author: ELLIS, Judge:

text:
    TANGI READY MIX CONCRETE COMPANY v. Robert L. EDWARDS (Green Acres Subdivision).
    No. 10843.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.

      Tom H. Matheny, Hammond, for appellant.
    Henry A. Mentz, Jr., Hammond, for ap-pellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

This is a suit for $8,949.40 allegedly due by defendant Green Acres Subdivision, Inc. to plaintiff Tángi Ready Mix Concrete Company for concrete curbing delivered and poured at Green Acres Subdivision by plaintiff. From a summary judgment in favor of plaintiff, defendant has appealed.

The petition, which named Robert L. Edwards as defendant, alleges that plaintiff furnished 7,246 feet of concrete curbing at $2.90 per foot, at a total cost of $21,013.40; that $12,064.00 was paid on account, without protest, leaving a balance due of $8,949.40 as an “account stated”; and that a material lien was filed against defendant on February 6, 1974, bearing against defendant’s property in Sections 10 and IS, T. 6 S., R. 8 E., in Tangipahoa Parish. Plaintiff asked judgment in the above amount plus recognition of his lien.

After various exceptions were filed, plaintiff amended its petition to substitute Green Acres Subdivision, Inc. for Mr. Edwards as defendant.

On December 23, 1975, plaintiff filed a motion for summary judgment, alleging that a balance of $8,949.40 due is an “account stated”; that Green Acres Subdivision had been properly dedicated to the public, the streets therein constructed and surfaced, and the work done thereon accepted by the Tangipahoa Parish Police Jury for “perpetual maintenance thereof as presently constructed.” It is further alleged that more than one year had elapsed since that time, that no demand had been made by the Police Jury on the defendant for any repairs of any kind, and that an inspection by the Parish Engineer of the streets had revealed no substantial defects or repairs to be made.

From the foregoing alleged facts plaintiff concludes that its work must have been satisfactorily done, and that there was no genuine issue of fact or law as to whether it should be paid the balance allegedly due.

In support of its allegations, plaintiff filed a copy of the Police Jury resolution dated October 22, 1974, accepting the streets for maintenance; a certificate by the Secretary of the Police Jury that no demands had been made for repairs to the streets as of December 9, 1975, and a copy of the materialman’s lien affidavit.

The matter was heard on January 16, 1976, and taken under advisement. On January 20, 1976, an opposition to the motion for summary judgment was filed, alleging that there were genuine issues as to material facts. In the memorandum attached thereto, defendant alleges that the issue relates to whether or not plaintiff properly constructed the concrete curbing, and not whether it was accepted for maintenance by the Police Jury. No affidavits are attached to the opposition.

On January 28, 1976, a minute entry reflects that judgment was rendered sustaining the motion for summary judgment. On January 30, 1976, judgment for plaintiff was signed. On the same day, defendant filed an answer.

Article 966 of the Code of Civil Procedure provides, in part, as follows:

“The plaintiff 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.”

We note that, contrary to the provisions of Article 966, plaintiff’s motion was filed and decided before answer was filed by defendant. We believe, however, that any objection to this defect was waived by the filing of an opposition to the motion for summary judgment by defendant, and by its. failure to file the dilatory exception thereto.

We cannot accept as true any allegations of the petition other than those which are supported by affidavit or other proof. The lien affidavit shows that the materials were furnished and labor performed in pouring the concrete curbing, and that there is a balance due of $8,949.-40. The issue of whether the work done by plaintiff was properly accomplished is not raised by any pleading or affidavit properly before the court. We gather that references thereto by the parties relate to issues raised and pleadings filed in another law suit between them, in the mistaken belief that they form part of the record before us.

Defendant has not filed any pleadings, affidavits or other evidence which would tend to controvert the matters of fact set forth in plaintiff’s lien affidavit. It cannot rely on general denials of these facts contained in brief or in the opposition. Article 967, Code of Civil Procedure.

We therefore find that there is no dispute as to the facts alleged in the petition, and that plaintiff is, as a matter of law, entitled to judgment as prayed for.

The judgment appealed from is therefore affirmed, at defendant’s cost.

AFFIRMED.


source: Caselaw Access Project

author: CHIASSON, Judge.

license: Public Domain

text:
    Loreto MONTAGNINO, Plaintiff-Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.
    No. 10804.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Refused Nov. 19, 1976.

      James L. Donovan, New Orleans, for defendant-appellant.
    Stephen J. Hornyak and Dominick Sa-vona, Jr., Gretna, for plaintiff-appellee.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

On April 25, 1973, in the course of his employment by Dinon Associated Terrazzo and Tile Company (Dinon), while in the process of using a heavy terrazzo polishing machine, plaintiff-appellee, Loreto Montag-nino, slipped on a wet floor and fell causing injury to his back. This suit was brought to enforce his workmen’s compensation claim against Dinon’s insurer, Allstate Insurance Company, defendant-appellant.

Defendant appeals from the judgment of the Trial Court in favor of plaintiff for maximum compensation left owing, i.e. 479 weeks at $49.00 per week, with legal interest and cost. Plaintiff neither answered the appeal nor filed an appeal on his behalf. We affirm.

The Trial Judge did not favor us with any written reasons or transcribed oral reasons for judgment.

Appellant contends that:

1. The appellee had not regained his ability and capacity to perform hard manual labor prior to the occurrence of his second accident.
2. The judgment signed on July 31, 1973, dispensed with any and all liability, up to and including that time, due by employer and insurer for any injuries he may have received while in the course and scope of his employment by his employer, Dinon.

Appellee, now 36 years old, came to this country from Italy about 15 years ago and immediately went to work for Dinon. His formal education consists of 5 years of elementary school in Italy and he cannot read or write English.

On October 21, 1971, appellee was injured in the course of his employment as a terrazzo grinder for Dinon. As a terrazzo grinder the appellee operated a 350 to 400 pound sanding machine. The appellee’s job assignment included loading and unloading this machine, as well as moving this machine about the building in which he worked. The appellee injured his back while lifting this machine.

Workmen’s compensation coverage for Dinon at that time was provided by Employers Mutual Liability Insurance Company of Wisconsin (Mutual). Following his injury the appellee applied for and received workmen’s compensation benefits from Mutual.

After his injury the appellee was treated by Dr. Winters. When the appellee did not repond to treatment, Dr. Winters referred the appellee to another specialist, Dr. Llewelyn. On July 12, 1972, after additional treatment had failed to help the appellee, Dr. Llewelyn performed an operation for a suspected ruptured disc. The appellee was found to have a lateral rupture of the L5-S1 disc on the right and Dr. Llewelyn removed the torn portion of the cartilage.

Following surgery the appellee began to recover, On February 21, 1973, Dr. Llew-elyn discharged the appellee, and advised him to return to his regular job assignment. The appellee was instructed to return to Dr. Llewelyn if his regular job assignment created soreness sufficient to cause him to miss work. After being forced to miss several days work due to soreness, the appellee returned to Dr. Llewelyn’s office on March 16, 1973. Dr. Llewelyn’s deposition was taken in lieu of his testimony, and on page 15 of the deposition, the Doctor states:

“A The patient did return in March stating that he had returned to work and had worked for three days with injuries and soreness which he attributed to lifting and rigorous muscular activities required of his work. That he was off for two or three days and would feel better and again on attempting to work, after only two days he was sore to the extent that he felt he couldn’t continue. The patient, at that point in time, in March of 1973 was given an understanding that his present post-injury and post-operative back status was such that I felt that his job assignment was too rigorous or too demanding from the ' muscular standpoint for him and suggested that he continue rehabilitative efforts. . . .”

Appellee’s understanding was that he should continue to work as the activity would be good for him.

In a letter to Jack Winters M.D., dated March 27, 1973, Dr. Llewelyn stated that, in his opinion, the appellee had an 8% anatomical disability and was therefore 100% disabled as to his ability to perform his regular job assignment.

On April 25, 1973, the appellee slipped while working and injured his back for a second time. After appellee’s second injury, he could no longer work as a terrazzo grinder for a while.

Dr. Llewelyn initially felt that the appel-lee’s second injury was an aggravation of the original injury. After the initial treatment the Doctor again advised appellee to return to work! However, when the appel-lee did not respond to treatment and was unable to continue work, Dr. Llewelyn, in July, 1973, began to suspect that the appel-lee’s slip and fall might be a new injury.

Between the appellee’s first and second injuries, Dinon changed workmen’s compensation insurers. Following his second injury the appellee applied for and received workmen’s compensation benefits from Dinon’s new insurer, Allstate Insurance Company, the defendant-appellant.

On July 31, 1973, appellee and Mutual entered into a Court approved workmen’s compensation settlement in the amount of $13,000.00, plus weekly benefits previously received in the amount of $4,018.00 and medical expenses in the amount of $2,975.-31.

Due to the appellee’s failure to respond to medication and therapy after the second injury, Dr. Llewelyn performed a second operation on September 20, 1973. The ap-pellee was found to have a primary disc rupture of the L5-S1 disc on the left. Following surgery, Dr. Llewelyn’s opinion that the appellee’s second injury was a new injury unrelated to the original injury, was confirmed. Further, the Doctor was of the opinion that, as a result of the second injury, the appellee was totally and permanently disabled.

In November, 1973, the appellant discontinued workmen’s compensation payments to the appellee resulting in this suit being filed.

The question raised in this suit is the effect of the appellee’s prior injury and settlement on his right to recover in the present case. Where a party has sustained disabling injuries in a prior accident, it is necessary that the circumstances and effects of the prior accident be closely and carefully scrutinized with reference to any effect they may have on the case at hand. Windham v. W. Horance Williams Co., 18 So.2d 854 (La.App. 2nd Cir. 1944).

