author: BEER, Judge.

text:
    Reginald C. WAGNER and Dalton L. Truax, d/b/a Beauregard Square Apts. v. FO-COIN COMPANY.
    No. 8330.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1977.
    Dissenting Opinion On Denial of Rehearing Oct. 12, 1977.
    Cameron C. Gamble, New Orleans, for defendant-appellant.
    Steeg & O’Connor, Michael E. Botnick, New Orleans, for plaintiffs-appellees.
    Before LEMMON, GULOTTA and BEER, JJ.
   BEER, Judge.

Fo-Coin Company unwittingly and in good faith entered into a written lease for coin-operated laundry equipment space in Beauregard Square Apartments with the manager of the apartments, Tom Taylor Agency, although the actual owners of Beauregard Square Apartments were J. George Mitnick, Thomas M. Taylor, James F. Reddoch and Joseph H. Engel. The lease, for a five-year term, was recorded in the Jefferson Parish Conveyance Office on April 27, 1972. Acting on the behalf that they had a proper, recorded lease, Fo-Coin installed its coin-operated laundry equipment which remained on the premises until this controversy arose.

In November, 1975, appellees, Reginald C. Wagner, Jr. and Dalton L. Truax, Jr., purchased Beauregard Square Apartments from the former owners and, thereafter, notified Fo-Coin to vacate. Apparently some rental payments from Fo-Coin to the new owners were made and accepted prior to this notice. Fo-Coin resisted the notice to vacate, and the new owners brought a summary action to evict them, contending that there was no lease of record between the prior owners, Mitnick, Taylor, Reddoch and Engel, and Fo-Coin Company.

William Fothe, president of Fo-Coin, identified the lease agreement as one between Fo-Coin and Tom Taylor Agency. It had been duly recorded in Jefferson Parish but undiscovered by the title examiner for Wagner and Traux who ordered certificates in the names of the record owners. Nevertheless, Fo-Coin makes the affirmative contention that Wagner and Truax knew of the lease and tacitly acknowledged its existence by, among other things, seeking and being paid the rental as provided for in the lease.

The trial judge, noting the absence of written authority by Messrs. Mitnick, Engel and Reddoch authorizing the execution of a lease, concluded:

“Taking all of this into consideration, this Court believes that this case presents a very close issue of law. But, in the absence of any authority by Mr. Mitnick, Mr. Reddock and Mr. Engel to Mr. Taylor to execute such a lease, and in the absence of any evidence that Mr. Taylor was in possession of the premises this court believes that Mr. William Fothe, d/d/a Fo-Coin Company, was in possession of the premises under an invalid lease, and therefore this Court orders the eviction of Fo-Coin Company from the premises at the end of the month, and before the end of August, 1976.”

In the course of the eviction proceeding, counsel for Fo-Coin had sought a continuance in order to introduce evidence in the form of testimony from the previous owners who were residing out of state. The trial judge refused the continuance but stated that a rehearing would be granted if newly discovered evidence was obtained.

Judgment was rendered ordering Fo-Coin Company to vacate the premises by September 1, 1976. However, on August 16, 1976, Motion for New Trial and answers to interrogatories were filed by Fo-Coin Company. Motion for New Trial was denied on September 3, 1976, and Fo-Coin Company perfected the devolutive appeal which brings the matter before us.

The parties to this appeal have stipulated as follows:

“The threshold issue of this appeal is whether the trial court abused its discretion in denying the defendant-appellant’s Motion for Continuance in order to produce testimony and evidence from witnesses in the state of Alabama. If this court finds that there was an abuse of discretion and remands this case to the trial court, then the following three issues have no application. However, if this court finds there was no abuse of discretion, then it is stipulated that the legal issues of this appeal are:
(1) Is a third-party purchaser of real estate bound by a lease recorded in the name of one not the owner?
(2) If the third-party purchaser has notice of the lease at the time of the purchase other than through the public records, is the purchaser bound by the lease?
(3) Does the acceptance of monthly rental payments by the third-party purchaser amount to a ratification of the lease which was recorded in the name of one not the owner?”

In order to give consideration to the so-called threshold issue, we must carefully consider the record of the eviction hearing:

At what appeared to be the conclusion of that proceeding, the trial court ordered the eviction of Fo-Coin “by the end of August, 1976.” Whereupon, counsel for Fo-Coin spoke to the court as follows:

“Your Honor, in connection with our application for writs, this has been a short period of time that this matter was brought up, and we have been unable to get our out-of-town people in here to establish the fact — for having them admit the fact of authority by the owners for this lease. We would make a request for the reservation of our rights to bring in evidence into this Court or a continuance to allow us to do that.”
The court responded:
“I will grant you a rehearing on this, provided you can show me that there is newly discovered evidence.”

Following further discussion, the court also observed:

“Well, this is a summary proceedings and this Court has no discretion except to go ahead with a speedy trial, but I will reserve your rights and my own thought is to set this now for trial and a rehearing. You should proceed expeditiously if you’re going to pursue this matter further.”

Counsel heeded the court’s admonition. Within a few days, he had propounded interrogatories to Thomas M. Taylor of Huntsville, Alabama, and obtained and filed answers thereto. Concurrently, he sought, obtained and filed affidavits from Thomas M. Taylor, James F. Reddoch, J. George Mitnick and Joseph H. Engel, complying in all instances with the certification requirements for the filing of same. Counsel also filed a supporting affidavit in connection with his prior efforts to obtain the information set forth in the affidavits and answers to interrogatories.

Though counsel’s extensive efforts might have better been expended prior to the hearing on the eviction, we believe that there is an implication in the trial court’s observation that a rehearing would be granted provided “you can show me that there is newly discovered evidence” and that such implication does apply to those answers to interrogatories (and additional supporting documents) subsequently obtained and filed by counsel for Fo-Coin.

In this context, and confined to the particular and somewhat unusual aspects of this case, we conclude that the interests of justice are best served by permitting Fo-Coin an opportunity to fully develop its contention — based on this additional evidence — that the third party purchaser (ap-pellees here) had some notice of the lease situation at the time of their purchase of Beauregard Square Apartments.

We reach no conclusion as to what, if any, legal consequence would result from such factual determinations as might be made when this additional evidence is considered by the trial judge. We go no further than to conclude that the trial court, perhaps unintentionally and certainly in the best of good faith, seems to have offered and then, for all practical purposes, but without subsequent explanation, withdrawn the proffered opportunity for Fo-Coin to develop evidence which Fo-Coin, also in good faith, believed to be material to the outcome of the eviction proceeding. That evidence (regardless of the extent to which it may be controlling) has not, therefore, been accorded the consideration which was implicit in the trial court’s recorded observations as noted above.

Simply denying the continuance sought by counsel would not, in our view, have been a clear abuse of discretion and were the matter squarely before us on that issue, we would affirm. But we do not see that as the issue which now confronts us. We are of the view that this case must be remanded to the 24th Judicial District Court for the parish of Jefferson with directions to reset the matter for trial in order to allow consideration of the additional evidence adduced by counsel for Fo-Coin in the form of answers to interrogatories and other supporting documents which are relative to the question of whether or not appellees, Wagner and Truax, had constructive notice of the “lease” affecting the premises. The extent to which the district court may or may not be influenced by this evidence is entirely the prerogative of the able trial judge. We do, however, take note of the possibility that such evidence could be the basis for a conclusion that it fairly put the purchasers on notice to make further inquiry so that if they failed to take steps in that direction, then they may have sought the eviction on questionable grounds. See Pittsburgh Plate Glass Co. v. Woodcock, 150 So.2d 660 (La.App. 3rd Cir. 1963). All costs, including the costs of this appeal, are to await and be dependent upon the final outcome of these proceedings.

REMANDED.

LEMMON, Judge, dissenting from the Denial of Application for Rehearing and assigning reasons.

I vote to grant a rehearing, because the “newly discovered” evidence was irrelevant.

The act of lease was not registered in the name of the owner and was not effective against third parties. C.C. art. 2264. Defendant’s recourse is against the parties who leased the property to him and who failed to maintain him in peaceful possession.

      . For the purpose of executing the act of sale by which Mitnick, Taylor, Reddoch and Engel acquired ownership of Beauregard Square Apartments, Mitnick and Engel had, in fact, appointed Taylor as their agent. However, no specific authority to lease was included in that power of attorney.

      . The answers to interrogatories propounded to Thomas M. Taylor of Huntsville, Alabama, state that Mr. Taylor, d/b/a Tom Taylor Agency, was the authorized managing agent for the owners of the property and had authority to execute the lease. The new owners were (according to Taylor’s answers) given verbal notice of the lease at the act of sale. Various supporting affidavits were annexed to support the contention that the previous owners authorized Taylor to enter the lease with Fo-Coin Company.


source: Caselaw Access Project

license: Public Domain

text:
    Joan Ann Schnexnayder GAUTREAU, Individually, and as Natural Tutrix of the minors, Paul A. and Randy J. Gautreau v. Edmond DAVIS and the State of Louisiana, through the Louisiana Board of Highways and Department of Highways.
    No. 8335.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1977.
    Rehearings Denied Oct. 12, 1977.
    Writs Refused Nov. 23, 1977.

      Mengis, Roberts, Durant & Carpenter, Charles William Roberts, Baton Rouge, and James Allen Wayne, Sr., Donaldsonville, for defendants-appellants.
    Raymond B. Gautreau, Donaldsonville, for plaintiff-appellee.
    Before LEMMON, GULOTTA and BEER, JJ.
   BEER, Judge.

