text:
    Terry N. BURLEY v. LOUISIANA POWER & LIGHT COMPANY et al. COAL OPERATORS CASUALTY COMPANY v. LOUISIANA POWER & LIGHT COMPANY et al.
    Nos. 6573, 6574.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearings Denied March 16, 1976.
    Writs Refused May 4, 1976.

      Monroe & Lemann, W. Malcolm Stevenson, New Orleans, J. Wayne Anderson, Metairie, for Louisiana Power & Light Co., defendant-appellant.
    O’Keefe, O’Keefe & Berrigan, Allen H. Danielson, Jr., New Orleans, for Rock-wood Ins. Co., plaintiff-appellee.
    Cockfield & Gravolet, James C. Cockfield, New Orleans, for Terry N. Bur-ley, plaintiff-appellee.
    Bruce J. Borrello, New Orleans, for Pratt-Farnsworth, Inc., defendant-appellee.
    Before SAMUEL, GULOTTA and SCHOTT, JJ.
   GULOTTA, Judge.

This matter is on remand to this court from the Louisiana Supreme Court. These consolidated suits resulted from an October 25, 1967 industrial accident in which plaintiff was injured by electrocution during the construction of the Belle Chasse Water Purification Plant.

The district court rendered judgment in Burley’s favor and against LP&L in the sum of $165,500.00. The trial court further ordered reimbursement, from the proceeds of the award, to Rockwood Casualty Company (formerly Coal Operators Casualty Company), the compensation insurer, of plaintiff’s employer. Defendant appealed. Plaintiff, in answer to the appeal, sought an increase in the award.

On appeal to this court, we found that the violation of safety standards set forth in the National Electrical Safety Code should not be given probative weight in the absence of evidence that the Code’s safety standards had been adopted by an ordinance or state statute or that the Code had been accepted as the standard of practice in the community or municipality. Accordingly, we set aside and annulled the trial court’s judgment and remanded the matter to afford all parties an opportunity to submit any evidence which they deemed appropriate to show applicability of the Code... On review, the Louisiana Supreme Court reversed and concluded that the Code was to be considered and to be given probative weight. The matter was remanded to this court and is now before us on the merits.

Burley, an iron worker employed by a subcontractor, was threading a reinforcing rod, 25 feet in length, into a beam while; working close to the edge of an unfinished three story building when the rod came in contact with an LP&L power line located 5'7" from the nearest point of the building. Plaintiff fell to the ground and was injured. According to LP&L, it cannot be charged with knowledge that a three story building, built within 8 feet of their power line and at an approximate height of 31 feet from the ground (the approximate height of the wire), would be constructed to replace the pre-existing one story structure. In a supplemental brief on remand to this court, LP&L contends that assuming the Supreme Court recognized (H81) as the standard with which LP&L must comply and gave the Code probative weight, this finding, by itself, is not dispos-itive of the negligence issue absent notice by LP&L of the construction changes at the Belle Chasse project. In addition, defendant contends that a factual finding that location of the wire was within the prohibited minimum distance requirement will not permit plaintiff to recover unless the violation was the proximate cause of plaintiff’s accident and injuries.

Further, LP&L argues that plaintiff was contributorily negligent because of his failure to see the wire and to take proper precautions for his safety. Finally, defendant complains of the excessiveness of the award.

It is plaintiff’s contention on remand that a determination by the Supreme Court (1) that the Electrical Code (H81) is the standard applicable in the instant case, and (2) that LP&L violated this standard, constitutes negligence on the part of defendant. According to plaintiff, the negligence of LP&L has been disposed of by the Supreme Court decision, thereby limiting our consideration to contributory negligence and quantum. In connection with quantum, plaintiff seeks to have the award increased to $521,785.00.

NEGLIGENCE OF LP&L

As determined by the Supreme Court, the National Electrical Safety Code (H81) requires that an uninsulated conductor, supplying voltage of 13,000 volts, be located a minimum required vertical and horizontal distance of 8 feet from the edge of a structure. The Supreme Court further held that the wire was in fact 5'7" from the edge of the building. Clearly, according to the Supreme Court decision, the standard or duty placed on LP&L was violated.

LP&L takes issue with this approach. It contends that Table 4 of the Code, requiring a clearance of eight feet .where “voltage of supply conductors” is 8,700 to 15,000, was erroneously applied by the Supreme Court. According to LP&L, no showing was made by plaintiff that the offending conductor carried the amount of voltage (8,700 to 15,000) requiring the 8 foot clearance. This argument might have merit, but we are powerless to consider it. The Supreme Court determined that these particular wires were not the required distance from the building where plaintiff was working. LP&L’s only remedy is to prevail upon the Supreme Court to modify its own findings.

However, under our jurisprudence, as reflected by the cases of Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972), Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970) and Dixie Drive It Yourself System New Orleans Co. v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962), plaintiff is entitled to recover only if defendant’s conduct was a cause in fact of the injury and the duty breached by defendant was designed to protect against the particular risk involved. Clearly, the location of the wire in close proximity to the building was a cause in fact of the accident. It is clear also that the minimum clearance requirements are designed to protect those persons who might work on or frequent buildings or structures in close proximity to an uninsulated wire. See Harper v. New Orleans Public Service, Inc., 300 So.2d 546 (La.App., 4th Cir. 1974) and the cases cited therein.

We reject LP&L’s argument that even if the wire was located a minimum distance of 8 feet vertically and horizontally from the edge of the building, it is more probable than not that Burley would have placed the rod into the conductor causing the injury. Therefore, LP&L claims the location of the wire was not the proximate cause of the accident. There exists no evidence in the record to support this contention. Defendant’s argument is based on speculation and is without foundation.

Under the circumstances, we conclude that the violation of the Code constitutes a cause in fact of the accident and that the violation was a breach of LP&L’s duty to protect against the particular risk.

We reject also LP&L’s contention that it was not placed on notice that the three story structure was being constructed within the prohibited vertical and horizontal clearance requirements to an uninsulated pre-existing LP&L wire. The record is clear that during the time the pilings were being driven at the Belle Chasse project, LP&L did have a man on the job and did provide protective coverings (snakes) on the wiring. Once LP&L was apprised of the continuing construction and became aware that the pilings were being placed in close proximity to the wire, it had a duty to protect the construction workers from foreseeable danger by making further inquiry into the nature and extent of the construction and by continuing to provide insulation or covering for the wire.

Furthermore, the Supreme Court found specifically that “The code requires, not only that the conductors be installed according to these standards, they must likewise be maintained in that manner.” 319 So.2d at 337. Thus, a continuing affirmative duty was imposed on LP&L in this case to ascertain that the building was encroaching on the minimum clearance and to maintain the wire at the required minimum distance. LP&L cannot absolve itself of responsibility because it received no notice from others of the encroachment.

It is generally recognized by our jurisprudence that the highest degree of care is placed on those who utilize dangerous high power lines in their business operations. The law is complied with when the company provides such protection as will safely guard against any contingency that is reasonably to be anticipated. Bourne v. New Orleans Public Service, Inc., 255 So.2d 776 (La.App., 4th Cir. 1971), writ refused, 260 La. 857, 257 So.2d 432 (1972). LP&L violated this standard.

Under the circumstances, we conclude that LP&L was negligent and this negligence was a legal cause of the accident. See Dixie Drive It Yourself System New Orleans Co. v. American Beverage Company, supra.

CONTRIBUTORY NEGLIGENCE

Contributory negligence is an affirmative defense and like any other fact must be proved by a preponderance of the evidence. See LSA-C.C.P. art. 1005; Stansbury v. Mayor and Councilmen of Morgan City, 228 La. 880, 84 So.2d 445 (1955). The record indicates that other employees and supervisors were aware of the presence of the uninsulated wire and of its potential hazard, but contains no evidence that any warning was given to plaintiff or that he was aware or should have been aware of the apparent danger. At the time of the accident, Burley and Donnie Hilton, a co-worker and witness to the accident, were threading a 25 foot reinforcing rod into beams located on the roof of the third floor of the unfinished building. The fateful day of the accident was the first day that plaintiff worked on the Belle Chasse job. According to Burley and Hilton, they reported to work at approximately 7:30 a. m. and commenced to carry the rods from the ground floor to the third floor roof. This task occupied the morning hours. At approximately 12:30, after plaintiff and Hilton had returned from lunch, they commenced to thread the rods into the beam. At the time of the accident, the first rod was being threaded. Plaintiff and Hilton testified that Hilton was located almost in the middle of the approximately 30 foot square roof area, facing the direction of the uninsulated wire, and plaintiff was situated a few feet from the edge of the building, approximately 15 to 20 feet from Hilton and facing him. This position placed plaintiff with his back to the wire. According to both employees, Hilton was pushing the 25 foot rod to plaintiff, who allowed the rod to slide through his hands in the direction of the wire and over the edge of the building. While the rod was sliding through plaintiff’s hands, it came in contact with the power line. Burley, according to Hilton’s testimony, went into flames. After striking an air compressor, Burley then fell from the roof to the ground.