An examination of prior jurisprudence indicates that recovery of workmen’s compensation benefits for total and permanent disability, in cases where the injured party has been granted disability benefits for prior injuries, is contingent on three factors. First, the second injury must be the result of a second separate accident; second, the second injury must be unrelated to the first injury; and third, the injured party must not in fact be totally and permanently disabled, as to the type of work he was performing prior to the second injury. Gauthier v. Employers National Insurance Co., La.App., 316 So.2d 769 (1st Cir. 1975); Scott v. Hartford Accident & Indemnity Company, La.App., 302 So.2d 641 (3rd Cir. 1974); Church v. Tilton, La.App., 269 So.2d 319 (2nd Cir. 1972); Whatley v. Lummus Company, La.App., 243 So.2d 922 (3rd Cir. 1970); Tate v. Lumbermen’s Mut. Cas. Co., 172 So.2d 87 (La.App., 4th Cir. 1965); Castee v. Great American Indemnity Company, 81 So.2d 101 (La.App., 2nd Cir. 1955).

With regard to the first two factors, the appellee is entitled to recovery. The testimony of Eugene Woods and the appellee establishes that the appellee’s second injury occurred when the appellee slipped on the wet floor while operating the terrazzo finishing machine. This was a second separate accident. We agree with Dr. Llewelyn’s opinion, which has not been contradicted by any testimony, that the appellee’s second injury was not related to the prior injury.

It is the third factor which presents a serious question in this case. In prior cases in which the injured party has been allowed to recover benefits for total and permanent disability after receiving disability benefits for prior accidents, the determination that the injured party was not permanently and totally disabled at the time of the second injury was based on the injured parties having returned to work and having performed their regular job assignments. Gauthier v. Employers National Insurance Co., supra; Castee v. Great American Indemnity Company, supra; Johnson v. W. L. Richeson & Sons, 53 So.2d 192 (La.App., Orleans, 1951). The periods worked in these cases, following the first injury but prior to the second injury, varied from one year to three years. The appellee in the present case worked only two months before his second injury. Additionally, there was evidence the appel-lee experienced some initial difficulty in returning to his regular job assignment. We conclude from the record that appellee had regained his 'ability and capacity to perform hard manual labor prior to the occurrence of his second accident. The ap-pellee had performed his regular job assignment satisfactorily for five weeks, with no complaints to his Doctor, before he sustained his second injury.

This suit represents a second demand by the appellee for workmen’s compensation benefits for total permanent disability. However, the compromise settlement between Mutual and the appellee did not include a determination of the actual extent of the appellee’s disability resulting from the first accident. The appellee’s allegation, in the judicially approved compromise between the appellee and Mutual, that he was totally and permanently disabled is not proof of the extent of the ap-pellee’s disability. While the opinion expressed by Dr. Llewelyn in his letter of March 27, 1973, is strong evidence as to the appellee’s condition at that time, it is offset by the fact that appellee, on Dr. Llewelyn’s advice, had returned to work and had been performing his duties satisfactorily before the occurrence of the second accident. Further, in a report dated May 24, 1973, before the Compensation Settlement, Dr. Llewelyn stated:

“. . . but I am confident that he has recovered from work aggravation problem, and he was encouraged to believe that he should actually benefit from increasing his activities now, this including regular work assignment, but one that was within his tolerance of bending, lifting and squatting activities. I encouraged him to return to work seeking job assignment within his capabilities.

There is nothing in the joint petition, judgment or release signed on July 31, 1973, that indicates an intention of either party to settle the injury of April 25, 1973. On the contrary, the judgment provides :

“.payment shall be in full and final compromise settlement of all claims, including any and all claims for medical expenses, rights of action or causes of action, which may have arisen or which might hereafter arise in favor of Loreto Montagnino and against Dinon Terrazzo & Tile Company, Inc., and Employers Mutual Liability Insurance Company of Wisconsin as a result of that certain accident which is alleged to have occurred on or about October 25, 1971, Orleans Parish, Louisiana, and all injuries sustained therein by Loreto Montagnino or resulting therefrom.” (Underscoring supplied)

We hold that the Compensation Judgment rendered upon the joint petition of appellee, Dinon and Mutual, did not release or relieve Dinon and Allstate for injuries received by appellee in the April 25, 1973 accident.

Because the appellee has failed to appeal or to answer the appellant’s appeal, we cannot consider the appellee’s contention that the Trial Judge erred in failing to award penalties and attorney’s fees.

For the foregoing reasons the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.


text:
    LAWYERS TITLE INSURANCE CORPORATION v. LOUISIANA INSURANCE RATING COMMISSION.
    No. 10793.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Refused Dec. 3, 1976.

      Phillip A. Wittmann, Clinton W. Shinn, New Orleans, for appellant.
    Lynne E. Williams, Baton Rouge, for La. Ins. Rating Commission.
    Gordon A. Pugh, of Breazeale, Sachse & Wilson, Baton Rouge, for Lawyers Title Ins. Corp.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

On December 5, 1973, plaintiff-appellee, Lawyers Title Insurance Corporation (LTIC) requested at the annual meeting of the Louisiana Land Title Rating Bureau (Bureau), intervenor-appellant, that the Bureau file a deviation in title insurance rates for LTIC. The title insurance rates which had been established and promulgated by the Bureau and approved by the Louisiana Insurance Rating Commission (Commission) divided the state into two divisions. The Division A rates applied in all areas of the state except the parishes of Orleans, Jefferson, St. Bernard, Plaque-mines, St. Charles, St. James and St. John the Baptist. These rates were for title insurance alone. The Division B rates applied in the aforenamed parishes and covered the cost of title insurance and the cost of title examination. The deviation LTIC desired filed would have applied Division A rates statewide. LTIC’s request for the filing of the deviation was refused by the Bureau.

On December 12, 1973, LTIC filed a rate application with the Commission and the Commissioner of Insurance for the State of Louisiana under the provisions of R.S. 22:1407 F.

R.S. 22:1407 F provides:

“When a filing of adjustments of rates for existing classifications of risks (1) does not involve a change in the relationship between such rates and the expense portion thereof, and (2) does not involve a change in rate relativities among such classifications on any basis other than loss experience, such filing shall become effective upon the date or dates specified in the filing and shall be deemed to meet the requirements of this Part: provided that this Subsection shall not apply to public property rates as provided for under R.S. 22:1421, nor to surety or workmen’s compensation insurance.”

Two days later the Commission directed LTIC’s attention to R.S. 22:1406 C and asked LTIC to explain why LTIC believed it could file a rate application under R.S. 22:1407.

R.S. 22:1406 C provides:

“Every title insurer doing business in this state shall adhere to the rates promulgated by any title insurance rating bureau licensed under this Part, and which rates have been approved by the casualty and surety insurance division.”

On January 16, 1974, the Commission at a meeting rejected LTIC’s filing until a report could be made by the Bureau. After receiving notice of the Commission’s action, LTIC authorized its agent to charge the rejected rate.

LTIC’s action was based on its belief that its rate application had become effective after filing under R.S. 22:1407 and could be disapproved only after the administrative hearing required by R.S. 22:1408 C.

In June, 1974, the Commission met to consider the matter. After counsel for LTIC objected to the conduct of the meeting as an administrative hearing because of the Commission’s failure to adopt the rules and regulations required by the Louisiana Administrative Procedure Act (R.S. 49:951 et seq.) the Commission decided to file the required rules and hold a hearing under them.

Shortly thereafter, without any further hearing, counsel for the Commission informed LTIC that LTIC was improperly using the rates and should cease to do so. LTIC then filed this suit seeking a declaratory judgment decreeing that LTIC could charge the rates contained in its December, 1974, application.

After a hearing the District Court rendered a judgment decreeing that LTIC’s rate application was properly filed pursuant to the provisions of R.S. 22:1407, that these rates had become effective and would continue to remain in effect unless modified by the Commission after a hearing conducted in accordance with the Administrative Procedure Act. It is this judgment of the Court which has been appealed.

The appellant contends the District Court erred in:

(1) Failing to address the threshold question of whether R.S. 22:1406 C precludes an individual title insurer from filing a rate application under R.S. 22:1407; and
(2) Failing to give, under the rule of contemporaneous construction, great weight to the interpretations of R.S. 22:1406 C made by the Commission and the Bureau.

R.S. 22:1402 provides:

“The purpose of this Part is to promote the public welfare by regulating insurance rates to the end that they shall not be excessive, inadequate, or unfairly discriminatory, and to authorize and regulate cooperative action among insurers in rate making and in other matters within the scope of this Part. Nothing in this Part is intended (1) to prohibit or discourage reasonable competition, or (2) to prohibit or encourage, except to the extent necessary to accomplish the aforementioned purpose, uniformity in insurance rates, rating systems, rating plans or practices. This Part shall be liberally interpreted to carry into effect the provisions of this Section.”

R.S. 22:1404(5) provides in part:

Nothing in this Code shall be construed to prohibit any insurer from deviating upon proper approval under this Part from any rate established by a rating organization or any division, provided the rate used is adequate.”

The construction of R.S. 22:1406 C urged by appellant is one which prohibits a title insurer from deviating from a rate established by a rating bureau. Approval of a rate filing under R.S. 22:1407 is automatic unless the rate is disapproved by the Commission in the manner provided for in

R.S. 22:1408.

R.S. 22:1406 C does not preclude LTIC from filing a rate application under R.S. 22:1407.