This is a suit by Mrs. Joan Ann Schex-nayder Gautreau, individually and as natural tutrix of her two minor sons, Paul and Randy, for the wrongful death of her husband, Warren A. Gautreau, who was shot to death on November 1,1973, at about 6:15 p. m. by defendant, Edmond Davis, who was employed by defendant, Louisiana Department of Highways (hereafter, the “Department”), as a toll collector on the Sunshine Bridge at Donaldsonville, Louisiana. Judgment was rendered in favor of plaintiff and against the defendants in solido from which the Department suspensively appeals, contending:

The trial judge manifestly erred in several particulars in the findings of fact. The trial judge erred in holding that the doctrine of self-defense was inapplicable under the circumstances present.
The trial judge erred in holding that the Department of Highways was guilty of actionable negligence, and that this negligence was the proximate cause of the harm suffered by plaintiff.
The trial judge erred in determining the quantum of damages without considering numerous mitigating factors adduced in the evidence taken at trial.
Davis devolutively appeals, contending: The trial judge erred in finding that the defendant, Edmond Davis, was guilty of negligence and that this negligence was the proximate cause of the harm suffered by plaintiff.
The trial judge erred in not ruling that Edmond Davis was acting in the scope of his employment with the Department of Highways and did nothing as an individual to cause the harm done.

Plaintiff answers the appeal, seeking an increase in quantum.

In written reasons for judgment, the trial judge outlined a chronological description of what took place on the evening in question, for which we find support in the record:

“The evidence shows that some weeks prior to the shooting, the decedent, Warren A. Gautreau, having crossed the Sunshine Bridge, operated by the State Department of Highways, ran out of gas near the toll booth located on the west side of the said Bridge in the Parish of St. James. Gautreau had asked Edmond Davis if he could buy any gas and was told by him that there was no gas available for the public. Gautreau pointed to the gas pump near the Administration Building but was told that that gasoline was for the use of State vehicles. When he started walking towards the pump, Davis called the police who came within a short period of time to investigate. They questioned Gautreau and then reported to Davis everything was all right. Several days thereafter Gautreau again crossed the Bridge and after paying his toll asked Melvin Davis, a brother of Edmond, using obscenity, if he was the one who called the police on him. Melvin said it was his brother, whereupon the decedent told Melvin to tell Edmond ‘Well, when you see him again, you tell him that I’m going to kick his ass.’
Some days later, according to the testimony of the Davis brothers, both Edmond and Melvin were on duty at about 6:15 P.M. on the evening of November 1,1973. Gautreau again crossed the bridge and paid his toll and while doing so used obscene and offensive language which was returned, in kind, by the two toll attendants. Gautreau, thereupon, drove and parked his truck near the Administration Plaza some 100 or more feet from the booth and then returned towards the booth bare-handed. Verbal abuse was hurled back and forth between the participants and then, according to the testimony of the Davis brothers, Gautreau unlatched the metal door of the booth, entered and took a swing at Edmond which missed. Edmond testified that he then reached for a revolver he kept on a nearby stool, which he had purchased the day before, and shot Gautreau in the chest. Then, according to Edmond Davis, Gau-treau continued to advance, whereupon, he shot him a second time in the leg. Gautreau turned around, walked back to his truck where after a short period of time he collapsed and died of internal hemorrhages as a result of the gunshot wounds.
The type and location of the toll booth is of material significance in this case. It is a rectangular shaped room about 12 feet long and about 4 or 5 feet wide located between the east bound and west bound traffic lanes of the Bridge. On each side of the building are two doors similar to Dutch doors. The top and inner portions fold back leaving closed the bottom metal half of the latched and closed door. There is a one step riser from ground level into the doorway. One or two attendants can collect fares from traffic traveling in either direction.
According to the Davis brothers, the decedent unlatched the door and entered into the booth jamming the two brothers into a corner. While jammed in this position and believing they were in eminent danger of death or great bodily harm, Edmond shot Gautreau. There is some testimony that blood was found at the entrance of the booth. Smith Eddie Garrison who was about 100 feet away, testified that he saw Gautreau in the booth. Dr. A. J. Nobel, Coroner of the Parish of St. James testified that there were no powder burns on the body of the decedent which would indicate, in his opinion, that the decedent was not within close range when he was shot.’’

The trial judge then discussed the liability of Davis, as follows:

“From observing the manner and demeanor of the witnesses on the stand and from reading the testimony in this case, this Court reaches the conclusion that the circumstances surrounding the incident were not sufficient for Edmond Davis to invoke the doctrine of self defense, as that doctrine is known and applied in the State of Louisiana to the extent of killing his opponent.
If a person is assaulted, he is justified in using the force necessary to repel his assailant but no more. In cases of personal conflict or during an altercation, in order to establish such a defense, it must appear that the defendant was assaulted and that the assault was of such character that he had apparent reason to believe and did believe that the design was to destroy his life; that his life was in danger or that he was in danger of suffering great bodily harm at the hands of his assailant; that the sudden, fierceness, or violence of the assault was such that he could not without great danger to himself refrain from slaying his assailant; that he only used such force as was necessary to protect himself, that he slew in honest self-defense and not for the purpose of inflicting vengenance upon an enemy. The degree of force used in self defense must not exceed the bounds of prevention and defense. This will depend upon the circumstances of the case, that is the character of the assault, taking into consideration the relative situation and condition of the parties.
Conceding that Gautreau was the aggressor in this altercation, the force used by Edmond Davis was, under the circumstances, in our opinion, excessive and beyond the bounds of legitimate prevention and self defense. No prior threats of great bodily harm had been made and the ability to inflict any harm is questionable because of the presence of the two brothers.
The record shows that on this occasion after engaging in mutual obscenities, Gautreau drove off and parked his truck at some distance from the toll booth. When he started walking back towards the booth Davis phoned the Sheriffs department in Donaldsonville. He observed that Gautreau had nothing in his hands or about his person. At the same time that he called the police, he could very well have closed the door to the booth. As stated above, the bottom portion of this Dutch type door is a solid and substantial metal door which when closed would have effectively prevented the entry of a bare handed assailant. Further, Davis testified that Gautreau reached into the booth and unlatched the door from the inside. When he was looking for the latch and unlocking the door Davis, if he had any inclination to peaceably prevent the assault, had ample time to retreat from the booth by means of the door to his rear. Then too, when we consider that this altercation was a continuing affair which . . . leaves the Court to believe that the design of the defendant was not to resist the assault of the decedent but rather to'inflict punishment upon an enemy.” (Emphasis ours.)

The court went on to a discussion of the liability of the Louisiana Department of Highways, observing as follows:

“The record shows that for many years, since 1964, it had been the policy of the Bridge Administration to prohibit the toll collectors to possess arms of any character. The purpose of this regulation aside from the danger inherent in fire arms was principally to protect the lives of the personnel in the event of hold-ups upon them. The evidence in this case shows that the superintendent at the time of this shooting had failed to give specific orders with reference to this policy to these employees and that his failure in this regard and his failure to discover that his employees were armed constituted actionable negligence. We are of the opinion that a toll paying passenger is a business guest or invitee and that the State owes him the duty of reasonable prior discovery of unobservable dangerous conditions of the premises and the correction thereof. Mitchell v. Aetna Casualty and Surety Co., La.App., 284 So. 2d 636.
Accordingly, we hold that Edmond Davis and the State of Louisiana through the Board of Highways and the Department of Highways are liable, in solido, for the injury and death of the said Warren A. Gautreau.”

A very careful consideration of the record compels the observation that there is a vast difference between the support that exists in the record for the ultimate trial court determinations which form the basis of finding liability on the part of Davis and that which can properly form any basis for liability on the part of the Louisiana Department of Highways.

For example, although Davis is depicted as being a small man, completely intimidated by the threatening and unwarranted approach of Gautreau, his own testimony reveals less than a complete desire to withdraw from the fray: “I told him (Gautreau) I couldn’t fight him because I was on my job, that I’d fight him after work, after I’d get off.” (Emphasis ours.)

As to whether the Davis brothers were actually “cornered” in the toll booth or, on the contrary, had an opportunity to retreat from the fight by means of a back door of the booth, testimony of witness Robert J. Mire indicates that he stopped at the toll booth to pay his toll, at which time he saw two black men “right at the doorway.” He heard someone say “get out of here,” then heard a shot and saw the two men, one holding a pistol, still moving towards the back of the booth.

The record confirms that Edmond Davis purchased the .22 pistol used in the shooting on the day before the occurrence. Davis contends the gun was bought in order to make a profit from its resale. Why, if this be true, was it necessary for Davis to bring the loaded gun to work?

In summary, while there is sufficient evi-dentiary basis for the trial judge’s conclusion that Davis failed to meet the burden of proving self defense, and our confirmation of his conclusion that “the design of the defendant was not to resist the assault of the decedent but rather to inflict punishment on an enemy” is clearly supportable, these very conclusions have a compelling effect on that part of the trial court decision which imposes liability on the Department of Highways. We turn to a consideration of that aspect of the trial court judgment.

In order for an employer to be held vicariously liable, the employee whose act has caused damage must be reasonably within the course and scope of his employment. Thus, a tortious assault is chargeable against the employer only when the action which forms the basis of the claim is reasonably incidental to the performance of employment duties or in furtherance of the employer’s business and not motivated by hatred or a desire to inflict punishment due to personal antagonisms. See LeBrane v. Lewis, 292 So.2d 216 (La.1974); Strawder v. Harrall, 251 So.2d 514 (La.App. 1st Cir., 1971). As stated in Murray v. Dominick, 236 So.2d 626 (La.App. 2nd Cir., 1970): “The liberal rule of interpretation accorded to the phrase ‘course and scope of employment’ in workmen’s compensation cases does not apply where an employee intentionally or maliciously inflicts injury upon third persons.” Yet, here the trial court finds as fact (and we agree) that:

1. “Verbal abuse was hurled back and forth between the two participants
2. The gun was purchased the day before the incident.
3. “At the same time he (Davis) called the police, he could very well have closed the door to the booth.”
4. “. . . (T)his altercation was a continuing affair which leaves the Court to believe that the design of the defendant was not to resist the assault of the decedent but rather to inflict punishment upon an enemy.” (Emphasis ours.)

