text:
    PALMER AND PALMER v. Minnie STEWART.
    No. 10745.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearings Denied June 30, 1976.
    Writ Refused Oct. 1, 1976.
    Charles B. W. Palmer, Amite, for appellant.
    Joseph H. Simpson, Amite, for appellee.
    Before SARTAIN, EDWARDS and CHIAS SON, JJ.
   EDWARDS, Judge.

Plaintiff law firm sued defendant, a former client, for $1,542.80, allegedly representing the value of professional services rendered yet unpaid. The trial court gave judgment in favor of plaintiff for $232.80. Plaintiff appeals contending the award was inadequate, and defendant has answered that it was excessive.

Minnie Stewart was sued in two separate suits filed on October 19 and October 27, 1970 to enjoin her from interfering with logging operations on properties adjacent to hers and to her father’s. Allegedly she had trespassed on those properties and threatened at shotgun point loggers working there.

She retained Charles B. W. Palmer of the plaintiff firm to represent her in the injunction proceedings, paying to him an initial retainer fee of $250.00

From the record we glean the following facts and circumstances leading to the injunction suits. In 1964, Minnie Stewart acquired through succession partition some 27 acres of land in St. Helena Parish. This land at the time of the injunction suits in 1970 was bounded on the north by property belonging to W. D. Kent, one of the plaintiffs seeking injunctive relief, and on the south by property of Burrell Carter, the other plaintiff. Minnie’s father, Robert Lee, owned a tract of some 100 acres bounded on the south at some points by the Kent property and at other points by the Carter property. The boundary between the Kent and Stewart properties and between the Lee and Carter properties has always been' described as the Greensburg-Harvell Mill Road. While the record is not clear as to where the alleged trespasses and threats occurred, we assume these took place somewhere along the Greensburg-Harvell Mill Road where it serves as the boundary between the above properties.

At' the trial of the instant case, Palmer testified to the nature of his activities on behalf of his client and the time expended therefor in order to establish the value of his services. He stated that, when Minnie Stewart came to him for representation in the injunction proceedings against her, she insisted that the Mill Road formerly was in a different location. Because of this, Palmer testified, he felt she had a possible defense: Should it be proved that the Mill Road was once further south of its present location, Minnie Stewart would stand to gain some 30 additional acres of land. Palmer, therefore, began investigations in hopes of uncovering some proof of an older Greensburg-Harvell Mill Road lying south of the present road.

We note at this point that, even assuming such an older road existed, its existence would be of questionable relevance at best to the injunction proceedings. Minnie Stewart’s land lies below and to the south of that of W. D. Kent. If the road were proved to be further south, she would then be in a position possibly to lose, not gain, additional land. Relative to the suit filed by Carter, the Greensburg-Harvell Mill Road forms no part of any boundary between the Carter and Stewart properties. This court is thus at a loss to understand appellant’s theory. The existence vel-non of an older road farther south appears simply irrelevant to the suits for injunctive relief against Minnie Stewart.

We speculate at this point that Minnie Stewart may have been acting in what she conceived to be the best interest of her father Robert Lee (who, the testimony at trial indicates, is very old and possibly semi-comatose) when and if she threatened the loggers on the boundary between the Carter and Lee properties. If this were so, it possibly explains Palmer’s reliance on an older road as a defense for Minnie Stewart. However, the Greensburg-Har-vell Mill Road previously had been determined by this Court to form the southern boundary of Robert Lee’s property and the northern boundary of the Tillery tract, which tract is adjacent to Carter’s. See Lee v. Tillery, 9 So.2d 816 (La.App. 1st Cir. 1942). It would, therefore, be eminently reasonable to infer that the same road in the same location with the same description would likewise be held to form the remaining southern boundary of Robert Lee’s property.

Palmer, however, testified and introduced a reconstructed time sheet to the effect that he spent some 28 hours in examining other suit records, obtaining and examining maps, and consulting with Minnie Stewart — all in connection with his attempt to find this other Greensburg-Harvell Mill Road. In all fairness to appellant, there evidently was some difference in the present and former location of the road. The testimony of Burrell Carter, appellant’s witness, is enlightening on this point:

CROSS EXAMINATION BY Joe Simpson

Q. This road, how far is this road — the old road from the existing road ?
A. They made a little cut-off across the creek and it is negligible difference.
Q. Can you see it from the old road?
A. Oh, yes.
Q. You wouldn’t have to go to Baton Rouge and study maps and spend eight hours examining the property lines to find this road, would you?
A. I wouldn’t, Mr. Simpson.
Q. Well, would anybody else have to do that?
A. Depends on how much they know about land titles and the lay of the land and so forth. I would rather not say what somebody else would do.
Q. Your testimony is you can see the road from the new road ?
A. Oh, yeah, it is right there by it, just a matter of a few feet.

The old road Mr. Carter was speaking of is the Greensburg-Harvell Mill Road. The new road is the blacktop highway more recently constructed. It is in fact south of the Mill Road by some 100 feet and therefore on Carter’s side of the Mill Road separating the Lee and Carter properties. It should have been reasonably obvious that this would be neither relevant nor beneficial to a defense of Minnie Stewart.

Other items on Palmer’s reconstructed time sheet include 4 Motions for a New Trial (2 in Carter v. Stewart and 2 in Kent v. Stewart, all filed within 2 days of each other and all filed before any was denied). The record reflects that Palmer was not present at the hearings on the rules for permanent injunction. The record also reflects a final pleading filed by Palmer after the Motions for New Trial were denied entitled “Motion to Strike The Motion for New Trial,” which motion was granted.

There were also several items relating to correspondence and telephone calls.

Ultimately, Minnie Stewart was enjoined from interfering with the Carter and Kent logging operations. The road she claimed existed was never found; she gained no additional land. Palmer testified at trial that, if nothing else, Minnie Stewart derived from his efforts on her behalf “peace of mind” from the knowledge that she had no valid claims on Carter’s or Kent’s land.

The trial court stated in written reasons that:

“It seems to the Court that the entire defense is based upon whether much of the work was necessary, and also the reasonableness of the charges made for particular items set forth in the affidavit. Primarily, the Court notes, from In Re: Intertate Trust and Banking Company, 235 La. 825, 106 So.2d 276, that the difficulty of the legal problem is one of the elements to be considered in a cause of this type.

“Mr. Palmer represents his clients with tenacity. However, such tenacity must be tempered with a realistic appraisal of the facts and the law, and a responsibility to terminate work and perhaps withdraw from a case when such appraisal indicates, with virtual certainty, as the Court believes was the case here, that the client is absolutely wrong and, to use Mr. Palmer’s own terminology, has nothing ‘... to hang her hat on.’

“After his initial consultation with his client, an examination of the previous suits, a site inspection and an examination of maps, Mr. Palmer should have been conclusively convinced that his client’s cause was without hope. At such time, he should have terminated further work, so advised her, and billed her for those services. If she then persisted in pursuing such a lost cause, despite Mr. Palmer's advice to the contrary, then if he wished to continue to represent her, a definite fee arrangement should have been agreed upon. It is the Court’s opinion that much of his work was unnecessary in order for him to conclude that the matter was res judicata.

“Accordingly, the Court feels that an ample and generous award would be as follows:

$ 90.00 — original consultation with client
105.00 — examination of previous suits (3 hrs. @ $35.00)
140.00 — obtaining maps and examination of property site
101.25 — Consultation with Mr. Carter & correspondence
50.00 — preparing roughdraft of proposed boundary agreement
6.55 — telephone calls
$482.80 — Total
(250.00) — retainer fee paid
$232.80 — balance due"

We likewise feel that this award was generous and certainly ample.

The decision of the trial court is affirmed at appellant’s costs.

AFFIRMED.


source: Caselaw Access Project

author: SARTAIN, Judge.

license: Public Domain

text:
    Elnora Tate PERRY, Individually and as Natural Tutrix of her minor children, Melvin Gerald Perry, Jr. and Morlan Perry, Plaintiff-Appellant, v. Randy J. LAW et al., Defendants-Appellees. Jimmy PERRY, Jr., Plaintiff-Appellant, v. Randy J. LAW et al., Defendants-Appellees.
    Nos. 10737, 10738.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearings Denied June 30, 1976.
    Writs Refused Sept. 24, 1976.

      Paul H. Dué, Baton Rouge, for Elnora Tate Perry in No. 10737 and Jimmy Perry, Jr., in No. 10738.
    Iddo Pittman, Jr., Hammond, for Randy J. Law, Indiv. and State Farm Mut. Auto. Ins. Co.
    Joseph H. Simpson, Amite, for Randy J. Law, Indiv.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

These consolidated cases were occasioned by a head-on collision which occurred on U. S. Highway 51 at approximately 5:20 P.M. o’clock on April 19, 1973, in the Parish of Tangipahoa, north of Amite, Louisiana.

Jimmy Perry, Jr. (Perry), accompanied by his brother, Melvin G. Perry (decedent), was driving his 1968 Chevrolet automobile in a southerly direction. Randy J. Law (Law) was driving his parents’ 1972 LTD Ford automobile in a northerly direction. Law was alone at the time. Both Law and Perry sustained serious bodily injuries. The decedent was killed instantly.

Elnora Tate Perry, individually and as natural tutrix of Melvin G. Perry, Jr. and Morían Perry, minors, brought suit (10,737) against Randy J. Law and State Farm Mutual Automobile Insurance Company (State Farm), the liability insurer of his Ford vehicle, for the alleged wrongful death of her husband and the children’s father. These named defendants filed a general denial, asserting that the accident was caused solely through the negligence of Jimmy Perry, Jr. and alternatively, a third party demand against Perry for one-half of any judgment rendered against them in favor of the widow and minor children of the decedent.