R.S. 22:1407 A(l) provides:

“Every insurer whose rates are subject to regulation under the provisions of this Part shall file with the respective divisions, except as to inland marine risks which by general custom of the business are not written according to manual rates or rating plans, every manual, minimum, class rate, rating schedule or rating plan and every other rating rule, and every modification of any of the foregoing which it proposes to use. Every such filing shall state the proposed effective date thereof and shall indicate the character and extent of the coverage contemplated. Specific inland marine rates on risks specifically rated, made by a rating organization, shall be filed with the Marine and Inland Marine Insurance Division.”

R.S. 22:1407 B provides:

“An insurer may satisfy its obligation to make such filings by becoming a member of, or a subscriber to, a licensed rating organization which makes such filings, and by authorizing the division to accept such filings on its behalf; provided, that, except with respect to mandatory membership in the Louisiana rating and fire prevention bureau as provided in R.S. 22:1405, nothing contained in this Part shall be construed as requiring any insurer to become a member of or a subscriber to any rating organization.”

A title insurer may satisfy its obligation to file the rate schedule required by R.S. 22:1407 A(l) by becoming a member of a rating bureau. R.S. 22:1407B. When an insurer resigns from a rating bureau, R.S. 22:1407 A(l) requires the insurer to file a rate schedule. R.S. 22:1408 provides the means for disapproving a rate schedule filing where the filing does not conform to the requirements of Part of the Insurance Code.

For the doctrine of contemporaneous construction to be applied, a statute must be subject to two interpretations. Thompson v. East Baton Rouge Parish School Board, 303 So.2d 855 (La.App. 1st Cir. 1974). Because a title insurer is not required to join a rating bureau (R.S. 22:1407 B) and because a title insurer, not a member of a rating bureau, is required to file a rate schedule, (R.S. 22:1407 A(l)) the only possible interpretation of R.S. 22:1406 C is that R.S. 22:1406 C does not preclude a title insurer from filing a separate rate application.

Therefore, for the foregoing reasons, the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.

      . At the trial on the merits there was some discussion of whether the application, if capable of being filed by LTIC, should have been filed under R.S. 22 .T407 D instead of R.S. 22:1407 F.
      R.S. 22:1407 D provides:
      “Subject to the exceptions specified in Subsection E and Subsection F of this Section, each filing shall be on file for a waiting period of fifteen days before it becomes effective, which period may be extended by the division for an additional period not to exceed fifteen days, if it gives written notice within such waiting period to the insurer or rating organization which made the filing that it needs such additional time for the consideration of such filing. Upon written application by such insurer or rating organization, the division may authorize a filing which it has reviewed to become effective before the expiration of the waiting period or any extension thereof. A filing shall be deemed to meet the requirements of this Part unless disapproved by the division within the waiting period or any extension thereof, in accordance with R.S. 22 :- 1408.”
      Because the Commission did not act until January 16, 1974, after the fifteen day waiting period provided by R.S. 22:1407 D, it does not matter under which section of R.S. 22 :- 1407 the application was filed.

      . R.S. 22:1408 C provides:
      “If at any time subsequent to this applicable review period provided for in Subsection A or B of this Section, or after a filing lias become effective under Subsection P of R.S. 22:1407, the division finds that a filing does not meet the requirements of this Part, it shall, after a hearing held before the division upon not less than ten days’ written notice, specifying the matters to be considered at such hearing to every insurer and rating organization which made such filing, issue an order specifying in what respects the division finds that such filing fails to meet the requirements of this Part, and stating when, within a reasonable period thereafter, such filing shall be deemed no longer effective. Copies of said order shall be sent to every such insurer and rating organization. Said order shall not affect any contract or policy made or issued prior to the expiration of the period set forth in said order.”


author: SARTAIN, Judge.

text:
    Elmore J. SONGE, Sr., Plaintiff-Appellant, v. HIGHLANDS INSURANCE COMPANY et al., Defendants-Appellees.
    No. 10816.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.

      Sherman F. Raphael and Frank B. Hayne, III, New Orleans, for plaintiff-appellant.
    J. Walter Ward, Jr., New Orleans, for Highlands Ins. Co.
    Leonard P. A.very, Asst. U.S. Atty., New Orleans, for intervenor U. S.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   SARTAIN, Judge.

This is an action for personal injuries and special damages brought by Elmore J. Songe following an accident which occurred on Louisiana Highway 24, south of Shriever, Parish of Terrebonne, Louisiana. Plaintiff appeals from a judgment dismissing his suit. We reverse.

Between the hours of 6:30 and 7:00 A. M. o’clock, plaintiff was driving his 1957 Chevrolet automobile in a northerly direction on Louisiana Highway 24. He was followed by a pickup-camper truck which was pulling a small trailer laden with two motorcycles. Carl Johnson, driving a 1970 Pontiac automobile, was following the pickup truck. As plaintiff was attempting a left turn into a service station, situated on the west side of the highway, the left rear of his vehicle was struck by the left front of the Johnson vehicle. The pickup truck was not involved in the accident and its driver remains unidentified.

Plaintiff sued Johnson, his employer, Louisiana Offshore Caterers, Inc., and the latter’s liability insurer, Highlands Insurance Company. The United States of America intervened for hospital and medical services rendered to the plaintiff by the Veteran’s Administration Hospital in New Orleans, Louisiana, in the sum of $1,671.-00.

We are not favored with written or oral reasons for judgment. However, the judgment signed by the trial judge states, inter alia, “that the defendants have sustained the burden of proving their alternative defense of contributory negligence of the plaintiff.”

Plaintiff testified that on the morning of the accident he and his family planned to go fishing and that he was on his way to the service station to get gas and soft drinks. He explained that upon approaching the service station he observed the pickup truck behind him at a distance of “about twenty feet”; that nothing was in front of him; that he activated his left turn signal; and that when he was about halfway into the driveway of the service station he heard an “explosion” that swung him around. He estimated that prior to his turning maneuver he was traveling 25 m.p.h. but at the commencement of such maneuver his speed had been reduced to 10 m.p.h. He last observed the pickup when it continued on past him in its proper right hand lane. Obviously, the explosion referred to by the plaintiff was the contact made between his and the defendant’s respective automobiles. He did not see or know the presence of the Johnson vehicle.

Defendant, Carl Johnson, testified that he was traveling approximately 40 m.p.h. following the aforementioned pickup-camper truck. He stated that all of a sudden the pickup truck cut sharply to its left and then just as abruptly back to its right. Upon observing this maneuver he (Johnson) responsively cut to his left only to observe the presence of the Songe vehicle when the pickup truck cut back to its right. He immediately applied his brakes but could not avoid the collision. The first knowledge that Johnson had of the Songe vehicle was when he saw the same after the pickup truck had cut back in its right.

Trooper Gregory Whitney investigated the accident for the Louisiana State Police. He found that the accident had occurred entirely within the southbound lane of Louisiana Highway 24, that the Songe vehicle had “spun around” about 180° and had traveled approximately twenty feet after the point of impact. The Johnson automobile remained almost at or very near the point of impact. He verified the fact that the left front portion of the Johnson vehicle collided with the left rear portion of the Songe automobile. Though he did not indicate the length of the skid-marks left by the Johnson automobile, he stated that the accident happened with such rapidity that only the rear wheels of that vehicle left skidmarks. He estimated that Songe was traveling 15 m.p.h. and Johnson was traveling 40 m.p.h. just prior to impact. His report showed that both of the drivers mentioned the presence of the pickup truck.

We are satisfied that the negligence of Carl Johnson is well established. Either because of the length of time that lapsed between the date of the accident and the trial of this litigation, his recollection of many of the details concerning the accident- was either nil, vague, or indefinite. He was, however, specific in reiterating that he just responsively followed the pickup truck into the wrong lane, guessing that the truck’s reason for doing so was that “it could have been something there, I don’t know.”

Counsel for defendant argues that the testimony of the plaintiff to the effect that the truck was twenty feet behind him when he activated his left turn indicator, plus the sudden maneuver of the pickup truck to its left and then back to its right, support the inference that plaintiff’s left turn maneuver was sudden, precipitous, and contrary to the duty imposed upon a motorist endeavoring to make a left turn into a private driveway. Accordingly, he argues that the trial judge, who heard and saw the witnesses, was justified in finding contributory negligence on the part of the plaintiff. We concede that there is a conflict in the testimony of the respective drivers. Songe contends that the left turn maneuver was routine and commenced only after ample notice to the following truck; whereas, Johnson’s testimony concerning the sudden changes of direction on the part of the truck indicates the contrary. Thus, defendant submits that it is a question of credibility and the trial judge’s decision should be accorded the weight our law recognizes and be permitted to stand.

We review the issue here involved as one of law rather than one of fact, i. e., whether the duty owed by a left turning motorist to a second following motorist extends to the defendant herein, whose conduct we consider to be most abnormal.

It is well settled that a left turning motorist is required to exercise a high degree of care, including the duty to watch for approaching and overtaking traffic. Jacobs v. State Farm Mutual Automobile Insurance Company, 191 So.2d 908 (1st La.App., 1966); Hudgens v. Mayeaux, 143 So.2d 606 (3rd La.App., 1962); and Faulkner v. Ryder Tank Lines, Inc., 135 So.2d 494 (2nd La.App, 1961).

In determining whether a left turn can be made in safety, a motorist has every right to assume that following traffic will observe all of the duties imposed on it by law and common sense, such as that a following driver will not pass at an intersection, over a double line, and in particular, keep a proper lookout. Faulkner v. Ryder Tank Lines, Inc., supra.