It is clear that Burley cannot be charged with being aware of the potential hazard. Photographs indicate that the wire was located at approximately the same height as the floor where the men were working, indicating that the presence of the wire was not apparent to them. The accident occurred during plaintiff’s first day on the job and while plaintiff was working with his back to the wire. In this regard, we might point out that Hilton did not become aware of the presence of the power lines until he had worked on the job for approximately a week. Even if, as defendant contends, it could be shown that plaintiff had actual knowledge or should be charged with knowledge of a known danger, it is well settled that when a person is in the presence of a known danger, it must be shown that he voluntarily and unnecessarily exposed himself to the danger before contributory negligence will be found. Harper v. New Orleans Public Service, Inc., supra. No showing has been made by defendant that Burley voluntarily or unnecessarily exposed himself to danger. Under the circumstances, we cannot conclude that the trial judge erred in not finding plaintiff contributorily negligent. Bur-ley is entitled to recovery against LP&L.

QUANTUM

We now direct our attention to the quantum question. Immediately after the accident, plaintiff was transported by ambulance to West Jefferson Hospital where emergency treatment was administered. On the same day, he was transferred to Touro Infirmary.

Medical reports introduced into evidence reveal that plaintiff sustained a linear fracture of the right temporal bone, bleeding of the right ear, a deep jagged scalp laceration, multiple second and third degree burns of both hands and of the anterior portion of the right thigh, the entire left leg and thigh, and severe tissue damage to the area of the first, second and third toes of the left foot, caused by the burn, which resulted in a transmetatarsal amputation of the left foot.

Burley was hospitalized from October 25, 1967, the date of the accident to November 30, 1967.

The trial judge itemized the damages as follows:

1. Past and future pain and suffering $ 60,000.00
2. Skull fracture . 5,000.00
3. Scar on right thigh 500.00
4. Partial loss of foot 25,000.00
5. Past and future loss of wages 75,000.00
TOTAL $165,500.00

Burley was seen by Dr. R. C. Grunsten on October 26, 1967 at Touro. He classified burns, covering plaintiff’s entire left upper extremity below the elbow, as first and second degree. There were possible third degree burns of the palm of the left hand. Dr. Grunsten also indicated that Burley had received third degree burns over the forward part of the right thigh, presumably at a point where contact was made with the rod. Dr. Grunsten found first and second degree burns over the left lower extremity through the lower thigh and calf region. He indicated that Burley had suffered a large area of soft tissue loss of the left foot, approximately one and one half inches in diameter, which made necessary a transmetatarsal amputation of the left foot. The burned area of the right thigh was excised.

As a result of the amputation, Burley is required to walk on the side of his foot, the foot is tender and if he slips or bumps it in any way, pus pockets form on the foot, the calf of one leg has become smaller and plaintiff has become unstable in walking and in climbing.

After the amputation, plaintiff received therapy and walked on crutches for about three months. A plate had been inserted into the sole of the left shoe, and he used this as a prosthesis for his forefoot until the plate broke. He then wore a rubber pad to prevent the shoe from pinching his foot. He now wears foam in the soles of his shoes.

An ear injury was treated by Dr. Samuel Zurik who upon initial examination found the right ear filled with blood and debris. Because of the chance of infection, however, he did not remove the blood clot until two weeks after the accident.

Dr.- Jack Wickstrom, an orthopedic surgeon, examined Burley on March 29, 1973. Plaintiff related complaints of pain in the stump of his left forefoot and a weakness in his leg when he walked or attempted to use the foot. He gave a history of the foot being swollen and puffy when it was painful. Dr. Wickstrom discovered some atrophy in plaintiff’s left calf. He attributed this to plaintiff’s inability to push off with his left foot which resulted in a wasting of the calf muscle.

The doctor’s examination revealed an area of marked tenderness of plaintiff’s left forefoot which hurt when the doctor tapped it. The pain was caused by a small spiking bone near the amputated area of the big toe.

Dr. Wickstrom is of the opinion that Burley has reached maximum recovery. On most industrial scales, the doctor would evaluate this injury to be an approximate 60% disability of the foot. In the doctor’s opinion, Burley could not reasonably be expected to climb, walk or stand on a narrow beam for any length of time.

Mr. Mike Callas, an ironworker, indicated that climbing is a physical activity required of ironworkers. Hilton testified to the same effect.

When we consider the seriousness of the injuries suffered by plaintiff, together with the residual effect resulting from the amputation, we cannot say that the sum of $90,500.00 in damages awarded for pain and suffering, burns, skull fracture, scar of the right thigh and partial loss of the foot, constitutes an abuse of discretion.

We now direct our attention to the $75,000.00 award for past and future loss of wages. At the time of the accident, Burley, 23 years of age, was employed as an ironworker-foreman, earning an hourly wage of $5.25, together with $.20 per hour in fringe benefits. According to his 1967 income tax return, he earned $8,330.00. In 1968, because of convalescence from the injuries sustained, he earned only $1,200.00. He earned $5,091.00 in 1969; $6,002.00 in 1970; $6,889.00 in 1971 and $8,500.00 in 1972.

It is clear from the testimony that the amputation of the toes of the left foot caused Burley to become unstable. He could no longer climb and walk on beams, duties required of an ironworker. As a result, plaintiff is unable to resume his occupation.

According to Burley, the hourly earnings of ironworkers increased from 1967 through 1973, the time of trial. Based on a 40 hour week, plaintiff contends that he could have earned $87,000 during this period. Plaintiff further contends that his actual earnings from the same period total $35,515.00. When this amount, $35,515.00, is subtracted from the $87,300.00 figure, plaintiff has sustained, according to his calculations, a total loss of past earnings in the sum of $51,785.00. In connection with future loss of earnings, plaintiff claims that according to the life expectancy table (LSA-R.S. 47:2405), Burley has a life expectancy of 40.10 years. He computes his annual future anticipated loss at $8,000.00 per year, totalling a future loss of earnings in the sum of $372,585.00. According to his analysis, Burley contends that a $133,000.00 award invested at a 6% annual return would allow $8,000.00 per year for loss of earnings.

LP&L, on the other hand, contends the trial judge erroneously equated loss of earning capacity with loss of earnings. According to LP&L, at the time of the trial, Burley was earning $800.00 per month at a truck and tractor parts supply house. LP&L, therefore, argues that since his earnings at the time of trial equated the approximate earnings of an ironworker-foreman for the same time, Burley has sustained no loss of future wages. Defendant suggests that plaintiff should be compensated for the 10 month period during which time he was unable to return to work.

Because no reasons were assigned by the trial judge, we are unable to ascertain how he arrived at the $75,000.00 figure for past and future loss of earnings. Also, because of the sparsity of evidence in the record relating to loss of future earnings, it is difficult to ascertain on what basis the $75,000.00 award was computed.

Clearly, as conceded by LP&L, plaintiff is entitled to loss of earnings for the 10 month period during which time he was unemployed. According to the testimony of Mike Callas, business manager of the ironworkers’ union, an ironworker-foreman earned $5.43 per hour during this 10 month period. Additional fringe benefits in the amount of $.20 per hour were also provided. Based on a 40 hour week, we compute the weekly loss of earnings to be $225.20. This figure, i. e., $225.20, multiplied by the approximate time that Burley was out of work, i. e., 37 weeks, totals $8,332.40.

According to Burley, in August, 1968, he received $65.00 per week as a car salesman. During October, 1968, he received $70.00 per week in the same job. He testified that in December of 1968, he commenced working for Delta Truck and Tractor Company at a weekly earning of $85.00. At the time of trial (November, 1973), Burley was earning $800.00 per month. According to plaintiff’s income tax returns, his gross total income for the years 1968 through 1972 totalled $27,682.00. From August, 1968 (when. Burley returned to work) to December, 1972, the same comparable period covered by the income tax returns, the average hourly wage earned by a foreman was $7.17 per hour. Based on a 40 hour week, we compute the average weekly wage earned by an iron-worker-foreman to equal $286.80 per week. Multiplying 228 weeks (August, 1968 through December, 1972) by $286.80 per week, we reach the total of $65,390.40. When the actual earned wages between August, 1968 and December, 1972, i. e., $27,682.00, is subtracted from the total earnings which would have been realized by Burley as an ironworker-foreman for the same years, i. e., $65,390.40, we compute the loss of earnings for that period to be $37,708.40.

Although not clear from the record, it appears that Burley’s earnings in 1973 approximated $800.00 per month. For the same comparable period, i. e., January 1, 1973 through November, 1973, the month of the trial, Burley’s earnings as an iron-worker-foreman, computed at an average hourly wage of $8.27 for that period X 40 hours per week X 48 weeks, equal $15,878.-40. When we subtract the $8,800.00 earned by Burley for the same comparable period, we compute the balance to be $7,078.40.

Plaintiff’s past loss of earnings from October 25, 1967 through November, 1973 totals $53,119.20.

