author: HALL, Judge.

text:
    Jerry D. OWENS, Plaintiff-Appellant, v. Johnson ROBINSON, Defendant-Appellee.
    No. 12845.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    Kidd, Katz & Strickler by Paul Henry Kidd and George M. Strickler, Jr., Monroe, for plaintiff-appellant.
    Hamilton, Carroll & Miller by Orlando N. Hamilton, Jr., Oak Grove, for defendant-appellee.
    Before BOLIN, HALL and SMITH, JJ.
   HALL, Judge.

Jerry D. Owens, plaintiff-appellant, appeals a decision of the district court denying his demand for $12,456.60 in damages for an alleged breach of a forward booking cotton contract by defendant-appellee, Johnson Robinson.

Owens contends there was error on the part of the district judge in his finding that he, Owens, had breached the contract for the forward sale of his 1973 cotton crop by not making timely delivery and in the judge’s refusal to 'bind defendant-appel-lee Johnson to the contract absent a demand by Johnson on Owens for performance.

On September 17, 1973, Owens and Johnson entered into an agreement whereby Owens agreed to sell and Johnson to buy 155 acres of cotton grown by Owens in West Carroll Parish in 1973 at an average price of $.70 per pound. The cotton was to be warehoused by December 15, 1973. On March 7, 1973, however, Owens had entered into an agreement to sell the same cotton for approximately $.30 per pound to Frank M. Weathersby, Jr. This agreement, between Owens and Weathers-by, was negotiated through the agency of McDade Cotton Company.

On October 8, 1973, Weathersby sued Owens on their contract. A temporary restraining order was issued prohibiting Owens from disposing of the cotton that same date, and a preliminary injunction to that effect issued November 14, 1973. This suit was compromised May 22, 1974, and on that day Owens called on Johnson to accept delivery of the cotton. Johnson refused and Owens sold the cotton on the open market for $.50. This suit resulted with Owens seeking recovery of the difference between the contract price and the price for which he sold his cotton, his calculation being the $12,456.60 demanded.

It is unclear whether Johnson knew of the prior contract before he entered into his agreement with Owens or whether he learned of it shortly thereafter. The testimony is clear, though, to the effect that Owens advised Johnson that at least two competent attorneys were of the opinion the Owens-Weathersby contract was invalid.

No demand was ever made by Johnson for delivery of the cotton. The trial judge held that such a demand would have been a vain and useless act because of the injunction. He also held that time was of the essence in a contract of this nature because of the volatibility of the cotton market. He pointed out that one would be hard-pressed to estimate the price of cotton from day to day during the period covered by this contract.

If no time for performance is stated in a contract, a reasonable time is to be determined from the circumstances surrounding the formation of the contract and how the parties themselves looked upon the time element. Perrin v. Hellback, 296 So. 2d 342 (La.App. 4th Cir. 1974) writ denied 300 So.2d 184; LSA-C.C. Art. 2050.

The trial court determined a reasonable time period for performance of this contract could not extend to May 22, 1974. A reasonable time for delivery under the agreement would have been sometime shortly after December 15, 1973, the warehouse date specified therein.

We believe the trial court correctly decided that Owens breached the contract by failing to deliver prior to May 22, 1974, more than five months after delivery to the warehouse was required, and that Johnson was under no obligation to perform at that late date. Time was of the essence in this contract dealing with a commodity traded in a volatile market. See Haskins Trading Co. v. S. Pfeifer and Co., 14 La.App. 568, 130 So. 469 (1930). Failure on the part of the seller to deliver within a reasonable time was a breach of the contract and gave the buyer the right to have the contract dissolved. Demand for performance or for dissolution, or putting in default, was unnecessary. Demand for performance would have been vain and useless. Demand for dissolution is unnecessary and may be urged by exception or defense, which is itself a putting in default. LSA-C.C. Art. 2047. See Williams, et al. v. Harrell, 132 La. 1, 60 So. 699 (1913).

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

Affirmed.


source: Caselaw Access Project

author: COVINGTON, Judge: PONDER, Judge

license: Public Domain

text:
    SOUTHSIDE CIVIC ASSOCIATION, INC. v. GUARANTY SAVINGS ASSURANCE COMPANY et al.
    No. 10589.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.
    Writ Granted June 4, 1976.

      Felix R. Weill, Baton Rouge, for appellant.
    Floyd J. Falcon, Jr., and F. D. de la-Barre, Baton Rouge, for Guaranty Sav;
    Thomas H. Hudson and Michael A. Patterson, Baton Rouge, for John Prevost.
    Joseph F. Keogh, Parish Atty., and Edwin C. Bankston, Asst. Parish Atty., for Robert C. Groht.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This suit involves the proper zoning and use of a certain tract of land in East Baton Rouge Parish, Louisiana, and the building located on the tract of land. The subject property consists of Lots 3 through 7 of the subdivision of the W. B. Kennard Tract and an unnumbered lot northeast of the numbered lots.

Plaintiff-appellants, Southside Civic Association, Inc., is composed of residential property owners in the southern portion of the City of Baton Rouge and includes owners in University Gardens, Stanford Place and in the immediate vicinity and adjacent to the subject property. Defendants-appel-lees are Guaranty Savings Assurance Company, the owner of the subject property, John E. Prevost, the lessee of the subject property, and Robert C. Groht, in his capacity as a building official of the City of Baton Rouge. Defendant, Prevost, had leased a portion of the subject property and was operating an automobile dealership known as Prevost Volvo.

In its petition, the plaintiff alleges that the subject property is zoned A-l, single-family residential, for the unnumbered lot and A — 4, multiple-dwelling residential, for the numbered lots, under the City’s comprehensive zoning ordinance. The plaintiff, claiming that the defendant Prevost’s use of the subject property as an automobile dealership violated said zoning ordinance, asked for a writ of mandamus, in-junctive relief and a declaratory judgment decreeing that the subject property was properly zoned as alleged. By agreement of all of the parties, the trial court heard the matter only on the declaratory judgment issue with the parties reserving all rights as to the other demands.

After hearing, the trial court rendered judgment in favor of the defendants declaring the subject property, except for the unnumbered lot, to be unzoned. As to the unnumbered lot, the court declared defendant Prevost’s use of said lot to be contrary to “its present A-l Single Family Classification.” Plaintiff-appellant, Southside Civic Association, Inc., has suspensively appealed the adverse judgment. Defendant Prevost and the other defendants have not appealed the court’s ruling that the use of the unnumbered lot violated the zoning ordinance and that aspect of the judgment is now final. Moreover, defendant Prevost has acquiesced in that part of the judgment, by asserting in his brief that “. . . Prevost has complied in every respect with the judgment of the trial court in this regard and is not presently using that tract for any purpose.”

The plaintiff-appellant first argues that the validity of the zoning ordinances was not properly before the trial court because the defendants did not affirmatively assert this issue in their answers. There is no merit in this contention. The basis of the declaratory judgment action was the validity vel non of the zoning ordinances. See Villa Del Rey v. City of Baton Rouge, 233 So.2d 566 (La.App. 1st Cir. 1970), noted in 31 La.L.Rev. 549 (1971). The plaintiff’s prayer, in part, reads:

“Wherefore, petitioner prays: I. For judgment declaring lots' 3, 4, 5, 6 and 7 of the Subdivision of the W. B. Kennard property to be subject'to A-4 zoning and the unnumbered lot being used by defendant Prevost for parking, display and storage to be subject to A-l zoning and further declaring that any pre-existing non-conforming use of the subject property has been lost by nonuse, thereby requiring any owner, tenant, or other occupant of the subject property to conform to the applicable use regulations as set forth in the Comprehensive Zoning Ordinance.”

The plaintiff’s prayer thus squarely presents the validity of the zoning ordinances as an issue.

The plaintiff next argues that there is no showing that the zoning ordinances were invalid. The evidence shows that the property in question was originally zoned by the City of Baton Rouge in 1950, when the first comprehensive zoning ordinances were enacted by the City. The pertinent ordinance, purporting to zone the property as A-l, single-family residential, was challenged by a real estate developer in the case of State ex rel. Loraine, Inc. v. Adjustment Board of City of Baton Rouge, 220 La. 708, 57 So.2d 409 (1952). The Supreme Court in the Loraine case held the ordinance unconstitutional and ineffective in classifying the property as A-l. The effect of this decision was that the property remained “unzoned” as it had been prior to the enactment of the 1950 ordinance.

Despite the decision of the Supreme Court, the Planning Commission of the Parish of East Baton Rouge continued to deal with the property as having an A-l classification. Subsequently, the City-Parish zoning authority enacted, in 1955, a zoning ordinance which purported to change the classification of the property in question from A-l to C, multiple-dwelling classification. In 1958, a new Comprehensive Zoning Ordinance purported to change the property classification from C to A-4, a letter-change in classification only.

While several factual and legal issues are presented in this appeal, we consider that the pivotal issue is whether the zoning authority gave adequate public notice of the proposed zoning ordinances here involved so that it would have jurisdiction to consider such zoning ordinances. The trial judge found, and we agree with his finding, that the public notices involved indicated that there would be zoning changes from A-l classification, single-family residential, to C (now A-4), multiple-dwelling residential. The public notice did not advertise that unzoned property was to be zoned to a C (A-4) classification. As advertised, the purpose of the 1955 ordinance appeared to be a rezoning so as to permit an increased or less restrictive use of the property in question (being reclassified from A-l to C), whereas it was in fact imposing a more restrictive use of the property (from unzoned to C). The 1958 ordinance purported to change the zoning of the property in question from C, multiple-dwelling residential, to A-4, also multiple-dwelling residential, and thus, apparently no change was proposed in the permitted use of the property, only a letter-classification change being contemplated.