In Jimmy Perry’s suit (10,738) against them, State Farm and Law also entered a general denial, urged contributory negligence on the part of Perry, and State Farm reconvened for sums paid under the collision and medical payments provisions of its policy.

Following trial on the merits, the district judge, without reviewing or particularizing the facts, rendered judgment simply stating that plaintiffs had failed to prove “who caused the accident” and dismissed both suits. Plaintiffs in each suit have appealed and defendants have answered these appeals re-urging their respective third party and reconventional demands.

All parties hereto agree that the trial court erred as a matter of law when it failed to reconcile the conflicting testimony of the two drivers or, if this not be possible, then to consider probabilities or improbabilities in the light of other factors and the degree of proof required. This contention is particularly applicable in the suit for the alleged wrongful death of Melvin G. Perry, who was a guest passenger. His death occurred as a result of a head-on collision which took place on a relatively straight, level, hard-surfaced highway, in the late afternoon, and under ideal driving conditions. It is evident that one or both of the drivers of the vehicles involved were negligent.

In Nelson v. Zurich Insurance Company, 247 La. 438, 172 So.2d 70, 72 (1975), the court stated:

“From the foregoing, it is obvious that the opposed versions are irreconcilable, hence we must resort to the application of the well recognized rule that: ‘Where witnesses differ, the courts should reconcile, if possible, the apparent contradictions their testimony presents. If this cannot be done, then the probabilities or improbabilities of their respective statements must be considered in the light of their capacity, opportunity or incentive for observation, the amount of corroboration, if any, and the degree of proof required.’ Fridge v. Talbert, 180 La. 937, 158 So. 209. See also, Cockrell v, Penrod Drilling Company, 214 La. 951, 39 So. 429; Fogelman v. Interurban Transp. Co., 192 La. 115, 187 So. 73. In the Fridge case, the court very aptly observed: ‘The testimony of a witness which is corroborated by admitted or established facts must prevail necessarily over that which is inconsistent with those facts.’ ”

It therefore becomes our task to resolve the factual and legal issues here presented. A remand is not in order. Gonzales v. Xerox Corporation, La., 320 So.2d 163 (1975).

The undisputed facts are: U. S. Highway 51 is a typical asphalt two-lane highway. It is twenty-four feet wide, with a twelve foot lane for each direction of travel. It runs in a north-south direction and is bordered by relatively wide shoulders. At the time of the accident the weather was clear, visibility was excellent, and the highway was dry.

Perry, accompanied by the decedent, was proceeding in a southerly direction driving his 1968 Chevrolet automobile at a speed of 40-50 m. p. h.

After the collision, the Perry vehicle came to rest facing west with its rear bumper extending to the east edge of the northbound lane and its front bumper extending to approximately the center of the southbound lane. The Law vehicle came to rest in a ditch paralleling the southbound lane. The right front of each vehicle came into contact with the right front of the other. The overlap was fifty to sixty percent of the width of each vehicle.

We now turn to the testimony. The only eyewitnesses to the accident are the drivers themselves.

Perry testified that as he was proceeding in a southerly direction he observed the Law vehicle approaching him at a high rate of speed. Just before this vehicle reached him he saw the driver’s head fall to the left, like he had fallen to sleep. Simultaneously, this vehicle veered sharply into the southbound lane. At this point the decedent hollered “look out”. Perry had already observed the action of the approaching vehicle when his brother spoke out. He explained that at that moment more than one-half of the Law vehicle was in the southbound lane. He (Perry) then cut sharply to his left in an attempt to avoid the collision. He stated that at the moment of impact, his own left front wheel had just crossed the center line.

Law testified that as he was proceeding in a northerly direction, he observed the approach of the Perry vehicle. He explained that when this vehicle was about one hundred to one hundred fifty yards from him he observed that it had crossed the center line of the highway. Law then removed his foot from the accelerator but when the Perry vehicle returned to its proper lane Law then resumed his normal speed. He stated that when the Perry vehicle was about fifteen yeards from him, it veered sharply back into the northbound lane whereupon he (Law) cut his steering wheel sharply to the left in an attempt to go around him and avoid the collision.

The first person to arrive at the scene of the accident was J. M. Lindsey. Mr. Lindsey described the position of the vehicles as related above. He found that while the debris was scattered generally over most of the highway the greater portion of it was concentrated near the center line where the Perry vehicle was resting. He went first to the Perry vehicle and observed the driver who was still behind the steering wheel “kind of bent over”. He saw the decedent lying in the back seat with his legs extended to the front seat. He did not approach the Law vehicle at that time because he thought that any occupant therein was dead. Other persons had then arrived so he left to summon help. When he returned very shortly, he saw that Law was trying to pull himself out of his vehicle. With the assistance of others, Law was removed from the car “hollering and screaming and saying, ‘what happened’ ”. Law was conscious and gave Lindsey his father’s name and telephone number. He also stated that Perry was conscious and declined his offer of help.

Lindsey is an agency manager for another insurance company. He had a camera in his vehicle and the photographs he took at that time are in the record. This witness looked particularly for skidmarks and found none. He did identify gouge marks in the asphalt surface near the western edge of the southbound lane, which he said were made by the Law vehicle.

Trooper Fred Lewis Piazza of the Louisiana State Police investigated the accident for that agency. This officer could find no skidmarks. He observed that the Perry vehicle had remained at or very near to the point of impact. The Law vehicle had traveled a distance of thirty-five feet after impact and had come to rest on its top in the ditch to the west of the highway. He concluded that both vehicles had crossed the center line and that the right front of each vehicle made contact at the “immediate center” of the highway. Law had already been removed from the scene. However, Perry was still there and told the officer that he was traveling 45 m. p. h. and was attempting to “dodge” the Law vehicle. He later talked to Perry at the hospital and because of the circumstances of the accident he caused a blood test to be performed to determine if Perry had been drinking. The test was negative.

He did not have an occasion to question Law.

Mr. Alvin Doyle, Jr., recognized as an expert in automobile accident investigation, testified on behalf of the plaintiffs. He commenced his investigation on August 22, 1973, some four months after the accident. On this date he went to the scene of the accident and took numerous photographs which he identified and are in the record. Also available to him were the police report and the pictures taken by Lindsey, Piazza and one Larry Dale. Dale’s pictures were taken for State Farm on the day following the accident.

Doyle identified three significant marks on the road surface. The first such mark was a heavy oil spot located exactly on the center line. This mark is located at a point coinciding with the spot where the right front wheel of the Perry vehicle came to rest. The second mark was identified as an “explosion mark”. It measured generally twelve inches by twelve inches. The third mark is a gouge in the asphalt surface itself. These three marks are located in almost a straight line running perpendicular to the center dividing line of the two lanes of travel.

Doyle stated that the oil mark on the center line probably came from the transmission of the Perry vehicle inasmuch as its consistency was heavier than the type of oil found in the crank case.

It was his opinion that the explosion mark was a series of pot marks on the highway surface which were created when the two vehicles were forced down by the energy released on impact. The center of this explosion mark measured five feet west of the center line and seven feet east of the west edge of the southbound traffic lane.

Doyle opined that the gouge mark was caused by the Law vehicle as it pivoted to the northwest after impact and before it left the hard surfaced area of the highway. This mark measured six feet in length. It was located thirty-three inches from the western edge of the asphalt on its southern end and ten inches from the edge of the asphalt on its northern end.

The right front suspension system of the Perry vehicle was forced back seventeen inches from its normal position. The steering wheel was locked at a 90° (or %th) turn to the left. It was his opinion that the steering wheel was turned to this position before contact because the initial impact would so damage the steering mechanism as to prevent manual turning after impact.

He also pointed out on the photographs taken at the scene of the accident what he identified as a “tire swerve mark”. In his opinion this swerve mark was made by the Perry vehicle as it attempted to avoid the Law automobile.

Based on these facts, Doyle concluded that the center of impact or the point of collision was at the explosion mark, that is, five feet west of the center line or in the southbound (Perry’s) lane.

Professor A. J. McPhate, an expert in the field of design, dynamics and structure, also appeared on behalf of the plaintiffs. His expert opinion, based on the position of the vehicles following collision, the dynamics involved, and the photographs offered in evidence, was that at the moment of impact Perry’s right front wheel was five feet west of the center line. He agreed with Mr. Doyle in that when an accident occurs such as the one involved in the instant litigation, it is not unusual for there to be evidence of damage to the roadway similar to the “explosion mark” testified to by Doyle.

Dr. Oían K. Dart, Jr., an expert in automobile accident analysis and reconstruction, testified on behalf of the defendants. He visited the scene of the accident on May 30, 1974, some thirteen months following its occurrence. He agreed generally with the measurements taken by Doyle. On his visit to the scene he observed the oil mark on the center line and the gouge mark near the western edge of the asphalt surface. The explosion mark was not detected by him. He placed the point of collision on the center line. He explained that with a fifty to sixty percent overlap, the vehicles traveling at the speeds indicated, and a right front to right front collision, that on impact the two vehicles pivoted on their respective right front wheels. The Perry vehicle moved very little after impact. The Law vehicle, while continuing its pivoting motion, proceeded a distance of about thirty-five feet from the point of collision. He attributed the greater movement on the part of the Law vehicle to its heavier weight.