RECAPITULATION

Past Loss of Earnings :

1. From October 25, 1967 $ 8,332.40 through July, 1968 -
2. From August, 1968 37,708.40 through December, 1972
3. From January 1, 1973 7,078.40 through November, 1973
Total Loss of Earnings from $53,119.20 October, 1967 through November, 1973 (Date of Trial)

FUTURE LOSS OF EARNINGS

When considering future loss of earnings, we are confronted with uncertainties, making it difficult to arrive at a reasonable amount without engaging in speculation. For example, although Burley’s climbing ability has been impaired, we cannot say that his earning ability has been necessarily impaired. Burley testified that he had been in military service and had the benefit of a three year college education and has, since the time of the accident, been employed in occupations other than ironworking. At the time of trial, his work history indicated a steady increase in salary. We cannot speculate that even if the accident had not occurred, Burley would continue employment as an iron-worker. Nor can we say that the disability of the foot prevented employment in other aspects of the construction field.

We are mindful of the principle that a plaintiff need not prove loss of earnings with mathematical certainty, but only by such proof as reasonably establishes the claim. However, we are also bound by the principle that trial courts have reasonable discretion to make awards based on all of the facts and circumstances of the case. See: Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971); Fox v. State Farm Mutual Automobile Insurance Company, 288 So.2d 42 (La.1973).

Considering the entire record, particularly according to our calculations that Burley sustained a loss of past earnings in the sum of $53,119.20, and considering the speculation factor involved in the computation of future loss of earnings, we cannot say that the $75,000.00 award made by the trial judge for this item of damages is an abuse of his discretion.

REIMBURSEMENT OF WORKMEN’S COMPENSATION INSURER

Rockwood Insurance Company, in-tervenor in the instant case, is the insurer of Westbank Reinforcing Steel Corporation, plaintiff’s employer. The trial court judgment ordered reimbursement to Rock-wood in the sum of $13,560.00, together with all additional workmen’s compensation benefits and medical benefits paid to or on behalf of plaintiff under Louisiana Workmen’s Compensation laws. Rockwood is entitled to reimbursement for the total amount paid in compensation and medical payments. See Barrois v. Service Drayage Company, 250 So.2d 135 (La.App., 4th Cir. 1971); LSA-R.S. 23:1101, 1103. The judgment is affirmed.

Affirmed.

        . Burley v. Louisiana Power & Light Co., 319 So.2d 334 (La.1975).

      . Temporary covers placed on uninsulated wires when work is being done in proximity to the wire.

      . See Freibert v. Sewerage and Water Board of New Orleans, 159 So. 767 (La.App., Orl. 1935) ; Bordelon v. Continental Casualty Company, 229 So.2d 761 (La.App., 3d Cir. 1969), writ refused, 255 La. 483, 231 So.2d 396 (1970) ; Layne v. Louisiana Power and Light Co., 161 So. 29 (La.App., 2d Cir. 1935) ; Stansbury v. Mayor and Councilmen of Morgan City, 228 La. 880, 84 So.2d 445 (1955) ; Webb v. Louisiana Power and Light Co., 199 So. 451 (La.App., 2d Cir. 1940).
      Defendant, LP&L, relies on Webb, supra, for the proposition that insulation was not required in the instant case. Webb recognized that the electric company had an alternative duty to either insulate the wires or comply with Federal government safety requirements relating to minimum clearances. In Webb, unlike the instant case, there was compliance with the Federal safety requirements relating to minimum vertical clearance. LP&L failed to either insulate or follow the National Electrical Safety Code.


source: Caselaw Access Project

author: BARNETTE, Judge.

license: Public Domain

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. DUGAS & LeBLANC, LTD., et al.
    No. 10521.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied March 1, 1976.
    Writ Refused April 13, 1976.

      D. Ross Banister, William W. Irwin, Jr., Johnie E. Branch, Jr., and Jerry F. Davis, Highway Dept., Baton Rouge, for appellant.
    Felix H. Savoie, Jr., Napoleonville, for appellees.
    Before LANDRY, COVINGTON and BARNETTE, JJ.
   BARNETTE, Judge.

This is a proceeding initiated by the State of Louisiana, through the Department of Highways, for the expropriation of 3.75 acres of land for highway purposes. Upon taking the land in question the Highway Department deposited in the registry of the court the sum of $2,813 as just compensation, computed at $750 per acre. There is no serious contention that this amount was not a fair appraisal of the actual land value, but the defendants claim substantial severance damage for which they seek reimbursement.

Three expert appraisers testified at the trial and their estimates of the land value ranged from $750 per acre, by the Highway Department’s expert, to $800 and $950 respectively, by the defendant’s two experts.

Estimates of severance damage, ranged from none by the Department’s expert to $26,800 and $29,550 by the defendant’s two expert appraisers and $25,000 by one of the defendant co-owners. The trial court accepted the lowest of the appraisals, namely $750 per acre, or $2,813 for the 3.75 acres taken and $25,000 for the severance damage. Fees for each of the two expert witnesses for defendants were fixed at $1,000 and taxed as costs. Judgment was rendered accordingly.

The Department of Highways appealed seeking a reversal of that portion of the judgment which awarded severance damage.

Counsel for defendants-appellees states in his brief before this court that in answer to the appeal, defendants “ask for increase in the amount of just compensation and damages allowed by the trial court.” We find no answer to the appeal in the record before us and will not consider the request for an increase. Alternatively, defendants seek an affirmance of the judgment of the trial court.

The taking of the property in question, July 27, 1972, was for right-of-way for State Highway Route 70 in Assumption Parish, between Paincourtville and the Sunshine Bridge. Prior to this taking the Highway Department had purchased in April, 1971, from these defendants, a strip of land 300 feet wide (with an additional SO feet on each side as temporary construction servitude) for State Highway Route 70, almost entirely across the defendant’s property known as Halfway Plantation. Present plans call for a two-lane highway to be constructed on one side of the right-of-way, leaving sufficient space for possible future conversion to a four-lane highway.

The right-of-way acquired by purchase, comprising approximately 50 acres, began at the southern property line of Halfway Plantation and extended in a north-northeasterly direction a distance of approximately 5,000 feet stopping some 300 feet short of the northern property line of Halfway Plantation. The failure to acquire a right-of-way completely across the defendant’s property was the result of an error with respect to the exact northern property line of Halfway Plantation and the extent of the defendant’s ownership. It then became necessary for the Highway Department to acquire the additional approximate 300 feet of right-of-way to completely traverse the defendant’s property, plus a small amount of land on each side of the extended right-of-way for drainage purposes, all of which totaled 3.75 acres and is the subject property of this proceeding.

Prior to the taking in question the Halfway Plantation comprised approximately 1,384 acres, which included the small parcel lying between the end of the purchased right-of-way and the northern boundary line of the plantation. After the taking of the 3.75 acres the defendants had two tracts remaining consisting of 986 acres on the west side and 394 acres on the east side of the right-of-way. That remaining on the east side included about 200 acres of woodland, leaving about 194 acres suitable for sugar cane cultivation.

Prior to the taking of the 3.75 acres in question, but after the purchase of the 5,000 feet of right-of-way, the east and west tracts were physically connected at the northern end of the purchased right-of-way. The taking of this parcel resulted in a complete severance of the defendant’s sugar cane plantation.

The defendants contend that the complete severance of their plantation by the extension of the right-of-way to their northern boundary has substantially damaged the now remaining two separate tracts of land. They contend among other things, that the smaller tract left on the east side is. now without facilities necessary for operation of a sugar plantation, and that the relatively small amount of land left suitable for sugar cane cultivation is too small to justify the expense of providing separate facilities, such as derricks and loading equipment, implement sheds, etc. They point out that all such facilities are provided on the west side of the right-of-way and are virtually inaccessable to the east side. The crossing of the highway, with tractors, cane trucks and other cumbersome equipment which would be subject to Highway Department limitations and restrictions for traffic control including the prohibition of tracking mud on the highway, portends many hazards, much inconvenience and loss of time.

We agree that these are obvious factors to be considered as materially affecting the practical and efficient operation of the two tracts of land as a single plantation unit. These factors would be considered as relevant to severance damage if it is shown that they adversely affect the land remaining after the taking. However, in view of the rationale of this opinion and the conclusion we have reached, it is not necessary for us to consider that question.

At the beginning of the trial of this case in the District Court, counsel for the Department of Highways made an opening statement in which he related for the Court’s information the events leading up to the expropriation of the 3.75 acres in question, in substance as we have stated above. Counsel for the defendants objected to any reference to the prior negotiations for and purchase of the right-of-way alluded to. He acknowledged that what plaintiff's counsel had said was "basically . . . correct” but argued that it had no relevance to the issues then before the court. Counsel for plaintiff argued that “a central issue in this case will be whether the defendants actually believed the road was going to stop 300 feet from the end of their property . . .” and whether or not they intended to sell the entire, [right-of-way] from one boundary to the other.” The court ruled: “We will cross that bridge' when we come to it.”