The trial court, after considering the notice, stated in his written reasons:

“The above ordinance can be given no effect and is null and void. The notice was so grossly misleading as to deprive the public, the Zoning Commission, and the Council of an opportunity to apply the applicable criteria to the proposed change.
“The Court is well aware of and has considered plaintiff’s argument, that exactness in the manner of enactment of an ordinance may not be required so long as the mandatory requirements have been substantially observed, and that the ordinance should not be voided because of an irregularity in its passage, particularly where it has stood unchallenged for a long period of time.
“A notice which indicates proposed action which would increase use is tantamount to no notice when in truth and fact, the effect of the proposed action is to drastically restrict usage.”

Zoning ordinances are in derogation of the rights to private ownership by restricting the use of property and must be strictly construed in favor of the property owner. See Time-Saver Stores, Inc. v. Board of Zoning Adjustment of City of New Orleans, 261 So.2d 273 (La.App. 4th Cir. 1973), writ refused, 262 La. 311, 263 So.2d 47; East Baton Rouge Parish v. Bratcher, 244 So.2d 915 (La.App. 1st Cir. 1971), writ refused, 258 La. 364, 246 So.2d 684 (1971). Zoning is the deprivation, for the public good, of certain uses of property to which such property might otherwise be put. Therefore, before a property owner may be thus deprived of his property, he is entitled to proper notice and hearing-. See 16A C.J.S. Constitutional Law § 703, page 1186.

The requirement of notice imposes upon the zoning authority a mandatory duty to give proper notice, in default of which the zoning authority has no jurisdiction to enact a valid zoning ordinance. See 96 A.L.R.2d 449, 455. Since proper notice is required, an ambiguous or misleading notice will be considered so defective as to destroy the jurisdiction of the zoning authority. See 1 Antieau, Municipal Corporation Law, sec. 797, page 490.-113. The rule making notice a mandatory and jurisdictional prerequisite to the enactment of zoning ordinances is also applicable to amendments or revisions of an original zoning ordinance and to reclassifica-tions of property theretofore unzoned; 96 A.L.R.2d 449, 466. Thus, a notice which does not present the true nature of the proposed amendment or revision must be treated as no notice at all; see The Law of Zoning and Planning, Vol. 1, chapter 8, page 7. That is to say, a zoning ordinance which does not comply with notice requirements is void; State ex rel. Holcombe v. City of Lake Charles, 175 La. 803, 144 So. 502 (1932) ; Beauvais v. D. C. Hall Transport, 49 So.2d 44 (La.App. 2nd Cir. 1950).

In the instant case, as the trial court pointed out, the notice of the zoning ordinances in question not only failed to warn of the true nature of the proposed zoning change, but in effect deceived or misled the public into believing that the permitted use would be less restrictive under the proposed ordinance when in fact it would be more restrictive. Such a notice can only be construed as inadequate, and the zoning ordinances in question must be held to be invalid. Hence, Lots 3 through 7 of the subdivision of the W. B. Kennard Tract must be declared to be unzoned.

The trial judge did not rule on the question of nonconforming use, and did not make any factual finding on this issue, because he considered it unnecessary in view of the holding that the zoning ordinances were invalid. We, therefore, pretermit discussion of the question of non-conforming use.

We find no error in the trial court’s decision in this matter. Accordingly, the judgment of the trial court is affirmed at plaintiff-appellant’s costs.

AFFIRMED.

PONDER, Judge

(dissenting).

I dissent.

Zoning -ordinances are presumed to be valid and those attacking the validity have the burden of proof. Meyers v. City of Baton Rouge, 185 So.2d 278 (La.App. 1st Cir. 1966; Sears Roebuck & Co. v. City of Alexandria, 155 So.2d 776 (La.App. 3rd Cir. 1963), writ den., 245 La. 83, 157 So.2d 230.

The proof of the notices involved consists of certified copies of the ordinances, one in 1955, the title of which is “Amending the Comprehensive Zoning Map of the City of Baton Rouge, as contained in and made a part of the ‘Comprehensive Zoning Ordinance of the City of Baton Rouge for 1950’ so as to change the zoning of Lots 3 through 11, inclusive, W. B. Kennard Tract, on the East side of Stanford Avenue, 300 feet North of West Lakeshore Drive from ‘A-l’ Single Dwelling District to ‘C’ Multiple Dwelling District” and another in 1958, the title of which is “An Ordinance dividing the City of Baton Rouge (the Parish of East Baton Rouge) into districts and within which said districts regulating and restricting the height, number of stories, and size of buildings and other structures, the size of yards, courts, and other open spaces, the density of population, and the location and use of buildings, structures, and land for trade, industry, residence, and other purposes; establishing a Board of Adjustment and prescribing to powers and duties; providing penalties for the Violation of the Ordinances; and repealing all Ordinances in conflict herewith.”

The only evidence in regard to the notices that were given is contained in the following testimony:

“Q Just so we have the picture completed on the Ordinance Number 435, do you have anything in your records that indicate that the property was advertised, introduced for public hearing, and the other necessary concomitants to a valid enaction of an ordinance done with any other description than that which appears at the top of that ordinance; namely a rezoning of subject tract from A-l to A-4; do you understand that question ?
A Yes; I don’t — didn’t find anything in the record.
Q So, it is correct to assume that this is the way it had proceeded from the point of application to the point of enaction ?
A Uh-huh.
Q It wasn’t one of these cases where the Council, on the floor of its own motion changes the application and grants a zoning which was not sought or recommended; it is not that type of case ?
A No, as a matter of fact the application was for neighborhood commercial, changed by the Council to apartments; so, it would appear that there was an assumption that a change was needed to expand or change the use on the property.”

These questions were asked of and answered by the Director of Planning and Zoning who is not the custodian of the records of the Councils. He is only assuming that the practice is that the usual notice given was in accord with the ordinance adopted. As a matter of fact, he is evidently referring to a change on the council floor changing the ordinance from what notice of it had been given. There is no explanation in the record for the absence of the actual public notices given or their unavailability.

Furthermore, the ordinance of 1958 was a comprehensive zoning ordinance. The title clearly indicates that; so if it be held that the notice for the 1955 amendment be held insufficient, making that ordinance invalid, the enactment of another comprehensive ordinance in 1958 would have the effect of a complete new ordinance rather than just an amendment to one already in effect. I know of no law that would require in the notice the detailing of all changes being made in the preexisting zoning ordinance or zoning map or the actual zoning in effect as a result of court decision. See L.R.S. 33:4724. Furthermore, there is no testimony or evidence in regard to what the notice given was.

I therefore believe that the property is validly zoned A-4, subject, however, to non-conforming use in effect on the date of the adoption of the comprehensive ordinance of 1958.

Under Section 2.302 of the zoning ordinance non-conforming uses may be continued. Under Section 2.305 the stopping of the non-conforming use for a period of twelve months or more results in the necessity of conforming with the use regulations. However, under the rationale of the case of State ex rel. Time Saver Stores v. Board of Zoning Adjustments of the City of New Orleans, 261 So.2d 773 (La.App. 4th Cir. 1972), writ refused, 262 La. 311, 263 So.2d 47, the non-conforming use of part of a building prevents the running of the period against the whole. It is my belief, therefore, that the property in question can be used for any purpose that the other part of the building can be used for.

There was testimony that the highest classification allowing the existence of a grocery store was C-l. However, the highest classification allowing automobile dealerships is C-2.

I believe, too, that the case should be remanded because it was tried only on the petition for a declaratory judgment, the parties reserving all rights under the suit for injunctive and mandamus relief.

I would therefore reverse and remand.


author: BENNETT, Judge.

text:
    Ms. Willie Mae HILLS v. Garland L. BONIN, Director, Division of Family Services.
    No. 10623.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.
    Writ Refused June 2, 1976.
    Doris Falkenheiner, Asst. Director, Legal Aid Society, Baton Rouge, for appellant.
    John R. Olds, Trial Counsel, State of La., Health and Human Resources, Baton Rouge, for appellee.
    Before SARTAIN, EDWARDS and BENNETT, JJ.
   BENNETT, Judge.

This suit complains of the denial of assistance by the Division of Family Services. The claim for benefits was based on disability.

Hearing was had on the claim on October 18, 1974 where Mrs. Hills was assisted by Charlie A. Mills an investigator with the Legal Aid Society of Baton Rouge. The Director of the Division of Family Services denied benefits in a letter dated December 10, 1974 addressed to Mr. Mills at the Legal Aid office with a carbon copy directed to Mrs. Hills.

A petition for judicial review of the agency ruling was filed by the Legal Aid Society on behalf of Mrs. Hills on January 10, 1975.

At hearing on a motion for summary judgment the Court, ex proprio motu, raised the question of its jurisdiction to review the administrative decision in view of the length of time between the final determination and the filing of the petition seeking review. After taking the matter under advisement the court ruled that it lacked jurisdiction and dismissed the petition on June 30, 1975. Mrs. Hills appeals alleging three errors requiring reversal of the ruling of the trial court.

I. The appellant argues that the Court erred in holding that R.S. 46:107(D) requires the filing of a petition seeking judicial review of an adjudication by the LHSRSA, Division of Family Services, within fifteen days.

R.S. 46-.107(D), provides in pertinent part:

“D. Within fifteen days after the mailing of the decision of the division of family services, the applicant or recipient may obtain judicial review thereof by filing in the Nineteenth Judicial District Court a petition for review of the decision.” (Emphasis added)

Appellant contends that use of “may” in the language cited above makes the statute permissive rather than mandatory and thus the lapse of 15 days does not preclude an application for judicial review of a decision by the agency.

This argument is without merit. If read in accordance with the contention of the appellant the statute is superfluous and without meaning. A general and less rigorous statute includes the same subject matter. See R.S. 49:964(B). It is not presumed that the legislature adopts vain, useless or meaningless law. As this Court said in Peyrefitte v. Harvey, 312 So.2d 159 (La.App. 1st Cir. 1975), writ refused, 314 So.2d 736 (La.):

“There is a presumption that all legislative acts are enacted for some definite purpose and the Courts in construing them must endeavor to give an interpretation that will give them effectiveness and purpose, rather than one which makes them meaningless and useless.”