While Dr. Dart conceded that the accident could have happened the way Mr. Doyle explained, he was of the opinion that had the point of collision been further to the west than the center line (or where Doyle placed it), the Law vehicle could not have made the gouge marks where it did.

Regardless of whether one accepts the testimony of plaintiffs’ experts and place the point of collision at the explosion mark (five feet west of the center line) or the testimony of defendants’ expert and place the point of collision on the center line, the unalterable fact remains that at the moment of impact portions of both vehicles were across the center line. This is the crucial factor and one which accords with all the testimony, lay and expert.

Inasmuch as each vehicle was across the center line, each driver maintains very strongly that the other created an emergency by crossing the line and each driver was endeavoring to avoid a collision by cutting to the left and attempting to pass in the opposite lane.

Counsel for each driver, therefore, argues that his driver’s version should be accepted because the testimony of the other driver has been successfully discredited. Law had previously been cited for and pled guilty to several traffic offenses for speeding and improper lane usage. He acknowledged these offenses after some prodding on cross examination. The credibility of Perry’s testimony is challenged because of previous criminal offenses resulting in his confinement at Angola on two occasions. We do not find that the credibility of either of these drivers has been diminished to the point where either one’s testimony should be accepted over the other.

Considering all of the testimony above, we find that both drivers were negligent in failing to keep their respective vehicles in its proper lane and that it was this concurrent negligence that was the cause in fact of the accident. Stated another way, and applying the rule announced in Nelson v. Zurich Insurance Company, above, we find and so hold that it is more probable that this unfortunate accident happened as a result of the inattention of both drivers than it was caused solely in the manner stated by either one of the drivers to the absolute exclusion of the other driver’s version.

Accordingly, Jimmy Perry’s suit and State Farm’s reconventional demand therein will be dismissed. In the other suit, the surviving widow and minor children will have judgment against Law and State Farm with these defendants obtaining judgment on their third party demands against Perry for one-half of the amount thereof.

We now turn to the matter of State Farm’s exposure in the premises. This issue arises as a result of the fact that State Farm had issued two policies, one covering the 1972 Ford LTD automobile owned by Randy Law’s parents and another policy covering the 1969 Chevrolet pick-up truck, which was owned by and titled to Randy J. Law.

It is beyond question that Randy Law had the express permission of his parents to use the 1972 LTD Ford. His use of this vehicle was made necessary because his 1969 Chevrolet pick-up truck was temporarily inoperable.

Notwithstanding the fact that the 1969 Chevrolet pick-up truck was owned by Randy Law, the policy of insurance covering this vehicle showed Jeff Law, Randy’s father, as the named insured.

The record reflects that the Law family had for some years prior to the accident purchased all of its insurance through Mr. Sid Johnson, Bogalusa, Louisiana, agent for State Farm. Mr. Jeff Law testified that when he called Mr. Johnson to secure coverage for this automobile he informed the agent that the vehicle was owned by his son, Randy. Mr. Johnson stated that he did not recall Mr. Jeff Law telling him that the vehicle was owned by his son. Had he been so informed he would nonetheless have issued the policy though there would have been an adjustment in the rate. Based on these circumstances, plaintiffs contend that both policies are applicable, namely: that the policy on the Ford automobile affords primary coverage and that the policy on the Chevrolet pick-up truck affords excess coverage. Both of these policies provided for bodily injury coverage to the limit of $10,000.00 for each person. Hence, plaintiffs argue that $20,000.-00 of liability insurance coverage is at stake whereas State Farm submits that only $10,000.00 is at issue because both of the aforementioned policies listed Jeff Law as the named insured and since Randy Law was a member of Jeff Law’s household, the “non-owned” provision of the policy covering the Chevrolet pick-up is applicable and excludes excess coverage. Graves v. Traders and General Insurance Co., 200 So.2d 67 (1st La.App., 1967); Ehrhard v. State Farm Mutual Automobile Insurance Co., 274 So.2d 911 (1st La.App.1973).

Plaintiffs further contend that the policy issued covering the 1969 Chevrolet pick-up truck, showing Jeff Law as the named insured, should he reformed to conform to the intent of the parties by designating Randy Law as the named insured. Collins v. State Farm Automobile Insurance Co., 188 So.2d 460 (3rd La.App., 1966); Herbert (Hebert) v. Breaux, 285 So.2d 829 (1st La.App., 1973); and, Anderson v. Sciambra, 310 So.2d 128 (4th La.App., 1975).

Both of these lines of authorities do in fact stand for the propositions for which they are cited. The question for resolution is whether we are dealing with (1) two vehicles, (2) two' separately owned automobiles, and (3) two different named insureds. We find that each of these elements is present in the instant case. Randy Law was the owner of a 1969 Chevrolet pick-up truck and his parents were the owners of the 1972 Ford. This truck was purchased and paid for by him. He also reimbursed his father for the cost of the policy issued by State Farm covering the said truck.

The record fully supports that the policy obtained on the 1969 Chevrolet pick-up truck was intended to afford protection to Randy Law and that the policy should and the same is hereby reformed to accord with this intention. For these reasons, State Farm’s exposure in the instant case is $20,000.00, i. e., $10,000.00 of primary coverage and $10,000.00 of excess coverage.

We now turn to the question of quantum for damages suffered by the surviving widow and minor children of Melvin G. Perry. Each has prayed for damages for loss of love and affection, grief and mental anguish and loss of support. In addition, the surviving widow seeks recovery for funeral expenses in the amount of $1,044.75.

At the time of his death decedent was thirty-one years of age, had been married to his widow for eight years, and his children were five and three years of age, respectively.

The record reflects that he was a good father and husband and that this was a closely knit family unit. Under these circumstances we feel that the surviving widow should receive the sum of ONE HUNDRED TEN THOUSAND AND 00/100 ($110,000.00) DOLLARS for general damages and the amount of ONE THOUSAND FORTY-FOUR AND 75/100 ($1,044.75) DOLLARS for funeral expenses. Each of the minor children should receive, as general damages, the sum of FORTY THOUSAND AND 00/100 ($40,000.00) DOLLARS.

Accordingly, for the above reasons, in Suit No. 10737, the judgment of the trial court is reversed and judgment is rendered herein on the main demand in favor of Elnora Tate Perry, individually, in the amount of ONE HUNDRED ELEVEN THOUSAND FORTY-FOUR AND-75/100 ($111,044.75) DOLLARS, and as the natural tutrix of her minor children, Melvin G. Perry, Jr. and Morían Perry, in the amount of FORTY THOUSAND AND 00/100 ($40,000.00) DOLLARS for each child, and against State Farm Mutual Automobile Insurance Company and Randy J. Law, in solido, in the amount of TWENTY THOUSAND AND 00/100 ($20,000.-00) DOLLARS, and against Randy J. Law, individually, in the amount of ONE HUNDRED SEVENTY-ONE THOUSAND FORTY-FOUR AND 75/100 ($171,044.75) DOLLARS, together with legal interest on the above amounts from date of judicial demand, until paid, and for two-thirds (2/3) of all costs of these consolidated suits.

Judgment is further rendered (in Suit No. 10737) herein on the third party demand in favor of State Farm Mutual Automobile Insurance Company in the amount of TEN THOUSAND AND 00/100 ($10,000.00) DOLLARS and Randy J. Law in the amount of EIGHTY-FIVE THOUSAND FIVE HUNDRED TWENTY-TWO AND 37/100 ($85,522.37) DOLLARS, and against Jimmy Perry, Jr., together with legal interest theron from date of judicial demand, until paid.

In Suit No. 10738, the judgment of the trial court dismissing plaintiff’s suit is affirmed and plaintiff therein is cast for one-third (1/3) of the costs in these consolidated suits.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.


author: CHIASSON, Judge.

text:
    Joseph POLOZOLA v. GARLOCK, INC., et al.
    No. 10736.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Writ Granted Oct. 20, 1976.

      Boris F. Navratil, Baton Rouge, Brea-zeale, Sachse & Wilson, Baton Rouge, for appellants.
    Wm. F. Kaufman, III, and John W. Swanner, Baton Rouge, for plaintiff-appel-lee.
    Gerald L. Walter, Jr., Baton Rouge, for third party defendant H. E. Wiese, Inc. and Hartford Acc. & Indem., et al.
    Before SARTAIN, EDWARDS AND CHIASSON, JJ.
   CHIASSON, Judge.

This is an appeal of a summary judgment of the District Court dismissing the demands of the third party plaintiffs, appellants in this case, Jon Kiggans, David Schneblen, Bill Garlington, and their insurer Associated Indemnity Corporation, for indemnification under a contract between Dow Chemical Company and National Maintenance Corporation. The District Court’s decision was based on a statement of uncontested facts prepared by the third party defendants, appellees, National Maintenance Corporation and Fireman’s Fund Insurance Company.