After plaintiff’s first witness was called and qualified as an appraisal expert and began to testify, counsel for defendants again objected to any questions or testimony tending to change or alter the deed by which the Highway Department had acquired the 5,000 feet of right-of-way. His objection was based on the parol evidence rule, citing Civil Code Article 2276 and pertinent cases. Plaintiff’s counsel argued that it was not his intention to contradict or vary the terms of the deed but rather to show that the defendants thought they were conveying a right-of-way completely across their plantation, causing a severance into two parts, for which they now seek further compensation.

The court’s ruling was in substance that it was not concerned with what had transpired between the parties in the past and would hear no testimony on that, and would hear and consider only the issues of expropriation, the just compensation and severance damages for the taking of the 3.75 acres in question.

Near the conclusion of the trial the plaintiff recalled its first witness, Mr. Driggers, in rebuttal and again sought to question him about certain provisions in the deed relative to crop damage, to explain why he had not considered that an issue in making his appraisal and to interrogate him concerning the construction servitudes about which defendant’s expert, Mr. Book, had testified. Defendant’s counsel objected to his testifying regarding crop damage, which objection was sustained, but the witness was permitted to proceed a bit further relative to “headlands” and access roads to which the Highway Department had committed itself, and in doing so referred to the provisions of the deed on that point. When then asked if he had a copy of the deed and he answered affirmatively, defendant’s counsel again objected to any reference to it, which the court sustained as not being proper rebuttal. Then followed extended argument whether the proffered testimony was proper rebuttal of the defendant’s witness, Mr. Savoie, who had testified that there was a “verbal agreement” concerning certain access roads. After the court’s ruling of inad-missability and an attempt to introduce the deed as a “proffer” was denied, the court on reconsideration of the issue, allowed the deed to be introduced as a “proffer” of evidence, subject to the defendant’s objection. The court then permitted the witness to give his testimony as a proffer relative to the access roads and approaches to the two remaining tracts as provided in the deed. The witness read into the record certain pertinent provisions of the deed which we will discuss more fully below.

We think the “proffered” deed and the testimony of this witness are admissable in evidence and have a very significant relevance to the issue of severance damage, which, after all, is the only issue before this court.

The deed in question was made a part of the record and is before the court upon the specific pleading of the defendants. They cannot now be heard to object to its admissability for consideration by the court. In their answer to plaintiff’s original and supplemental petition, the defendants alleged in paragraph 20 as follows:

“That by act of sale recorded in Conveyance Record 105, Page 8, under Entry No. 97884, Dugas and LeBlanc, Ltd. and its co-owners conveyed to the State of Louisana, Department of Highways, a portion of said tract, all as can be seen from said act of sale which is made a part hereof by reference thereto. That the land transferred therein did not include the property herein expropriated.”

They further alleged in paragraph 21 as follows:

“That said act of sale did not sever the said Halfway Plantation, but that the expropriation of the tract of land herein coupled with the aforementioned act of sale completely severs said tract of land, leaving two separate and distinct tracts. That Defendant would not have entered into said act of sale for the consideration recited therein had it known then of this additional taking. That Plaintiff never indicated to Defendant that it would take the additional land expropriated herein.”

It is our opinion that the defendants did believe that the right-of-way granted by the deed crossed their property from one boundary line to the other, completely severing their plantation. It is incredible that anyone would assume that the Department of Highways would purchase a' highway right-of-way coming to a dead end in the middle of a cane field.

If the defendants were aware that their northern boundary line was 300 feet beyond the end of the purchased right-of-way, certainly some inquiry would have been made as to why the right-of-way stopped short of that point. No inference of deception or withholding of material information with intent to gain an unfair advantage is indicated, but quite the contrary, as evidenced by the testimony of defendant’s witness, Mr. Charles Savoie.

Mr. Savoie identified himself as a part owner of the property in question, owning one-twelfth individually and also being a stockholder and president of Dugas and LeBlanc, Ltd., the owner of one half interest in the property. He testified in pertinent part as follows:

“Q Isn’t it really true that you thought you were selling a strip all the way across your property ?
“A Yes. I’ll tell you the truth; yes, that’s correct. I can’t deny that.”

It is our opinion and we so hold as a fact that the purchased right-of-way stopped short of severing the defendant’s property by 300 feet as the result of a mutual error of fact. The defendants are equally responsible with the Department of Highways for the failure of the Department to acquire by purchase the right-of-way completely across their plantation. They will not now be permitted to gain an unfair advantage as a consequence of the error to which they contributed.

We stated above that at the very outset of the trial below, counsel for defendants objected to any reference to the prior right-of-way acquisition by purchase as being irrelevant to the issue of expropriation of the 3.75 acres in question. He further objected to testimony with respect to the deed in violation of the parol evidence rule. The deed was introduced into the record by the defendants who specifically made it a part of their answer by reference. It is therefore a part of the record for all purposes. LSA-C.C.P. art. 853. Foster v. Stewart, 161 So.2d 334 (La.App. 1st Cir. 1964). We find it contains provisions relevant to the issue of severance damage. We further hold that no testimony was given nor proffered which in anywise contradicts or varies the terms of the deed. It is the best evidence of its contents and is properly before the court. We will now address ourselves to its pertinent provisions.

The deed was executed by the defendants landowners, as vendors, to the State of Louisiana and the Department of Highways, as vendee. It conveys full ownership of the particularly described right-of-way to the State Department of Highways with reservation of mineral rights. It further provides for particularly described temporary construction servitudes to be terminated upon completion and acceptance of the highway project.

The cash consideration was $30,315.00. The Department of Highways further obligated itself to compensate for crop damage to the seed cane planted in 1970 and to the first and second year stubble from the 1970 planting at a fixed sum per acre, with the extent of acreage crop damage to be determined by an agreed method of measurement no later than May 15, 1971.

The Department further obligated itself to “. . . construct a field service road (headland) . . .’’on each side of the right-of-way between certain points identified by Highway Survey Station numbers and to install “therein” 20 lateral culverts; 17 in the west side service road and 3 in the east side service road, the exact locations of each being specified.

It also obligated itself as follows:

“The Department shall construct standard vehicular approaches within the limits of the property herein conveyed from the roadway to the Vendor’s remaining property to the left of the cen-terline opposite Highway Survey Stations . . . [specifying seven locations].”
“The Department shall construct standard vehicular approaches within the limits of the property herein conveyed from the roadway to the Vendor’s remaining property to the right of the cen-terline opposite Highway Survey Stations . . . [specifying five locations].”

Following the recitation of the cash consideration, the deed provides:

“Vendor acknowledges and agrees that the consideration provided herein constitutes full and final payment for the property hereby conveyed and for any and all diminution in the value of Vendor’s remaining property as a 'result of the transfer of this property for highway purposes.” (Emphasis added)

The foregoing terms written into the deed clearly indicate that the vendors and the representative of the Department of Highways in negotiating the purchase of the right-of-way took into account both crop damage and the inconvenience caused by the severance of the vendor’s plantation and provision was made to compensate for crop damage and for service roads and access points to facilitate the crossing of the proposed highway between the two remaining tracts of land. The vendors, defendant-appellees herein, expressly acknowledged and agreed that the consideration provided in the deed [the ca'sh paid and the other obligations to which the Department committed itself] constituted full and final payment for the property conveyed “ . . . and any and all diminution in value of . . [their’] remaining property as a result of the transfer of this property for highway purposes.”

It was not until after this negotiated right-of-way sale was consummated that the parties discovered that the right-of-way fell short by approximately 300 feet of completely severing the vendor’s plantation. This error of fact, which we hold was mutual, resulted in giving the defendants-ap-pellees a junction point approximately 300 feet wide, physically connecting their east and west tracts, which neither of the parties intended as revealed by the testimony of Mr. Savoie, one of the defendants and their apparent representative at the trial below. The defendants called no other witnesses except the two expert appraisers.

The issue of consequential and severance damage was injected into this proceeding by the defendants and the burden of proof is upon them. LSA-R.S. 48:453; State, through Department of Highways v. Levy, 242 La. 259, 136 So.2d 35 (1961); State, through Department of Highways v. Snider, 276 So.2d 401 (La.App. 2d Cir. 1973); State, through the Department of Highways v. Mason, 218 So.2d 329 (La. App. 2d Cir. 1969), writ granted 253 La. 635, 219 So.2d 173 (1969), affirmed 254 La. 1035, 229 So.2d 89 (1969).

We think it is self-evident that the complete severance of defendants’ plantation caused substantial damage to the two remaining tracts, particularly the smaller tract on the east side of the highway. Severance and consequential damage as such, as distinguished from the monetary compensation factor, is not, nor can it be, seriously disputed. The defendants have discharged this aspect of their burden of proof. In effect what the Department of Highways is contending is that the defendants have already been compensated for complete severance and the consequential damages resulting therefrom.

The defendants affirmatively alleged as the basis of their demand for additional compensation for the severance in paragraph 21 of their answer:

“ * * * That defendant would not have entered into said act of sale for the consideration recited therein had it known then of this additional taking. That Plaintiff never indicated to Defendant that it would take the additional land expropriated herein.”

