and render decisions has been infrequent. In Herbert v. Travelers Indemnity Co., 193 So. 2d 330 (La.App. 4th Cir. 1966), this Court refused to grant writs in a case in which, following an erroneous exclusion of evidence by the trial court, the Court of Appeal remanded for a new trial. The opinion was criticized in 41 Tul.L. Rev. 922, 925 (1967) where it was stated that:
“ ‘the practical result of the case is that it will undoubtedly be appealed again and thus come before the same court with the same record at an unnecessary cost to the litigants. The decision seems to drastically reduce the effects of appellate review of facts . . .’
“More authoritative than Herbert v. Travelers, supra, however, was this Court’s decision in Bienvenu v. Angelle, 254 La. 182, 223 So.2d 140 (1969). In that case, this Court itself remanded for retrial. The Court of Appeal had affirmed the trial court judgment; this Court reversed on the basis of an erroneous jury instruction and remanded to the trial court. That it was the Supreme Court in Bienvenu which first found error in the trial court’s instruction, rather than the Court of Appeal, as in this case, does not present a rational basis for our now attempting to distinguish Bienvenu. Nor can we logically distinguish Bien-venu on the basis that the improper jury instruction was much more damaging to the plaintiff’s case than it was in the case before us. Consequently, we find it necessary to overrule Bienvenu v. Angelle, supra, in holding that the action of the Court of Appeal in remanding the case for retrial was error.” [Citations and footnotes omitted.]

As to the specification of error that Mrs. Wilkinson had assumed the risk of this accident, Marcotte v. Travelers Insurance Company, 258 La. 989, 249 So.2d 105 (1971), rehearing denied (1971), has set the standard in Louisiana for the defense of assumption of risk when the Court said:

“When an accident occurs involving a driver whose mental or physical faculties have been materially impaired due to the influence of intoxicants, a guest passenger who knows or should know of the driver’s condition and nevertheless voluntarily rides with him cannot recover for injuries received in an accident caused in whole or in part by the driver’s negligence, if the alcohol-induced impairment of the driver’s ability is a substantial contributory cause of the driver’s negligence.” (Emphasis by the Supreme Court)

The Trial Judge used this same language as a special charge to the jury.

It must be kept in mind that this jury sat for four days and listened to all of the witnesses, saw them testify, judged their credibility, evaluated all of the evidence as they found it, and came to the conclusion that the plaintiff had assumed the risk of this accident.

Further, this matter was heard on a motion for a new trial, which was denied by the Trial Judge. The Trial Judge has unlimited authority to grant a new trial, even on his own motion, when he is convinced there is good ground for it. LSA-C.C.P. arts. 1971 and 1973. After sitting in court for four days listening to the witnesses and evaluating their testimony, the Trial Judge concluded that the decision of the jury was correct, for he refused to grant a new trial.

The plaintiff-appellant would suggest that this Court substitute its evaluation of the witnesses’ testimony after a reading of the cold facts as presented by the transcript. In Canter v. Koehring Company, La., 283 So.2d 716 (1973), rehearing denied (1973), Mn Justice Tate said:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. The reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” (Emphasis added)

And as regards jury trials, our brethren on the Third Circuit in Wiley v. Travelers Insurance Company, 300 So.2d 555 (La.App. 3rd Cir. 1974), rehearing denied (1974), writ refused, 303 So.2d 187 (La. 1974), said:

“Ours is not the primary duty of weighing the evidence, judging the credibility of witnesses or evaluating the strength of the various experts’ opinions. On the contrary, these tasks are allocated initially to the triers of fact, here the jury; and the conclusions of the jury as to facts should not be disturbed unless manifestly erroneous. See Hooper v. Wilkinson, 252 So.2d 137 (La.App. 3 Cir. 1971); and Busby v. St. Paul Fire & Marine Insurance Company, 290 So.2d 701 (La.App. 1 Cir. 1974); writ denied, La., 294 So.2d 546. The intermediate appellate court is to examine the record and to review the facts to determine whether there is a reasonable evidentiary basis for the decision by the triers of fact. Dunlap v. Armendariz, 265 So.2d 352 (La.App. 4 Cir. 1972).
“ * * * Stated differently, the issue is whether the jury’s conclusion that the doctor was not negligent was based on reasonable evaluations of credibility and reasonable inferences of fact, free of manifest error.” (Emphasis added)

Realizing our function and responsibility as an intermediate appellate court, we do not find that our own evaluations and inferences drawn from the facts as found in the record are any more reasonable than those determined by the jury. We find ample evidence from which the jury, upon reasonable evaluation of the credibility and reasonable inferences of fact, could answer the interrogatory on assumption of risk in the affirmative, and therefore find no error in the decision of the jury finding Mrs. Wilkinson to have assumed the risk of this accident.

For the above and foregoing reasons, the judgment of' the Trial Court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.

      . Suit was originally filed against the Travelers Insurance Company, but the Travelers Indemnity Company filed answer, and the petition was amended to show the Travelers Indemnity Company as the proper party defendant.