Primarily, Songe’s duty in the instant matter with respect to following traffic was owed to the driver of the pickup truck and concededly to defendant’s vehicle if defendant in fact had properly commenced a passing maneuver at such time as it should have been noticed by the plaintiff. Jacobs v. State Farm Mutual Automobile Insurance Company, supra. In the instant case Johnson denied repeatedly that he was in the process of passing the pickup truck and plaintiff.

Defendant is basing his entire case on the assumption that the conduct of the driver of the pickup truck (as defendant described it) was necessitated by some improper action on the part of the plaintiff. Yet, Johnson could not state in car lengths or otherwise the distance between his vehicle and that of the pickup truck. At one point he stated he thought the truck was actually going to pass plaintiff’s vehicle. The record makes it abundantly clear to us that this driver was not keeping a proper lookout. He simply begs the question of his own inattention and leaves to pure speculation the reasons for the actions of the driver of the pickup truck.

For these reasons, we are constrained to hold that the duty owed by the plaintiff herein to reasonably signify his intention to make a left hand turn to the overtaking motorist (pickup truck) and the risk attendant for his failing to do so do not extend to the driver of the third vehicle, who we are satisfied, was basically oblivious to the conditions preceding him. Defendant has failed in the burden of proving the contributory negligence that he has alleged on the part of the plaintiff.

We now turn to.the question of plaintiff’s injuries and the quantum to be awarded therefor. 'Plaintiff claims that as a result of the accident he sustained an injury to his lumbarsacral spine and an aggravation of a pre-existing degenerative joint disease of the lumbar spine. He further claims that as a result of these injuries he is no longer able to perform the type of work in which he was engaged prior to the accident.

We are of the opinion that the record supports a finding that plaintiff sustained a lumbar sprain but does not justify any award based on an aggravation of a preexisting back condition.

At the time of the accident, plaintiff was employed by Food and Services, Inc, Hou-ma, Louisiana. His duties were primarily janitorial but included maintaining his employer’s premises, cutting grass, painting, packing goods, and general all around handy work. He obtained this job through the efforts of his nephew, Stanley Bussey, Jr. Bussey was also plaintiff’s immediate supervisor.

The accident happened on Sunday, April 1, 1973. Plaintiff stated that he stayed in bed the remainder of that day. On the following day, Monday, he reported to work and continued at his job on a regular basis until June 23, 1973. At no time during this period of employment did plaintiff ever complain of pain or back discomfort to his nephew-supervisor nor even tell him that he was injured in the accident. His employment was terminated because he “slacked” off in his work, was not doing it properly, and was leaving early “because he was tired.” He was terminated because one of his employers considered his work to be unsatisfactory. His nephew considered his work satisfactory.

There is not one scintilla of evidence in the record to show that plaintiff saw any doctor or received any treatment prior to June 16, 1973, when he went to Dr. Matko Milicic, an orthopedic specialist.

Dr. Milicic testified by deposition. He stated that his examination of plaintiff on July 16, 1973 revealed that plaintiff walked without a limp; toe and heel walking were performed without difficulty; there was a full range of motion of the lumbar spine without producing any particular discomfort; there was no muscle spasm; and the straight leg raising tests were satisfactorily performed. Typical neurological examination revealed no neurological deficits. Plaintiff did complain of tenderness over the eleventh rib on the right side. Dr. Milicic concluded that the first examination was without any “impressive positive clinical findings.” His diagnosis was that plaintiff had sustained a lumbar sprain with degenerative joint disease. He advised a lumbosacral corset and prescribed Valium. Throughout eight or nine subsequent visits, Dr. Milicic’s evaluation, treatment and diagnosis of the plaintiff remained the same.

The record is indecisive as to the diagnosis of a lumbar sprain with respect to' whether plaintiff was still suffering from this sprain at the time of his initial visit or whether he had recovered from this particular injury and was suffering from the degenerative back condition. We must assume that plaintiff had recovered from the back sprain because of the evidence relative to his continued employment without complaint and lack of medical treatment for almost three months following the accident.

Dr. Milicic was asked particularly whether in his opinion plaintiff’s degenerative back condition was such as would prevent him from working on a full time basis. He answered, “It is very difficult to say; I don’t know.” We find it significant that plaintiff’s own physician recommends that plaintiff increase his physical activity. This medical testimony, coupled with that of plaintiff’s immediate supervis- or, negates the testimony of plaintiff himself, his wife and son, that plaintiff is incapable of performing the type of work that he did before the accident.

The only other medical expert to testify was Dr. Richard Landry, an orthopedic surgeon, who examined plaintiff on one occasion for the defendant. This witness did not feel that plaintiff had sustained any permanent partial physical impairment as a result of the accident. The only physical finding that his examination revealed was plaintiff’s inability to reach forward and touch the floor which indicated “some tightness of the lumbar area, consistent with the degree of arthritic changes noted in plaintiff’s spine.” This witness would have approved a pre-employment examination of the plaintiff and recommended his employment without any type of limitation.

Under these circumstances, viewing the above testimony in a light most favorable to plaintiff’s position, we are constrained to hold that plaintiff has failed to prove a causal relation between the accident and complaints attendant to a pre-ex-isting arthritic condition of the spine. For these reasons, plaintiff’s recovery is limited to pain and suffering and special damages for a lumbarsacral sprain.

The medical evidence does not indicate the severity of the muscle sprain, i. e., whether it was a mild, moderate or severe one. Since he was observed almost daily during the course of his employment following the accident, we must conclude that the sprain he sustained was a mild one, which did not impair his ability to work. We believe the sum of $1,500.00 will adequately compensate him for whatever pain and discomfort he endured as a result of this particular injury.

With respect to special damages, plaintiff submitted bills for medical treatment totaling $246.80 (corset, $46.80; Dr. Milicic, $200.00). In addition, plaintiff submitted an estimate for repairs to his 1957 Chevrolet automobile in the amount of $356.72. However, plaintiff had just purchased this automobile several months before the accident for $150.00. We think he is entitled to the latter sum since it reflects the actual value of the vehicle at the time of the accident. The automobile has not been repaired and plaintiff’s recovery for this item must be limited to the value of his loss. Davis v. Roberts, 194 So.2d 772 (1st La.App., 1967).

Plaintiffs claim for loss of wages, past and future, are denied. As stated above, plaintiff worked from the date of the accident, April 1, 1972, until June 23, 1973. His complaints following his termination from employment are related to a pre-existing degenerative back condition which he has failed to prove was aggravated by the accident. Even assuming an aggravation, the medical testimony is to the effect that plaintiff should and could return to work.

We are also of the opinion that the intervention of the United States of America for hospital and medical services furnished plaintiff at the Veteran’s Hospital in New Orleans should be rejected. The hospital records were offered in evidence together with a stipulation that charges for these services are valued at $1,671.00. It is apparent from a cursory examination of these records that the medical services rendered to plaintiff related entirely to the preexisting condition which we have discussed above.

Accordingly, for these reasons, the judgment of the district court is reversed and judgment is rendered herein in favor of the plaintiff and against the defendants, Carl Johnson, Louisiana Offshore Caterers, Inc., and Highlands Insurance Company, in solido, in the amount of ONE THOUSAND EIGHT HUNDRED NINETY-SIX AND 80/100 ($1,896.80) DOLLARS, together with legal interest thereon from date of judicial demand, until paid, and for all costs of this suit. Judgment is further rendered herein dismissing the reconventional demand of the United States of America.

REVERSED AND RENDERED.


author: SARTAIN, Judge. ELLIS, Judge

text:
    SHELL OIL COMPANY et al., Plaintiffs-Appellees, v. BOARD OF COMMISSIONERS OF PONTCHARTRAIN LEVEE DISTRICT et al., Defendants-Appellants.
    No. 10699.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Refused Nov. 16, 1976.

      Victor A. Sachse, III, Baton Rouge, George C. Schoenberger, Jr., New Orleans, John T. McMahon, Houma, E. Leland Richardson, Baton Rouge, for defendants-appellants.
    Jules A. Carville, III, La Place, for plaintiff s-appellees.
    Before SARTAIN, ELLIS and EDWARDS, JJ.
   SARTAIN, Judge.

At issue in this cause is the ownership of mineral rights in and to certain lands situated in Iberville Parish, Louisiana. The parties claiming exclusive rights thereto are Pontchartrain Levee District (Levee District), through its Board of Commissioners, on the one hand, and Lewis Gottlieb, Rosalie Gottlieb Moise, J. Burton LeBlanc, Jesse E. LeBlanc, and William Hardee LeBlanc, appellants, on the other hand.

Shell Oil Company, and others, (Shell) as mineral lessee of the Levee District and appellants produced minerals thereunder from 1952 through 1965, accumulating as royalties the sum of $48,823.07. Shell deposited this amount in the Registry of the Court and provoked the instant concursus proceeding.

Appellants seek reversal from the judgment of the district court which held that the Levee District was prohibited by Section 2, Article IV, of the Constitution of Louisiana (1921) from divesting itself of the minerals when it conveyed the property without reservation to appellants’ ancestor in title.

The Louisiana Constitution of 1921, Section 2, Article IV, in pertinent part, provides :

“ * * * In all cases the mineral rights on any and all property sold by the State shall be reserved, except where the owner or other person having the right to redeem may buy or reclaim property sold or adjudicated to the state for taxes. jf: sjc ‡ »

In his written reasons for judgment, the trial court held that the Levee District is an “arm” of the state and subject to the prohibition contained in the above quoted section of the Constitution.