As to this latter assertion the obvious reason why there was no such indication was that neither party then knew that these defendants owned the 3.75 acres in question and there was no reason to discuss it. As pointed out above, no questions were asked and the defendants could hardly have assumed that the highway would proceed no further than the dead end in their cane field. If they really knew this to be a fact their failure to disclose it would have implied an intent to deceive. We have said above there is no indication of any such intent by either party.

The defendants have failed to prove their affirmative allegation in paragraph 21 of their answer but on the contrary their allegation was disproved by the ac-knowledgement of their own witness, Mr. Savoie. Having made this the basis of their demand for additional severance and consequential damage, we must hold that they have failed to discharge the burden of proof which the law imposes upon him.

Since the plaintiff, Department of Highways, has contributed to the error which resulted in this additional taking through expropriation proceedings, as we have discussed above, we will exercise the discretion vested in us by Article 2164 of the Code of Civil Procedure, with respect to court costs, including expert witness fees, and will not disturb the cost assessment as fixed by the trial court. Additionally we will assess the costs of this appeal to appellant insofar as it is legally amenable for costs.

For these reasons the judgment appealed is amended by reducing the award to defendants from $27,812.50 [sic] subject to a credit in the sum of $2,813.00 deposited in the registry of the court to the sum of $2,813, which amount is now fixed as just compensation for the property taken, and being the amount previously deposited in the registry of the court, and rejecting the demands of the defendants for severance or consequential damage. As thus amended and in all other respects, it is affirmed.

The appellant is cast for all costs which may legally be assessed to it.

Amended and affirmed.


author: SAMUEL, Judge.

text:
    Rene CHERAMIE v. Peggy JONES et al.
    No. 7167.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 1976.
    George P. Vedros, Gretna, for plaintiff-appellee.
    Laurence E. Larmann, Metairie, for def endants-appellants..
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit for damages to his 1966 Chevrolet truck against the owner, driver and liability insurer of a station wagon which, on June 21, 1973, had run into the truck while the latter was parked. Following the collision the station wagon was “wedged” under the truck.

After trial on the merits, judgment was rendered in favor of plaintiff and against the defendants in the sum of $2,500. The judgment is based on a finding by the trial court that the truck “was damaged beyond economical repair”. Defendants have appealed. In the trial court, and in this court, defendants have stipulated liability. Accordingly, we are concerned only with quantum.

The only evidence in the record relative to quantum is the testimony of two expert witnesses, both called by the plaintiff, and one written estimate of the cost of repair prepared by one of those witnesses. The two experts gave testimony relative to the value of the truck at the time of the accident and what its value would be after repair, damage to the vehicle occasioned by the accident, and the cost of repairing that damage.

One of the expert witnesses, Sam J. Spinnato, had not seen the truck. Testifying only as to its value, he stated that after being repaired the truck would have a fair market value of $4,000 to $4,500.

The other expert, J. B. Murray, had visually inspected the truck on two occasions, one shortly after the accident and the other at some later date. In his opinion the market value of the truck prior to the collision was $2,000 to $2,500. Following the first inspection and prior to the second, he had prepared the written estimate which was introduced in evidence. However, he had inserted therein only his estimate of the cost of the labor involved in repairing the damages which he was able to see by the visual inspection. He would charge $155 for that labor, plus the cost of parts. Another person had estimated parts cost on Murray’s written estimate at $426.85. Murray did not agree with that figure. He stated parts prices have escalated in the approximate one and one-half years from the date of the collision and, although he had actually checked the price of only one of the parts on the written estimate, he was of the opinion the cost of those parts was much more both at the time of the accident and at the time of trial. The total of the written estimate, including labor, parts and tax, amounted to $610.94.

Murray had' written on his estimate “there could be damage to the differential and on left wheel back and bearings”. Following his second visual inspection, he felt there could be additional damage to the drive line and the housing and possibly the frame. However, he could not estimate the cost of repairing this possible damage to the differential, wheel, bearings, drive line, housing and frame because, without tearing down those parts of the truck, which he did not do, he was unable to determine whether or not that damage in fact existed. He felt that, if the possible damage did in fact exist, it would cost approximately $2,000 to repair the truck. Because of the possibility of the additional damages, he did not consider it feasible to repair the vehicle.

When a vehicle is totally destroyed or so badly damaged that the cost of repairs exceeds its value, the proper measure of damages is the value of the vehicle as of the date of the accident, less the salvage thereof. If the vehicle is not totally destroyed, the measure of damages is the cost of repair plus diminution in value resulting from the accident. A plaintiff bears the burden of establishing each and every element of damages claimed.

We are of the opinion the evidence does not support a finding that the truck was damaged beyond economical repair. The proof falls far short of establishing by the required preponderance of the evidence that it was so badly damaged the cost of repair exceeds or even approaches its value. Testimony as to possible damage ascertainable only after tearing down the parts in question, a tearing down which did not take place, is not proof, only unacceptable speculation. The cost of parts cannot be set on testimony merely stating the cost of parts contained in the written estimate should be higher. And finally, the record is totally devoid of any evidence regarding salvage value. As the record now stands, the acceptable proof establishes only that the truck was damaged to the extent of the total amount of the written estimate, $610.-94. According to the testimony of plaintiff’s own experts, that figure is either only about one-fourth of the vehicle’s value at the time of the collision or only about one-seventh of the value it will have after repair, depending on which expert’s testimony is accepted.

If we were to decide this case on the record as it now stands, we would be compelled to reduce the award to $610.94. However, from our reading of the entire record, it appears to us that the actual cost of repairing the damages to the truck probably far exceeds that amount; the testifying expert simply failed to tear down the parts necessary to determine the existence and extent of the possible (and probable) additional damage. Under these circumstances, we feel it proper to remand the matter to the trial court so as to give both sides an opportunity to offer evidence only as to cost of repair of the damages resulting from the collision, if there be such evidence available.

tor the reasons assigned, the judgment appealed from is annulled and - set aside and the matter is remanded to the.district court for trial in accordance with law and with the views expressed in this opinion; costs in this court to be paid by the plaintiff-appellee; all other costs to await a final disposition.

Annulled, set aside and remanded.

      . Cloney v. Travelers Insurance Company, La. App., 253 So.2d 83; Greenberg v. New Orleans Public Service, La.App., 74 So.2d 771.

      . Goode v. Hantz, 209 La. 821, 25 So.2d 604; Cloney v. Travelers Insurance Company, supra, footnote 1; Traders & General Ins.

        Co. v. Robison, La.App., 289 So.2d 178; Bailey v. Moore, La.App., 276 So.2d 708.

      . Cloney v. Travelers Insurance Company, supra, footnote 1; Foggin v. General Guaranty Insurance Company, La.App., 207 So.2d 176.


text:
    Ernestine ATKINS v. Louella HUDSON and John Doe Insurance Company. Mr. and Mrs. Raymond HALL v. Louella HUDSON and John Doe Insurance Company.
    Nos. 6852, 6853.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Writ Refused May 26, 1976.

      Charles R. Maloney, New Orleans, for plaintiffs-appellees.
    ' C. Cyril Broussard, New Orleans, for defendant-appellant.
    Before SAMUEL, GULOTTA and BEER, JJ.
   SAMUEL, Judge.

Plaintiff, Ernestine Atkins, instituted suit (No. 6852 of our docket) for damages for personal injuries resulting from a dog bite. Her case was consolidated with that of Mr. and Mrs. Raymond Hall, whose suit (No. 6853 of our docket) was based upon a dog bite suffered by Mrs. Hall. Louella Hudson, the alleged owner of the dog, was named a defendant in both suits. Miss Hudson answered each of the petitions in the form of a general denial. Following trial on the merits, judgment was rendered in favor of plaintiff, Atkins, in the sum of $1,010, and in favor of plaintiffs, Mr. and Mrs. Hall, in the sum of $760. Miss Hudson has appealed.

The record consists solely of the testimony of the two injured plaintiffs and various exhibits.

Mrs. Hall testified: On May 6, 1969 she was walking on the sidewalk of North Villere Street in New Orleans. As she passed 1114 North Villere, a small white female dog, which showed obvious signs of having recently had puppies, ran through an open gate at that address and bit her. The defendant called the dog by name and the dog responded, returning through the open gate. Mrs. Hall lived in the neighborhood. She knew the defendant resided at 1114 North Villere and was the owner of .the dog.

Miss Atkins testified that on May 7, 1969, while she was walking on the sidewalk on North Villere, a small white female dog, which appeared to have recently had puppies, ran through an open gate and bit her. As'the appellant takes issue with this witness’s identification of the particular premises from which the dog ran, we will discuss that question in more detail later in this opinion.

The injured plaintiffs received treatment for the dog bites at Charity Hospital, where they met each other. While conversing about their injuries, they discovered they had been at the same location when bitten by a dog answering the same description.