“May” relates to the decision to seek judicial review. The applicant may or may not wish to seek such review. If he does the petition may be filed within fifteen days after mailing of notice.

II. That the defendant misled the appellant as to the length of time during which judicial review could be sought.

This contention is grounded on the last sentence of the letter from the Director notifying the appellant of the denial of assistance. The sentence reads:

“If you are not dissatisfied with this decision, you have the right to seek judicial review through the courts in accordance with Act 284 of R.S.1974.”

Assuming arguendo that misrepresentation by an agency could serve as a basis for lengthening the time during which judicial review of an adjudication could be sought, nevertheless, such is not the case here.

Act 284 of 1974 deals with agency rule making and publication of rules. It does not concern adjudication or judicial review of adjudications. Further, the effective date of the Act is January 1, 1975.

We fail to see how the appellant could have relied to her detriment on an Act which does not purport to affect the type of agency proceeding she was protesting and which did not become effective until after the final agency adjudication. Under the circumstances the mere citation of an Act does not constitute misinformation sufficient to have misled the appellant.

III. The appellant contends the Court erred in holding it did not have jurisdiction of this case.

The trial court correctly found that R.S. 14:107(D) required the filing of the petition for judicial review within fifteen days after mailing of notice. The petition herein was filed on January 10, 1975, or thirty-one days after the mailing of notice.

In David v. Department of Public Safety, 261 So.2d 347 (La.App. 1st Cir. 1972), we held review of an agency adjudication was an appeal and review must be timely applied for in order for the reviewing court to have jurisdiction. Although David involved revocation of a drivers license with judicial review sanctioned under R.S. 32:414, we fail to see how this case differs in principle. The rationale in David applies with equal force to the facts before us and is dispositive of this case. The trial Court was correct in its ruling.

For the reasons assigned the judgment of the Court below is affirmed at appellant’s costs.

Affirmed.


text:
    Sidney HUGHES v. Mary Tigner Hughes WHITEHEAD.
    No. 10634.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.

      L. B. Ponder, Jr., Amite, for appellant.
    Fannie E.' Burch, Amite, for appellee.
    Before SARTAIN, EDWARDS and BENNETT, JJ.
   BENNETT, Judge.

This is an appeal from a judgment fixing and making executory past due and unpaid child support.

Sidney Hughes obtained a divorce from Mary Tigner Hughes on November 10, 1960. The decree also awarded custody of the four minor children of the marriage to Mrs. Hughes and set child support in the amount of Fifteen Dollars ($15.00) per week.

On October 30, 1974 a rule to show cause was filed seeking a judgment for unpaid child support for three years prior to the date of filing of the rule and for $15.-00 per week from the date of the filing of the rule to the date of determination. The defendant-in-rule filed a responsive pleading asserting various defenses.

The rule was called for trial on December 13, 1974. No attempt was made to adduce evidence and the case was submitted on memoranda.

On June 27, 1975, judgment was rendered in favor, of plaintiff-in-rule in the amount of $2,916.00, which amount consisted of $2,340.00 for the three year period prior to the date of filing of the rule and $576.00 for the period from October 30, 1974 to June 27, 1975.

The defendant-in-rule appeals from that judgment asserting four errors committed by the trial court.

I. The Court erred in overruling the pleas of prescription laches.

This contention is based on the fact that the 1960 judgment awarding child support had not been revived and more than ten (10) years had elapsed between the rendition of that judgment and the time the rule was filed seeking to determine the amount of back alimony due and owing.

In Arabie v. Arabie, 230 La. 1036, 89 So.2d 890 (1956), the Supreme Court re-j ected an identical contention stating:

“Appellant also says that the doctrine of waiver, laches, and estoppel is applicable in this case because for more than 10 years from the date of the rendition of the alimony judgment no action was taken by his former wife to obtain its enforcement and no payments were made by him. Counsel cite no law in support of this contention. Moreover, in the case of Pisciotto v. Crucia, 224 La. 862, 71 So.2d 226, this court held that the right to receive back alimony in a lump sum is not waived by the divorced wife’s failure to make periodic demands on her former husband. See also Gehrkin v. Gehrkin, 216 La. 950, 45 So.2d 89. Furthermore, we see no reason why these doctrines should apply simply because appellant has failed to make the alimony payments.
“Article 3544 of the Civil Code provides that in general all personal actions except those before enumerated are prescribed by 10 years, and in Article 3547 it is stated that all judgments for money, whether rendered within or without the state, shall be prescribed by the lapse of 10 years from the rendition of such judgment. Appellant argues that these articles are applicable here, and that since more than 10 years have elapsed since the judgment of divorce in which appellee was awarded custody of the minor child and alimony for the maintenance and support of the child, these articles are applicable, and appellee accordingly cannot recover in these proceedings.
“In Wright v. Wright, 189 La. 539, 179 So. 866, this court after citing Article 227 of the Civil Code said that fathers and mothers have the obligation of supporting, maintaining, and educating their children, that the legal duty imposed upon a father to support his children continues during minority and is not affected by divorce or separation, that a judgment for alimony is not a final judgment but is one always subject to review and to change and modification, whereas a money judgment is a vested right and not subject to change. In others words, a judgment to pay alimony is not a money judgment founded on debt but is one enforcing a continuing legal obligation of the father to support his minor child. See Fazzio v. Krieger, 226 La. 511, 76 So.2d 713.
“In the Wright case, supra, the court held that Article 3547, which provides that all judgments for money shall prescribe by the lapse of 10 years, was not applicable to a judgment for alimony rendered in behalf of minor children against their father, and that a plea of prescription under this article was properly overruled by the trial judge. See also Gehrkin v. Gehrkin, supra.
“In discussing the prescriptive period applicable to actions for arrearages of alimony, this court said in Miller v. Miller, 207 La. 43, 20 So.2d 419, 421:
“ ‘Since Article 3538 of the Revised Civil Code specifically provides that actions for arrearages of alimony are prescribed in three years, and Articles 3544 and 3547 (as amended) of the Revised Civil Code are so general in their nature, we are compelled to arrive at the conclusion that the provisions of Article 3538 govern.
“ ‘Under the accepted rule of construction, Article 3538 being a special law insofar as it applies to alimony, it must be given precedence over the general provisions heretofore mentioned.’

These exceptions are without merit. The ruling of the trial court is correct.

II. The Court erred in issuing the judgment herein without a contradictory hearing.

A perusal'of the record indicates the following pertinent information:

On October 30, 1974 the rule seeking back child support was filed. The defendant in rule was ordered to show cause on December 13, 1974 why a judgment should not be rendered. Domiciliary service was effected on November 4, 1974.

On December 13, 1974 the defendant filed a responsive pleading and agreed to submit the matter on memoranda. The defendant did not seek a continuance nor was any effort made to produce evidence supporting the defenses contained in the pleading filed by him.

Under the circumstances the defendant cannot now complain of being denied his day in court. He had such a day. Failure to utilize it to its fullest can only be attributed to the defendant. There is no merit to this contention.

III. The court erred in awarding an amount in excess of $2340.00.

This contention complains of the award of child support for the period from the date of filing of the rule to the date of rendition of judgment. We find no error in making an award for that period. The rule filed herein contained a prayer for an award for the period. The defendant produced no evidence that he had paid the child support due during the period. A court may properly include unpaid child support occurring during pendency of an action to determine and make child support executory. See Arable v. Arable, Supra.

IV. The Court erred in calculation of the amount of alimony awarded for the period during which the rule was pending.

This contention attempts to take advantage of a discrepancy in the language of the judgment. In awarding child support for the period during which the rule was pending, the judgment states:

“At the rate of $15.00 per week for twenty-four (24) weeks being from October 30, 1974 (the date of filing of this rule) to June 27, 1975, totaling .$576.00.”

The appellant argues that the judgment grants an award for 24 weeks at $15.00 per week, a total of $360.00, and that the award of $576.00 is an error in computation.

In our opinion, the judgment is ambiguous. In the construction of an ambiguous judgment, resort may be had to the entire record to aid in arriving at its meaning. Rodrigue v. Ziifle, 288 So.2d 630 (La.1974). See also, Weisgerber v. Weisgerber, 270 So.2d 313 (La.App. 1st Cir. 1972).

Our review of the record convinces us that the trial court intended to make an award for the period from October 30, 1974 to June 27, 1975, a period of 34 weeks. The petition asked for an award for the period during which the cause was pending. The period of pendency was actually 34 weeks. No claim has been made that the defendant in rule is entitled to credit during the pertinent period because of payment or other reason.

We find that the plaintiff in rule is entitled to an award for 34 weeks at $15.00 per week or a total of $510.00. The amount awarded, $576.00, is excessive. Therefore, the judgment rendered below is amended and ordered reduced by the amount of $66.00 leaving a total of $2,850.-00.

Costs are taxed to Appellant.

AMENDED and AFFIRMED.


author: SMITH, Judge.

text:
    Patricia Defatta LEWIS, Plaintiff-Appellee, v. Francis Ronald LEWIS, Sr., Defendant-Appellant.
    No. 12855.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.

      Freeman & Hall by Stacey Freeman, Shreveport, for defendant-appellant.
    Wilkinson, Carmody & Peatross by Charles B. Peatross, Samuel W. Caverlee, Shreveport, for plaintiff-appellee.
    Before PRICE, HALL and SMITH, JJ.
   SMITH, Judge.

This is an appeal by a husband from a judgment of the lower court awarding his estranged wife $1,434 per month as child support and alimony pendente lite.

Prior to a recent raise in pay defendant apparently received a regular net salary of $1,034 monthly from his employment at his brother’s record company. In addition to his salary, defendant received at least $100 cash per week from his brother. The evidence shows that since the separation defendant has received a raise of more than $100 per month which nets him an additional $143.59 monthly.