The uncontested facts as offered by the appellees are:

“1. On November 4, 1970, the Dow Chemical Company entered into a contract with National Maintenance Corporation, according to the terms of which National Maintenance was to perform certain maintenance services at Dow’s Plaquemine facility.
“2. The Dow Chemical Company also entered into a contract with H. E. Wiese, Inc., according to the terms of which H. E. Wiese, Inc., was to perform certain maintenance services at Dow’s Plaquemine facility.
“3. The Dow facility was divided into two areas for purposes of maintenance, with one area generally being assigned to National Maintenance and one area generally assigned to Wiese.
“4. Employees carried on Wiese’s payroll frequently worked in the area generally assigned to National Maintenance, and employees carried on National Maintenance’s payroll frequently worked in the area generally assigned to Wiese, depending on the type of skilled worker needed in a particular area at the time.
“5. Joseph Polozola was a pipe fitter, an hourly employee carried on the Wiese payroll, and he was working in the area of Dow’s facility generally assigned to National Maintenance on August 20, 1971. Polozola’s direct supervisor at that time was John R. Thibodaux, Jr., a pipe fitter foreman, also carried on the Wiese payroll, and he was performing a task at the direction of Bill Garlington, a Dow employee.
“6. The plaintiff in the principal action sustained an on-the-job injury on August 20, 1971, when he was struck in the face by a jet of liquid propylene oxide which shot out from a valve flange on which he was working.
“7. Plaintiff in the principal action brought suit against Garlock, Inc., National Maintenance Corporation, Cecil Voth, John Kiggans, David Schneblen, and Bill Garlington and others, alleging that their negligence caused his injury.
“8. A settlement of all claims by plaintiff in the principal action has been completed, with the payment of a certain sum having been made to Joseph Polozo-la on behalf of third party plaintiffs, Jon Kiggans, David Schneblen, and Bill Gar-lington, by third party plaintiff, Associated Indemnity Corporation.
“9. Third party plaintiffs have filed a third party demand against National Maintenance and Fireman’s Fund, contending that they are entitled to be indemnified by third party defendants for all costs incurred by them as a result of ' the claims made against Kiggans, Schne-blen, and Garlington by Polozola, including the amount paid to Polozola in settlement and attorney’s fees incurred in defense of the claim and in prosecution of the third demand.
“10. Article VI of the contract between Dow and National Maintenance provides as follows:
‘Contractor assumes the entire responsibility and liability and will protect, indemnify and hold harmless Dow, its agents, servants, and employees from and against any and all losses, expenses, demands, and claims made against Dow, its agents, servants, and employees, by Contractor or its subcontractors, or any employeee, agent or servant of Contractor or its subcontractors or any other third person because of injury or alleged injury (including death), whether caused by Dow’s negligence or otherwise, arising from any source while Contractor or its subcontractors, or any employee, agent, or servant of Contractor or its subcontractors are on premises owned, operated or leased by Dow or under the control of Dow, or while Contractor or its subcontractors, or any employee, agent or servant of Contractor or its subcontractors are performing under this agreement, and Contractor agrees to defend any suit, action or cause of action brought against Dow, its agents, servants, or employees, based on any such alleged injury, and to pay all damages, costs and expenses, including attorneys’ fees, in connection therewith or resulting therefrom.’
“11. Associated Indemnity Corporation has issued a policy of insurance to the Dow Chemical Company, which is the best evidence of its contents, but, under the terms and provisions of which, Associated Indemnity Corporation paid a certain sum to Joseph Polozola to settle his claims against Jon Kiggans, David Schneblen, and Bill Garlington, and, because of said payment, Associated Indemnity Corporation claims it is subro-gated to the rights, if any, which Kig-gans, Schneblen, and Garlington might have exercised against third party defendants.”

By stipulation in this Court the parties to this suit have also made the entire text of the agreement between Dow and National Maintenance part of the record. Article VII, Section 7.1 and Section 7.1(b) of this contract provides:

“7.1 Prior to the actual commencement of work hereunder and until final acceptance by Dow of all work to be performed hereunder, Contractor shall carry the following insurance:
“b. General Public Liability insurance is an amount not less than Three Hundred Thousand Dollars ($300,000.00) covering injuries to, or death of, any one person in any one occurrence, and in an amount not less than Five Hundred Thousand Dollars ($500,000.00) for injuries to, or death of, more than one person in any one occurrence, and in an amount not less than One Hundred Thousand Dollars ($100,000.00) covering damage to the property of Dow and of third parties.”

In addition Section 2.2 of Exhibit “A”, part of the agreement between Dow and National Maintenance, provides:

“In addition to the above payments, Dow shall pay Contractor for its services certain fees as hereinafter set forth, which shall include all of Contractor’s profit and expenses and overhead items whatsoever, such as, but without limitation, all clerical employees (other than those furnished to Dow at Dow’s plantsite under Paragraph 1.1(a) above), insurance, accounting, auditing, telephone and telegraph charges, all payroll taxes, all fringe benefits to salaried employees, safety equipment, and all office expenses

The appellant contends that the District Court erred in finding that:

“1. The language of the indemnity agreement between Dow and National Maintenance did not afford indemnity to Dow’s employees, whose negligence was alleged to have caused the claim for which indemnity was demanded, and
“2. The phrase in the indemnity agreement, ‘caused by Dow’s negligence’, was ambiguous, because it was uncertain that it was intended to include the negligence of Dow’s employees.”

The issue before this Court is whether or not National Maintenance is obligated, under the indemnity clause set out above, to indemnify and defend Kiggans, Schne-blen, Garlington, and Associated Indemnity against the claims made by Mr. Polozola in the main demand, these demands being based upon an allegation that Kiggans, Schneblen, and Garlington were negligent and that their negligence led to Polozola’s injuries.

A contract of indemnity whereby one assumes indemnification against his own negligence must be strictly construed. Jennings v. Ralston Purina Co., 201 So.2d 168 (La.App. 2nd Cir. 1967). Further “a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting to him through his own negligent acts, where such intention is not expressed in unequivocal terms”. Arnold v. Stupp Corporation, 205 So.2d 797 (La.App. 1st Cir. 1968).

The holding in Arnold that an agreement to indemnify an indemnitee for his own negligence must be expressly set out was reaffirmed in Strickland v. Nutt, 264 So.2d 317 (La.App. 1st Cir. 1972). Strickland extended the specificity requirement to situations involving concurrent negligence on the part of both the indemnitor and the in-demnitee.

In view of the foregoing authorities, this court holds that National Maintenance and its insurer had no obligation to indemnify and defend Kiggans, Schneblen, and Garlington, and Associated Indemnity in this matter because the contracts says,

“whether caused by Dow’s negligence or otherwise,”

but it does not say,

“whether caused by Dow’s negligence or the negligence of Dow’s agents, servants and employees,”

and it certainly does not contain the language which this Court recently stated would show the intent necessary to obligate an indemnitor to indemnify an indemnitee against the consequences of his own negligence :

“even though caused, occasioned or contributed to by the negligence, either sole or concurrent, of the indemnitee.” Jayco Sales and Service, Inc. v. Smith, 303 So.2d 554 (La.App. 1st Cir., 1974).

In the introductory clause of the instant indemnity agreement, the following are enumerated as indemnitees, “Dow, its agents, servants, and employees.” However, in the clause where the indemnitee is to be indemnified from the consequences of its own negligence we find only the following; “whether caused by Dow’s negligence, or otherwise * *

Conspicuously missing from the “negligence clause” are “the agents, servants, or employees” of Dow. Before National Maintenance can be held to have agreed to indemnify “the agents, servants, or employees (Kiggans, Schneblen, and Garlington)” of Dow from the consequences of their own negligence, that intent must be expressed “in unequivocal terms.” Arnold v. Stupp, supra.

No such intent is expressed “in unequivocal terms”, and it is not permissible for the Court to find such an intent through implication. Before National Maintenance can be held to indemnify Kig-gans, Schneblen, and Garlington from the consequences of their own negligence, they, or “agents, servants, or employees” of Dow would have to be specifically mentioned in the “negligence clause” of the indemnity agreement. The failure to do so is fatal to the claim of Kiggans, Schneblen, and Gar-lington. Since Associated Indemnity is merely subrogated to their rights, it has no claim under the indemnity agreement either.

There is nothing inconsistent, or unusual, about the omission of the “agents, servants, and employees” of Dow from the negligence portion of the indemnity agreement. All this omission means is that National Maintenance agreed to indemnify Dow, the corporation, from the consequences of its own negligence, but did not agree to so indemnify the “agents, servants, and employees”. Had that intention been present, it could have been expressed in “unequivocal terms” by naming the “agents, servants, and employees” at that point.

The second specification of error by appellants contends that the Trial Court erred in concluding that the phrase “caused by Dow’s negligence”, contained in the indemnity agreement, was ambiguous because it was uncertain that it was intended to include the negligence of Dow’s employees.

Article 966 of the Louisiana Code of Civil Procedure states that a summary judgment is proper in those cases where “ . . . there is no genuine issue as to material fact”. If in fact the Trial Court had found any ambiguity in the agreement, there would be a genuine issue as to material fact and summary judgment would not be the proper procedure.

Rather we hold, as the Trial Judge must have, that the intent to indemnify Dow’s employees for their own negligence was not expressed in the agreement and certainly not “in unequivocal terms” within the meaning of the Arnold Case.

The question of what is the meaning that should be given by a Court to the words of a contract is a question of fact, not a question of law. 3 Corbin on Contracts § 554.

“The determination of the legal operation of a contract, after the meaning of its language has been adopted by the process of interpretation, is always for the Court, because ‘legal operation’ is the result of applying rules of law to the facts”. Corbin, supra.

In interpreting the agreement, this Court is required by law to give legal effect thereto according to the true intent of the parties, and that intent is to be determined by the words of the agreement, “when these are clear and explicit and lead to no absurd consequences”. Civil Code, Article 1945.

For the above and foregoing reasons, the judgment of the Trial Court is affirmed at appellants’ costs.

AFFIRMED.


text:
    Robert GUIDROZ and Yvette Guidroz, Plaintiffs-Appellees, v. STATE FARM FIRE AND CASUALTY CO., Defendant-Appellant.
    No. 10731.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.
    Larry P. Boudreaux, Thibodaux, for defendant-appellant.