Appellants argue that the Levee District is a separate and distinct legal entity from the state, with specific powers including the right to sue and be sued, buy or sell real estate, etc., and does not fall within the purview of Section 2, Article IV, above.

For reasons hereinafter stated, we concur in the result reached by the trial judge and affirm.

At the outset, it should be noted that the facts are not in dispute. The record consists entirely of documentary evidence placed therein by stipulation of counsel for both parties. Further, the Levee District does not contest appellants’ ownership of the surface rights to the subject property, which is more particularly described as follows, to-wit:

“The East half of the Northeast quarter of Section 7, Township 9 South, Range 2 East, in Iberville, Louisiana.”

This property was included in acreage acquired by the State of Louisiana on December 4, 1909, from the United States of America under the provisions of the “Swamp Land Act” approved by Congress on September 28, 1850. 43 U.S.C.A., Section 982, et seq.

The Levee District was created by Act 95 of 1890. This act also transferred the subject property from the state to the Levee District.

Appellants’ ancestor in title obtained the property from the Levee District on March 24, 1926. Patent and conveyance executed under the provisions of Act 215 of 1908 dated March 29, 1926, were filed for record on April 17, 1926. Neither appellants’ deed of acquisition nor the patent and conveyance contained any reservation of the mineral rights.

We shall primarily center our discussion around four cases, namely: Tensas Basin Levee District v. Grace, 161 La. 1039, 109 So. 830 (1926); Board of Commissioners of Caddo Levee District v. Pure Oil Company, 167 La. 801, 120 So. 373 (1929); Stokes v. Harrison, 238 La. 343, 115 So.2d 373 (1959); and, King v. Board of Commissioners for Atchafalaya Basin Levee District, 148 So.2d 138 (3rd La.App., 1962), writ denied, 244 La. 118, 150 So.2d 585 (1963).

In Grace, the Legislature, by Act 103 of 1892, granted to the Levee District certain lands received from the United States Government. When mandamus was sought in 1926 to require transfer of these lands to the Levee District, the defendant-officials objected on the grounds that Section 2, Article IV, of the Constitution (1921) prohibited the state from alienating the minerals, hence the state could not transfer the property. In affirming the issuance of the requested writ, the court stated :

109 So. 830, 831, 832:

“We think that the auditor and the register are in error when they say that the constitutional provision, cited, repeals, even partially, Act 103 of 1892, in so far as relates to the making of the grant, made in that act, or that it revokes to any extent that grant. The Tensas Basin levee district was created and organized by the state as a means of discharging its duty to protect the lands in said district from inundation. The district is a state agency, created and continued in existence by the state with the foregoing purpose in view. The state, should it transfer the land to the district, including the mineral rights, in accordance with the grant made by it, would not be parting with the property within the meaning of the constitutional section cited, but would only be placing it under the control of one of its agencies for the purpose of constructing and maintaining levees. The land would, to all practical intents and purposes, still be the property of the state. The district could not sell it without reserving to it self the mineral rights, for the reason that its creator, for whom it holds, could not do so. We see no reason, therefore, in so far as the section of the Constitution, cited, is concerned, why the auditor and the register should not execute the conveyance.” (Emphasis ours)

See Lum Chow v. Board of Commissioners for Lafourche Basin Levee District, 203 La. 268, 13 So.2d 857, where the language emphasized in the above quote was cited with approval.

In Caddo, while the issue therein presented did not relate to the subject constitutional prohibition but was concerned solely with the question of prescription under C.C. Art. 3521, the court stated:

“It appears, therefore, from the foregoing, that the plea of prescription presented is one pleaded against an agency of the state, created by the Legislature, to accomplish certain public purposes, devolving primarily upon the state, in bar of a demand for royalties, under a mineral lease, granted by that agency, on land conveyed to it by the state, to aid it in accomplishing those purposes. It also appears that the first question presented is whether prescription runs against an agency of the state on such a demand. If the question presented involved the loss by prescription of the mineral rights themselves, on land conveyed or certified to a levee district, under the Constitution of 1921, we should most likely hold, in view of the conclusion reached in State ex rel. Board of Commissioners of Tensas Basin Levee District v. Grace, 161 La. 1039, 109 So. 830, that, as the levee district must retain such mineral rights, it could not lose them by prescription, for a state agency cannot lose by prescription that which it must retain, and cannot alienate. Mayor v. Magnon, 4 Mart. (O.S.) 2, 9; City of New Orleans v. Salmen Brick & Lumber Co., 135 La. 828, 868, 66 So. 237; State v. New Orleans Land Co., 143 La. 858, 867, 79 So. 515. But no such question is presented here, but only the question as to whether the demand of a levee district for certain royalties, under a lease, granted in 1910 on land certified to it by the state in 1901, is prescribed.
$ % ‡ >fc
“Plaintiff has, and always has had, the right to sue and to be sued in its corporate name. It is a separate entity from the state, created by the state, it is true, to accomplish certain public purposes, but is nevertheless distinct from it. We think, that the foregoing excerpt from the case last cited is applicable here, and we therefore rule that the prescription pleaded runs against plaintiff.”

In Stokes, the contest was between Lester R. Harrison and the Beauregard Parish School Board. The School Board had acquired the property in 1919 and sold it to Harrison’s ancestor in title in 1926. Gas in paying quantities was produced by Stokes, who had obtained leases from both the Board and Harrison. When concursus was sought to determine the true owner, the School Board urged that it was still the owner of the minerals because Section 2, Article IV of the Constitution, above, prohibited it from alienating the minerals. Harrison contended that a school board is not the “state” and was not and is not burdened with the prohibition against alienation. The trial court held that the school board was in fact the “state” within the intent of the subject constitutional provision. In reversing, this court stated:

La.App., 109 So.2d 506, 512

“We do not believe that the statements contained in these opinions are authority for the proposition that the provision of Section 2, Article IV of the Constitution requiring the State in all sales by it to reserve the mineral rights applies to sales by parish school boards of lands acquired by them and subsequently abandoned as school sites. This particular issue was not presented to the court in these cases or decided by the court. Furthermore, the land in the two cases, supra, originally belonged to the State and were of the character commonly referred to as public land. These lands had been conveyed by the State in one instance by an inchoate title and in the other by an invalid title to an agency of the State for mere purposes of administration and control in carrying out certain functions delegated by the State to the agency. The court in these cases concluded that those particular lands remained State lands. On the contrary, the property under consideration in the case at bar was acquired by purchase by the Beauregard Parish School Board with its own funds for the establishment of a local public school for the inhabitants of a district in the name of, under the control and supervision of the School Board as a separate independent governmental subdivision and corporate entity.

In affirming our decision, the Supreme Court reasoned that while a local school board may have some connection with one of the departments of the state government as defined in the Constitution, said school boards are not departments of the government. The court then referred to Sections 12 and 13 of Article IV of the Constitution (1921) which refer to the “State or any political corporation” or to the “State, or any parish or municipal corporation thereof” and compared these sections to Section 2 of Article IV, which simply refers to the “State” and stated:

115 So.2d 373, 379

“The question posed herein is sui ge-neris, and we believe: ‘In Construing a Constitution, resort may be had to the well-recognized rule of construction contained in the maxim “expressio unius est exclusio alterius,” and the expression of one thing in a Constitution may necessarily involve the exclusion of other things not expressed. * * *’ 11 Am. Jur., Sec. 57, page 667, verbo-, ‘Constitutional Law.’ See, Garrison v. City of Shreveport, 179 La. 605, 154 So. 622; State ex rel. Fitzpatrick v. Grace, 187 La. 1028, 175 So. 656; Esso Standard Oil Co. v. Crescent River Port Pilots Ass’n, 235 La. 937, 106 So.2d 316; City of Shreveport v. Price, 142 La. 936, 77 So. 883. In this respect, the learned Judge of the Court of Appeal in the instant case made the following statement, with which we agree:
“ ‘A comparison of the language of Sections 2, 12 and 13 of this Article IV of the Constitution in this particular leaves it crystal clear that where the framers intended that the restriction or limitation should apply to the State only as a separate entity from its political subdivision, the word State alone was used, but where the limitation or restriction was intended to apply to the State and to all political subdivisions thereof, the intent was so spelled out in terms of “the State, or any political corporation thereof.” * * * ’ ”

Further, the Supreme Court in Stokes said that it did nor find either the Tensas or Caddo cases apposite to the issue then presented and declared the above language quoted from each of these cases to be obi-ter dictum.