During the marriage the husband delivered his pay in full to his wife. She returned approximately $60 per month to him for his personal use. After the separation and before this proceeding, defendant continued giving his wife the same amount of money he had been giving her 'before he left the matrimonial domicile.

At first glance it appears that the trial court granted alimony pendente lite for the total net income of the defendant. Closer examination, however, reveals that the award is actually only of defendant’s regular net income from salary before he received his pay increase, and the cash payments made to him by his brother. The evidence reveals that these were not his only sources of income.

The trial court obviously assigned little weight to defendant’s testimony as to his total income. Mr. Lewis was vague and evasive when questioned about income from sources other than his regular income. Despite questioning at length, the lower court was unable to elicit testimony from Mr. Lewis as to estimates of the amounts of money received from concert ticket sales and record company promotions. The court was obviously perplexed by Mr. Lewis’ testimony regarding his living expenses from the time of the separation until trial. Mr. Lewis testified that he lived on cash in his pocket for some three months. Only after extensive questioning- on the subject did he admit to having $500 or $600 in his pocket at the time of the separation. He was very evasive about the source of this cash.

Defendant’s gross from his regular salary was $1,605 per month. After deductions he was left with $1,144.26. In addition, defendant received $100 per week in cash from his brother. This amounts to $433 per month, and makes his net income from these two sources alone $1,577.59. If this were defendant’s only income, he would be left with $143.59 per month for his living expenses after deducting the alimony pen-dente lite award.

The difficult part of the case is the determination of defendant’s outside income. It had been, in times past, in 1974, sufficient to purchase an $800 piano and a $1,-100 fur coat for his wife from outside record sales. It had amounted to $500-$1,000 from ticket promotion deals. There were other outside sources of income, interest from savings accounts, almost $1,200 annually, -and rent income of $250 annually. Totaling all sources of income reveals an additional annual income, over and above defendant’s regular salary, of over $3,500.

LSA-C.C. arts. 148 and 227 provide the basis of alimony pendente lite and child support. The Supreme Court in Reichert v. Lloveras, 188 La. 447, 177 So. 569 (1937) set forth the principle that if the amount the wife “needs is proportionate to the husband’s means of payment, that amount should be awarded. If, however, the wife’s needs exceed the husband's ability to pay, the courts must fix a monthly sum which will as nearly as possible be just and fair to each.” This principle was recognized and applied in Thomas v. Thomas, 281 So.2d 471 (La.App., 4th Cir. 1973).

The trial judge is vested with wide discretion in applying these standards for support of minor children and alimony pendente lite, and the award will not be disturbed unless there is clear abuse of discretion. Frazier v. Frazier, 318 So.2d 625 (La.App., 2d Cir. 1975); Jackson v. Jackson, 275 So.2d 456 (La.App., 2d Cir. 1973); Hargrove v. Hargrove, 272 So.2d 394 (La.App., 2d Cir. 1973).

Defendant in the present case failed to claim or to establish any expenses of his own to show inability to meet plaintiff’s needs from his means.

In Bowsky v. Silverman, 184 La. 977, 168 So. 121 (1936), the Supreme Court explained that Article 148 said nothing about the income or earnings of the husband, stating:

“ * * * The word ‘means’ as used in this article refers to the husband’s resources and not necessarily to his income. . . . The word ‘means,’ as used in this article of the Code, signifies any resources from which the wants of life may be supplied." The amount necessary for the support of a wife under such conditions as those referred to in this article is a debt which the husband must discharge out of his means, and his means may consist of money in his pocket, cash in bank, income from whatever source, or assets in the way of real or personal property. . . .” Id p. 122

In the instant case the defendant admitted owning stocks as an investment and is a stockholder in five family corporations. He has savings accounts and received about $5,000 refund from a pension account during the past year.

This court awarded alimony of $300 per month in a case where the record disclosed that the husband’s only income was $50 per month from royalty payments and he had attempted to find employment without success. During prior years he had earned $3,600 monthly. His whole capacity to earn was considered. See Viser v. Viser, 179 So.2d 672 (La.App., 2d Cir. 1965). This principle was again expressed in Vaughan v. Vaughan, 286 So.2d 416 (La. App., 4th Cir. 1973) where the court stated:

“The jurisprudence of this state has consistently held that, in assessing the amount of alimony pendente lite, the entire financial condition of the husband must be examined. The inquiry is not complete by merely looking at the income of the husband. . . .” Id. p. 417

Considering the total resources of defendant — salary, cash, rent, interest receipts, ticket promotions, outside record sales, stock ownership and savings accounts — it cannot be said the trial court abused its discretion in fixing the alimony pendente lite.

In accord with the foregoing reasons, the judgment is affirmed at appellant’s cost.

      . Assuming 4.33 weeks per month.


text:
    Henry TYSON, Plaintiff-Appellee, v. Johnson ROBINSON, Defendant-Appellant.
    No. 12847.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.

      Hamilton, Carroll & Miller by Orlando N. Hamilton, Jr., Oak Grove, for defendant-appellant.
    Kidd, Katz & Strickler by Paul Plenry Kidd Monroe, and George M. Strickler, Jr., New Orleans, for plaintiff-appellee.
    Before BOLIN, HALL and SMITH, JJ.
   HALL, Judge.

Plaintiff, Henry Tyson, owner of farmland in West Carroll Parish, sued defendant, Johnson Robinson, a cotton buyer, for $7,368.45, being the difference between the amount paid Tyson by Robinson for Tyson’s J4 share of 62,866 pounds of cotton grown by Odis Peterson on Tyson’s land, based on a price of $.29 per pound stipulated in a forward sale contract between Peterson and Robinson, and the market price of the cotton when sold which was alleged to be $.75 per pound.

After trial, the district court, for oral reasons transcribed in the record, held Peterson had no authority to enter into the forward sale contract on behalf of Tyson and awarded Tyson judgment for the difference between the $.29 price and the market price of cotton on the dates it was delivered by Peterson to Robinson, which was calculated to be $5,007.55. Judgment was rendered for that amount and Robinson appealed.

On appeal, Robinson does not contend that Peterson had authority to enter into the forward sale contract on behalf of Tyson. He does contend, however, that Tyson ratified the contract by his failure to repudiate it and by accepting payment of the price stipulated in the contract.

For several years Peterson, who is Tyson’s brother-in-law, leased approximately 200 acres of farmland from Tyson for the purpose of growing cotton on a “shares” basis, with Tyson entitled to receive 14 of the cotton in kind as rental. In at least two prior years, Peterson sold all of the cotton grown on Tyson’s land, including Tyson’s share, to Robinson at harvest at the prevailing market price. Robinson made out checks for the purchase price to Peterson for his % share and to Tyson for his 14 share and delivered the checks to Peterson. Peterson in turn delivered Tyson’s checks to him.

In 1973, for the first time, Peterson decided to enter into a forward sale contract with Robinson. Without checking with Tyson or getting his approval, Peterson signed a forward sale contract with Robinson on January 27, 1973, agreeing to sell all cotton grown by him on 140 acres of Tyson’s land at a price of $.29 per pound, delivery to be made by December 15, 1973. Although the contract does not refer to Tyson, it refers to his land by serial number and it was understood between Peterson and Robinson that Peterson was “booking” Tyson’s interest in the cotton as well as his own.

Tyson testified he first learned of the forward sale contract in July, 1973, when Peterson wished to enter into another such contract with Robinson covering an additional 40 acres, which Tyson objected to. Peterson entered into the second contract in July, 1973, covering 30 acres, being his % interest in 40 acres. Tyson testified he went to Robinson’s office at that time and told him he did not want to “book” any of his cotton and that he did not consider the January contract binding on him as he had not signed it and would not accept it. Robinson testified he did not remember the July meeting, but did remember meeting with Tyson in October at a cafe, at which time he undersood Tyson to object only to the second booking' contract. Robinson testified he had no knowledge Tyson was repudiating the January contract until he received a demand letter from Tyson’s attorney in June, 1974.

Although Robinson did not remember Tyson coming to his office in July, 1973, he did not specifically deny the meeting took place and mentioned that many people come in and he did not remember all conversations. We conclude as a fact that the meeting and conversation took place as testified to by Tyson.

During harvest, from October through December of 1973, Peterson delivered the cotton grown on the 140 acres to Robinson. On four occasions, Robinson issued separate checks payable to Peterson and Tyson for their respective shares, based on the forward sale contract price of $.29 per pound and delivered the checks to Peterson. He in turn delivered Tyson’s checks to him. Tyson’s four checks totaled $4,419.30.

Tyson testified he may have told Robinson he would not cash the checks, and that he held them for awhile. He testified he then, on advice, deposited the checks in an “escrow account.” Actually, the checks were credited to Tyson’s account at his bank and he subsequently used this money, along with other funds, to purchase a $10,000 certificate of deposit.

The evidence establishes that Peterson was clothed with authority to sell Tyson’s share of the cotton grown on Tyson’s land after harvest and at the market price when delivered. Such authority did not include authority to gamble with Tyson’s share by entering into a forward sale contract early in the crop year. Appellant does not contend Peterson had authority to make a forward sale of Tyson’s share of the cotton and testified he could not say he believed Peterson had such authority.

Appellant contends Tyson ratified the contract by failing to repudiate it within a reasonable time and by accepting the benefits of it.

LSA-C.C. Art. 3021 provides:

“The principal is bound to execute the engagements contracted by the attorney, conformably to the power confided to him.
“For anything further he is not bound, except in so far as he has expressly ratified it.”