      Keith M. Whipple, Houma, for plaintiffs-appellees.
    Robert B. Butler, III, Houma, for inter-venor, Community Homestead Assn.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

State Farm Fire and Casualty Company (State Farm) brings this appeal from the district judge’s refusal to issue a venire fa-cias commanding the Jury Commission of the Parish of Terrebonne to furnish a jury venire for trial of the instant lawsuit. We affirm.

The relevant facts as evidenced by the record show that on June 5, 1975, plaintiffs instituted suit on an insurance contract issued by State Farm to cover damages sustained as a' result of a fire in plaintiffs’ home. On September 10, 1975, State Farm filed an amended answer wherein it alleged arson on the part of either or both of the plaintiffs and further requested a trial by jury as to all issues.

Pursuant to motion and order submitted by plaintiffs and filed on October 29, 1975, the matter was fixed for trial to be held on December 8, 1975.

Following receipt of notice of fixing, counsel for State Farm alleges that on or about November 13, 1975, he mailed a motion directly to the trial judge requesting that the jury bond be set and for a continuance urging, inter alia, that trial by jury could not be perfected prior to December 8, 1975.

On November 17, 1975, counsel for plaintiffs filed a motion in opposition to State Farm’s request for a continuance. A copy of this motion was sent to opposing counsel. The order contained in the motion directed State Farm to show cause on November 28, 1975, why its motion for a continuance should not be disallowed and set aside. On this date (November 28, 1975), the minutes reflect that State Farm’s motion for a continuance was denied and the trial date of December 8, 1975, reaffirmed. Counsel for State Farm objected since a jury had not been summoned and moved for an appeal. The trial judge directed counsel to prepare and present a formal motion for appeal with appropriate citations therefor and to submit a copy to opposing counsel.

Also, on November 28, 1975, plaintiffs filed a motion to have the court rescind its order permitting State Farm to file its amending answer (wherein trial by jury was first requested) of September 10, 1975. The basis for this motion was that the amending answer was filed for the purpose of circumventing C.C.P. Article 1732. The rule issued pursuant thereto was returnable December 2, 1975. On this later date, counsel for plaintiffs withdrew their motion, presumably with the satisfaction of knowing that State Farm’s motion for a continuance had been denied, trial set for December 8, 1975, and time insufficient to secure a jury venire. However, on this date it was first discovered that State Farm’s written motion (November 13, 1975) for a continuance and request to fix bond were not in the record and had not been signed by the trial court. The trial judge then signed a file copy, setting bond in the amount of $1800.00. On this same day, December 2, 1975, an order decreeing the issuance of a venire facias was presented to and denied by the trial judge.

On December 8, 1975, when the case was called for trial, State Farm presented its motion for a suspensive appeal which was granted.

State Farm contends here that the trial judge erred in ruling (1) that it was not entitled to a continuance on November 28, 1975, (2) that it was not entitled to appeal from such ruling, and (3) in denying its motion for a venire facias.

When this matter was argued before us we asked both counsel to submit briefs on the point of whether a suspensive appeal lies of right from the court’s refusal to grant a jury trial or to effect the procedures requisite thereto. It is evident from these briefs, and we must assume the trial judge concurred, that all parties hereto are of the opinion that an appeal from such a ruling is the appropriate remedy. We feel constrained to address ourselves to this matter because of the uncertainty which prevails and the increasing frequency in which supervisory writs are being sought relative to controversies arising from requests for jury trials, bonds, and the venire facias. That there is some doubt as to the appropriate remedy is understandable.

In Wilson Sporting Goods Company v. Alwes, 17 So.2d 382 (La.App., 1944), this court stated:

“The appeal here is one from an interlocutory judgment denying the defendant the right to have the case tried by a jury. From what was said in the prevailing opinion of the Supreme Court in refusing the writs in this case, above quoted, and from what was said in the above cited case, we conclude that the interlocutory judgment appealed from is one that would work an irreparable injury to defendant by depriving him of a trial by jury, if he is entitled to a jury trial. There would seem to be no reason to force defendant to go to the expense of trying his case before the court, while on an appeal from a judgment on the merits, he might be able to convince the appellate court that his case should have been tried by a jury and thus have the entire trial nullified and the case tried over before a jury. It would be a difficult matter to ascertain in such a situation just how the defendant could be compensated in money by reason of such a denial.”

This was after writs had been applied for to the Supreme Court and after the following language is noted wherein the said court denied the same:

“Relator’s petition discloses that the Court of Appeal, and not this Court, has appellate jurisdiction of this case. If, as alleged by relator, the ruling of the trial judge denying his prayer for a trial by jury will cause him irreparable injury, his remedy was to appeal to the Court of Appeal for the First Circuit, and not to invoke the supervisory jurisdiction of this Court as a substitute for the appeal. Code of Practice, Art. 566. Writs refused.”
“O’Niell, C. J., is of the opinion that the relator’s remedy is to urge his complaint on the appeal from the final judgment, if it goes against him.”

It is apparent that this court concluded that Alwes, as a school principal, should not be put to the possible expense of multiple trials. This finding was necessary for it was an appeal from an interlocutory order. Nonetheless, the language in Alwes has been construed to mean that even in the absence of a showing of irreparable injury an appeal will lie from the refusal to grant a jury trial. City of New Orleans v. Williams, 86 So.2d 410 (4th La.App. 1956), Southern Baptist Hospital v. Williams, 89 So.2d 769 (4th La.App., 1956); and, Hernandez v. Sartain, 297 So.2d 740 (1st La.App., 1974).

In First National Bank of Commerce, New Orleans v. Miller, 328 So.2d 383 (4th La.App., 1976), the court first noticed the problem with which we are here concerned. In Miller, the defendant asked for a jury trial in response to a suit against him for a deficiency judgment. His request was denied and he obtained both writs of certiorari and an appeal. The court elected to act on the writ (since it was the first relief sought) and disposed of the issue via that procedure rather than on appeal. The second and other reason for doing so is the court had “serious doubts as to the applicability of the appeal from an interlocutory order unless irreparable injury is shown.” The court specifically noted that the issue there presented was “not one of timeliness but of the applicability of any of the limitations upon jury trials imposed in” C.C.P. Art. 1733.

In Scott v. Hardware Mutual Insurance, 207 So.2d 817 (La.App., 1968), timeliness was an issue. In Scott, supra, where a motion for venire facias was not filed until eight calendar days prior to trial date, this court in upholding the trial judge’s decision not to order the same stated:

“This burden, of initiating the procedural mechanism for the formation of a jury, implicitly demands that application be made at a time sufficiently in advance of the date on which the matter has been set down for trial that the administrative procedures required to accomplish this function can be performed in an orderly and routine manner, without undue disruption to the other functions of the officials involved and, ideally, with ample notice and without unnecessary inconvenience to the veniremen called to serve.”

On the matter of timeliness and the procedural mechanism for the perfection of one’s right to a jury trial, the court in Jennings v. Coleman, 250 So.2d 845 (4th La. App.1971), held that where plaintiff had requested a jury trial and posted the security therefor prior to the cause being assigned for trial, he had satisfied all of the requirements of law notwithstanding the fact that he had done so after the delays prescribed in the rules of court for furnishing such bond had lapsed. The court cited R.S. 13 ¡3050 which provides:

In all civil cases in which a jury is prayed for and allowed, the jury shall be composed of twelve members, nine of whom concurring may render a verdict. The party praying for the jury shall deposit with the clerk of the court twelve dollars as jury costs and shall give bond in favor of the parish for such amount as may be determined by the judge to cover the additional cost of the jury, with the right to have the same taxed as costs against the party cast in the suit. No jury shall be ordered in any civil case unless the deposit is made and the bond given.

and stated:

“There are no statutory penalties for failing to pay the jury costs or post a bond, except that the trial judge is inhibited from ordering the drawing of a jury venire to try the matter. Upon filing of the motion to set the matter for trial on its merits by a jury, the judge is empowered only to convert it to a judge trial in the event of the non-payment of jury costs or failure to post bond. It therefore follows, the payment of costs or furnishing of bond, at any time prior to the filing of the motion to set the matter for trial by jury, is timely under the statute.”

Thus, the thought that an appeal is permissible as a matter of right from the refusal to obtain a trial by jury, absent a showing of irreparable injury, is the result of a misinterpretation of Alwes, supra, or of individual persuasion.

C.C.P. Art. 2083 states:

An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.

The Official Revision Comments under the article states that no attempt has been made to codify the jurisprudence in which interlocutory judgments have a “final” effect or may cause irreparable injury, “since the jurisprudence has been largely a case by case process, rather than the development of a basic general rule.”

The myriad of circumstances involved in formulating such a rule renders the task of doing so virtually impossible. Certainly, we shall not attempt such here. One general concept prevails, however, that piecemeal appeals are to be prevented. It suffices here to say that throughout the jurisprudence involving appeals from interlocutory orders one consistent factor exists, there has been a showing, allegation, and/or acknowledgement of irreparable injury. The right to such an appeal has not been taken for granted. Neither do we believe that the words “irreparable injury” are purely ornamental. If a trial judge, in the exercise of his judgment, does not think that his interlocutory order causes irreparable injury to an aggrieved litigant, he need not sign the motion for an appeal from such order. Naturally, if there be any doubt as to the effect of the order, such doubt should be resolved in favor of the party alleging injury.