In this court the appellant contends: (1) the trial court erred in failing to grant a continuance and in admitting hearsay evidence and photographs over the objections of defense counsel; (2) the plaintiffs failed to prove the dog which bit them belonged to the defendant; and, alternatively, (3) the awards are excessive.

We find.no merit in the contention relative to the refused continuance. Appellant argues that because plaintiffs were granted a continuance on a previous occasion, she should have been granted a continuance on the day of trial. The earlier continuance was granted because plaintiffs’ attorney had a previously set case in another court on the day of trial and defendant counsel had consented to that continuance.

Defendant’s counsel requested the continuance because his client was not present in court when the cases were called for trial on June 6, 1974. He told the trial court that on May 22, 1974 he had directed a letter to the defendant informing her he had attended a pretrial conference on April 30, 1974 and that the matter was fixed for trial on June 6, 1974 at 11 a. m. He subsequently received a telephone call from Miss Hudson in response to his letter. She refused to consider a proposed compromise and he then advised her he would see her in court on the trial date. The day before the trial he attempted to communicate with her to remind her of the trial date. He made several telephone calls to her home during that day and that night but was unable to contact her. On the morning of trial, he stopped at her place of business and rang the bell, but there was no answer. Following his arrival at court shortly after 9 a. m. on the morning of trial, he- placed several telephone calls to her at the number which she had given him but received no response.

Code of Civil Procedure Article 1601 provides:

“A continuance may be granted in any case if there is good ground therefor.” LSA-C.C.P. Art. 1601.

The trial court apparently found, and we agree, that Miss Hudson had ample notice her case was set for trial and the record reflects no reasonable explanation, indeed no explanation at all, for her absence.

Nor do we find any merit in the contention relative to the admission of hearsay evidence. The testimony given by the two witnesses did contain some hearsay, references to what other people had said. However, we are convinced that, completely disregarding such hearsay, the admissible evidence is sufficient to support the judgment appealed from.

The photographs to which appellant makes objection are of the defendant’s residence. They were taken three years after the incidents in suit. They were introduced as a result of the fact that on several occasions Miss Atkins testified she was bitten in the 1400 block of North Villere, while the defendant’s residence is located at 1114 North Villere. When the discrepancy was pointed out, Miss Atkins stated she could have been confused as to the street address and she positively identified the photographs as the place where she had been bitten. Mrs. Hall, who lived in the neighborhood and was familiar with the defendant’s residence, also identified the pictures as the residence of the defendant. The fact that the phorographs were taken three years after the incidents in suit is immaterial.

We also find no merit in appellant’s second contention relative to plaintiffs’ alleged failure to prove the dog which bit them belonged to Miss Hudson. We are of the opinion, as was the trial court, that the evidence presented was sufficient prima facie proof of the fact that the same dog was the offender in both of these cases and that the defendant was the owner of that animal.

Here, even under our jurisprudence prior to Holland v. Buckley, 305 So.2d 113 (La.S.Ct.), the defendant was clearly liable to Miss Atkins because, at the time her dog bit Miss Atkins, its vicious propensities were known to her; she knew the dog had bitten Mrs. Hall the previous day. Under Holland v. Buckley she is also liable to Mrs. Hall because the record contains no evidence exculpating her from fault. At page 119, Holland states:

“We hold, therefore, that the correct interpretation of Civil Code Article 2321 is as follows: When a domesticated animal harms another, the master of the animal is presumed to be at fault. The fault so provided is in the nature of strict liability, as an exception to or in addition to any ground of recovery on the basis of negligence, Article 2316. The owner may exculpate himself from such presumed fault only by showing that the harm was caused by the fault of the victim, by the fault of a third person for whom he is not responsible, or by a fortuitous event.”

Relative to quantum, the dog was picked up for observation by the S.P.C.A. and found not to be rabid. However, prior to that event, both injured plaintiffs went to Charity Hospital for Pasteur treatment. Miss Atkins received two rabies shots and was referred to the clinic because of an open incision. Her bill was $10. She is a private duty nurse and was on her way to a new case at the time she was bitten. She was out of work for four weeks before she found another job. She received $12.50 per day, five days per week, when she was employed. The award to her was $750.for pain and suffering, $10 for her medical bill, and $250 for loss of wages.

Mrs. Hall made two trips to the hospital for treatment. When she found the dog was not rabid, she went back to the doctor to determine whether the dog bite would have any effect on her arterial problems. She was advised it would not. She still has teeth marks on her legs where she was bitten by the dog. Her medical -bill was $10. She is a housewife and has no loss of wages. The trial court awarded her $750 for pain and suffering and $10 for medical expenses.

Although the injuries do appear to be somewhat minimal, we are of the opinion the awards do not constitute an abuse of the trial court’s discretion.

For the reasons assigned, the judgments appealed from are affirmed.

Affirmed.


text:
    Joseph Clarence BORNE v. Thomas BOURG, a/k/a Teemott, et al.
    No. 6806.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.

      Frederick J. Gisevius, Jr., and David E. Caruso, Jr., New Orleans, for plaintiff-ap-pellee.
    O’Keefe, O’Keefe & Berrigan, Peggy Vicknair and William J. Goliwas, New Orleans, for defendants-appellees.
    George B. Richard, Marrero, for Thomas Bourg, defendant-appellant.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   SAMUEL, Judge.

This is a suit to recover damages for personal injuries sustained while plaintiff was a patron of Schnell’s Sports Center Restaurant and Bar in Marrero. The defendants are Thomas Bourg, another patron who caused the injuries in suit, Nolan Schnell, Ray Carbo and Anthony Nicosia, respectively the owner, a bartender and a manager of Schnell’s Sports Center Restaurant and Bar. Coal Operators Casualty Company (now known as Rockwood Insurance Company), liability insurer of the business establishment, later was joined as a defendant.

Following trial on the merits, an in soli-do judgment in the sum of $32,557.38 was rendered in favor of plaintiff and against all defendants except Nicosia. The- judgment dismissed the suit against Nicosia who was not present at the time the injuries in suit were sustained. All defendants cast have appealed. The appeals do not involve the dismissal of the suit as to Nicosia and that issue is not before us.

After the record had been lodged in this court, we issued a rule, ex proprio motu, to show cause why the appeal taken by Bourg should not be dismissed for failure to post an appeal bond. Subsequently, plaintiff-appellee filed a motion to dismiss that appeal.

ON THE RULE AND MOTION TO DISMISS

The record reflects Bourg timely filed a petition for a suspensive and a devolutive appeal. The appeal order was signed by the trial judge on the same day that petition was filed. No bond of any kind was ever furnished by Bourg and the time allowed for furnishing his appeal security has long expired. The other defendants cast, Schnell, Carbo and Rockwood Insurance, timely filed their petition for appeal which was granted “upon their furnishing legally acceptable security in the amount prescribed by law.” On the day the appeal order was signed those three defendants furnished a surety company bond in the amount of $65,000.

Bourg’s position is that the bond posted by the three other appellants makes it unnecessary for him to post an additional bond inasmuch as' the judgment casts him and those other defendants in solido. He relies on our settled jurisprudence that only one order of appeal, one appeal bond and one appellate filing fee, are necessary for multiple appellants from a single judgment.

We agree with that broad jurisprudential rule, but only when the required bond for suspensive appeal actually furnishes security for all appellants and, perhaps, when the required bond for devolutive appeal in fact affords security for all costs due by all appellants, i. e., when the appellee in either a suspensive or devolutive appeal is afforded the full required appeal security.

Here, the only security furnished is the bond filed by Schnell, Carbo and Rock-wood Insurance. That bond binds its surety only for those three appellants; the bond does not mention Bourg. Thus, as to both the money judgment and costs, the appellee is without recourse against the surety insofar as Bourg is concerned. Under these circumstances, the rule relied on by Bourg has no application. Accordingly, we dismiss his appeal.

ON THE MERITS

Plaintiff’s injuries were incurred on August 23, 1969 at about 3 a. m. Bourg struck plaintiff in the left eye with his fingers causing blindness in that eye. The suit against Schnell and the defendant insurer is based upon the former’s alleged failure as the proprietor of a public place to protect plaintiff, his guest or customer, from a known danger. Under the doctrine of respondeat superior, Schnell and the insurer are responsible for the action or non-action of Carbo, the bartender, who was in charge of Schnell’s establishment when the event took place. Carbo, individually, is responsible for his own actions or lack thereof.

Testimony relative to the occurrence of the incident was given by the plaintiff, by defendants Bourg and Carbo, and by Murphy Sannsardo, an independent witness called by the defendants. In addition, defendants called three other witnesses in an effort to establish Bourg and the plaintiff were friendly drinking buddies.

The three appellants contend the incident was unexpected and occurred so quickly it could not reasonably have been anticipated and there was not sufficient time to take preventative action. Alternatively, they contend the award is excessive. We do not agree.