Thus, Tyson is not bound by the act of Peterson in “booking” his cotton, unless Tyson “expressly ratified it.” The burden of proving ratification is upon the party asserting it. Nationwide Finance Co. of Gretna, Inc. v. Pitre, 243 So.2d 326 (La.App. 4th Cir. 1971); Williams v. Arkansas Louisiana Gas Company, 193 So.2d 78 (La.App. 2d Cir. 1966). The principal must have knowledge of the contract before there can be ratification. Joseph v. Greater New Guide Baptist Church, Inc., 194 So.2d 127 (La.App. 1st Cir. 1966) writ denied 250 La. 379, 195 So.2d 647 (1967). The ratification must be intentional and express. Nationwide Finance Co. of Gretna, Inc. v. Pitre, supra. One who accepts the benefits of his agent’s action is held to have ratified it. Skye Realty Co. v. Diversified Insurance Agency, Inc., 221 So.2d 871 (La.App. 3d Cir. 1969).

The evidence in this case is that Tyson repudiated the forward sale contract in his July meeting with Robinson, shortly after Tyson learned of the existence of the contract.

[4 — 6] When Robinson thereafter accepted delivery by Peterson of Tyson’s cotton after harvest in October through December, after repudiation of the forward sale contract by Tyson, Robinson became liable to Tyson for the market price thereof. Tyson did not waive his right to full payment by cashing Robinson’s checks based on the lower forward sale contract price. The checks were not marked payment in full or the like. Although the price to be paid may have been in dispute, at least the amount of the checks was due. In order for an accord and satisfaction to have been reached, the checks would have had to be tendered in full settement of the debt and accepted as such. Antoine v. Elder Realty Company, 255 So.2d 625 (La. App. 3d Cir. 1971). This was not the case here. Tyson did not accept the “benefits” of the forward sale contract made by his agent, but kept an amount admittedly owed him for his cotton delivered to Robinson.

We hold there was no ratification by Tyson of the forward sale contract. Robinson is liable for the market price of Tyson’s cotton delivered to him, less the amount previously paid.

For the reasons assigned, the judgment of the district court is affirmed.

Affirmed.


author: PICKETT, Judge. PER CURIAM.

text:
    Claude B. TRICHE, Plaintiff-Appellee, v. COMMERCIAL UNION INSURANCE COMPANY et al., Defendants-Appellants.
    No. 10550.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    On Application for Rehearing April 12,1976.

      Joseph J. Weigand, Jr., Houma, for defendants-appellants.

      Grady Weeks and Douglas Authement, Houma, for plaintiff-appellee.
    Before SARTAIN, BAILES and PICKETT, JJ.
   PICKETT, Judge.

Defendants-Appellants, John Monterio Construction Co., Inc., its employee, Robert F. Eschete, Sr., and its liability insurer, Commercial Union Insurance Company, bring this appeal from a judgment rendered against them, in solido, in favor of Plaintiff-Appellee, Claude B. Triche, in a personal injury suit brought by the said Plaintiff-Appellee seeking recovery for personal injuries, pain and suffering, loss of wages, past and future, and medical expenses resulting from a motor vehicle collision that occurred on February 9, 1973, in Terre-bonne Parish, involving Plaintiff-Appellee and Robert F. Eschete, Sr., employee-driver of a vehicle owned by John Monterio Construction Co., Inc.

Plaintiff-Appellee answered the appeal and asked that the $149,326.91 judgment of the District Court be increased to $278,391.86, and, as thus amended, affirmed.

Undisputed facts are that Claude B. Triche, age 45 years, on or about February 9, 1973, at about 4:55 o’clock A.M., was driving his 1968 Chevrolet pickup truck in a westerly direction on Hollywood Road, in Terrebonne Parish, Louisiana, at a speed of approximately 25 to 30 m. p. h. in his own right hand lane of travel. At that time rain was falling, and the weather was cold. The highway was a two-lane, hard-surface road. A private driveway entered this highway from the North (Plaintiff-Appellee’s right), and it served as a means of entrance and exit to the site of the John Monterio Construction Co., Inc., Defendant-Appellant. As Plaintiff-Appellee was passing this driveway, a motor vehicle (pickup truck) owned by said John Monterio Construction Co., Inc., and operated by Robert F. Eschete, Sr., acting within the scope of his employment with said construction company, drove said motor vehicle onto Hollywood Road and struck Plaintiff-Appellee’s vehicle, which, as previously stated, was travelling in a westerly direction.

Mr. Robert F. Eschete testified that he planned to enter Hollywood Road and turn to his right, and proceed in a westerly direction, which was the same direction Plaintiff-Appellee was travelling. Mr. Eschete said he looked to his left before entering Hollywood Road, but admitted that the left window of his pickup truck was at least partially iced up, impairing his view, and that he did not see Plaintiff-Appellee’s vehicle until right at collision. Mr. Eschete had proceeded approximately 3 feet onto Hollywood Road when he struck the Triche vehicle.

State Trooper Gary Burnett testified there were no obstructions to prevent Mr. Eschete from seeing the Triche vehicle, and was of the opinion that the cause of the accident was Eschete’s improper entry of the highway. He found no negligence on the part of Mr. Triche. The highway at this point was straight.

Mr. Claude Triche testified that he never saw the Eschete vehicle until it struck him. The evidence firmly establishes, by a preponderence of the evidence, that the collision was caused solely by the negligence of Mr. Eschete. We concur with the findings of the Trial Court that the said Robert F. Eschete was negligent, in that the said Mr. Eschete,

1. Did not have or maintain his vehicle under proper control.
2. Did not maintain a proper lookout.
3. Did not see that which he ought to have seen.
4. Was driving said vehicle in a careless and reckless manner.
5. Failed to yield right of way.

Defendants-Appellants had plead the special defense of contributory negligence and now strongly urge that Mr. Triche was contributory negligent, and that this contributory negligence would bar his recovery.

The facts do not support this special defense. The record establishes that the Plaintiff-Appellee did not see the Defendant-Appellant’s vehicle prior to impact. Furthermore, as was re-affirmed in the case of Clark v. Allstate Insurance Co. et al., La.App., 279 So.2d 237, it is only in the exceptional case where the right-of-way motorist could have avoided the accident by the exercise of the very slightest degree of care that he will be considered guilty of negligence.

Plaintiff-Appellee, as the driver on the main, or preferred thoroughfare, had a right to assume that all vehicles entering onto this favored, public highway from private entrances would respect his right of way, and stop and yield the same. Clark v. Allstate Ins., Co., cited supra; Koob v. Cooperative Cab Co., 213 La. 903, 35 So.2d 849; Fontenot v. Lucas, La.App., 228 So. 2d 211.

The preponderance of the evidence also establishes that Mr. Eschete was acting within the course and scope of his employment for the Defendant-Appellant, John Monterio Construction Company, Inc., and, accordingly, his acts of negligence are imputed to his said employer, and to its public liability insurer, Employers Commercial Union Insurance Company, to the extent of its policy limits.

On the question of quantum of damages, we note initially that the State Trooper had reported no personal injuries sustained by either party. Mr. Triche testified as follows concerning how he felt right after the collision:

“A. I had a slight pain in my right side. It was so cold, and I was nervous on the wreck—I told the State Trooper I wasn’t hurt.”

The medical evidence establishes, beyond question, that Mr. Triche in fact had a hernia, for which he underwent surgery on April 30, 1973, in the Terrebonne General Hospital, Houma, Louisiana.

It also establishes that he had two ruptured, or herniated, discs in the lumbar sacral (L 4-5 and L-5 S-l) region of his back for which he underwent surgery in June, 1974.

These two herniated discs were removed at that time, and a bilateral lumbar sacral fusion accomplished, resulting in a residual disability of 15% to 20% of his back. This disability removed him from the labor market as a manual laborer.

The real issues before the Court are related to determining whether these two medical problems, i. e., the hernia and the ruptured disc, or either of them, were caused by the accident of February 9, 1973.

The first Doctor to see Mr. Triche following the accident was his family physician, Dr. Thomas Givens. He examined Mr. Triche on February 15, 1973,—six days after the accident. At this time Mr. Triche complained of back pain. The Doctor found muscle spasms in the lumbar sacral group, and gave a diagnosis of lumbar sacral muscle strain. He next saw Mr. Triche 12 days later, on February 26th, at which time Mr. Triche was still complaining of back pain, and Dr. Thomas referred him to Dr. Richard Landry, Orthopedic Surgeon. Dr. Thomas subsequently saw Mr. Triche on March 8, 16, 30th, and April 13 and 27th. On each occasion Mr. Triche complained of back pain. Additionally, on the visit of March 16th, Dr. Thomas noted an inguinal hernia on the right. On the April 27, 1973, visit, which was the last time Dr. Thomas saw him, Mr. Triche again complained of the hernia, and Dr. Thomas referred him to Dr. Phillip Cenac for that problem.

Dr. Thomas expressed the opinion that, based on the history given by Mr. Triche, the back problems originated with or were aggravated by, the accident of February 9th.

Dr. Thomas expressed no opinion about the hernia problem.

Dr. Phillip Cenac, however, was familiar with Mr. Tridie’s hernia problems, having first seen him in 1971, at the Houma Medical Clinic. At this time Mr. Triche underwent surgery, which was performed by Dr. Felix Mathieu and Dr. Mack Thomas, for bilateral hernia repairs. His recovery was uneventful and he was ultimately discharged with no residual medical problems.

Dr. Cenac next saw Mr. Triche on April 27, 1973, as a referral by Dr. Thomas Givens. Examination revealed a mass in the right inguinal area, and surgery was performed on April 30, 1973, at which time the hernia was repaired. This hernia was small and was located at a point above the suture line of the previous hernia surgery of 1971.

Dr. Cenac expressed the opinion that the hernia was related to the accident of February 9th.

Dr. Cenac testified that the hernia was in absolute accordance with the accident of February 9th, and, although he could not say with absolute certainty that the accident related trauma caused the hernia, he expressed the opinion that the hernia was related to the accident.

He further testified that an individual who undergoes hernia surgery of this type is normally disabled from 8-10 weeks, or 12 perhaps, and that most men return to their occupations after this type of surgery.