Davis was neither authorized to use a firearm in connection with his duties nor was he supplied one, and there is absolutely no evidence that St. Germaine, Davis’ supervisor, knew, or had reason to know, that he had a' gun on the premises, particularly in view of the uncontested fact that Davis acquired the gun one day before the shooting.

We find no evidentiary or legal basis for the view that the Department of Highways was negligent and thus proximately responsible by failing to articulate a specific policy against the use of pistols by toll collectors. That entity was no more obliged to artieu-late such a policy with respect to this category of employee than with respect to other employees who work on the open road, or, for that matter, with respect to any employee.

The Ascension-St. James Bridge and Ferry Authority which had supervised the operation of the bridge until January 1, 1973, when the Department of Highways took over that function, had, apparently, orally informed the toll collectors that firearms should not be kept in the toll booths. Bernard Vetter, who had served as bridge manager for the Bridge & Ferry Authority and, for a brief period, as manager for the Department of Highways, testified that from January 1, 1973 until he left on March 31, 1973, there was an unwritten, word of mouth “policy” against toll collectors keeping a weapon in the toll booth. The apparent genesis of this so-called policy was in anticipation of a hold-up. If that took place, the toll collectors were instructed to “put their hands up and walk out and let them take it all.” Thus, the “policy” was, in fact, nothing more or less than a verbal exchange which Vetter had with newly hired employees, at the time of their hiring, which was precipitated by a concern for their own safety and protection. St. Ger-maine, the bridge manager at the time Davis was employed, was, himself, a Department of Highways employee. He testified that he knew of no policy regarding the possession of fire arms by the toll collectors nor had he issued any instructions in connection therewith.

Assuming, arguendo, that such a “policy” existed, and further assuming that Davis had not been so advised, it is both remote and speculative that such omission could be categorized as proximately resulting in Mr. Gautreau’s death, particularly in view of the trial court’s fact finding that:

1. The gun was bought the day before the shooting.
2. The shooting was by design and to inflict punishment upon an enemy.
3. The shooting took place many days after the original incident that caused bitter feeling to erupt between Davis and Gautreau.

Nor has plaintiff demonstrated by any evidence whatsoever that such a policy (even if existent) was designed to protect against the risk here encountered by the decedent. Mr. Vetter, the employee of the bridge authority and subsequently of the Department of Highways prior to the time that Davis was hired, testified that the specific purpose of the word of mouth admonition was “for the protection of the toll collectors.”

Furthermore, at all times pertinent to this case, the record can not support any finding that a “regulation” even existed nor, axiomatically, that St. Germaine “failed to give specific orders with reference to” such unproven regulation.

Likewise, the record does not support a finding that “actionable negligence” was “constituted” by St. Germaine’s “failure to discover that his employees were armed.”

It will serve-no useful purpose to elaborate on this beyond the point of simply noting that the foregoing legal conclusions are unsupportable on this record. To categorize the facts of this case as descriptive of a situation where the Louisiana Department of Highways breached a “duty of reasonable prior discovery of unobservable dangerous conditions of the premises and the correction thereof” is non-meritorious. The trial judge cites Mitchell v. Aetna Casualty and Surety Company, supra, but the facts of that case do not remotely compare to those here existent. Though we share the trial court’s well-placed concern for the unfortunate widow and children of decedent, we are constrained to the view that there is no defensible basis for the imposition of liability on the part of the Department of Highways.

In addressing the issue of quantum as raised by appellee’s answer to the appeal, we are of the view that the award is within the “much discretion” range. The record is incomplete with respect to Davis’ personal ability to respond to the judgment though, realistically, it is reasonably apparent that he does not likely possess the resources with which to respond in any substantial measure.

In this connection, we take note, for such use as a reviewing court may wish to make of it, that on the totality of this record, we would not have reached factual conclusions supportive of a finding of liability on the part of Davis. But we adhere to the properly imposed restraint which, in certain circumstances, enjoins us from reversing such finding by the trial court. However, such is not the case with respect to the imposition of liability on the part of the Department of Highways, where, on the facts and the law, the record leaves us no alternative but to reverse.

Accordingly, that part of the judgment of the 23rd Judicial District Court for the Parish of St. James dated September 20, 1976, which casts the State of Louisiana through the Louisiana Board of Highways and the Department of Highways in judgment is reversed and that claim is dismissed at ap-pellee’s cost. We affirm the judgment rendered in favor of Mrs. Joan Ann Schnex-nayder Gautreau, individually, and as natural tutrix of the minors, Paul A. and Randy J. Gautreau, and against Edmond Davis, in the amount of One Hundred, Sixty-Five Thousand and No/100 ($165,000.00) Dollars with legal interest from the date of judicial demand until paid. All parties to this appeal shall bear their own costs.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

LEMMON, J., concurs.

      . However, this view has not been altogether embraced. See footnote 3 in LeBrane v. Lewis, supra.

      . Note his affidavit filed pursuant to the provisions of LSA-C.C.P. Articles 5181, et seq.


author: GULOTTA, Judge. BEER, Judge,

text:
    Linda Fenton, widow of Ferrel J. JACOB v. GODCHAUX-HENDERSON SUGAR COMPANY, INC. and Travelers Insurance Company.
    No. 8636.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1977.
    Rehearing Denied Oct. 12, 1977.
    Writ Refused Nov. 23, 1977.

      Carville & Edrington, Richard L. Edring-ton, La Place, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Claude D. Vasser, New Orleans, for defendant-appellant, God-chaux-Henderson Sugar Co., Inc.
    Leach, Grossel-Rossi & Paysse, William G. Tabb, III, New Orleans, for defendant-appellant, Travelers Ins. Co.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

Defendants appeal from an award for death benefits in a workmen’s compensation case. Simply stated, it is defendants’ contention that plaintiff failed to carry the burden of proof required to establish that a fatal heart attack (myocardial infarction) suffered by the electrician-employee on the job site, before commencement of work activities, was work-related. We disagree. Accordingly, we affirm.

On the day of the fatal heart attack, June 17, 1975, Ferrel J. Jacob reported for work at the Godchaux-Henderson Sugar Company shortly before 7:00 a. m. His job as an electrician required running conduits, installing new equipment and doing maintenance work and involved climbing stairs and ladders as well as lifting and working with electrical motors. According to a coworker, Randall Payne, upon arriving at the electrical shop at about 6:45 a. m., he saw the decedent in the shop. A few minutes after the 7:00 a. m. starting time, both the coworker and the decedent went to the Char House, a building on the premises, where they were to continue installation of conduits on which they had worked the previous day. After they had been seated about ten minutes in the Char House and before the decedent performed any duties in connection with his work, Jacob commenced to complain of pain in the chest. They then walked back to the electrical shop, a distance of about 100 yards, and shortly thereafter the decedent reported to the Godchaux-Henderson first aid station. After Jacob had been seen by a doctor in the first aid room, he died in an ambulance en route to the Lutcher Hospital.

According to the coworker, Jacob had complained of chest pains, off and on, while at work, during a two-week period preceding the fatal heart attack. This coworker testified that the decedent had complained of pain just about once each working day and on most occasions they had continued with their customary duties, however, in some instances, because of decedent’s pain, they had stopped working.

Although not considered by the trial judge, but admitted by way of proffer, is the testimony of the same coworker who stated that the decedent had informed him that while mowing grass and spreading sand on a weekend approximately 10 days before the fatal attack, the decedent had felt the onset of chest pain. Decedent’s fatal heart attack occurred on Tuesday, June 17, 1975, and the chest pain occurred on the June 8-9, 1975 weekend. This witness further stated that Jacob had experienced chest pain while at work on the day-before his death.

Another coworker who had worked with decedent on the Saturday night before the Tuesday fatal heart attack testified that Jacob had experienced pain on that occasion while at work. This witness explained that they had been installing an 80-100 pound motor which they were required to lift to a height of approximately 2V2 feet above waist level. The coworker recalled that the decedent had complained of pain while they were transporting the motor to a platform to be installed but before they had lifted the motor. According to this witness, although Jacob complained of pain, he continued to do the work. Furthermore, the job that they were doing on that occasion was not out of the ordinary.

Plaintiff, decedent’s widow, testified that Jacob had not complained of chest pain on the weekend that he was spreading sand and mowing the lawn. She stated that her husband had never complained of any chest pain. According to her testimony, although Jacob had a history of high blood pressure, this was controlled with the use of medication.

Dr. R. C. Albrecht, the decedent’s treating physician, whose practice involved, to some extent, referrals of employees of industries located in St. John the Baptist Parish, explained, in deposition, that Jacob had a history of hypertension dating back to April, 1970. Dr. Albrecht saw the employee at the first aid room shortly after the heart attack. In answer to a hypothetical question whether the heart attack was caused by, contributed to or accelerated by decedent’s employment, the doctor indicated that because statistics show that as many heart attacks are suffered in hospitals or at home while resting as occur on the job while working, he did not feel that a person’s job would cause an attack. However, he pointed out that if the onset of chest pain occurred while a person was working or doing his job, it would be reasonable to assume that the work contributed to his heart attack. He added that if the onset occurred other than while a person is working at various duties not requiring strength, he would presume that the attack was not work-related. The doctor went on to say that if pain is experienced only when a person is actively working and not under other circumstances, it is safe to assume that the work is causing the symptoms. According to the doctor, if symptoms occurred during physical activity, it is safe to assume that the cause was this activity. The doctor added, however, that he was of the opinion that if Jacob had remained home that day from work, he would still have had a heart attack.