What is irreparably injurious to one party may not be so to another. Every case should be decided on its own particular facts. The mere possibility that litigants may have to engage in unnecessary litigation is not in every case sufficient. This is a possibility that may arise in every instance when a jury trial is denied. This possibility arises from many other interlocutory decrees, including the granting of a jury trial, denial of peremptory exceptions, change of venue, granting of new trials, etc. When one considers the vast number of such decrees rendered by our trial judges, one finds that it is only in rare instances that error occurs, and when the remoteness of the occurrence is weighed against the lengthy delays caused by appeal, we must view the latter as the more significant in our consideration. The ultimate effect in granting an automatic appeal from such order is to establish an inflexible mechanism whereby one could force delay for no purpose other than to retard the litigation.

We do not infer that the appellant here sought an appeal for any such purpose. State Farm has frankly and forthrightly stated that it would suffer irreparable injury “because it will have been deprived of their rights to a trial by jury in this case.” Yet, this appeal, nonetheless, by the time it has run the appellate process, will have delayed a trial on the merits for the greater part of one year.

Thus, we are of the opinion that the mere denial of a jury trial, without more, does not, upon its face, result in irreparable injury such that it warrants a separate appeal, thereby disrupting orderly legal process and causing a commitment to the delays inherent in normal appellate procedure. We feel appellant’s appropriate remedy in these instances is either the application for supervisory writs or appeal after a final judgment.

However, in the present case, in order to expedite a decision on the matter and to avoid even further delays, we pass on the merits of the dispute.

There are three distinct steps as requisites in the perfection of a jury trial. First, demand for a jury trial must be made not later than ten days after service of the last pleading directed to such issue. C.C.P. Art. 1732. Second, a bond must be posted to insure the cost thereof. Third, the motion requesting a venire facias must be made in sufficient time in advance of the date set for trial so that administrative procedures can be performed in an orderly and routine manner. The law is silent as to specific delays for accomplishing steps two and three above. Further, these requirements of necessity must occur in the order mentioned.

State Farm’s principal argument is that it could not request issuance of the venire facias until bond was set and posted. It further argues that it was led to believe that its motion for continuance and for fixing jury bond, mailed to the judge, had been filed and acted upon due to language in plaintiff’s motion in opposition to said continuance. This contention is without merit. It is the obligation of the litigants to file papers with the proper official at the proper time and it is not the duty of the trial judge to perform these ministerial functions. (Johnson v. State Farm Mutual Automobile Insurance Co., 241 So.2d 799 (La.App. 3rd Cir., 1970).)

Granting to State Farm such credit as it is due relative to the lost motion (November 13, 1975) for a continuance and to set the amount of the bond, we can not agree that it acted with due diligence in perfecting its right to a jury trial. The amending answer of September 10, 1975, requesting a jury trial did not contain a request that the trial judge set bond, though the latter’s signature was necessary and obtained for for the filing of that pleading. The matter was ready to assign for trial on October 29, 1975, and either party, plaintiffs or defendant, was privileged to request a trial date. Throughout this six week period, State Farm knew that it had not requested that bond be fixed.

Under these circumstances, should the plaintiffs be denied the right to have the matter assigned for trial because defendant had not sought nor furnished bond? We think not. Defendant knew its intentions, plaintiffs did not. At this point the option to perfect a jury trial rested solely with State Farm. We do not feel that either party should be required to wait until the intention of the other is made known. Under these conditions, we feel that the right of the plaintiffs to an early or speedy trial is just as paramount as State Farm’s right to a jury trial. To hold otherwise is to say that once there is a request for a jury trial with nothing else in the record (no request to fix the amount of the bond and no bond), the entire matter of assignment must wait. This should not be the case. Of course, the situation is different if a bond has been filed. A hearing date can not be ordered where time does not permit the orderly execution of a venire facias.

We think State Farm’s argument that it could not post the bond until it knew the amount thereof ignores the fact that whereas it may not have known the amount of the bond, it certainly knew that it had not posted any bond in any amount. No effort was made to determine whether the amount of the bond had been fixed. Further, assuming that State Farm was reasonable in believing that a continuance had been granted, which conclusion could not have been justified until November 17, 1975, it again made no effort to determine the amount of the bond at that time. When the motion was argued on November 28, 1975, the amount of the bond was not sought. It was not until December 2, 1975, that State Farm actually discovered that no amount had been fixed. Faced with these facts, the trial judge had to determine whether or not appellant had acted diligently in perfecting its right to a jury trial. The court determined that it had not and declined to order the venire facias. We do not find that the trial judge erred.

Plaintiffs have requested damages for frivolous appeal. However, we note that no answer has been filed in their behalf requesting the same. La.C.C.P. Art. 2133 specifically requires an answer when damages are demanded against the appellant. Thus, we do not consider the merits of the request.

For the above and foregoing reasons, the decision of the trial court is affirmed at appellant’s cost.

AFFIRMED.


author: GULOTTA, Judge.

text:
    Charles LAUFER, husband of/and Rachel Laufer v. TOURO INFIRMARY et al.
    No. 7400.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Dunn & Rasch, Ltd., Michael H. Rasch and Wayne W. Yuspeh, Metairie, for plaintiff s-appellants.
    Law Offices of Joseph J. Weigand, Jr., Houma, Christopher B. Siegrist, Metairie, for Touro Infirmary and Argonaut Southwest Ins. Co., defendants-appellees.
    Drury, Lozes & Curry, James H. Drury and Madison C. Moseley, New Orleans, for Otis Elevator Co. and Commercial Union Ins. Co., defendants-appellees.
    Before GULOTTA, STOULIG and MORIAL, JJ.
   GULOTTA, Judge.

Plaintiffs appeal from a dismissal by summary judgment of their suit, arising out of a February 9, 1974 accident in which the plaintiff-wife was injured when exiting from an elevator, installed and maintained by the Otis Elevator Company, and located in Touro Infirmary.

Rachel Laufer, a 78-year old woman, and her sister were passengers in an ascending elevator at Touro. Because of a malfunction, the elevator jerked while ascending and stopped between the second and fourth floors. After calls for assistance had been made by the occupants, the elevator, in a jerking motion, continued to ascend, stopping at the fourth floor.

Plaintiffs allege that while Mrs. Laufer attempted to exit the elevator, she “fell from the elevator when it failed to stop level with the floor and jerked”. Plaintiffs’ petition further alleges that Touro Infirmary “retained control and supervision” over the elevator and that Touro “knew or should have known of the unsafe and defective condition” of the elevator. With respect to Otis Elevator Company, plaintiffs’ petition alleges that Otis “manufactured, installed and maintained said elevator in a negligent manner and failed to use care to properly maintain said elevator in proper working order and condition”.

According to plaintiff’s deposition, the doors opened wide and “very nicely”, and the elevator stopped level with the fourth floor exit. An unknown gentleman was the first to exit the elevator and was followed by plaintiff. Plaintiff stated that she then stepped from the elevator to the fourth floor and “slipped”, causing her to fall and sustain injuries. Mrs. Laufer did not remember whether she began sliding before or after she had exited the elevator and was unable to explain the cause of her fall. Based on plaintiff’s deposition, motions for summary judgment were filed by defendants and granted by the trial judge.

It is plaintiffs’ position on appeal that a countervailing affidavit of Mrs. Laufer’s sister, also a passenger in the elevator, supports the allegation in plaintiffs’ petition that the elevator failed to stop level with the floor and the malfunctioning elevator was the cause of plaintiff’s fall and injury. Plaintiffs point out that the countervailing affidavit states that when plaintiff stepped from the elevator, “the elevator was up slightly and she started to fall from the elevator”. Plaintiffs further point out that the affidavit states that when the affiant exited the elevator, she noticed “that the elevator was not level with the floor, but was above the floor somewhat”. Plaintiffs claim, therefore, that based on the affidavit, a genuine issue of material fact exists, i. e., whether the elevator stopped level with the floor or above the floor, and summary judgment was not properly granted. We agree.

It is well settled in our jurisprudence that a motion for summary judgment is not a substitute for trial. Further, all doubt concerning a dispute as to a material issue of fact must be resolved against granting the motion for summary judgment and in favor of trial on the merits. Odom v. Hooper, 273 So.2d 510 (La.1973). A mere belief that a litigant is unlikely to prevail upon the merits is not a sufficient basis to warrant the rendition of a summary judgment and thus deprive the litigant of a trial. Banes v. Prinz, 185 So.2d 50 (La.App. 4th Cir. 1966).

Based on the countervailing affidavit, we conclude that a genuine issue of material fact exists as to whether or not the malfunctioning elevator caused plaintiff’s fall and injury. Accordingly, the summary judgments in favor of defendants, dismissing plaintiffs’ suit, are annulled and set aside. The matter is remanded for further proceedings. Assessment of costs to await disposition on the merits.

ANNULLED, SET ASIDE AND REMANDED.

      . LSA-C.C.P. arts. 966 and 967 read as follows :

        Art. 966. Motion for summary judgment; procedure

      “The jdaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff’s motion may be made at any time after the answer has been filed. The defendant’s motion may be made at any time.
      “The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the day of the hearing. The judgment sought shall be rendered forthwith 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.”

        Art. 967. Same; affidavits

      “Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
      “When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.
      “If it appears from the affidavits of a party opposing the motion that for reasons stated he cannot present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit .affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
      “If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this article are presented in bad faith or solely for the purposes of delay, the court immediately shall order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees. Any offending party or attorney may be adjudged guilty of contempt.”


text:
    Louis Henry SOROE v. Theresa Ann Nuccio SOROE. Theresa Nuccio, wife of Louis Henry SOROE, Jr. v. Louis Henry SOROE, Jr.
    Nos. 7534, 7535.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Schaff & Currier, John M. Currier, New Orleans, for appellant, Theresa Nuccio So-roe.