In King, plaintiff’s action in jactition was converted to a petitory one. In a dispute over title the Levee District contended that Section 2 of Article IV, above, prevented its loss of minerals by prescription. The court, citing Stokes, above, stated:

“Constitutional provisions must be strictly construed and cannot be modified or amended by implication, and in the case of State ex rel. Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477, it was specifically held that constitutional provisions are subject to the same rules of construction as statutes.
We are of the opinion that the application of Section 2, Article IV of the Constitution of 1921, must be limited strictly to property sold by the State since its adoption, and that since absolute title to the property was in the Levee Board in 1911, including fee title to said land together with the mineral rights in, on and under the property in the instant suit, the Levee Board has lost the mineral rights to said property by prescription.” 148 So.2d 138 at page 144

The concurring opinion in King by Judge Tate (now Justice) very appropriately notes that the property there involved was acquired by the Levee Board in 1911 and sold to plaintiff’s ancestor in title years before the adoption of the 1921 Constitution. The author cautions against the scope of the reasoning of his colleagues and opined that the majority opinion “suggests that the constitutional prohibition only applies to property owned by the ‘state’ and not to property owned by those agencies through which the State acts, being the ‘state agencies’, such as levee boards.” A smiliar view was expressed by Judge Tate in Rycade Oil Corporation v. Board of Commissioners, etc., 129 So.2d 302, 305 (3rd La.App., 1961), where, in his concurring opinion therein, he stated:

“I doubt that our Supreme Court in the Stokes case meant to depart from the rationale of the First Circuit opinion affirmed, La.App., 109 So.2d 506, which essentially rested on the holding that the constitutional prohibition against the ‘State’ parting with its mineral interests did not refer to a local school board, since, within the ordinary and popular meaning of the term, the ‘State’ did not refer to such purely local subdivisions. A levee board, to the contrary, is an arm of the executive branch of the State government, performing a function of government on the overall State level; and the settled construction of the constitutional provision has always been to consider such levee boards as subject to the prohibition against sale of State-owned minerals, unless the conveyance took place before the effective date of the 1921 constitutional prohibition thereof. See, e. g., Lum Chow v. Board of Com’rs for Lafourche Basin Levee Dist., 203 La. 268, 13 So.2d 857; Schwing. Lumber & Shingle Co., Inc. v. Board of Commissioners of Atchafalaya Basin Levee District, 200 La. 1049, 9 So.2d 409; Standard Oil Co. of Louisiana v. Allison, 196 La. 838, 200 So. 273; Barnett v. State Mineral Board, 193 La. 1055, 192 So. 701.”

It should be noted that each of the above authorities, (including the citations therein contained) with the exception of Stokes itself, dealt with lands that were deeded to and sold by the various levee districts prior to the adoption of the 1921 Constitution. It is conceded by the parties to this action that the present case presents for the first time for appellate review the question of whether the prohibition contained in Section 2 of Article IV, above, applies to property sold by a levee district after 1921.

In viewing the Supreme Court’s opinion in Stokes (115 So.2d 373, 379), we note that it adopted with approval that portion of our opinion in the same case (109 So.2d 506, 510, above) wherein we made a distinction between the “state” as a separate legal entity on the one hand and its political subdivisions on the other. It is for this reason that we do not see Stokes as requiring that title to the property in question must be in the “state” itself before the prohibition applies.

Accordingly, we hold that a levee district, which was created as an arm of the executive branch of government for the purpose of carrying out a governmental function, i. e., flood control, is the “state” within the intent of Section 2, Article IV of the Constitution of 1921. This conclusion, we believe, accords with the holding in Stokes, and the expressions found in Grace and Lum Chow, above, albeit obiter dictia. Nor, do we find that this view conflicts with the Supreme Court’s decision in Caddo, above, because in that case the levee district had divested itself of the minerals in 1910 long before the Constitution of 1921.

Lastly, appellants urge that in the event we find that the constitutional prohibition is applicable to the levee district that they have acquired the mineral rights to the subject property by acquisitive prescription of ten years. C.C. Arts. 3474 and 3478, et seq.

With respect to this contention we must hold that the subject Constitutional prohibition against the alienation of minerals by the state equally prohibits the acquisition of these minerals by others by the running of prescription against the state. Notwithstanding the fact that the Legislature has on numerous occasions provided for the running of prescription against the state, these statutes can not be construed to include mineral rights for neither the Legislature not the courts can permit what the Constitution itself prohibits.

Accordingly, for the above reasons, the judgment of the district court is affirmed at appellants’ costs.

AFFIRMED.

ELLIS, J., dissents with written reasons.

ELLIS, Judge

(dissenting):

In my opinion, Stokes v. Harrison, 238 La. 343, 115 So.2d 373 (1959), which is the last expression of the Supreme Court on the subject, clearly holds that Article IV, § 2 of the Constitution of 1921 does not apply to state boards and agencies. It is the only appellate level case dealing with a property transfer subsequent to the adoption of the Constitution of 1921. I believe it to be controlling of the issues in this case and that the majority opinion is incorrect.

I therefore dissent.


author: PONDER, Judge.

text:
    Susan Steers MORRIS v. Russell Lindsay MORRIS.
    No. 10784.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.

      Charles S. McCowan, Jr., Baton Rouge, for appellant.
    Gerard E. Kiefer, Michael A. Cava-naugh, Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

On March 11, 1975, Susan Steers Morris, plaintiff-appellee, filed suit (No. 32,331) for separation against Russell Lindsay Morris, defendant-appellant because of, among other things, alleged “adultery on many occasions, and particularly on February 22 and 23, 1975 and March 8, 1975 in Baton Rouge, Louisiana.” After trial on June 11, 1975, the trial judge found mutual fault and denied the separation.

On June 20, 1975, Mrs. Morris filed suit (No. 33,267) for divorce and permanent alimony based on alleged adultery of defendant-appellant “on many occasions, and particularly on February 22 and 23, 1975 and March 8, 1975 and other dates to be adduced at trial.” Defendant-appellant filed exceptions of res judicata, lis pen-dens, prematurity and expressly pleaded the doctrine of judicial estoppel. Plaintiff-appellee, before knowledge of the filing of these exceptions, amended her petition to allege adultery on “February 22 and 23, 1975, February 25, 1975, March 4, 1975, March 8, 1975, March 11, 1975, March 25, 1975, April 8, 1975, April 15, 1975, April 22, 1975, May 6, 1975 and May 13, 1975 all of said acts of adultery occurring at the Oak Manor Motel, Baton Rouge, Louisiana

On July 1, 1975, plaintiff-appellee appealed the judgment in Suit Number 32,-331 denying her a separation because of her purported mutual fault.

Defendant-appellant, on August 29, 1975, in answer to the divorce suit, denied any acts of adultery and specifically alleged that plaintiff-appellee locked defendant out of the matrimonial domicile on May 15, 1975; she humiliated defendant in public; she refused to communicate with defendant; she refused to prepare family meals; she was reckless with family funds; and, she “has failed and refused to live up to her obligations as a wife for a period of over eight years . . .”.

The trial judge overruled all of defendant-appellant’s exceptions and after trial on the merits signed judgment granting plaintiff-appellee a divorce “a vinculo ma-trimonii,” custody of a minor child and $685.25 per month child support and alimony, subject to a $185.25 monthly credit for payments made by defendant-appellant on the mortgage on the family home. Mr. Morris has timely appealed and it is the latter case which is presently before us. We affirm.

Defendant-appellant’s specifications of error are as follows :

■1. Not maintaining the exception of res judicata, or in the alternative, the plea of judicial estoppel, as the same matter was litigated in the separation suit with a “judgment of mutual fault” being rendered therein.

2. Not maintaining the exceptions of lis pendens, or, in the alternative, prematurity, as the same parties were involved in both suits.

3. Finding the evidence sufficient to prove adultery on the part of defendant-appellant and, in the alternative, not finding mutual fault.

4. Awarding plaintiff-appellee any alimony and child support, or, in the alternative, the sum of $685.25 per month.

5. The trial judge becoming an advocate for plaintiff-appellee and delving into matters not raised by the pleadings or the testimony theretofore presented.

SPECIFICATION NUMBER ONE

Specification number one is contrary to firmly established law. In order for a court to even consider the applicability of res judicata and judicial estoppel, the judgment raised must be final. Civil Code Article 2286; California v. Price, 234 La. 338, 99 So.2d 743 (1957). The judgment on the separation is not a final judgment; it is still subject to the appellate process.

SPECIFICATION NUMBER TWO

At the trial of the separation suit numerous registration cards from the Oak Manor Motel were introduced into evidence. The registration dates of these cards are identical to some of the dates alleged in the divorce petition. Defendant-appellant argues that the pleadings in the separation suit were expanded to cover the adultery allegations in the instant suit; that the proceedings in the separation suit were still pending at the time the divorce suit was filed; that the two suits were between parties in the same capacities; that the two suits, “had the same object — the dissolution of the marriage;” and that, therefore according to Article 925(3) of the Code of Civil Procedure, lis pendens was a proper exception. We disagree with defendant-appellant’s conclusions. The causes of action and things demanded are not the same. The first suit is for a separation demanding as its object the negating of the obligation to live together and the dissolution of the community of acquets and gains. The second suit is for a divorce demanding as its object the dissolution of the bonds of matrimony. Adultery is merely a ground for either cause of action. Granted that the grounds are the same in the two suits, however, the objects and causes of action are different. Therefore, lis pendens was not proper.

SPECIFICATION NUMBER THREE

Defendant-appellant asserts that although adultery can be proven by circumstantial evidence, such evidence must fairly and necessarily lead to the conclusion that adultery has been committed, Morris v. Morris, 152 So.2d 291 (La.App. 1st Cir. 1963); and Arbour v. Murray, 222 La. 684, 63 So.2d 425 (1953). Defendant-appellant further argues that the circumstantial evidence introduced herein was insufficient to prove adultery.

Motel registration cards were introduced into evidence showing that defendant-appellant stayed at the Oak Manor Motel thirty-one nights. Mr. Morris admitted that he loved the named corespondent and that she was with him at the motel approximately 75% of the time, often leaving at between 3-5 a. m. He also admitted some “mild petting” with the named corespondent whom he had known for the last two years. Love letters were also introduced containing sexual insinuations. And yet, even though it was established that defendant-appellant and plaintiff-appellee had engaged in no sexual relations whatsoever for the previous eight years, defendant-appellant denied any sexual intercourse with the named corespondent.

We do not agree with defendant-appellant’s contention and find, as did the trial judge in written reasons that “the defendant continued a course of adulterous conduct after the filing of the separation proceeding, [and] that acts of* adultery were committed upon the dates alleged The circumstantial evidence is clear and convincing and allows for no other reasonable conclusion.”