Dr. Melvyn F. Kossover, an internist, when confronted, in deposition, with a hypothetical question setting forth Jacob’s history of chest pain while spreading sand, which pain subsequently continued during his normal activities on the job, stated:

“A Chest pains are a pretty good indication of temporary or possible permanent damage to the heart. * * * So that if he had the onset of chest pains with this sand lifting situation, this could well be the first sign of damage to the heart. If the chest pains continued as he was doing his regular activities and the chest pains were the same type of pain, basically, then you can certainly say that the usual activities would further any damage that occurred as a result of the initial problem.”

The doctor went on to say that if symptoms continued during normal work activities, after the initial chest pain, it is more than likely that increased damage would result if the person had heart disease or arteriosclerosis. The death certificate indicated that myocardial infarction was the primary cause of death with a contributing cause of hypertensive cardiovascular disease. The doctor further indicated that if chest pains occurred away from work and continued during the everyday work activities of an electrician and he had not previously had pain for many years while involved in the same activities, it is fair to conclude that not only was the heart continuing to be damaged but that in fact the normal customary activities were exasperating the heart. The doctor finally concluded that the usual activities could cause further myocardial damage.

It is well-established that death resulting from a heart attack is an “accident” and “injury” within the meaning of the Workmen’s Compensation Act, LSA-R.S. 23:1021(1)(6); LSA-R.S. 23:1031; Roussel v. Colonial Sugars Company, 318 So.2d 37 (La.1975); Barnes v. City of New Orleans, 322 So.2d 821 (La.App. 4th Cir. 1975), application denied, 325 So.2d 584 (La.1976); Fields v. Sperry Rand Corporation, 343 So.2d 339 (La.App. 2d Cir. 1977). It is equally well-established, however, that disability or death benefits are compensable only if the disability or death results from a work-related accident. This question is generally one of fact. See Roussel v. Colonial Sugars Company, supra; Fields v. Sperry Rand Corporation, supra; Prim v. City of Shreveport, 297 So.2d 421 (La.1974). In this connection, death benefits are due in compensation cases involving heart attacks, whether or not the heart condition is preexisting, when the attack is caused, precipitated, accelerated or aggravated by the usual and customary activities directly connected with the employment. See Leleux v. Lumbermen’s Mutual Insurance Company, 318 So.2d 15 (La.1975); Roussel v. Colonial Sugars Company, supra; Vicknair v. Avondale Shipyards, Inc., 220 So.2d 580 (La.App. 4th Cir. 1969), cert. denied, 254 La. 285, 223 So.2d 409 (1969); Ferguson v. HDE, Inc., 264 La. 204, 270 So.2d 867 (1972). The Louisiana Supreme Court in the Rous-sel case stated at page 39:

“* * * jjencej it is 0f no significance that the heart attack could have occurred at another time and place if, in fact, the accidental injury occurred on the job. Further, it is not necessary that the accident resulting in disability or death be caused by extraordinary activities of the employee, or that said activities be the exclusive cause of the accidental injury. As previously stated, it is only necessary that the death or disability resulting from the accidental injury be caused or precipitated by the usual and customary actions, exertions and other factors directly connected with the employment. * »{: * tt

Applying the pronouncements in the Roussel case to the facts of our case, we cannot say the interpretation of the medical and lay evidence by the trial judge (resulting in a finding that the heart attack and death were work-related) is unreasonable. Although our interpretation of the evidence may lead to a different result, we cannot substitute our conclusions for the reasonable conclusions of the trial judge. The record supports the factual findings of the trial judge. Under these circumstances, his findings will not be disturbed. See Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Accordingly, the judgment is affirmed.

AFFIRMED.

BEER, J., concurs.

BEER, Judge,

concurring.

In view of Roussel v. Colonial Sugars Company, supra, the majority opinion is cogent and unassailable. Nevertheless, my concern remains unresolved.

Somewhere along the way, heart attacks resulting in death at the job site have been placed in juxtaposition with course and scope of employment, so that a virtually irrebuttable presumption — at least from any practical evidentiary standpoint — now exists in favor of the heirs of the stricken employee.

What is the result? The employer faces an exculpatory evidentiary burden that he cannot possibly hope to carry. Rendered essentially meaningless in the wake of this sociological achievement is the apparently antiquated rule regarding plaintiff’s burden of proof. Worst of all, it is paid lip service —and, thus, more effectively denuded than if totally ignored.

      . A conduit is described in the record as a pipe with wires running through it.

      . One of defendants’ complaints on appeal is that the trial judge erroneously failed to consider that part of a coworker’s testimony relating to decedent’s statements to the coworker that decedent’s chest pain started over a weekend while decedent was doing yard work. We are in agreement with defendants’ contention and have considered the proffered testimony as competent evidence.


author: LEMMON, Judge.

text:
    Charles HARRISON v. ABRY BROTHERS, INC.
    No. 8640.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1977.
    Rehearing Denied Oct. 12, 1977.
    Writ Refused Dec. 2, 1977.
    Frank S. Bruno, New Orleans, for plaintiff-appellee.
    Molony, Nolan, North, Riess & Hall, Bruce A. North, New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA and BEER, JJ.
   LEMMON, Judge.

This is an appeal by plaintiff’s employer from a judgment awarding workmen’s compensation benefits for permanent partial disability, as well as penalties and attorney’s fees. On appeal defendant questions (1) the sufficiency of the evidence supporting the finding of disability caused by the accident and (2) the finding that it was unreasonable in terminating benefit payments.

Plaintiff had been employed by defendant as a laborer in the house shoring and moving business since September, 1971. He was injured on the job on January 18, 1973 when a trailer hitch fell on his right foot, causing undisplaced fractures of the first and second metatarsal bones. Defendant instituted compensation payments and referred plaintiff to Dr. D. M. Ewin, a general surgeon, for treatment.

When the fracture was healing satisfactorily after six weeks, Dr. Ewin removed the walking cast and prescribed special shoes for support. Improvement continued, and on April 3,1977 plaintiff was advised to return to work with continuing treatment, but went back to the doctor after one day of work with reports of severe pain. Dr. Ewin recommended a metatarsal pad and an orthopedic consultation with Dr. George Berkett.

Plaintiff complained to Dr. Berkett of pain under the great toe. The doctor’s examination revealed diffused tenderness of the walking surface of the foot at the head of the great toe, callosity over the heads of the first, third and fifth metatarsals, a ca-vus foot (high arch in the foot) which caused “clawing” of the toes, and a hallux valgus deformity (a deformity in which the great toe is bent away from the other toes). He opined that the cavus foot and hallux valgus deformity pre-dated the accident and were not aggravated by the trauma. The doctor recommended a higher shoe correction and anticipated complete recovery, since the fractures were not displaced and did not extend into the joint.

On May 2,1973 plaintiff again attempted to return to work on Dr. Ewin’s advice, but complained of continued pain after standing for several hours. Defendant’s officer instructed him to seek further medical attention, which he did.

On May 11 Dr. Berkett, although noting plaintiff’s statement of no improvement, opined that plaintiff could return to work and that any temporary residual disability (estimated at 10% to 15% of the foot and based on plaintiff’s complaints which were consistent with the relatively recent injury) which plaintiff “may have” should subside and would cause no interference with employment duties. On May 15 Dr. Ewin, finding no swelling, also discharged plaintiff and recommended that he return to work.

On the basis of these reports defendant terminated compensation benefits after payment through May 18.

Plaintiff did not return to work with defendant, but about a month later went to work for a moving company as a packer. (At time of trial in February, 1976 he was still engaged in this type of work). In the meantime plaintiff had consulted an attorney who demanded reinstitution of benefits and then filed suit in July after his demand was rejected.

In October, 1973 plaintiff returned at defendant’s request to Dr. Berkett who found a full range of motion and callosities over the three unaffected metatarsals. He stated his belief that plaintiff had completely recovered without residual disability.

In December, 1973 plaintiff consulted Dr. Frank Chalaire, a general practitioner, who found tenderness in the metatarsal area and the hallux valgus deformity, which he considered to be related to the fracture or to periostitis (inflammation of the perioste-um, the membrane which covers bones). He also diagnosed arthritic residual from the trauma. When plaintiff reported no relief after several weeks of treatment, Dr. Chalaire recommended orthopedic consultation.

In July, 1974 plaintiff consulted Dr. Mat-ko Milicic, an orthopedic surgeon, who found tenderness and calluses on the right foot under the metatarsal heads and the hallux valgus deformity (which he considered unrelated to the accident). He diagnosed metatarsalgia (pain in the metatarsus) which he attributed to the fracture because of the calluses and tenderness and because plaintiff had reported no such pain prior to the accident. He believed the discomfort (primarily from swelling after prolonged standing) was not so severe as to prevent gainful employment, but that the residual partial disability, estimated at 5% to 10% of the foot and 3% to 5% of the leg, was permanent.

At trial plaintiff testified that he still suffered pain under the toes upon standing for more than two hours. He denied that any tenderness, callosity or hallux valgus deformity existed prior to the accident.

Existence of Disability and Causation

The medical evidence, outlined in detail above, provides sufficient support for the finding of permanent partial disability attributable to the accident.