Dr. Dexter Gary, Orthopedic Surgeon, first saw Mr. Triche, in consultation with Dr. Thomas Givens, on July 2, 1973, and examined him with reference to back pain. After conservative treatment failed to produce relief, Dr. Gary asked for a consultation with Dr. John Jackson, a neurosurgeon of New Orleans. The evidence does not reveal any of the findings of Dr. Jackson, other than the statement by Dr. Gary that Dr. Jackson’s report was the same as his, and, also, • that Dr. Jackson suggested a myelogram. Dr. Gary caused a myelogram to be performed in November, 1973, and it appeared to be within normal limits, but a widening space between the posterior body of the lumbar spine and the dura which covers the nerve roots was noted. The significance of this was explained by saying that in an increased in-terspace a herniated disc can be present and not be seen on a myelogram. Subsequent review caused the Doctor to suspect a ruptured disc at the L 5-4 disc level, and narrowing of L5-S-1 interspace were noted. In April, 1974, a discogram was performed pursuant to Dr. Gary’s instructions. This test led to the conclusion that the L 5-4 and H-5 S-l were abnormal and compatible with herniated discs. On June 13, 1974, Mr. Triche underwent a two level laminectomy for excision of herniated discs, and a bilateral lumbar sacral fusion. Dr. Gary estimated 15% to 20% permanent physical impairment of the back, and testified that Mr. Triche could no longer perform work that would require repetitive, or heavy lifting, or jobs that would entail heavy labor.

It was Dr. Gary’s opinion that Mr. Triche was one hundred percent disabled from heavy manual labor, and that if he returned to this type of work he would suffer additional injury.

It was also Dr. Gary’s opinion, based on the history of Mr. Triche, and the medical findings subsequent thereto, that the above referred to injuries to Mr. Triche’s back occurred in the accident of February 9, 1973.

We find that the evidence amply supports the conclusion that the said back injuries were in fact received in the said accident, and resulted in the disabilities testified to by Dr.. Gary. To be more specific, this Court accepts, as having been established by competent evidence, that because of back injuries sustained by Mr. Triche in the accident of February 9, 1973, Mr. Triche has suffered 15%-20% permanent disability to his back, and that he cannot perform manual labor without injury to his back, and that he in fact should not perform manual labor.

This brings us to matters involving a determination of a just and adequate quantum of damages.

The jurisprudence of this State is well stated in the case of Barrois v. Service Drayage Co., La.App., 250 So.2d 135, in which it was held:

“A successful plaintiff in an action in tort is entitled to compensation for the following damages, where proven in the evidence: (1) loss of past and future earnings; (2) past and future pain and suffering; (3) permanent disfigure‘ments and disabilities; and (4) actual medical and related expenses. Brignac v. Pan American Pet. Corp., 224 So.2d 84 La.App.3rd Cir., 1969).”

LeBlanc v. Metal Locking of Louisiana, Inc., et al., La.App., 258 So.2d 683, 689, approached a consideration of loss of future income in the following manner:

“We must now determine a reasonable and fair amount of damages to compensate for the loss of future income. In so doing we must bear in mind that the Supreme Court in the case of McFarland v. Illinois Central Railroad Company, 241 La. 15, 127 So.2d 183 (1961), proscribed the ascertaining of loss of future earnings by computation based solely upon work-life expectancy. Also, in the case of Stanford v. Bateman Frozen Foods Company, 149 So.2d 753 (La.App. 1963), the First Circuit reaffirmed that the application of the mathematical formula based upon work expectancy could not be utilized in determining the loss of future wages. Recognizing the difficulty of determining with reasonable certainty and probability the loss of future earnings in the absence of any scientific and mathematical basis for so doing, the Supreme Court, in the case of Viator v. Gilbert, supra, indicated the standard to be used in making such a determination:
“ ‘ * * * [Consideration must be given to the settled jurisprudence of this Court that allowance of monetary damages for loss of future earnings (or support of dependents in case of death) cannot be calculated with mathematical exactitude; that they are speculative in character and the “ * * * most that the courts can do * * * is to exercise a sound judicial discretion and award such amount as, all the circumstances considered, may seem just to both litigants and not unduly oppressive to either.” * * * ’ 253 La. 81, 216 So.2d 821, at 822-23.”

The evidence established that Mr. Triche was forty-five years old at the time of the accident; that he only had a 5th grade education and is not qualified to do any job except manual labor. The evidence further established that if he does now perform manual labor he will be in danger of additional and serious and painful injury to himself.

Each of Mr. Triche’s employers since 1969 testified that Mr. Triche, because of his experience and educational background, was qualified only to do manual labor, and each of them stated, in turn, that they had no job for Mr. Claude Triche if he could not do manual labor. Each testifying employer stated that Mr. Triche was not qualified as a supervisory employee.

The evidence establishes that Mr. Triche was employed by Universal Iron Works as a manual laborer from 1969 to Janury 30, 1973, at which time he quit and went to work for Houma Steel at $600.00 per month, as a foreman. The foreman job entailed manual labor.

At the same time he had a second job, at Mack’s Oyster House, shucking oysters, at $84.00 per week.

Following the accident of February 9, 1973, Mr. Triche discontinued his job at Mack’s Oyster House, because he was physically unable to perform the work, which was, as indicated, in addition to his primary employment with Houma Steel. Following the accident, and because of the injuries he received in the accident, Mr. Triche was unable to adequately perform his work as foreman, and was relieved of this job and assigned to another job, as a truck driver. This job became progressively harder for him to perform, and he complained frequently of his injuries. Eventually he quit, on January 21, 1974, because of these problems, and went back to work for Universal Iron- Works, at $3.75 per hour, for an average work week of 40 hours, 5 of which were overtime. He worked for Universal Iron Works from January 21, 1974, through May 4, 1974.

The Trial Court accepted the testimony of Dr. Melville Wolfson as to what the evidence established regarding damages due Mr. Triche for lost past earnings, and this Court likewise accepts same, which are, in summation, as follows:

“Past Earnings
(a)Mack’s Oyster House:
$84.00 per week
Loss of earnings from date of accident to trial date—
$84.00 X 48 weeks =
$ 4,032.00
(b) Universal Iron Works and Houma Steel, Inc.
From date of accident to date of trial plaintiff averaged $560.33 wages per month. Plaintiff was unable to work from 5/4/74 through 11/5/74, or a six month period, due to the laminectomy and subsequent disability.
$560.33 X 6 months = $ 3,361.98
(c) Mr. Claude Triche’s income after the accident was less than before the accident due to his absence from work. From 1969 to the date of the accident, Mr. Triche’s monthly income averaged $688.00, but due to his absence from work after the accident his income from the date of the accident to 5/4/74 was only $560.33. The difference of Mr. Triche’s income prior to the said accident and subsequent to the accident was $128.47.
$688.00 income prior to accident 560.33 income subseq. to acc.
$128.47 difference in monthly income.
Mr. Triche actually suffered a loss of $128.47 per month for the period from 2/9/73 through 5/4/74 or a 15 month
period — $128.47 X 15 months = $ 1,927.05
TOTAL LOSS OF PAST WAGES. $ 9,321.03”

We concur in the finding of the Trial Court that when the accident of February 9, 1973, occurred Mr. Triche was working at two jobs. While his primary job at the time of the accident was with Houma Steel, Inc., the Trial Court refers to his permanent employment being with Universal Iron Works. The evidence is that Mr. Triche worked for Universal Iron Works, Inc., beginning in 1969 through January 30, 1973, at which time he was employed by Houma Steel, Inc. This employment continued until January 21, 1974, at which time he discontinued working for Houma Steel, Inc., and went back to work for Universal Iron Works, Inc., where he remained until May 4, 1974, at which time he quit working in order to have back surgery. The Trial Court’s finding that Mr. Triche’s wage earnings from his primary employer for that year were $8,265.58. This figure is supported by the evidence. His secondary employment was with Mack’s Oyster House, Inc., and from this job he had an income averaging $4,032.00 per annum.

Dr. Melville Wblfson testified that Mr. Triche, at age 45 years, had a life work expectancy of nineteen (19) years. This testimony was based on a table devised by the Bureau of Labor Statistics tabulations furnished by the U. S. Department of Labor, which was published in the June, 1971 Monthly Labor Review. Based on this testimony, we accept, as a proven fact, that Mr. Triche’s work-life expectancy at the time of the accident was 19 years.

Plaintiff sought to enhance loss of future earnings with testimony regarding a projected productivity rate factor of 3%. We think the Trial Court acted correctly in rejecting this concept, in this particular case, since it involves a 45 year old man whose future employment would be limited to the area of manual labor. We concur in the opinion of the Trial Court that an application and increase in the increase productivity rate factor would have proper application in the skilled and professional employment areas because there is among these classifications for employment wider range of possible increase of one’s expertise; whereas in the case of a manual laborer the wage remains standard. Also, in the area of manual labor young energy and strength are factors more desired than accumulating experience with age, accompanied by a continuing loss of strength and energy due to one becoming older.

Likewise the suggested projected future inflation factor of 3% is rejected as being too speculative.

It has been determined herein that Mr. Triche’s annual earning ability is $8,265.58, from his primary employment. Normally, he would be paid by the week, semi-monthly, or monthly, as a wage earner. For this reason the Trial Court concluded that the correct procedure, in arriving at a judgment figure for loss of future wages from this primary employment, is to apply the provisions of LSA-R.S. 47:2405, which provides a discount at the rate of six per cent (6%) compound interest annually. We concur in this application, the result of which is as follows:

"Primary employment
$8,265.58 per year for 19 years discounted at 6% compound interest per annum ($8,265.88 X 11.158116)
has a present value of $92,228.20"

We cannot concur, however, with the finding of the Trial Court that the work-life expectancy of Mr. Triche as related to his “second” or “moonlighting” job should be limited to three years. We find no evidence in the record, medical or otherwise to support this limitation.

We find no distinction between an individual working long, hard hours on one job, and that same individual working regular hours on one job, and additional hours “moonlighting” on a second job.