Alternatively, defendant-appellant contends that plaintiff-appellee was mutually at fault, and therefore not entitled to a divorce. Specifically, defendant-appellant argues that his wife never offered herself to him since 1969; she frequently criticized him in public with regard to his financial ability; she forced him to leave Oklahoma and move to Mississippi; and, on May 15, 1975, she locked him out of the house.

As to this contention we believe that the written reasons of the lower court are appropriate and adopt them as our own. “Since the court in Suit No. 32,331 found that there was mutual fault, and denied either party relief, the marital relationship continued to the same extent as if there had been a reconciliation. The parties, therefore, owed to each other mutually (sic), fidelity, support and assistance. LSA-C.C. Art. 119. The husband in this case violated this obligation of fidelity, and his serious fault in this respect is the cause of the divorce.”

SPECIFICATION NUMBER FOUR

Defendant-appellant argues that plaintiff-appellee is entitled to alimony only if she is free of fault and that the wife bears the burden of proof to show with reasonable certainty that she was free from fault, citing Kratzberg v. Kratzberg, 286 So.2d 174 (La.App. 4th Cir. 1973); Smith v. Smith, 287 So.2d 815. (La.App. 4th Cir. 1974). Defendant-appellant further argues that the degree of fault on the part of the wife is not necessarily the same as the degree necessary to find “mutual fault” so as to bar a divorce.

The trial judge viewed the witnesses and evaluated their credibility. Especially in domestic relations cases, his determinations of fact are entitled to great weight on appeal and will not be disturbed unless manifest error is shown. The question of the wife’s fault when alimony is at issue is a factual one. Morgan v. Morgan, 260 So.2d 336 (La.App. 4th Cir. 1972). We cannot say that the trial judge erred in finding plaintiff-appellee free from fault. Again, the parties owed each other mutuality, fidelity, support and assistance even after the initial attempt by plaintiff-appellant to obtain a separation. However, it is obvious that defendant-appellant persisted in adulterous conduct even after the filing of the separation proceeding, thereby breaching his obligation of fidelity. Under these circumstances we agree with the trial judge that defendant-appellant’s “serious fault ... is the cause of the divorce. The wife, therefore, had the right to'claim permanent alimony under LSA-C.C. Art. 160.”

Defendant-appellant argues alternatively that the award of $685.25 per month is grossly excessive and should be reduced. Defendant-appellant grosses slightly over $20,000 per year in salary and also has substantial income from stock dividends and rental property. He testified that he needed $749.45 per month for his own upkeep, even though he was reimbursed for his travel expenses. We find no abuse of the wide discretion accorded the trial judge in this matter. We simply cannot see how defendant-appellant expects plaintiff-appellee and their minor child to live on $685.25 when he alone requires $749.45 per month.

SPECIFICATION NUMBER FIVE

Lastly, defendant-appellant argues that the trial judge became an advocate for plaintiff-appellee and that a mistrial should have been granted when timely moved for. The alleged objectionable action by the trial judge consists of questions asked defendant-appellant with regard to his possible relationship with other women in addition to the one named as corespondent in plaintiff-appellee’s petition. Testimony was elicited whereby defendant-appellant admitted dating two or three other women.

Contrary to defendant-appellant’s contentions, we do not find the action of the trial judge to be prejudicial. The evidence as to other women was far from conclusive. There is no evidence whatsoever that the trial judge even considered the testimony in this regard in rendering his decision; the trial judge’s written reasons do not mention this part of the testimony. Therefore, we find that even if the trial judge overstepped the bounds of his judicial duties, on which we make no determination, the alleged objectionable testimony was harmless and not so prejudicial as to warrant reversal.

Accordingly, for the above and foregoing reasons we affirm; defendant-appellant to pay all costs of this appeal.

AFFIRMED.

        . This earlier suit for separation on appeal has not yet been decided by this court.

      . Defendant-appellants prematurity exception is actually a restatement of the lis pendens argument and likewise is untenable. In any event, by combining the dilatory exception of prematurity with the peremptory exception of res judicata, defendant-appellant waived the exception of prematurity. O.C.P. Art. 7.


text:
    Daryl B. PATIN v. J. E. JUMONVILLE, Jr., et al.
    No. 10818.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.
    Writ Refused Nov. 19, 1976.
    Stanley E. Branton, St. Francisville, for appellant.
    Francis A. Smith, Jr., C. Jerome D’Aquila, New Roads, for appellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

This is a suit by Daryl B. Patin, a registered surveyor, for a fee of $3,000.00 allegedly due him for making a survey of a parcel of land in Pointe Coupee Parish. Defendants are J. E. Jumonville, Jr. and Mrs. Anita G. Hogan. From a judgment in favor of plaintiff and against Mrs. Hogan for $1,000.00 and dismissing his suit as to Mr. Jumonville, plaintiff has appealed. Each of the defendants had filed third party demands against the other, which were dismissed by the trial judge. No appeal has been taken by either defendant, and the judgment has become final in that respect.

The facts of the case are largely undisputed. Mrs. Hogan sold her undivided one half interest in a 417 acre tract of land to Mr. Jumonville on June 20, 1973. The act of sale contained the following provision:

“Vendor, Marie Anita Hunter Hogan, further agrees to furnish purchaser with a plat or survey by a registered Civil Engineer of the hereinabove conveyed property within 180 days from date of this sale.”

Mrs. Hogan believed that the above agreement bound her to furnish Mr. Ju-monville with a plat showing the acreage of the property. Mr. Jumonville believed that he was to be furnished with a complete survey of the property, and that the property lines were to be marked on the ground by the surveyor.

Mrs. Hogan had authorized plaintiff to make the acreage plat. Plaintiff testified that he had estimated that the job would require four or five days of field work at $200.00 per day and one day of office work at $200.00 to perform the job. The work required was to mathematically compute the locations of the four corners of the property and locate them on the ground, after which the acreage would be computed and shown on the plat.

After plaintiff had started work on the job, Mr. Jumonville, who by then had acquired full ownership of the property, spoke to him in the field and told him that the agreement with Mrs. Hogan called for a perimeter survey, and that the boundaries of the property were to be staked out. Without checking with Mrs. Hogan, plaintiff proceeded to make the complete boundary survey, which took 14 days in the field and one day in the office to complete. He then submitted a bill for $3,000.00 to Mrs. Hogan, who refused to pay it, but who tendered a $1,000.00 check to plaintiff.

Mr. Jumonville was willing to pay for any work done at his behest other than that which was necessary for a complete perimeter survey of the property. No such extra work was done.

There is no doubt in our minds as to the good faith and truthfulness of all parties concerned herein. We are satisfied that there was never a full understanding between Mrs. Hogan and Mr. Jumonville as to the extent of the survey which was to be made. It is also clear that, as between Mrs. Hogan and plaintiff there was a full understanding that plaintiff was to furnish an acreage plat.

We further find that, had not Mr. Ju-monville told plaintiff of his version of the agreement with Mrs. Hogan, plaintiff would have prepared the acreage plat and no more. It is further clear that Mr. Ju-monville both wanted and needed a boundary line survey of his property.

We are, therefore, of the opinion that the only contract which existed between Mrs. Hogan and plaintiff was for the furnishing of an acreage plat and the mathematical location of the corners of the property. Mrs. Hogan is liable to plaintiff only to that extent.

As between plaintiff and Mr. Ju-monville, we think a quasi contractual relationship was created. Rightly or wrongly, Mr. Jumonville informed plaintiff that a boundary survey, which he both wanted and needed, was to be performed, and plaintiff carried out his wishes. To the extent of the work performed as a result of Mr. Jumonville’s instructions. Mr. Ju-monville has been enriched and plaintiff impoverished, and plaintiff is entitled to recovery to that extent. Articles 1963— 1965, 2292-2294, Civil Code; Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967).

Since the third party demands filed by each of the defendants against the other were dismissed in the final judgment rendered below, and since neither defendant has appealed, we cannot consider the dispute between them as to the ultimate responsibility for the payment of plaintiff’s fee. The record reflects that plaintiff filed a surveyor’s lien against the property surveyed, at a total cost of $52.00. He is entitled to recover his costs from Mr. Ju-monville. R.S. 9:4801.

The judgment appealed from is therefore affirmed insofar as it grants judgment for plaintiff against Mrs. Hogan for $1,000.00; the judgment dismissing the suit as to J. E. Jumonville, Jr. is reversed and there will be judgment in favor of plaintiff and against J. E. Jumonville, Jr. for $2,052.00 together with legal interest from date of judicial demand until paid; and setting aside that part of the judgment ordering cancellation of plaintiff’s lien on the property surveyed. All costs shall be paid by J. E. Jumonville, Jr.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.


author: EDWARDS, Judge.

text:
    Herbert JACKSON v. Donald P. ST. PIERRE and Telesphore J. LeBlanc.
    No. 10811.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1976.
    Rehearing Denied Aug. 27, 1976.

      Daniel E. Becnel, Jr., Reserve, for appellant.
    Gordon R. Crawford, Gonzales, for ap-pellees.
    Before SARTAIN, CHIASSON and. EDWARDS, JJ.
   EDWARDS, Judge.