All of the doctors agreed plaintiff’s persistent complaints were consistent with the injury sustained. Furthermore, the 37-year old plaintiff had a record of consistent work in heavy labor from the age of 16 and had never previously complained of problems in his right foot. On the basis of this fact, together with the opinion of Dr. Mili-cic, we affirm the finding that plaintiff sustained a permanent partial impairment of function which was caused or aggravated by the accident.

Applicable Schedule of Payment

The trial court award of benefits at $12.50 per week for a maximum of 175 weeks was apparently based on R.S. 23:1221(4) (o) and (h), relating to partial loss of function of a leg. Citing Babineaux v. Great American Ins. Co., 245 La. 718, 160 So.2d 591 (1964), defendant argues that the court should have applied Section 1221(4)(g), which involves the loss of function of a foot.

The Babineaux case held that a carpenter, who had suffered an amputation at the first interphalangeal joint of his left index finger, was not entitled to compensation based on partial loss of function of the hand, but was limited to recovery in accordance with the injury schedule which specifically listed loss of a finger.

Some subsequent decisions have distinguished the Babineaux case when the evidence established that the degree of injury or amputation of one or more fingers has caused significant loss of use or function of the hand. See, for example, Mullins v. National Food Stores of La., Inc., 175 So.2d 19 (La.App. 4th Cir. 1965).

In workmen’s compensation cases great weight should be accorded the trial court’s conclusions as to the extent of disability. However, such conclusions must be supported by competent medical evidence.

In the present case there was no medical testimony whatsoever that the injury to plaintiff’s foot caused any loss of function of the leg. The only medical expert who mentioned any permanent disability of the leg admitted that he arrived at that disability rating by the mechanical formula of reducing the estimated disability of the foot by one-half. Such a method of assigning disability cannot alone support the judgment, without any other evidence that the injury actually affected the function of the leg.

The award should therefore be reduced to 125 weeks of compensation at the minimum rate.

Penalties and Attorney’s Fees

At the time defendant terminated compensation payments the medical opinion was unanimous that plaintiff could return to work without substantial pain and that no permanent disability existed. Although Dr. Berkett did state that plaintiff “may have” temporary partial disability based on plaintiff’s consistent complaints and the re-cency of the injury, he declined after the October examination to assign any partial disability, permanent or temporary, attributable to the accident.

When plaintiff was subsequently examined by doctors who expressed a contrary opinion as to permanent partial disability, defendant was reasonably justified in relying on the opinion of the original treating and consulting physicians. Under these circumstances we deem reasonable and non-arbitrary (1) defendant’s initial decision to terminate compensation and (2) its subsequent decision to defend the suit based on conflicting medical evidence, on which reasonable persons could draw different conclusions. We conclude that defendants reasonably terminated benefits based on uncontradicted medical opinion that plaintiff could return to work and that his residual complaints would not interfere with his duties and would subside in time. Defendant further had the right, when the conflict of medical opinion occurred, to a judicial determination of whether any partial disability existed and, if so, whether such disability was attributable to the accident. See Lovisa v. Employers Ins. of Wausau, 343 So.2d 390 (La.App. 4th Cir. 1977).

Accordingly, the judgment of the trial court is amended to delete the award of penalties and attorney’s fees and to reduce the maximum period for payment of benefits to 125 weeks. As amended, the judgment is affirmed.

AMENDED AND AFFIRMED.

      . There is some dispute as to proper payment of the last week of benefits. The record, however, clearly establishes that the May 18 check was drawn by defendant and made available to plaintiff where he customarily picked up his checks. Plaintiff apparently failed to do so because he had already hired an attorney. Apparently because of clerical confusion, the check was not forwarded to plaintiffs attorney until July 31, but these circumstances do not warrant imposition of a penalty.

      . Plaintiff had suffered severe injuries to his left foot and leg in a childhood accident.

      . In Breen v. Bituminous Cas. Co., 249 So.2d 338 (La.App. 4th Cir. 1971), relied on by plaintiff, the court, in imposing the penalty, specifically found that there was never a dispute as to the fact of permanent partial disability attributable to the accident.

      . The thrust of plaintiffs argument is that defendant should have paid benefits for partial disability after May 18. There was no medical basis at that time for benefits for permanent partial disability under R.S. 23:1221(4)(o) or for any specific injury scheduled on Subsection (4). Furthermore, R.S. 23:1221(3)’s provision for benefits payable on account of partial disability to do work of any reasonable character was inapplicable by its terms under the only medical opinion then available.


author: STOULIG, Judge.

text:
    Robert JASMIN v. GAFFNEY, INCORPORATED, and Northern Assurance Company.
    No. 8860.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 12, 1977.
    Rehearing Denied Oct. 12, 1977.

      Drury, Lozes & Curry, James H. Drury, New Orleans, for relators.
    Charles R. Chesnutt, III, New Orleans, for respondent.
    Before SAMUEL, REDMANN and STOULIG, JJ.
   STOULIG, Judge.

Relators, Gaffney, Incorporated, and Northern Assurance Company, seek to have this court exercise its supervisory jurisdiction by ordering reinstated their suspensive appeal from a judgment in favor of respondent, Robert Jasmin, for total and permanent compensation' benefits, which appeal relators voluntarily dismissed with prejudice.

A résumé of the pertinent proceedings involved in this writ reflects on February 18, 1975 relators perfected a suspensive appeal from the judgment awarding plaintiff workmen’s compensation benefits by posting a security bond of $49,329.90. In October of 1975, while the appeal was pending, counsel for the respective litigants agreed upon a settlement of $14,500. In order to have the record returned to the trial court for the purpose of obtaining the judicial approval of settlement required by R.S. 23:1272, counsel for relators-appellants did cause the appeal to be dismissed with prejudice on October 22, 1975, stating in the motion for dismissal “ * * * that the within matter has been settled and compromised * * The respondent-employee refused to accept the settlement negotiated by his attorney.

Further negotiations were entered into between counsel, and by mutual agreement in April 1976 the settlement was increased to $18,000. This proposal was tentatively submitted to the district judge, who indicated his approval conditioned upon its submission in a joint verified petition as required by R.S. 23:1272. Because of his confinement to the State Penitentiary, respondent could not personally appear before the district judge and it was necessary for his attorney to take the required documents to him for his signature. Again respondent refused to accept the settlement negotiated by his counsel, whom he later discharged and retained his present attorney.

In April 1977, respondent filed a rule to accelerate all of the payments due under the judgment, and a counter rule was filed by the relators, seeking to have the judgment reduced to $18,000, the sum mutually agreed upon by counsel and verbally approved by the district judge. Relators’ rule was dismissed by the district court. In its writ application, relators seek to have the $18,000 settlement recognized or, alternatively, to have this court reinstate their suspensive appeal.

Relators’ request that the judgment for total and permanent workmen’s compensation benefits be reduced to $18,000 (the figure agreed upon by counsel) must be denied because the compromise is not in writing as required by C.C. art. 3071, nor does it comply with the mandatory provisions of R.S. 23:1272 et seq., necessary to effect a valid compromise of workmen’s compensation benefits.

However, we are of the opinion that the relators are entitled to have their sus-pensive appeal reinstated. Unquestionably respondent’s attorney was acting on behalf of his client, and both counsel negotiated in good faith a settlement which each deemed fair and equitable. The proposed settlement of $14,500, though not a compromise, was in effect an unenforceable agreement to compromise. In fulfillment of this agreement and acting under an error of fact, relators’ attorney, proceeding on the mistaken belief that the proposed settlement had been approved by the employee, did cause the dismissal of the suspensive appeal — the relinquishment of a substantial right. The motion for dismissal filed by the relators recites “ * * * that the within matter has been settled and compromised * * * >7

Obviously the relators proceeded under the error of fact that the contract or agreement to compromise was approved by the respondent and would be formalized into a valid compromise agreement under the existing compensation statutes and Civil Code article. This error in motive prompted the surrender of its substantial right to have the correctness of the trial court’s compensation judgment reviewed by the appellate court.

The court is of the opinion that under the provisions of C.C. art. 1825 the error in the cause of the contract (the agreement to have the appeal dismissed because of compromise of the compensation judgment) produced the legal effect of invalidating both the agreement and the action in pursuance thereof by the relators in dismissing their suspensive appeal. Therefore, the order dismissing the appeal is voidable.

For the reasons assigned, the order dismissing appellants’ appeal is recalled, vacated, and set aside and relators’ suspensive appeal is reinstated as of October 22, 1975 nunc pro tunc. The Honorable Gerald E. Fedoroff, Judge of Division “E” of the Civil District Court for the Parish of Orleans, is directed to transmit to this court the record in this proceeding.

ORDER OF DISMISSAL RECALLED, VACATED AND SET ASIDE; SUSPEN-SIVE APPEAL REINSTATED.

      . Because the judgment sought to be compromised was not a final judgment, the provisions of R.S. 23:1274 are inapposite.

      . “The error in the cause of a contract to have the effect of invalidating it, must be on the principal cause, when there are several; this principal cause is called the motive, and means that consideration without which the contract would not have been made.” C.C. art. 1825.


author: STOKER, Judge.

text:
    Lillian B. DESHOTEL, Individually and as Duly Confirmed Natural Tutrix of the minor, Dean Deshotel, Plaintiff-Appellant, v. CASUALTY RECIPROCAL EXCHANGE et al., Defendants-Appellees.
    No. 6010.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 20, 1977.
    Rehearing Denied Oct. 11, 1977.
    Writ Refused Dec. 9, 1977.