We find the following facts, which are in agreement with the finding of facts by the trial judge:

Plaintiff entered the defendant establishment, seated himself at the bar and ordered a plate of fried seafood. Shortly thereafter Bourg also entered the establishment and seated himself at the bar. Bourg, the larger of the two men, was obviously intoxicated. When plaintiff’s order was served, Bourg, got up from his seat and moved over to where the plaintiff was beginning to eat. Without invitation, he reached into plaintiff’s plate and proceeded to remove portions of food. Plaintiff objected and an argument ensued between the two men. Plaintiff also directed his objections to Carbo, the bartender on duty.

Carbo recognized, not only that Bourg was intoxicated, but also that a dangerous confrontation was developing between the two men. He cautioned both parties and placed a telephone call to the Jefferson Parish sheriff’s office for the purpose of requesting police assistance. However, he specifically asked for a Deputy Troxclair and, upon being informed that this deputy was not then available, Carbo terminated the call without requesting assistance, apparently because he was unwilling to pursue his complaint with anyone other than Troxclair.

Plaintiff ordered another plate of seafood and moved to the other end of the bar. When the second order was served, Bourg also moved to the other end of the bar and continued to disturb and argue with plaintiff. Plaintiff moved his seat several times in an effort to escape Bourg, but the latter persisted and proceeded to take other portions of food from plaintiff’s new order. Plaintiff again complained to Carbo and this time Carbo ordered Bourg from the premises under threats of calling the police. At this time Bourg told the plaintiff he would like to “poke his eyes out”. Bourg then extended his fingers and-jabbed at plaintiff’s face, striking him in the left eye and causing the injuries in suit.

The basic duty owed to a patron by an establishment such as that in suit is set forth in the case of Anderson v. Clements, La.App., 284 So.2d 341:

“The basic duty owed to a patron by an establishment such as that of the defendant was set forth in DeHart v. Travelers Insurance Company, which involved an assault upon a patron by another patron while the owner of the coffee house in which the assault took place was absent from the premises. There the court stated that while the proprietor of a public place is not the guarantor of his patrons’ safety, he owes them a duty to exercise reasonable care to protect them from harm at the hands of a fellow-guest or at the hands of his employees; such a proprietor owes a duty to guests to protect them from insult, an-noynance and danger, and his guests have a right to rely on the belief they are in an orderly house and are protected from injury by the exercise of reasonable care for their safety by the operator of the establishment or his representative.
Under our law part of the duty imposed on those in charge of a business establishment, if time allows, is to call the police in the event of a disturbance in order to prevent injury to patrons. In Matranga v. Travelers Insurance Company, wherein liability was imposed on the owner of a barroom, the court made the following statement :
‘It is the duty of every storekeeper and restaurant operator to use reasonable care in the protection of his patrons and guests. Particularly, must he, himself, refrain from any act or conduct likely to cause injury to a guest. Had the argument been between two other guests rather than between the proprietor and his brother, who had been assisting him in the restaurant at the time, it would have been defendant, Zibilich’s duty to eject the offenders or called [sic] for the police. Under the circumstances, defendant, Zibilich’s conduct constituted negligence.’
The duty to call the police if time allows was recognized in Rodney v. Mansur, where the court stated the person in charge of an establishment, such as the one in this suit, has the duty to call the police in the face of danger in order to protect patrons of the establishment and that failure to comply with this duty would impose liability. However, the court refused to apply the principle for the reason that the person in charge of the business did not delay a sufficient amount of time in calling the police to justify imposing liability.”

Here Carbo, who was in charge of the defendant establishment, knew the situation was potentially dangerous. By his own admission he made the call for Deputy Trox-clair because he knew something might happen to the plaintiff, who was “getting a rough time from Bourg”, and he made the call for Troxclair in order to stop the incident before it happened. Yet, although he had the sheriff’s office on the telephone, he did not request assistance simply because Troxclair was not available. He did nothing to protect plaintiff except to “caution” Bourg and, after a lapse of some time during which the situation became worse, order Bourg out of the establishment. Under these circumstances, we find, as did the trial judge, the defendant establishment failed in its duty to safeguard the welfare of its patrons and that plaintiff’s injuries were a direct result of such failure. Accordingly, there is liability on the part of appellants.

Relative to quantum, the total award of $32,557.38 consisted of $2,557.38 for special damages in the form of medical expenses and $30,000 not only for loss of sight of the eye and pain and suffering, but also for past and future loss of income.

Plaintiff was 52 years of age at the time of the incident. The blow to his left eye caused a large laceration of the sclera (the tough white supporting tunic of the eyeball), resulting in loss of sight of the eye. The eye itself has not been removed, although plaintiff does wear glasses. He was in a hospital for seventeen days. He has not worked since the incident and the record contains expert testimony reflecting that, in the work he had previously performed, he would be a danger to himself and to others because of his now limited vision.

Accordingly, following our consideration of the amount of awards in other cases with somewhat similar injuries, we do not find that the award in this case is so excessive as to constitute an abuse of the “much discretion” given the trial judge by LSA-C.C. Art. 1934(3).

For the reasons assigned, the appeal taken herein by Thomas Bourg is dismissed and the judgment appealed from is affirmed.

Affirmed.

      . The one appellate filing fee has reference to the Courts of Appeal and not necessarily to the Supreme Court. See LSA-R.S. 13:353 and 13:126(2).

      . See In Re: Wingate, La.App., 189 So.2d 1; In Re Succession of Abraham, La.App., 136 So.2d 471; Hernandez v. Ethyl Corporation, La.App., 83 So.2d 150.

      . We note that in this case there could he liability on the part of Bourg and no liability ' on the part of the three other appellants.

      . In this regard, the record fails to establish anything other than that plaintiff and Bourg were seen in different establishments at the same time over a period of years, but not with each other.

      . See Walker v. Champion, 288 So.2d 44 (La.S.Ct.) ; Sistrunk v. Aetna Casualty and Surety Company, La.App., 267 So.2d 784; Schnell v. Travelers Insurance Company, La. App., 264 So.2d 346; Roberie v. Sinclair Refining Company, La.App., 252 So.2d 488; Spizer v. Dixie Brewing Co., La.App., 210 So.2d 528.


author: BEER, Judge.

text:
    James GRAVES v. KAISER ALUMINUM AND CHEMICAL CORPORATION.
    No. 6722.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Writ Refused April 23, 1976.

      Kronglage, Dittmann & Caswell, Robert M. Caswell, New Orleans, for plaintiff-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and BEER, JJ.
   BEER, Judge.

Plaintiff-appellant, James Graves (hereafter, Graves) was employed by defendant-appellee, Kaiser Aluminum and Chemical Corporation (hereafter, Kaiser) as an aluminum production worker. He sustained injury to his left knee on April 19, 1972 while temporarily serving as an overhead crane operator trainee.

Other issues in connection with this case have been before us previously but here our review is limited to two issues: (1) was the trial judge correct in finding that Graves was disabled only until the date of his medical discharge on June 1, 1973 and (2) was the trial judge correct in denying penalties and attorney’s fees with respect to non-payment of compensation under the somewhat unusual conditions existent in this case. We conclude that the trial court’s judgment in both respects is not manifestly in error and affirm.

We are in agreement with the trial court’s determination that Graves did sustain a left knee injury in the course and scope of his employment which resulted in the need for surgical intervention. We are (as was the trial court), impressed by the fact that on June 1, 1973 Graves was discharged by Dr. Rozas, his treating orthopedist, as capable of returning to his position at Kaiser. Dr. Rozas concluded that as a result of the healed surgical intervention, Graves would experience approximately eight percent loss of function of the left leg, primarily as a result of a minor loss of extreme flexion of the knee. His anatomical impairment (if any) was described as restriction in his ability to squat (like a baseball catcher) with the left leg in the extreme flexed position for long periods of time. On this important point we adopt the trial court’s findings and conclusions:

“Dr. Rozas advised that plaintiff made an excellent recovery from the surgery. He further advised, and the Court accepts and finds as a fact, that plaintiff recovered to the extent that he lacked only approximately 5 degrees to 10 degrees of full flexion in the left knee and that he otherwise had no residual impairment from the injury and corrective surgery. The Court accepts Dr. Rozas’ estimate that plaintiff has approximately an 8 percent partial loss of physical function in the left knee as a consequence of the 5 degrees to 10 degrees loss of full flexion. The Court accepts and finds as a fact that Dr. Rozas is correct in his medical discharge of plaintiff on June 1, 1973 with the advice that plaintiff could pursue any type of work and activity he might desire.”

Then, turning to the effect of this finding, the trial court observed as follows:

“The primary question and issue is whether, in view of the 5 percent loss of function of plaintiff’s left knee resulting from the S degrees to 10 degrees loss of flexion, plaintiff is unable to perform the duties of his employment by defendant as a spare anode aluminum production worker and as a crane operator trainee. On the basis of the job description of plaintiff’s work, the medical evidence, and the Court’s opportunity to personally view, observe and evaluate the plaintiff, the Court is of the opinion and finds as a fact that plaintiff was able to return to the full duties of his employment as of June 1, 1973, the date on which he was discharged by Dr. Ro-zas. In making this finding of fact the Court has fully considered all of the evidence, medical and lay. The Court is of the opinion and finds as a fact that plaintiff willfully has attempted to exaggerate the residual effects of the injury of which he complains and for that reason the Court was distinctly unimpressed with the credibility and veracity of the plaintiff and his supporting lay witnesses, his wife and mother. The Court is further of the opinion that plaintiff’s failure to 8661# medical attention of any kind since his discharge by Dr. Rozas on June 1, 1973 is totally inconsistent with his current contention that he has remained disabled since that date. Plaintiff has recovered and is physically able to work. His refusal to seek employment of any kind is obviously motivated by factors other than this occupational accident.”