      Zelden & Zelden, Max Zelden, New Orleans, for appellee, Louis Henry Soroe, Jr.
    Before GULOTTA, STOULIG and MORIAL, JJ.
   GULOTTA, Judge.

This is an appeal from a judgment awarding the husband a legal separation as a result of the wife’s “violent temper” which rendered their living together insupportable. The wife, in a separate suit, seeks a divorce based on the husband’s adultery, and alternatively, for a separation on the grounds of cruelty. We affirm.

The husband contends that the wife’s evidence was insufficient to support her allegations of adultery. In the alternative, the husband complains that even if this court finds sufficient evidence to warrant a finding of his adultery, the wife condoned the adulterous acts by continuing to live with him after becoming aware of his infidelity. Finally, the husband objects to the wife’s filing of a supplemental and amended petition alleging four acts of adultery additional to the two adulterous acts alleged in the wife’s original petition. According to the husband, these additional acts presented new causes of action and could not relate to the original petition filed by her on the ground of adultery.

The wife contends: 1) that the trial court erred in finding the evidence insufficient to prove adultery; 2) that the trial court erred in finding the wife at fault, resulting in a judgment of separation in favor of the husband; and, 3) finally, that the trial court erred in not granting her a separation based on the husband’s cruelty.

In connection with the dismissal of the wife’s claim for divorce on the ground of the husband’s adultery, the court, in written reasons, stated:

“The wife, Theresa Soroe, attempted to show through private investigators that her husband, Louis Soroe, had committed adultery on the dates heretofore mentioned. From the testimony of the investigators, this Court cannot find any basis for substantiating the fact that Louis Henry Soroe committed adultery on any dates mentioned in the petition or supplemental petition. There is no doubt that on occasion Mr. Soroe met the individual in question, but the way the Court understands the law, evidence was not sufficient to prove the fact of adultery.”

We agree.

The wife’s petition for divorce alleged that the husband committed acts of adultery on August 1, 1974 and August 9, 1974. However, the wife’s supplemental and amended petition alleged additional acts of adultery on January 11, 1975, January 18, 1975, February 1, 1975, and February 8, 1975. The testimony of the private investigators, employed by Mrs. Soroe to support the allegations of adultery, is as follows :

August 1, 1974 — George Scallan testified that he saw Soroe’s automobile parked at the residence of the other woman between 8:00 a. m. and 8:45 a. m. Scallan did not see Soroe or the other woman on this occasion.
August 9, 1974 — June Scallan testified that she observed Soroe and the woman arrive, by automobile, at the woman’s residence at 8:05 p. m. She did not see them enter the residence and did not know whether or not any lights were on in the apartment. She saw Soroe depart the residence at approximately 8:30 p. m. George Scallan corroborated June Scal-lan’s testimony as to times of arrival and departure.
January 11, 1975 — June Scallan observed Soroe arrive at the woman’s apartment at 8:25 p. m. She saw Soroe and the woman walking toward the back stairs, but did not know whether they entered the apartment. This investigator did not notice whether or not any lights were on in the apartment. She saw them leave at 10:40 p. m. According to Mrs. Seal-lan, Soroe returned to his home on Breakwater Drive at 11:00 p. m. Mrs. John Schexnayder, another private investigator, corroborated Mrs. Scallan’s testimony. However, she stated that the upstairs lights were on in the apartment. Mrs. Schexnayder did not know whether or not she could identify the other woman.
January 18, 1975—George Scallan testified that he saw Soroe and the woman meet at the City Park Golf Driving Range at approximately 6:30 p. m. The Soroe vehicle arrived shortly before the woman’s automobile. Soroe then entered the woman’s vehicle and they proceeded to the woman’s residence. They arrived at 7:05 p. m. and entered the upstairs apartment. Scallan testified that the parties left the apartment at 10:35 p. m. Scallan further stated that there was a light on during the time that the parties were in the apartment. Mrs. Scallan essentially corroborated her husband’s testimony as to arrival and departure times, but was unsure as to whether any lights were on in the apartment.
February 1, 1975—Scallan testified the parties again met at the City Park Golf Driving Range at approximately 9:00 p. m., and shortly thereafter departed. Scallan observed nothing further on this occasion. June Scallan substantially corroborated the testimony of her husband.
February 8, 1975—June Scallan testified that she saw the parties meet at the City Park Golf Driving Range at approximately 8:00 p. m. Soroe and the woman subsequently departed.

The private investigators stated thet they did not see Soroe and the woman, at any time, in a state of undress. Mrs. Scallan testified that she did not know the room arrangement of the woman’s residence or if anybody else lived in the woman’s apartment.

Soroe did not recall visiting the woman’s apartment on any of the abovementioned dates. He did testify that since August 1, 1974, he had visited the woman, “a friend”, on a few occasions. So much for the testimony relating to the adultery charge.

The Louisiana Supreme Court has held that the mere fact a man and woman are alone together does not necessarily presume that it is for an affair. See: Kendrick v. Kendrick, 232 La. 1104, 96 So.2d 12 (1957). As was stated in Bynum v. Bynum, 296 So.2d 382 (La.App. 2d Cir. 1974):

“The rule is incontrovertibly established in the jurisprudence of every appellate court of this State that a plaintiff in civil matters such as this bears the burden of proof. He is required to establish his claim to a legal certainty by a reasonable preponderance of the evidence. Speculation, conjecture, mere possibility, and even unsupported probability are not sufficient to support a judgment. * * * ”

See also Hayes v. Hayes, 225 La. 374, 73 So.2d 179 (1954).

Under the circumstances, we cannot conclude the trial judge erred in his determination that the wife failed to show by a preponderance of the evidence that the husband committed adultery on any of the specified dates. Having so concluded, it becomes unnecessary to consider whether or not the wife condoned the alleged adulterous acts or if the additional acts, alleged in the supplemental and amended petition, constituted new causes of action.

We now turn to a consideration of each party’s claim to a separation on the ground of cruel treatment. The testimony reveals that prior to 1965, the husband and wife resided at the home of the wife’s parents on Cleveland Street in New Orleans. In January, 1965, the husband established a separate residence at 8004 Breakwater Drive, also in New Orleans. Soroe testified that living at his wife’s parents’ home was not conducive to the furtherance of a good marriage and that although in January, 1965, he had asked his wife to leave her parents’ residence for the purpose of establishing a separate residence, she refused. The wife corroborated the fact that her husband had requested she leave her parents’ residence. The Soroes’ only living child, David, went to live with his father in January, 1973, at the Breakwater address. According to David, it was intended that his mother move to the new residence with his father in January 1973, however, she refused, ostensibly because the Breakwater residence was unfinished. David testified that the residence had been completed, but his mother did not want to leave the home of her parents.

On July 1, 1974, the parties made an attempt to establish a matrimonial domicile on Breakwater Drive and the wife moved into that residence. She stayed one day, and then returned to the home of her parents. David testified that his mother left because his father refused to buy her a television set.

Mrs. Soroe returned to the husband’s residence on July 21, 1974. On the night of July 25, 1974, she accused her husband of seeing other women, and an altercation took place in which Mrs. Soroe scratched her husband’s chest and tore his shirt. According to the wife, she only scratched her husband because he had punched her. However, the son, a partial observer to this altercation, testified that his father did not, in any way, strike or push his mother.

The wife continued living with her husband until August 27, 1974. Soroe testified that during this period of time the relationship between the parties was. strained. The husband stated that he asked her to leave, but she refused.

Finally, on August 27, 1974, Soroe changed the locks on the Breakwater residence and moved his wife’s personal belongings to her parents’ home. The wife attempted to gain entrance to the house, and the police were called. As a result, Mrs. Soroe was taken by the police to the home of her parents. However, an hour or two later, the wife returned to the Breakwater residence and forcefully attempted to gain entry into the house. In the attempt, she broke one of the windows with a rock, cutting her arm in the process.

In his reasons for judgment, the trial court stated:

“On the other hand, there appears to this Court to be ample evidence to date that Theresa Soroe has a violent temper and is, evidently, difficult to live with. She stayed a great portion of her time with her parents who are, evidently, substantial citizens, and was very happy with the arrangement of such living. Her husband, however, was somewhat dissatisfied and attempted to establish a domicile of his own. Louis Soroe attempted to establish a domicile with his wife at 8004 Breakwater Drive, New Orleans, Louisiana, but was not successful. At least on one occasion the Court is convinced that the wife was the cause of an incident which resulted with the calling of the police.
“The parties’ elder son testified that his mother refused to live with the father and he [sic] at the address in question.”

The trial judge was presented with conflicting evidence on the husband’s claim of cruelty and the wife’s counterclaim for cruel treatment. We cannot say that the record fails to support the trial judge’s findings. The judgment is affirmed.

AFFIRMED.


author: REDMANN, Judge. LEMMON, Judge,

text:
    PICK’S AUTO PARTS NO. 2, INC. v. HODGE’S AUTO PARTS.
    No. 7618.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 30, 1976.
    Daniel E. Becnel, Jr., Reserve, for plaintiff-appellee.
    Richard L. Edrington, Carville & Edring-ton, La Place, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Winston G. DeCuir, Baton Rouge, amicus curiae.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   REDMANN, Judge.

Defendant automobile parts seller appeals from an injunction obtained by a competitor ordering defendant to keep its business closed on Sunday. We reverse.

La.R.S. 51 ¡191-192 requires Sunday closing of all businesses, with a multitude of exceptions (of which defendant argues “livery stables” includes automobile parts stores).