      Jackson, Smith & Ford by Chris Smith, III, Leesville, for plaintiff-appellant.
    Brame, Bergstedt & Brame by Joe Brame, Lake Charles, Knight & Knight by William N. Knight, Jennings, for defendants-appellees.
    Before CULPEPPER, WATSON and STOKER, JJ.
   STOKER, Judge.

This is a suit for damages growing out of personal injuries sustained by the minor, Dean Deshotel, in an automobile accident. Plaintiff is the mother and confirmed tutrix of Dean Deshotel. The suit was filed against Glenn West, Sr., father of the minor Glenn West, Jr. and the automobile insurer of Glenn West, Sr., which is Casualty Reciprocal Exchange.

The trial court sustained exceptions filed by Glenn West, Sr. These were (1) exception to the citation and service of process and (2) lack of jurisdiction over the person of Glenn West, Sr. Plaintiff has appealed from the judgment of the trial court sustaining these exceptions filed by Glenn West, Sr.

The issues presented in this appeal are as follows:

(1) Was Glenn West, Sr. domiciled in Arkansas subsequent to moving to Little Rock, Arkansas from Jennings, Louisiana, on November 4, 1975?
(2) If Glenn West, Sr. was domiciled in Arkansas, could he be subjected to the jurisdiction of a court of this state through service of citation and process under LSA-R.S. 13:3201 or LSA-R.S. 13:3474?

DOMICILE OF GLENN WEST, SR.

The trial court found that Glenn West, Sr. had been domiciled in the State of Arkansas since November 4, 1975, which was nearly five months prior to the accident in Jefferson Davis Parish on April 2, 1976, which gave rise to plaintiff’s cause of action. The trial court’s findings of facts and his conclusions of law on this question are correct. We find that Glenn West, Sr. was domiciled in Arkansas from and after November 4, 1975. We disagree, however, with the trial court’s holding that it had no personal jurisdiction over Glenn West, Sr.

SERVICE OF CITATION AND PROCESS

Plaintiff’s initial petition alleged that Glenn West, Sr. was a resident of Jefferson Davis Parish, Louisiana. The suit was amended and plaintiff alleged that West was a non-resident of Louisiana, and West’s wife was made a defendant on the ground that young West was in the mother’s custody in Jefferson Davis Parish, Louisiana, and Mrs. West was solidarily liable with her husband for the torts of their son. By further amendment plaintiff asserted that Glenn West, Sr. was a domiciliary of Louisiana temporarily residing in Arkansas, or alternatively he was a non-resident of Louisiana. For the purpose of effecting service on West as an absentee, plaintiff sought and obtained appointment of a curator ad hoc. On the basis of the alternative allegation, plaintiff sought service under LSA-R.S. 13:3474 et seq the “Non-Resident Motorist Statute,” through the Secretary of State of the State of Louisiana.

In a third amendment plaintiff sought to serve Glenn West Sr. through the Louisiana Long-Arm Statute, LSA-R.S. 13:3201 et seq.

The trial court ordered dismissal of the suit against Glenn West, Sr. for lack of jurisdiction over him. It also ruled that service of citation and service of process were insufficient under both of the two statutes. Insofar as the Long-Arm Statute is concerned, we pretermit any discussion of its applicability in view of our holding below that service was available under LSA-RS 13:3474 et seq.

SERVICE OF CITATION AND PROCESS UNDER NON-RESIDENT MOTORIST STATUTE

The trial court held that LSA-RS 13:3474 et seq was inapplicable on the authority of Ehrhard v. State Farm Mutual Insurance Company, 274 So.2d 911 (La.App.1st Cir., 1973). It is our opinion that this statute, Non-Resident Motorist Statute, is applicable and that service of citation and process under it was valid and brought defendant Glenn West, Sr. within the jurisdiction of this court.

The pertinent facts are these. West and his wife separated in fact in July of 1975. He moved to Arkansas on November 4, 1975. No legal separation or divorce was obtained. Glenn West, Jr. was involved in the automobile accident giving rise to this litigation on April 2, 1974. The son had remained with his mother in Jennings and had physically resided with her at all times and was residing with her at the time of the accident.

The case of Ehrhard v. State Farm Mutual Insurance Company, supra, with respect to the point relied upon by the trial court, was concerned with an automobile insurance policy exclusion clause and the interpretation of the term “resident of the same household” in connection with the application of the non-owned automobile exclusion clause. The minor son in that case had a vehicle of his own but was driving his father’s car when the accident occurred in Louisiana. The same insurer had insured both vehicles under separate policies. The son was in the Navy, was stationed in Atlanta, Georgia, and had completed one and one-half years of a three year enlistment. The insurer contended the son was a resident of his father’s household, and while insurance coverage existed under the father’s policy, the insurer denied there was coverage under the son’s policy. The court found coverage under both policies. The court held that the son’s domicile remained that of his parents but that “his residence had clearly changed to Atlanta, Georgia, and was plainly under the control of the military authorities.” The court’s opinion pointed out that the policy language in question did not concern the legal concept of domicile. Rather, it was concerned with the definition of the term “relative” as used in the policy which was defined as “relative means the relative of the named insured who is a resident of the same household.” It was pointed out that insurance policy exclusionary clauses are strictly construed and doubt and ambiguity of meaning is construed against the insurer who wrote the policy. If the insurer had wished to provide domicile as the test rather than residence, it should have so provided.

This court has reached a similar conclusion in interpreting insurance policy coverage where a major son was involved. See this circuit’s case of Branam v. Traders and General Insurance Company, 344 So.2d 1073 (La.App.3rd Cir. 1977).

Granting the correctness of the Ehrhard case, it has no application here since the question is jurisdiction and the reach of service of citation and process under LSA-RS 13:3474 et seq. This statute makes the use of Louisiana highways by non-residents equivalent to appointment of the Secretary of State of Louisiana as their agent for service of process. The statute also provides that such use by a person for whom a non-resident is legally responsible has the same effect as to the non-resident, and the latter may be served under and through the statute for the conduct of the person for whom he is responsible.

In the brief filed on behalf of Glenn West, Sr. as exceptor it is conceded that “this statute would have application only if Glenn West, Sr. was legally responsible for the damage alleged to have been occasioned by his minor child.” Under facts almost identical to those of Glenn West, Sr. and his son here, this court held that the father’s parental authority under Civil Code Article 2318 continues unstinted and he, not the mother, is the parent legally responsible for the minor’s torts. Guidry v. State Farm Mutual Automobile Ins. Co., 201 So.2d 534 (La.App.3rd Cir. 1967).

The Louisiana Supreme Court has construed the Civil Code Article 2318 in Williams v. City of Baton Rouge, 252 La. 770, 214 So.2d 138 (1968). Article 2318 provides as follows:

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

In Williams the parents’ liability under Article 2318 was held to be vicarious. This concept was considered further by this circuit in Deshotel v. Travelers Indemnity Company, 231 So.2d 448 (La.App.3rd Cir. 1970) affirmed, 257 La. 567, 243 So.2d 259 (1971). This case held that the parents’ liability is not based upon a presumption of fault for having failed to properly supervise and train the minor. It is absolute liability arising out of the parent-child relationship.

In view of the absolute nature of a parents vicarious liability under Article 2318 and our holding in Guidry v. State Mutual Automobile Ins. Co., supra, we are constrained to hold as follows: The provision of Civil Code Article 2318 which appears to hinge the liability of a parent for the torts of a minor child upon his (the minor’s) residing with him, or her as the case may be, does not refer to actual place of physical residence in all cases. While this precise point was not at issue in Guidry, such is the obvious conclusion which follows from it. This is the effect of the holding in Taylor v. State Farm Mutual Automobile Ins. Co., 248 La. 246, 178 So.2d 238 (1965), affirming this court.

In the Taylor case a minor left the residence of his parents in Arkansas and came to Louisiana where he was involved in an accident. The Louisiana Supreme Court, in affirming this circuit, held that the minor was still a resident of his father’s household in Arkansas. Exceptor attempts to distinguish the Taylor holding on the ground that the Supreme Court observed in Taylor that there was no evidence that the minor had made a permanent residence in Louisiana at the time of the accident. 178 So.2d 243. Neither is there any such evidence as to Glenn West, Jr. In fact, the only way such an intention could have been shown would have been the circumstance absent here of the mother obtaining a custody award incident to a suit for separation or divorce.

We hold that the responsibility of the father under Article 2318, where it has not passed to the mother, remains fixed irrespective of actual residence, and liability continues with the only exception being those cases where the State has exercised its sovereign right and power and has superseded parental authority. In such cases the authority and liability of the parent is suspended. Williams v. City of Baton Rouge, supra. On this basis, the case of Ehrhard v. State Farm Mutual Insurance Co., supra, may be distinguished in addition to the fact that the issue there was interpretation of an insurance contract rather than retention of authority and liability of a parent with respect to his minor child.

We regard it as well settled that a minor can have no other domicile than that of his father until it is changed in some manner provided by law. Watkins v. Cupit, 130 So.2d 720 (La.App.1st Cir. 1961); McInnis v. Terry, 121 So.2d 329 (La.App.1st Cir. 1960); Toca v. Rojas, 152 La. 317, 93 So. 108 (1922) and Louisiana Civil Code Articles 39 and 2318.