We find no jurisprudence in this State distinguishing “primary” employment from “secondary” employment in determining loss of future wages, or loss of future earning capacity.

25 C.J.S. Damages § 86, p. 950 contains the following statement:

“Where the injured person is engaged in two occupations, he may show the value of his services in both capacities to be greater than it would be in one exclusively, and a recovery for the loss of time and earnings in both occupations is not double recovery.”

Accordingly, judgment as to loss of earnings on Mr. Triche’s “second” or “moonlighting” job, should be determined on the basis of $4,032.00 per year, for a work life of 19 years, as follows:

$4,032.00 per year for 19 years discounted
at 6% compound interest per annum
($4,032.00 X 11.158116) $44,989.52

With reference to the items, past and future suffering:

(a) Inguinal hernia $ 3,000.00
(b) Herniated disc $30,000.00

as found by the Trial Court, we concur, the evidence amply supporting these awards, and same being within the sound discretion of the Trial Court.

We also concur in the award of $4,000.00 as medical expenses, these expenses being supported by the record.

For the foregoing reasons the judgment of the Trial Court is amended to increase the total loss of future earnings to $137,217.82.

To recapitulate, the judgment of the Trial Court is amended, as above set forth, and, as amended, affirmed, awarding judgment in favor of Claude B. Triche, and against Commercial Union Insurance Company, John Monterio Construction Co., Inc., and Robert F. Eschete, Sr., in solido, in the full sum of $183,538.85, with interest from judicial demand, itemized as follows:

Lost Past Earnings $ 9,321.03
Loss of Future Earnings $137,217.82
Past and Future Suffering:
(a) Inguinal hernia $ 3,000.00
(b) Herniated disc $ 30,000.00
Medical Expenses $ 4,000.00
TOTAL $183,538.85

For the foregoing reasons the judgment of the Trial Court is amended in part, and as amended, affirmed, at Appellants’ costs.

Amended and affirmed.

ON APPLICATION FOR HEARING

Before SARTAIN, BAILES and PICKETT, JJ.

PER CURIAM.

Defendants Commercial Union Insurance Company, et al., in their application for rehearing urged reconsideration of several aspects of our original opinion and, in addition, contend that the decretal portion of our opinion is ambiguous in that we fail to limit the liability of Commercial Union Insurance Company to the sum of $100,000.00, the limits of its liability under the policy issued by it to defendant, John Monterio Construction Company, Inc.

We concede that it was not our intention to increase the liability of the above named insurer to an amount in excess of its policy limits.

Accordingly, the last paragraph of our opinion is hereby changed to read:

For the foregoing reasons the judgment of the trial court is amended in part, and as amended, affirmed, limiting the liability of Commercial Union .Insurance Company to the limits of its policy provisions.
All costs of this appeal are assessed against the appellants.

In all other respects and with this clarification, appellants’ application for rehearing is refused.


author: LOTTINGER, Judge.

text:
    GEORGE & GEORGE, LTD. v. Andrew J. BENNETT, Jr., and Andrew J. Bennett, Jr., Ltd.
    No. 10636.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Writs Refused June 4, 1976.
    J. Arthur Smith, III, Baton Rouge, for appellant.
    Robert S. Cooper, Jr., Baton Rouge, for appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   LOTTINGER, Judge.

This is a suit by George & George, Ltd., a professional law corporation, to recover attorney fees from Andrew J. Bennett, Jr., Attorney at Law, and Andrew J. Bennett, Jr., Ltd., another professional law corporation. The Trial Judge granted summary judgment in favor of plaintiff, and denied defendants’ cross motion for summary judgment; the defendants appeal.

The record points out that in November of 1969, Mrs. Audrey Stout Wilder retained the law partnership of George & Hebert to represent her in various legal matters, including a certain claim against her former husband. Subsequently, on April 1, 1971, the professional law corporation of George, Bennett, Lindsay, Bass & Seago, Ltd., was formed, and this corporation continued to represent Mrs. Wilder in her claims. During the month of April, 1971, the defendant, Andrew J. Bennett, Jr., as a member of the law corporation of George, Bennett, Lindsay, Bass & Seago, Ltd., undertook the handling for that law corporation, the files of Mrs. Wilder. In July of 1971, the defendant, Andrew J. Bennett, Jr., as a member of the law corporation, instituted suit for and on behalf of Mrs. Wilder against her former husband.

On September 15, 1971, the defendant, Andrew J. Bennett, Jr., withdrew from the professional corporation of George, Bennett, Lindsay, Bass & Seago, Ltd. The files of Mrs. Audrey Stout Wilder were retained by the defendant, and he continued to represent her after his withdrawal from the professional corporation. In its motion for summary judgment, the plaintiff contends that as part of the negotiations surrounding the defendant’s withdrawal from the professional law corporation, it was agreed that he would continue handling the claim of Mrs. Wilder against her former husband. In his cross motion for summary judgment, the defendant contends that it was agreed that he would continue to represent Mrs. Wilder, but no fee arrangement was made. He further contends that mention was made that a referral fee would have to be worked out because Mrs. Wilder had been the client of a member of the professional corporation other than the defendant. It was agreed that this would be worked out later.

On May 19, 1972, a written agreement in the form of a letter was executed by a member of the successor professional corporation, to the effect that the handling of the Wilder file and case by the defendant was to be considered as a standard referral. And in that regard, the referring firm would receive one-third of the fee realized by the defendant, Andrew J. Bennett, Jr.

The defendant was successful in his prosecution of the suit for Mrs. Wilder and obtained a fee of $42,029.42. He has refused to pay over to George & George, Ltd. one-third of said fee, amounting to $14,009.80.

The defendants-appellants contend that the Trial Court erred in (1) finding as a matter of fact on cross motions for summary judgment that the May 19, 1972, “standard referral agreement” was a part of the separation agreement pursuant to which Andrew J. Bennett, Jr. withdrew from the firm of George, Bennett, Lindsay, Bass & Seago, Ltd., where the uncontro-verted affidavit of the defendant established that this “standard referral agreement” was not a part of the separation agreement; and (2) denying the defendants’ cross motion for summary judgment and in granting the plaintiff’s motion for summary judgment and rendering judgment in favor of the plaintiff and against the defendants.

Appellant contends that the agreement entered into between himself and the plaintiff was purely and simply a standard referral agreement, whereas the plaintiff would seem to argue that the defendant’s handling of the Wilder file as well as any fee to be paid him was part and parcel of the negotiations of his withdrawal from the professional corporation.

LSA-C.C.P. art. 966 in part provides that summary judgment shall be rendered “. . . if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” (emphasis added.)

The mover bears the burden of convincingly showing the absence of a genuine issue of material fact, the burden being such that all reasonable doubt must be resolved in 'favor of trial on the merits. In considering a motion for summary judgment, the Court is not to determine the merits of any factual issues raised; it is to determine only whether there is a genuine issue of material fact. Our jurisprudence has established that the summary-judgment procedure is not a substitute for a trial on the merits. Scott v. Butler Brothers Furniture Co. of Baker, Inc., 315 So.2d 809 (La.App. 1st Cir. 1975).

We are of the opinion that the opposite contentions as to whether the agreement was a standard referral agreement or an agreement part and parcel of the defendant’s withdrawal from the professional corporation is such an issue of fact so as to avoid the use of summary judgment proceedings.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is reversed, and this matter is remanded for further proceedings in accordance with the views expressed herein. All costs of this appeal are to be paid by plaintiff-appellee.

REVERSED AND REMANDED.


author: LEMMON, Judge. BEER, Judge

text:
    O’Neal Walter SCOTT v. I.L. LYONS & COMPANY, LTD., et al.
    No. 6881.
    Court of Appeal of Louisiana, Fourth Circuit
    March 16, 1976.
    Rehearings Denied April 13, 1976.
    Writs Refused June 2, 1976.

      Meyer Sabludowsky, New Orleans, for plaintiff-appellant.
    Drury, Lozes & Curry, James H. Drury and Madison C. Moseley, New Orleans, for defendant-appellee.
    Christovich & Kearney, C. Edgar Clou-tier, New Orleans, for intervenor-appel-lant, Ranger Ins. Co.
    Before SAMUEL, REDMANN, LEM-MON, SCHOTT and BEER, JJ.
   LEMMON, Judge.

Plaintiff has appealed from the dismissal, after a trial on the merits, of his tort suit based on a premises defect which allegedly caused him to fall while alighting from a truck.

The accident occurred when plaintiff, a truck driver, was delivering freight to a warehouse owned and leased by the two defendants. As instructed by defendant lessee’s employee, plaintiff had backed his truck into the warehouse door at an angle in order to keep the alley clear and to get as close as possible to the stationary conveyor, which was located just inside the door. After plaintiff had unloaded the freight, he began a two-step descent from the stationary apron across the rear of the truck. The height of the apron was about four feet above ground level outside the warehouse and about three feet above the level of the raised warehouse floor. In the second step he caught his left knee on a hook on the inside frame of the warehouse door and was thrown onto the warehouse floor, landing on both knees. failing- to discover the object or in descending from the truck in the manner he did.

The principal issues on appeal are whether the object which caused plaintiff’s fall constituted a defect or hazard and whether plaintiff was himself negligent in

The following photograph, depicting plaintiff and the truck in question, illustrates the first phase of the two-step descent :

In the position shown in the photograph plaintiff had already closed the curtain and, holding onto the chain with his left hand, had stepped down from the apron of the truck and placed his right foot on an iron rail or step, which was located between the apron and ground level.

After stepping down with his right foot, as shown, and completing the first phase of the two-step maneuver, plaintiff attempted to complete the second phase by moving his left leg down. This second step would normally have placed plaintiff’s left foot on the ground; however, with the rear of his truck angled inside the door of defendants’ warehouse, plaintiff intended by this second step to place his left foot on the warehouse floor and then to go to a desk just inside the door, where defendant lessee’s employee had to sign the delivery ticket.