Assuming that R.S. 51:191-192 survived the enactment of R.S. 51:194 by Acts 1962 No. 273 (whose title and body may suggest an intent to exhaustively legislate regarding, in the title’s own words, all “commodities, products and other . goods which shall not be sold or offered for sale on Sunday”), R.S. 51:191 and 192 do not authorize injunction for their violation; and plaintiff does not show entitlement to injunction under R.S. 51:194 or general law, C.C.P. 3601.

R.S. 51:194 does authorize injunction for its violation, but does not proscribe sale of parts for motor vehicles except (as amended, Acts 1964 No. 458) “in all places of business wherein such motor vehicles are sold.” Whatever else may be said of this provision, its wording does not prohibit defendant’s sales and it therefore does not authorize enjoining defendant.

C.C.P. 3601 requires a showing that “irreparable injury, loss or damage may otherwise result” absent injunction. Plaintiff has made no such showing.

Reversed; suit dismissed at plaintiff’s cost.

LEMMON, Judge,

(concurring).

In my opinion R.S. 51:194 replaced and implicitly repealed R.S. 51:191 and 192.

R.S. 51:194, as amended in 1964, prohibits the Sunday sale of parts for automobiles and trucks only when such motor vehicles are sold in the place of business. Defendant’s Sunday sales are therefore not prohibited.

      . The Attorney General had reasoned, Opinions 1916-1918, p. 862, that the 1886 source statute’s words “livery stables” — chosen when gasoline-powered vehicles were unknown— could be interpreted 20 years later to also exempt gasoline stations and automobile garages from closing. The statute (almost verbatim from 1886) would order a shutdown of “all places of public business” — an evidently unacceptable result, save for a hodgepodge of some thirty (sic) exceptions prompted by the Sunday mores of 90 years ago — -when no one went Sunday-driving in his car, nor tuned or did other work requiring parts on Sunday for his car, because no one had a car. Perhaps the proper 1976 interpretation of an 1886 statute is to apply its general prohibition to 1886 business (excepting the many, many exceptions), so that, perhaps, only alcoholic beverage outlets and hardware, dry goods and general stores would be ordered closed.
      The 1886 statute allowed “drug stores” and “markets” (and many other kinds of stores) to stay open, and contained no prohibition against Sunday sales of any item except alcohol. No other law prohibited, e. g., drug stores from selling nails or underwear. Many 1976 drug stores sell a greater variety of goods than did 1886 general stores (including some minor parts for automobiles). Presumably the lack of satisfactory applicability of the 1886 statute to 1960’s commerce led to R.S. 51:194’s more frank approach of prohibiting specified Sunday sales, decried as “unfair competition.” The drug store or supermarket (or perhaps any store) can stay open 24 hours every day, but now it cannot sell clothing, lumber, or household appliances; the supermarket stock clerks and cashiers can be obliged to work a full day on Sunday, but cannot sell an egg-beater. Returning to defendant’s argument that it is a “livery stable,” it is apparently not against any Louisiana law for a livery stable, a drug store, a market, or a book store (to name a few) to sell automobile parts on Sunday (unless motor vehicles are also sold in the same place of business). If all of these places can sell auto parts, why not defendant? Perhaps in an 1886 sense defendant is as much a livery stable as is a gasoline station or an automobile garage.

      . R.S. 51:191 and 192 had provided that all places of public business shall be closed on Sunday with specified exemptions. R.S. 51:194 uses the opposite approach and provides that certain specified sales and services shall not be conducted on Sunday, an altogether unnecessary provision if the legislature did not intend to change the prior general prohibition on opening places of public business.


author: ELLIS, Judge:

text:
    Peter J. PARFAIT v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS.
    No. 10749.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied June 30, 1976.

    Norman L. Sisson, Jonathan C. Harris, Wm. J. Doran, Jr., Robert J. Jones and David K. Balfour, Highway Dept., Baton Rouge, for appellant.
    Grady C. Weeks and Douglas J. Authement, Houma, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.

       Lottinger, J., dissenting from the refusal to grant a rehearing.

   ELLIS, Judge:

This is a suit by Peter J. Parfait against the State of Louisiana, through the Department of Highways, for damages for personal injuries suffered by him in an automobile accident. After trial on the merits, judgment was rendered in favor of plaintiff for $615,000.00 and defendant has appealed.

The accident happened on September 20, 1973. Mr. Parfait was driving north on State Highway 57, a two lane, paved highway, with a five to six foot shell shoulder on either side. An oncoming southbound vehicle pulled into the northbound lane of traffic, forcing Mr. Parfait to take to the shoulder to avoid a collision. While on the shoulder, plaintiff lost control of his vehicle, which swung to the left across the highway and struck two trees. Mr. Parfait was very seriously injured.

It is plaintiff’s position that he lost control of his automobile because the defendant had not properly maintained the shoulder. He testified that the shoulder was very rough, and that after he had driven along for some distance his car struck a deep hole, which swung his car to its left, spun his steering wheel out of his hands, and threw him to the seat. When he regained a sitting position, it was too late for him to avoid striking the trees.

Other witnesses testified that, in the area where the accident happened, there was a five to six inch drop off from the surface of the pavement to the shoulder and a number of large holes, from eight to twelve inches deep. One witness, whose home was adjacent to the accident site, testified that the holes were there, had been there for some time before the accident, and were still there at the time of trial. She testified that the only maintenance carried out by the Highway Department was to occasionally put shovelfuls of shells into the holes.

Sergeant Claude J. Hebert, who investigated the accident, testified that he did not believe that the condition of the shoulder contributed to the accident. However, he did testify that there was about a five inch drop off at the edge of the pavement.

Highway Department employees stated that the shoulder was inspected once or twice a week for defective conditions, that these were remedied when discovered. Their records showed that no maintenance had been carried out at the site of the accident other than occasional filling of holes by shoveling shells into them. One of the employees testified that cars were continually running off the road at that site because of a slight curve in the road just to the south. They also testified that a six inch drop off at the edge of the pavement would constitute a dangerous condition.

Considering the foregoing testimony, we find no manifest error in the conclusion of the trial judge that a dangerous condition existed at the point of the accident. The frequent inspections made by the Department and their knowledge that vehicles frequently ran off the road onto the shoulder at this point, thus subjecting it to greater wear, bear out his conclusion that the Department had notice of the existence of the condition.

We further agree with the trial judge that no contributory negligence on the part of plaintiff was shown. He was driving about 45 miles per hour, and took the only evasive action available to him when faced with an oncoming car. His loss of control of his vehicle was caused by the condition of the shoulder and not by any deficient driving technique on his part.

Plaintiff was awarded $615,000.00 damages by the trial judge, and the defendant claims the award to be excessive.

As a result of the accident, plaintiff suffered a fractured left hip, and a serious fracture of both sides of his pelvis. These two injuries were treated conservatively and healed uneventfully, leaving a five percent disability of the left leg.

Plaintiff also suffered a lacerated spleen, which was removed surgically, and his pro-static uretha and membranous uretha were completely severed, as were all of the nerves and blood vessels in that area. As a result, plaintiff lost his ability to urinate, and lost his sexual capacity. A tube was put into his bladder so that it would drain, which he wore for over a year, and which caused consistent discomfort and constant infection and incapacitation.

In October, 1974, an operation was performed which restored his capacity to urinate, except for a loss of control under stress. The operative procedure necessitated the removal of the front bones of the pelvis, and, as a result, plaintiff is incapacitated to perform strenuous labor for the rest of his life. It is also “very likely” that he will never regain his sexual capacity.

Plaintiff had been advised by his doctor to seek vocational training in some area suited to his physical capacities, but, as of the time of trial, he had not done so. Prior to the accident, he had been employed as a tacker welder, for $2.75 per hour. During the period between the accident and trial, he lost $11,567.00 in wages, without allowing for any deductions for taxes or social security.

His urologist testified that it was possible that he would need another corrective operation in the future, and that he would have to be followed by a urologist for at least ten or fifteen years, at a cost of some $400.00 to $500.00 per year.

Since the trial judge failed to itemize his award, we do not know how he arrived at the total figure of $615,000.00. However, it would appear from the briefs filed below that he awarded plaintiff substantially all that he asked for and proved. Our review of the record shows that plaintiff proved special damages of $14,230.20, and future medical expense for which we believe $7,000.00 would be a reasonable award. For pain and suffering resulting from his injuries, including the fractures, loss of his spleen, and the impairment of his urinary and sexual functions, we think an award of $300,000.00 would be reasonable, and apparently compatible with the award below.

Plaintiff showed a gross loss of wages up to the time of trial of $11,567.00. Of course, he would not have realized this amount, because of deductions for social security, taxes and hospitalization. He has shown that he is permanently disabled to perform the duties of a tacker welder, but there is no evidence in the record whatever which indicates that he is either physically or mentally unable to perform other less strenuous jobs. Under that circumstance, we believe it would be unrealistic to award loss of wages for the rest of his working life and we find the trial judge committed manifest error in so doing. However, he should be given a period of two years within which to obtain training for another occupation. Considering plaintiff’s earning capacity prior to the accident, we think an award of $25,000.00 should compensate him for lost wages, past and future, while he prepares himself for another less strenuous occupation.

The judgment appealed from is therefore amended by reducing the amount thereof to $346,230.00, and as amended, it is affirmed. Costs of this appeal shall be borne equally by the parties. All other costs shall be borne by defendant to the extent permitted by law.

AMENDED AND AFFIRMED.