In Guidry v. State Farm Mutual Automobile Insurance Co., supra, the mother and father were divorced in Arkansas. The father remained in Arkansas but the mother and minor tort-feasor moved to Louisiana. The Arkansas divorce decree made no mention of custody of the children of the marriage. When the minor’s accident occurred in Louisiana, the mother was sued. She contended the father in Arkansas was responsible for the torts of the minor. This court so held. In this case, Mr. and Mrs. Glenn West are merely separated in fact. At the time the record in this case was made-up, neither a suit for separation from bed and board nor divorce had been instituted. Hence, the holding of Guidry applies to this case with perhaps more force than in Guidry itself. It is also pertinent to pose this question: If Glenn West, Sr. does not have legal custody of his son and therefore authority over him under Civil Code Article 216, who does? Mrs. West could ask that she be given custody in the event she filed a suit for separation or divorce, but she had not done so at the time of the accident in which her son was involved or at the time Glenn West, Sr. was served under LSA-RS 13:3474. If this case were to be decided on the mere question of physical residence with the mother, or physical absence from Glenn West, Sr. neither parent would be responsible under Article 2318 of the Louisiana Civil Code.

As a conclusion to this question we quote the following from the decision in Guidry:

The liability of the parent or tutor with legal custody is not unqualified however, and liability does not attach where the parental or tutorial authority has been destroyed or suspended by operation of law. Redd v. Bohannon, 166 So.2d 362 (La.App.3rd Cir. 1964) certiorari denied (induction into the military service); Jackson v. Ratliff, 84 So.2d 103 (Orl.App.1955), noted Tul.L.Rev. 504 (1956). It is important to note that under our jurisprudence, parental authority (and therefore parental liability) is not terminated by the mere physical absence of the minor from the custodial parent’s place of abode. LaRue v. Adam, 59 So.2d 839 (La.App.Orl.1952); Maloney v. Goelz, 12 La.App. 31, 124 So. 606 (Orl.La.App.1929); Toca v. Rojas, 152 La. 317, 93 So. 108 (1922); Watkins v. Cupit, 130 So.2d 720 (La.App.1st Cir. 1961), noted 36 Tul.L. Rev. 330 (1962).

For the foregoing reasons we reverse the judgment of the trial court and judgment is rendered in favor of the plaintiff, Lillian B. Deshotel, individually and as the natural tutrix of the minor Dean Deshotel and against defendant and exceptor, Glenn West, Jr. We overrule the exception filed by him to the citation, service of process and personal jurisdiction of the Thirty-First Judicial District Court for Jefferson Davis Parish, Louisiana. This case is remanded for further proceedings not inconsistent with the views expressed in this opinion.

REVERSED AND REMANDED.

      . Article 216 of the Louisiana Civil Code provides as follows:
      A child remains under the authority of his father and mother until his majority or emancipation.
      In case of difference between the parents, the authority of the father prevails.

      . Whether this policy of the law may still be realistic sound, or equitable in view of modern-day practices or in accord with our own personal conceptions, the issue is one for legislative relief rather than judicial. See Justice Bar-ham’s concurring opinion in Williams v. City of Baton Rouge, 252 La. 770, 214 So.2d 138 (1968).


author: CULPEPPER, Judge.

text:
    Leanna Mathews BARNES et al., Plaintiffs and Appellants and Appellees, and Mary Ann Dunbar Wilkerson et al. v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants and Appellees and Appellants.
    No. 6101.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 20, 1977.
    Rehearings Denied Oct. 11, 1977.
    Writs Refused Nov. 23, 1977.

      William J. Doran, Jr., Baton Rouge, for defendants and appellees and appellants.
    Neblett & Führer by Robert B. Neblett, Jr., Daniel E. Broussard, Jr., Alexandria, for plaintiffs and appellants and appellees, Obie Mae Jefferson and Dorothy Mae Wilkerson.
    Sandoz, Sandoz & Schiff by Leslie J. Schiff, Opelousas, for plaintiffs and appellants and appellees, Leanee Mathews Barnes et al.
    James A. Bolen, Jr., Alexandria, for defendants and appellees and appellants, Prassel Enterprises.
    Reeves, Lossen & Owens by R. R. Reeves, Jr., and Jack F. Owens, Jr., Harrisonburg, for plaintiffs and appellants and appellees.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   CULPEPPER, Judge.

This is a companion case to Jefferson et al. v. Liberty Mutual Company et al., La. App., 350 So.2d 294, in which a separate opinion is being rendered today.

These cases involve wrongful death actions brought by the survivors of four men killed when the pickup in which they were riding collided with a tractor-trailer unit on the Old River Bridge on U.S. 84 in LaSalle Parish.

Plaintiffs in the present case are the widows and surviving children of Willie Y. Barnes and George A. Wilkerson. Plaintiffs in the companion case are the widows and surviving children of Jett Riley Jefferson and George Wilkerson.

Named as defendants are: Anderson Allen, Jr., the driver of the tractor-trailer; Prassel Enterprises, Inc., Allen’s employer and owner of the tractor-trailer; Liberty Mutual Insurance Company, the insurer of Prassel and Allen; and the State of Louisiana, through its Department of Highways. Liberty Mutual and its insured filed a third party demand against the Department of Highways for indemnity and/or contribution. The Department of Highways also brought a third party demand against Mutual and its insured.

The trial court rendered judgment in favor of the plaintiffs against only the Department of Highways. The other defendants were exonerated from liability. Plaintiffs and the Highway Department filed motions for a new trial. After learning that technical difficulties prevented portions of the testimony in the original trial from being transcribed, the trial judge granted a new trial. The new trial was limited to the taking of testimony of the witnesses whose earlier testimony could not be transcribed. At the retrial, the trial judge reaffirmed his earlier judgment. Plaintiffs and the Highway Department appealed.

Plaintiffs ask that the trial court judgment be affirmed with regard to the Highway Department but reversed with regard to Prassel Industries, Inc., Anderson Allen, Jr. and Liberty Mutual, whom they feel should be cast with the State of Louisiana for damages. Plaintiffs also ask for an increase in damages awarded.

The Highway Department in its appeal asks for a reversal of the trial court judgment which dismissed the claims against Anderson Allen, Jr., Prassel Enterprises, Inc., and Liberty Mutual and found only the Highway Department liable. The Highway Department also argues the trial court erred in the amount of damages awarded and asks that this amount be reduced.

ISSUES

The substantial issues on appeal are: (1) Was the Department of Highways negligent as to the inspection and maintenance of the surface of the Old River Bridge? (2) Was Anderson Allen, Jr., the truckdriver, guilty of negligence which was a legal cause of the accident? (3) Are the awards excessive or inadequate?

GENERAL FACTS

The decedents were killed when the pickup in which they were riding, and which was owned and operated by George Wilkerson, collided with the tractor-trailer owned by Prassel and driven by Allen. The collision occurred shortly after 4:00 p. m. on August 17, 1973 as the vehicles were crossing the Old River Bridge on U. S. Highway 84, approximately 6V2 miles east of Jena, Louisiana. It had rained intermittently that afternoon and the roadway was wet. The bridge is on a straight section of the highway and visibility is not impaired.

U. S. Highway 84 is a two-lane highway going east and west. At the time of the accident, the Wilkerson vehicle was proceeding east across the 1,000 foot long bridge, and the Prassel truck was going west. The collision occurred in the east bound lane, the proper lane of travel for the pickup. On impact, the pickup was knocked backwards approximately 125 feet, and the tractor-trailer continued to the west for a distance of about 220 feet. The tractor spun around and came to rest on the south bridge railing heading east. The trailer, which had broken loose from the tractor, headed into the north bridge railing and stopped.

There is no issue of contributory negligence on the part of George Wilkerson.

It was established that the tractor-trailer driven by Allen hit the right bridge railing after traveling only 65 feet on this 1,000-foot long bridge. The truck continued out of control sliding from one side of the roadway to the other as it progressed across the bridge. It finally crashed into the Wilkerson pickup 715 feet further, near the west end of the bridge.

Testimony pertaining to the characteristics of the bridge’s surface when wet was presented by several expert witnesses, the eyewitnesses to the accident and others who had traveled over the bridge when it was wet. The trial court concluded:

“. . . the bridge involved was extraordinarily hazardous when wet and that more probably than not there was no chance that Anderson Allen could have taken successful evasive action.”

Testimony revealed that the road surface had been resealed in November of 1972. At that time cationic asphalt was put down and then covered by light weight aggregate. A manual published by the State Department of Highways, prescribing certain criteria for various work projects, required that such materials not be applied during November, December, January or February unless approved in writing by the chief engineer. This was due to problems which can develop if the materials are used when the air temperature is less than 60 degrees. If such approval is given, a follow-up inspection would be required several months later. The record reflects no such approval or inspection. Some of the testimony indicated that a slippery condition is one of the possible results of application under improper conditions. While there was no express finding by the trial judge that this was the reason for the slippery condition of the bridge, the judge did find that the bridge was extraordinarily slippery at the time of this accident. To reach this conclusion the trial court evaluated the testimony of numerous witnesses, including the contradictory testimony of two experts, Professor Barnwell, a witness for Liberty Mutual, and Dr. Tonn, a witness for the Highway Department. The judge was convinced by Professor Barnwell, whom he felt did more direct and extensive investigation of the accident than Dr. Tonn, and whose explanation was more in accord with the testimony of the only uninvolved eyewitness, a lady who was following the truck, and most of the other witnesses. The court also held that this dangerous defect was in fact the sole legal cause of the accident.

The Court went on to find that the Highway Department had actual notice of the defective road surface and yet failed to either repair the defect, or at the minimum, place a sign at the entrance of the bridge warning of the potentially dangerous condition. This knowledge came by way of complaints made by a state trooper to employees of the Highway Department and by actual notice to Department employees of an accident occurring on the bridge under similar conditions the day before the accident at issue here.