We find no reason to reject these conclusions.

Turning to the question of penalties and attorney’s fees, we are both impressed and influenced by the trial court’s painstaking effort to fully review the evidence concerning this issue. Thus, we feel compelled to accept the trial court’s observations to the following effect:

“The Court further finds as a fact that plaintiff made no effort to advise defendant of his treatment by Dr. Rozas until well after suit was filed. The Court considers that plaintiff acted improperly and not within the spirit of the Louisiana Workmen’s Compensation Law in failing to advise his employer of Dr. Rozas’ treatment, surgery and hospitalization.
“The Court finds as a fact that the defendant at all times acted in good faith in its employment relationship with plaintiff, fn seeking to promote him to the position of crane operator and in attempting to provide him with medical examinations and treatment following his accident. The only arbitrary action which occurred was that on the part of plaintiff in withholding medical information, refusing cooperation and denying defendant’s requests for medical examinations. Accordingly, penalties and attorney’s fees are totally inappropriate and will be denied.”

The court granted workmen’s compensation payments of $49 per week for a total of 58 % weeks as well as medical expenses in the total amount of $1,049.90. Apparently one small medical bill was overlooked when the judgment was computed and later paid, but in oral argument counsel for both parties indicated that this bill would be administratively handled without the need for us to deal with it in this opinion.

Accordingly, the judgment of the district court is, in all respects, affirmed at appellant’s cost.

Affirmed.


author: BOUTALL, Judge.

text:
    Carrie Young, wife of/and Eugene RICHARDSON v. WINN-DIXIE, LOUISIANA, INC., and the Fidelity & Casualty Company of New York.
    No. 6433.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.
    Rehearing Denied March 16, 1976.
    Writ Refused April 27, 1976.

      Melvin G. Ripp, Jr., of Windhorst, Heis-ler, DeLaup, Wysocki & Klein, New Orleans, for plaintiff.
    C. Edgar Cloutier, Christovich & Kear-ney, New Orleans, for defendants-appellants.
    Before SAMUEL, REDMANN, and BOUTALL, JJ.
   BOUTALL, Judge.

This is a case involving injuries as a result of a slip and fall by Mrs. Carrie Young Richardson on some grapes in one of the supermarkets belonging to Winn-Dixie Louisiana, Inc. In our original opinion we reversed a judgment of liability against the store owner. See Richardson v. Winn-Dixie Louisiana, Inc., 309 So.2d 765 (La.App. 4th Cir. 1975). The Supreme Court granted a writ of certiorari, 317 So. 2d 619, and remanded the case to us for reconsideration in the light of their recent decision in the case of Rosalea Mancuso, wife of/and James A. Kavlich v. Kramer, 315 So.2d 282 (Sup.Ct.La.1975). The matter is now before us on that reconsideration.

The facts in this case, briefly stated, are that Mrs. Richardson had been shopping in a supermarket for approximately one half hour when she slipped and fell on some loose grapes in an aisle leading to the produce area. It is not known how the grapes came to be there or how long they remained on the floor. In our previous decision we relied upon the principles set out by this court in the case of Gonzales v. Winn-Dixie Louisiana, Inc., 309 So.2d 697 (La.App. 4th Cir. 1975), in which we held that the plaintiff carried the burden of proof to show that the store had an actual knowledge of the presence of the foreign object or that the object had remained on the floor for such a period of time that such knowledge would be presumed. We stated at 309 So.2d 700:

“[2,3] We recognize that proof of an inadequate, faulty or improperly functioning inspection system or procedure is always admissible in adjudging the issue of a store owner’s negligence. However, it is but one of the aspects or factors that must be considered in the court’s determination of liability and standing alone cannot support a finding of negligence in the absence of attendant circumstances that would render its omission as the proximate cause of the accident. The facts of defendant’s inspection in this case do not alone support a finding that the defendant store owner was negligent.”

However, that decision has now been overruled by the Supreme Court. Gonzales v. Winn-Dixie Louisiana, Inc., La., 326 So. 2d 486, 1976. The Supreme Court has therein reaffirmed the rule announced in the case of Kavlich v. Kramer, supra, that upon proof of slip, fall and injury on unseen foreign substances, “the duty of going forward with the evidence to exculpate the store employees from negligence shifts to the store owner.” The duty of a store owner is stated as follows:

“The duty of a store owner to protect his customers from foreign substances on the floor is one of reasonable. care under the circumstances. Reasonable protective measures, including periodic inspections, must be taken to keep the aisles and floors free of substances or objects that may cause customers to fall. * * * * * The circumstances that determine the reasonableness of protective measures include the type and volume of merchandise, the type of display, the floor space utilized for customer service, the nature of customer service, and the volume of business. As we recently noted, the self-service grocery system requires customers to focus their attention on the shelves and to handle merchandise. The system increases the risk of harm from objects dropped on the floor by customers and, correspondingly, the duty to minimize the risk by frequent inspections and cleanups. ******
(Citations omitted.)

We have reconsidered the record in this case in light of the rules established in these two cases. We find our previous decision herein to be erroneous, since based on contradictory principles.

The evidence establishes Mrs. Richardson to be free from fault in her slip and fall caused by the grapes on the floor. Because we believed the burden of going forward to be upon Mrs. Richardson, we concluded she had not shown constructive knowledge or unreasonable protective measures on the store owner. The store owner produced the following evidence:

“However, the record shows that the entire store was cleaned the night before after all of the produce was put in order. The store manager inspected the store and this particular area prior to opening the store at 8:00 A.M. and again at some unspecified time thereafter. The assistant produce manager worked in that area until approximately 8:30 inspecting both the produce display and the floor and saw nothing amiss. The grapes are not kept loose or handled loose in this area, but are brought out in the familiar see-through packages for display. Only if a package was broken open in some way would there occasion to be loose grapes in the vicinity.
“The store manager testified that inspection of the store took up approximately 90% of his time, and the produce manager testified that inspection took up approximately 50% of his time. Admittedly this is not all inspection of the floor, but also of the displays. * * * ”

The record shows that the last inspection was approximately 8:30 A.M. Despite the percentage of time spent in inspections, neither the store manager nor the produce manager had been in the area of the fall, depending on whose testimony of time schedule is adopted, • from one-half hour to one and one-quarter hours. The trial judge found the fall took place at 9:45 A. M. We note that the reasonable protective measure specified in Gonzales includes periodic inspection. The inspections by the managers were not at regular specified intervals but varied in length of interval dependent upon other duties. Under this system it is reasonable to conclude that at least one and one-quarter hours could elapse between inspections, and the store has made no showing that this is a reasonable period of time under the circumstances.

For these reasons we rescind our previous decision and now affirm the judgment of the trial court.

There remains to be considered the quantum put at issue herein. The trial court awarded Mrs. Richardson $25,000 for her injuries, pain and suffering, past and future, and awarded Mr. Richardson $1,328.81 in past and future medical expenses.

As a result of the fall, Mrs. Richardson received injuries to her back and knee. She suffered considerable pain from what was originally considered a chronic lumbar sprain, and during the long course of her treatment (18 months) the doctors have concluded that she has a degenerative lumbar spine, with continuing degeneration and arthritis. This has been aggravated by the fall to cause some measure of nerve root compression and a prolapse of the fragments of disc involving the fourth and fifth segments of the lumbar spine. She has suffered pain and has been unable to do any housework or engage in activity of any kind for some 18 months prior to the time of the last examinations. The doctors note little improvement in her condition and they state that she will continue to suffer pain for years unless hospitalization is afforded. It is thought that some relief may be obtained by hospitalization and traction for several weeks, but the prevailing opinion is that she will require an operation for removal of the disc and performance of a laminectomy of the lumbar spine. This testimony supports an award for future medical and hospital expenses and future pain and suffering. In addition to her lumbar spine problems, Mrs. Richardson suffers from a painful knee condition. The doctors found x-ray evidence of osteo-arthritis in her left knee with degeneration and conclude that her present painful condition is a result of the trauma she experienced.

Both appellant and appellees complain of the trial court’s award. While we ourselves may have been disposed to award Mrs. Richardson a somewhat lesser amount, we do not find the trial judge’s award to be manifestly erroneous. See Fox v. State Farm Mutual Automobile Insurance Company, 288 So.2d 42 (La.Sup. Ct.1973). The award to Mr. Richardson is adequately supported by a preponderance of the evidence.

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

Affirmed.