This case arose out of a rear-end collision involving three vehicles which occurred on U. S. Highway 61 (Airline Highway) in the early morning hours of January 9, 1971. Only the plaintiff Jackson was injured, and he sued defendants St. Pierre and LeBlanc for his personal injuries and property damage. Defendant LeBlanc filed a reconventional demand for his damages, including loss of his truck, car rental expenses, and lost wages. After trial on the merits, the trial court dismissed both claims. A new trial was granted solely as to the reconventional demand, after which judgment was rendered in favor of Le-Blanc, plaintiff in reconvention, and against Jackson. This appeal followed, presenting two issues for our consideration; (1) the denial without hearing of Jackson’s motion for a change of venue and (2) the negligence vel non of the parties herein.

(1) The motion of Mr. Becnel, plaintiff’s counsel, for a change of venue was denied without a hearing. In brief he contends that, because of personal antagonism between himself and the trial judge, the denial might have prejudiced his client’s case.

Initially we note that only final judgments and interlocutory judgments which may cause irreparable injury are ap-pealable, La.Code Civ.P. art. 2083. The decision of a trial court on venue is not a final judgment, and we pretermit as abstract and speculative whether such a decision might cause irreparable injury. Cf. Hobbs v. Fireman’s Fund American Ins. Cos., 293 So.2d 608 (La.App. 3rd Cir. 1974), writ denied, La., 296 So.2d 832. Appellant’s remedy at the time of the adverse ruling was to apply to this Court for supervisory writs. Should relief then have been granted on the threshold issue — the right or not to a hearing on the motion, there would now at least be evidence in the record by which we could review a claim of irreparable injury. Before us, however, is only appellant’s allegation. The contention in this posture is without merit.

(2) We are not favored by the trial court with written reasons for judgment. However, inasmuch as the main demand of plaintiff Jackson was rejected and the reconventional demand of defendant LeBlanc granted, it follows that the trial court must have found Jackson negligent and LeBlanc free of negligence. We affirm.

The record discloses the following facts: The Airline Highway (four-lane, two-directional, median-separated) tracks a straight course for about two miles preceding the point where the accident occurred. No fog, haze, rain or other condition (other than darkness) hampered visibility at the time of the accident. The shoulders of the road were soft and muddy, possibly from repair work and earlier rain.

St. Pierre’s vehicle had stalled, and he was unable to restart it. He opined the problem was with the ignition system, probably the solenoid. LeBlanc offered to push the stalled vehicle with his pickup in an attempt to start it. When this initial attempt failed, defendants maneuvered the vehicles onto the shoulder and inspected the engine of St. Pierre’s vehicle. They decided to try again and encountered some difficulty in getting the vehicles from the muddy shoulder back onto the highway. If they were unsuccessful in starting the car this time, they intended to push it to a turnaround area in the median and leave it. While they were so engaged, the bumpers of the two vehicles locked together. Defendants again stopped, this time in the outer right lane of travel rather than on the shoulder, exited their vehicles, and began trying to disengage the bumpers. Whenever LeBlanc, who was wearing a white T-shirt, noticed headlights approaching, he would walk down the highway some 75-10(y and flag the motorist with a handkerchief. Both defendants also testified that, although neither vehicle was equipped with emergency lights, the headlights, taillights, and left turn signal indicator lights of both vehicles were on. During this time three vehicles approached from the rear and passed without incident. When he saw Jackson’s vehicle approaching, LeBlanc likewise flagged it. He testified, however, that the vehicle continued on toward him so that he was forced to leap out of the way to prevent being hit. Jackson braked his vehicle, but it skidded 100' straight into the rear of the stationary pickup.

At this point we note that counsel for appellant in brief argued a different version of the accident — that the defendants were in their vehicles and pulled from the shoulder back onto the highway in front of plaintiff just before the collision occurred. To support this version, counsel reproduced in brief the following excerpt from the pre-trial deposition of defendant St. Pierre:

Q. “Were you in the right land of traffic?”
A. “Yes”.
Q. “Where were the other vehicles?”
A. “Interlocked with my bumper.”
Q. “You were pushing him ?”
A. “He was pushing me.”
Q. “Approximately how fast were you going?”'
A. “I don’t know. About 35 or 40. We weren’t going fast when the accident happened” (Emphasis Added). (by appellant counsel).

What was omitted in counsel’s reproduction in brief was the remaining, and clarifying, portion of St. Pierre’s answer:

A. I don’t know. About 35 or 40. We weren’t going fast when the accident happened. We were stopped on the highway. We wasn’t moving. We were trying to get the bumpers from being locked. Trying to break them loose, (emphasis added).

In light of the above completed answer and the overwhelming majority of the evidence otherwise, not only do we find the argument incredible, but we also find counsel’s manner of presentation disappointing.

Herman Parker, the State Trooper who investigated the accident, testified that his report indicated “defective” shoulders at the scene of the accident, most likely due to their being soft and muddy. He further stated that the right rear wheel of the pickup at impact was from 18" to 24" from the right edge of the roadway and that the highway was a 24’ roadway in each direction or 12' wide in each lane. The 7i/¿ wide pickup would have thus left unobstructed some 15' of roadway between it and the median. Trooper Parker further testified that the pickup had an expired inspection sticker, but he could not say whether or not the taillights on the truck were working prior to the collision. He did issue citations to both defendants for violation of R.S. 32:141, obstructing the highway. Finally, he stated that he found no indication that either defendant had been drinking, nor that plaintiff Jackson was travelling at an excessive rate of speed.

Jackson testified that he had had two drinks earlier the previous evening. He said he first saw the vehicles at a distance of about 100' to 120', but could do nothing but apply his brakes because another car was passing on his left at the time. Neither defendant saw the other car, nor was Jackson able to describe it in any detail.

THE NEGLIGENCE VEL NON OF DEFENDANTS.

The issue of whether defendants’ conduct was negligent must be considered in light of R.S. 32:141 which states:

A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
B. The provisions of this Section shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.
C. The driver of any vehicle left parked, attended or unattended, on any highway, between sunset and sunrise, shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence.

Defendants were both cited under the statute, and both entered guilty pleas by paying the fines prescribed therefor. While it is true that such a plea is admissible against a defendant in a civil proceeding, it is not conclusive. The amount of weight to be given to such plea must be determined by other evidence offered, including the reason for the plea. Moore v. Skidmore, 301 So.2d 428 (La.App. 4th Cir. 1974).

Defendants stated that the reason for the guilty plea was convenience. That it would be less hassle and expense to pay the fine rather than to go through with a trial on such a matter is at least a reasonable explanation.

Further, the other evidence adduced at trial indicates that the defendants in fact were in compliance with, rather than in violation of, the statute. First, the statute prohibits stopping a vehicle on the traveled part of the highway when it is practicable to stop such vehicle off such part of said highway. Considering the uncontradicted evidence relative to the defective condition of the shoulder of the highway, as well as defendants’ intention to push the vehicle to the closest turnaround to remove it from the highway, we cannot say that they were in violation of the statute’s prohibition to stop as they did, since it was not practicable to stop at that point off the highway. Second, the vehicles were stopped very near the edge of the outer lane, leaving an unobstructed width of some IS' of highway for passage of other vehicles. Three other vehicles did pass without incident. Finally, defendants did all they could under the circumstances to protect traffic by leaving on the rear lights of the pickup and by flagging traffic approaching from the rear. There was unquestionably a clear view of the stopped vehicles for at least the required 200. We find that defendants were in sufficient compliance with all subsections of R.S. 32:141.

We, therefore, consider unnecessary the further issue of whether, as in Laird v. Travelers Ins. Co., 263 La. 199, 267 So.2d 714 (1972), the criminal violation of R.S. 32:141 would constitute the breach of a duty owed to a particular plaintiff in a civil action.

THE NEGLIGENCE OF JACKSON

We find the factual situation herein with respect to Jackson substantially similar to that of the driver Coe in the case of Rowe v. Travelers Ins. Co., 253 La. 659, 219 So.2d 486 (1969). Coe collided with the rear of an automobile which was stopped partially in the right lane of a two-lane, two-directional highway. The accident occurred at night, and the taillights of the parked vehicle were on. The Court stated therein that:

“However, we conclude that this vehicle had been parked in this position with lights fully burning for only a short time; that Miss Granger, wearing brightly colored clothes, was to the rear of the vehicle waving at the oncoming truck, and that there was nothing to interfere with Coe’s ability to see the road ahead and the parked car. Only a small portion of his lane of traffic was obstructed, and the other lane was entirely clear.
Coe obviously was negligent in failing to observe the lighted, parked vehicle until he was 30 feet or less from its rear. He should have observed the lighted car under the circumstances at a considerable distance, in time to move sufficiently to his left on the unobstructed portion of the highway and avoid the collision.”

A similar conclusion that Jackson was negligent is applicable here. Jackson’s testimony concerning the car passing on his left was evidently disregarded by the trial judge. Considering the lack of corroborating evidence, we cannot say that this was error.

Plaintiff Jackson finally complains of the awards to LeBlanc for his car rental expenses and loss of earnings, contending that no evidence was adduced to support these claims.

Counsel stipulated to the amount of the car rental expenses that were awarded. Relative to the loss of earnings, LeBlanc testified that he was doing carpentry work at a weekly wage of $175.00 at the time of the accident and that he missed two weeks work as a result thereof. Although the better practice is to introduce corroborating evidence in the form of records or employer testimony, the failure to do so does not necessarily defeat a claim for loss of earnings. The burden of proof for such a claim is the same as in all civil cases, that proof need be only by a preponderance of the evidence. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971). There was no objection to nor contradicting evidence of LeBlanc’s testimony as to his lost wages. It was within the trial court’s discretion to accept the testimony offered and award that item of damages.

The decision of the trial court is, therefore, affirmed. Plaintiff-appellant is to pay all costs.

AFFIRMED.