The court went on to say:
“. . . the Court concludes the Highway Department had real and timely notice of potential trouble that should have resulted in repair work of the nature of that done in mid-September of 1973. The Court is also of the opinion that the real fault and cause of the subject accident was the failure of responsible Department employees to create and put into effect a program that would have equipped the Parish Supervisor and the District Supervisor to do the inspections needed in such a way that hazards of this nature could be detected in advance of catastrophic accidents.”

The court had earlier concluded that the Highway Department personnel directly charged with the responsibility of inspecting and maintaining the road surface on the Old River Bridge were incapable of any meaningful inspection that would detect a hazardous condition before accidents occurred. They were without equipment and without a specification of a minimum standard of quality.

The law is settled that the Highway Department is not responsible for every accident which may occur on the state highways, nor is it a guarantor of the safety of travelers thereon, or an insurer against all injury or damage which may result from obstructions or defects in such highways. Standard Brands, Inc. v. Department of Highways, State of Louisiana, et al., 339 So.2d 780 (La.1976); Wilkinson v. American Insurance Company, 311 So.2d 584 (La.App. 3rd Cir. 1975); Doucet v. State, Department of Highways, 309 So.2d 382 (La.App. 3rd Cir. 1975), writs refused; Laborde v. Louisiana Department of Highways, 300 So.2d 579 (La.App. 3rd Cir. 1974), writ refused 303 So.2d 182 (La.1974).

As the Supreme Court stated in Standard Brands, Inc., supra:

“In order to hold the Department of Highways liable for an accident caused by an unsafe or hazardous condition it must be shown that the Highway Department had prior notice, either actual or constructive, of the dangerous condition and had sufficient opportunity to remedy same or at least to alert and warn motorists of its presence and failed to do so. Coleman v. Houp, 319 So.2d 831 (La.App. 3rd Cir. 1975).”

The test for deciding whether there was an unsafe or hazardous condition is whether or not the highway was maintained in a reasonably safe condition for persons exercising ordinary care and prudence. Jones v. Louisiana Department of Highways, 338 So.2d 338 (La.App. 3rd Cir. 1976); Dickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975); Wilkinson v. American Insurance Company of Newark, N. J., 311 So.2d 584 (La.App. 3rd Cir. 1975).

Applying these rules, the trial court in its reasons for judgment after the partial retrial concluded:

“Turning to the contention by the Department of Highways that it should not be held responsible for the catastrophy, the views expressed in the original opinion have not been altered. Their able and dedicated counsel has urged the recent testimony establishes the condition was unpredictable and fleeting and that the Department could not have found it if they had looked for it. The fact is they did not look. Even after ordinary motorists began to notice the bridge was slippery, after notice and even after the accident in this case and the other major accident shortly thereafter, the Department did not carefully examine this bridge to see why these terrible events were occurring.”

Though there is conflicting testimony about the condition of the surface of the bridge at the time of the accident, the above findings of the trial court are supported by a reasonable evidentiary basis and should not be disturbed on appeal, Canter v. Koehring Company, 283 So.2d 716 (La.1973).

NEGLIGENCE OF ANDERSON ALLEN, JR.

From evidence produced, the trial judge found as facts: (1) Anderson Allen, the driver of the tractor-trailer was traveling at between 50 and 55 miles per hour as he approached and drove on to the bridge. (2) The speed limit for such trucks at the time of the accident was 50 miles per hour. (3) The road surface was wet, but it was not raining at the time. (4) The truck was being operated in a normal fashion until it entered upon the bridge and began to skid back and forth from lane to lane.

Visibility was normal and there was no forewarning of a slippery condition on the bridge.

The Prassel tractor-trailer collided with the Wilkerson vehicle in the east bound lane. This meant that Anderson Allen, Jr. was in the wrong lane of traffic when he crashed into the pickup.

Plaintiffs and the Highway Department rely heavily on the presumption of negligence by a motorist shown to be in the wrong lane of traffic when an accident occurs. Simon v. Ford Motor Company, 282 So.2d 126 (La.1973); Jones v. Continental Casualty Company of Chicago, Illinois, 246 La. 921, 169 So.2d 50 (1964); Rizley v. Cutrer, 232 La. 655, 95 So.2d 139 (1957). They also emphasize the rule that a motorist must consider prevailing weather conditions and reduce his speed if needed to maintain control under the prevailing weather and highway surface conditions. La.R.S. 32:64; Rizley v. Cutrer, supra.

As stated above, the trial judge found that Allen had control of the truck until he started to skid, and that he was operating in a normal manner and at a speed commensurate with the prevailing weather conditions on what appeared to be a normal road surface. The only serious issue is whether Allen’s speed either caused him to start skidding or prevented him from stopping in time to avoid the collision.

The trial court concluded that Allen’s speed was not a cause of this accident. It predicated this conclusion on a number of facts. We quote from the judge’s original reasons for judgment:

(1) The long skid involved began within 65 feet of Allen’s entry onto the bridge;
(2) The length of the skid before and after impact;
(3) Other accidents of a similar nature shortly before and after the accident in question, particularly (a) the one involving a similar large tractor-trailer rig in which the driver regained control only after he got off the bridge; and (b) the one in which a pickup skidded the length of the bridge and rear ended a turning motorist at the end;
(4) Experiences related by other drivers in which they claimed difficulty in controlling smaller vehicles;
(5) The testimony that at extremely low coefficient friction levels vehicles might skid long distances with little loss of speed or force;
(6) The testimony of Professor Barnwell that under certain conditions the bridge surface under consideration could take on extraordinary low friction characteristics;
(7) It was not raining when the accident occurred but had been earlier;
(8) The testimony of Professor Barnwell and some of the drivers that vehicles could not be controlled on this bridge at speeds in the 45 to 65 mph range;
(9) Allen’s speed was not more than 55 mph.

Also the trial judge stated in his written reasons:

“For the reasons set forth above, this Court is of the opinion that if Anderson Allen, Jr. was negligent in operating his vehicle at 50 to 55 mph in the daytime in August after a rain, it was not the cause of the accident that occurred. Had he applied his brakes it is more likely than not it would have availed him nothing as it did the other drivers in the accidents of August 16 and September 5,1973. There is evidence in the record that no brake application is a reasonable response when ice slick conditions are encountered.”

Although there is conflict in the testimony, there was ample evidence before the trial judge which, upon his reasonable evaluation of credibility, furnishes a reasonable basis for his finding of fact. In this situation, the appellate court should not disturb the findings of the trial court, even though it may feel a contrary finding is just as reasonable. Canter v. Koehring Company, supra. Under this rule of appellate review, we must affirm the finding that Allen was free of any negligence which was a legal cause of the accident.

QUANTUM

The trial judge awarded to the widows of the decedents general damages varying from $55,000 to $63,000, depending on the ages and incomes of the decedents. He awarded the minor children sums varying from $17,000 to $29,000, depending on the ages of the children and the incomes of the decedents. He awarded the major children $12,500 each. Defendants contend the awards are excessive. Plaintiffs appellants contend they are inadequate.

The plaintiff, Joe L. Barnes, particularly asks for an increase in his award. The trial court awarded him $12,500, although he was a minor, 17 years 9 months of age at the time of the accident. We believe this was a minor oversight on the part of the trial court. The court stated that Joe L. Barnes was a major at the time of his father’s death when in fact he was still a minor. We therefore amend that part of the judgment awarding Joe Barnes the amount of $12,500 and increase the award to $17,000, which is in accord with the awards made to the other minor children. Earnest Barnes, the oldest of other Barnes minors, was 16 years old and he was awarded $21,000.

We have reviewed the remaining awards under recent guidelines for appellate review as set down in Coco v. Winston Industries, Inc., et al., 341 So.2d 332 (La.1977). The record reveals no abuse of discretion by the trial court. We leave unchanged the awards to the other plaintiffs.

For the reasons stated above, we amend the judgment of the district court to increase the award to Joe L. Barnes from $12,500 to $17,000. Otherwise the judgment is affirmed. Costs of this appeal are assessed against the State of Louisiana through the Department of Highways, insofar as such costs may be assessed against a state agency.

AFFIRMED, AS AMENDED.


text:
    Obie Mae JEFFERSON et al., Plaintiffs and Appellees and Appellants, and Dorothy Mae Bowie Wilkerson et al. v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants and Appellants and Appellees.
    No. 6102.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 20, 1977.
    Rehearings Denied Oct. 11, 1977.
    Writs Refused Nov. 23, 1977.
    William J. Doran, Jr., Baton Rouge, for defendants and appellees and appellants.
    Neblett & Führer by Robert B. Neblett, Jr., Daniel E. Broussard, Jr., Alexandria, for plaintiffs and appellants and appellees, Obie Mae Jefferson and Dorothy Mae Wilkerson.
    Sandoz, Sandoz & Schiff by Leslie J. Schiff, Opelousas, for plaintiffs and appellants and appellees, Leanee Matthews Barnes et al.
    James A. Bolen, Jr., Alexandria, for defendants and appellees and appellants, Brassel Enterprises.
    Reeves, Lossen & Owens by R. R. Reeves, Jr., and Jack F. Owens, Jr., Harrisonburg, for plaintiffs and appellants and appellees.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   CULPEPPER, Judge.

For the reasons stated in the companion case of Leanna Matthews Barnes, et al., and Mary Ann Dunbar Wilkerson, et al. v. Liberty Mutual Insurance Company, et al., La.App., 350 So.2d 288, in which a separate decision is being rendered by us this date, the judgment of the district court in the present case is affirmed. All costs of this appeal are assessed against the State of Louisiana through the Department of Highways, insofar as such costs may be assessed against a state agency.

AFFIRMED.