The following photograph shows another truck (without a projecting apron) backed into the warehouse door and further shows the hook (circled) protruding from a metal plate, which is attached to the brick that forms the side of the door opening :

The distance between the conveyor and the side of the door was approximately 2i/¿ feet. The L-shaped hook, two to three inches long and three feet above the ground (two feet above the raised warehouse floor) had been in that location during the many years that defendant lessee occupied the building, but had never been used.

I

Defendants admittedly had a duty to keep the premises reasonably safe and free of hazards for plaintiff and other truck drivers who delivered freight on the premises. They contend, however, that the hook was not a hazard which rendered the premises unsafe and that no duty was therefore imposed upon them to correct the known condition or to warn plaintiff of its existence.

Plaintiff would not have fallen if the hook had not been in that location. The punctate type of injury to the knee supports the factual finding that he hit the hook and not the wall. Therefore, there is no real dispute as to whether the hook was a cause-in-fact of the fall. The key inquiry is whether an ease of association exists between the injury and the duty which plaintiff asks us to apply to defendants. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972). This inquiry involves the determination as to whether a truck driver could reasonably be anticipated to alight from the truck in close proximity to the hook so that the hook would present a risk of injury during the descending maneuver. And in argument before this court defendants pointed out that if plaintiff had followed the more reasonable procedure of descending onto the ground and then walking through the warehouse door, instead of jumping 3'i/£ to 4 feet from the rear of the truck directly onto the warehouse floor in the proximity of the hook, the injury would not have occurred.

Plaintiff testified he did not jump, but rather stepped down, and that he did not have room to step on the ground between the truck and the warehouse floor. There is some conflict in the testimony as to the distance from the back of the truck to the warehouse floor. Defendant lessee’s employee (who did not witness the incident) estimated that a truck could only get within ty/2 to 4 feet of the warehouse floor. The second photograph above, however, shows the doorjamb to be two bricks wide, so that if plaintiff had backed his truck straight into the doorway, the apron of the truck would have been only the width of two bricks plus the width of the protecting post from the warehouse floor. This photograph and others appear to be more supportive of plaintiff’s estimate that he was about two feet from the warehouse floor when he stepped from the iron rail in the second phase of his two-step descent, and a two-foot long step from a height of one foot above the raised floor can hardly be considered a jump. We conclude that the rear of plaintiff’s truck was near enough to the raised floor for him to reach the floor with a reasonable descending maneuver.

In our opinion the hook constituted a hazard which involved an unreasonable risk of harm to plaintiff. Defendants should have reasonably anticipated that a truck driver, once the unloading of his truck was completed, might descend from the rear of the truck in close proximity to the hook, which was located near the freight-receiving desk, and might pass close enough to the hook to become entangled with it during his descent or during his entry into the warehouse.

The fact that the hook protruded only three inches lessened the likelihood of an occurrence such as befell plaintiff. Nevertheless, since a descending maneuver such as that undertaken by plaintiff was reasonably to be expected when a truck driver made a delivery at this door, defendants (with actual knowledge of the hook) had a duty to remedy the hazard or to take other steps to protect plaintiff against the danger. We hold that defendants’ failure to discharge this duty was a legal cause of the accident.

II

Defendants also pleaded contributory negligence, alleging that the “hook was in full view . . . .”

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, the standard being that of a reasonable man under like circumstances. Smolinski v. Taulli, La., 276 So.2d 286 (1973). Defendant bears the burden of proving contributory negligence.

Defendant lessee’s employee testified that the rusty hook “is so small that no one —it is not noticeable by anyone.” While the hook apparently was large enough to constitute a hazard, it was small enough to be virtually concealed. Furthermore, since the hook was lower than the apron of the truck and was not painted or marked so as to make its presence obvious, it was even more difficult for plaintiff to see the object.

Additionally, in the consideration of negligence and contributory negligence, the law does not necessarily demand identical conduct of the plaintiff and the defendant. Hall v. Hartford Acc. & Indemnity Co., 278 So.2d 795 (La.App. 4th Cir. 1973); Prosser, The Law of Torts, Ch. 11, p. 419 (4th ed. 1971). Varying factors affect what conduct the standard of the reasonable man requires. As to the duty of discovering hazardous conditions on premises, there is a greater duty imposed on the owner or the lessee than on the visitor. The owner or lessee has a duty to discover all reasonably discoverable defects (in this case defendants had actual knowledge of the hook), while the visitor legally on the premises has only the duty to discover those hazards which are readily observable in the exercise of ordinary vigilance. In this respect we further note that plaintiff was making his first delivery at this entrance.

Considering all the circumstances of this case, we conclude defendants have failed to prove that plaintiff was unreasonable or negligent in failing to discover this particular hazard or in descending from the truck in the manner in which he did. Had the hook not been located in the path of plaintiff’s descent, the accident would not have occurred.

Ill

In the March 10, 1972 accident the 32-year old plaintiff struck his left knee on the hook, which caused him to fall with forceful flexion on both knees, more heavily on the right. He was treated at an industrial clinic and, because of recurrent knee pain, was eventually referred to Dr. George Cary, an orthopedic surgeon.

Dr. Cary examined plaintiff on March 24, 1972 and found crepitation in both knees and tenderness on compression, as well as a healing laceration of the left knee and a slight lumbosacral sprain. He prescribed and administered a course of conservative treatment, and the back sprain resolved in due time.

As to the knee injury, Dr. Cary ultimately diagnosed chondromalacia, worse in the right knee, which he attributed as the cause of plaintiff’s persistent complaints of pain after working. When plaintiff’s condition had not improved after 15 months, the doctor in June, 1973 recommended surgery to relieve the discomfort. Plaintiff at first consented to surgery, but changed his mind because he had to support his family and had been working consistently, although in pain. In February, 1974, however, plaintiff told the doctor that he had decided to submit to a bilateral patellecto-my (which had not yet been performed at time of trial).

Another orthopedist, Dr. Raymond Kit-ziger, also examined plaintiff and made generally the same findings and diagnosis (he additionally found a positive Mac-Murray test for a torn ligament). This doctor, however, stated he would not “push for” surgery, since plaintiff was functioning in his work, but admitted the ultimate necessity for surgery was probable.

Dr. Kitziger estimated the cost of surgery, including hospitalization, surgical fees and related expenses, at approximately $1,400.00 for each knee, with a recuperative period of at least four months required after each operation. He further opined that, after surgery, plaintiff will have a permanent partial disability of at least 20% and will have difficulty in performing such duties associated with truck driving as climbing onto the back of the truck and loading and unloading.

Thus, plaintiff has endured substantial pain and suffering, although he has not yet incurred any considerable loss of wages. The recommended surgery will relieve the discomfort, but apparently will cause a further impairment of earning capacity, at least insofar as plaintiff’s ability to earn wages as a truck driver with another employer.

Perhaps the most difficult quantum cases are those in which the plaintiff sustains a permanent partial disability which at time of trial has only potential effect on his future earnings because of continued employment with the same employer. A court’s failure to recognize the impairment of earning capacity is unfair to the plaintiff; on the other hand, the court must recognize, in fairness to the defendant, that this impairment will perhaps have little effect on future earnings unless the plaintiff is thrust on the open labor market.

In the present case the evidence is lacking as to the factors bearing on the amount of wages plaintiff will reasonably be expected to lose over his remaining work life. There was no evidence as to what other type of work plaintiff will or will not be able to perform after the surgery, and it was not established whether plaintiff’s partial disability will worsen in the future. Furthermore, while we recognize that plaintiff continued to work (in pain) because of economic necessity, we note that the only medical testimony on the point established that plaintiff will be able to continue working as a truck driver as long as he does not have to perform heavy loading and unloading duties.

Considering the pain and suffering plaintiff has already sustained, the $434.75 in medical expenses to date, the amount required for medical expenses in connection with the probable surgery and the amount of wages which will be lost during the periods of recuperation following two surgical procedures and the pain and suffering associated therewith, as well as the permanent partial disability and impairment of earning capacity, we ' set the amount of damages at $27,500.00.

For these reasons, the judgment of the trial court is reversed, and it is now ordered that judgment be rendered in favor of plaintiff and against.defendants in the sum of $27,500.00, together with legal interest thereon from the date of judicial demand until paid, and for all court costs, subject to the claim asserted in the intervention of plaintiff’s employer’s workmen’s compensation insurer.

REVERSED AND RENDERED.

BEER, J., dissents and assigns reasons.

BEER, Judge

(dissenting).

I do not agree with the majority’s conclusion that defendants “should have reasonably anticipated that a truck driver, once the unloading of his truck was completed, might descent from the rear of the truck in close proximity to the hook, which was located near the freight-receiving desk, and might pass close enough to the hook to become entangled with it during his descent or during his entry into the warehouse.” I agree with the trial judge’s finding that there was no negligence on the part of the defendants.

In my view, the plaintiff has not carried the burden of proving that the defendants failed to keep the premises reasonably safe. The majority opinion has the effect of permitting the plaintiff to pull himself up by his own bootstraps by conjecturing that the fall would not have taken place if the hook had not been where it was and, thus, was a damage causing defect that defendants should have anticipated.

Since I would affirm the trial court’s judgment, I must respectfully dissent.

      . The truck shown in the photograph has the right rear corner angled into the door opening, while plaintiff testified that the left rear corner of his truck was angled into the door on the day of the accident.

      . In this respect we consider irrelevent the argument that the accident would not have occurred if plaintiff had descended from the truck in another manner. The relevent inquiry is whether the manner in which plaintiff did descend from the truck was reasonable and to be reasonably anticipated.

      . Plaintiff’s present employer, who was condemned by judgment in a consolidated case to pay compensation benefits for a total and permanent disability, granted plaintiff’s request, about a month after the accident, to drive a tractor-trailer unit. This unit is more difficult to drive, but the loading and unloading is done mostly by mechanized equipment.
      Plaintiff’s average weekly earnings were $184.80.