author: HOBSON, Judge.

text:
    Joseph E. BARENTINE and Ruth S. Barentine, Appellants, v. Albert C. CLEMENTS, Appellee.
    No. 75-1173.
    District Court of Appeal of Florida, Second District.
    March 24, 1976.
    Lou Tally of Tally & Moore, Umatilla, for appellants.

      Frank T. Gaylord of Gaylord, Ray & Gaylord, Eustis, for appellee.
   HOBSON, Judge.

Albert Clements, appellee, brought an action to foreclose- a mortgage on certain real property owned by appellants, Joseph and Ruth Barentine. Appellants filed an answer in which they admitted non-payment but denied default. Appellants raised an affirmative defense. They alleged that an extension on the payments had been granted and the 'extention agreement reduced to writing.

Appellee moved for a “judgment on the pleadings,” contending that the extension agreement on its face showed a lack of consideration which entitled him to a judgment as a matter of law. The court treated the motion as a motion to strike affirmative defenses. The court granted the motion to strike, with appellants being granted leave to amend. Appellants’ amended answer stated that the extension contract was entered “for valuable consideration.” The contract itself made no mention of consideration..

The trial court found that the extension agreement was not binding on the parties since the appellants undertook no additional obligations. The court found that the term “for valuable consideration” was a conclusion of law. As a result it could not be considered in the determination of a motion for judgment on the pleadings. A final judgment was entered in favor of appellee. We reverse.

The purpose of a motion for judgment on the pleadings is to test the legal sufficiency of a cause of action or defense where there is no dispute as to the facts. Bradham v. Hayes Enterprises, Fla.App.1st, 1975, 306 So.2d 568. For the purpose of the motion, all well-pleaded

facts in the non-moving party’s pleadings are admitted. Wilkins v. Tebbetts, Fla. App.3rd 1968, 216 So.2d 477. Here the appellants raised an affirmative defense which they had the burden of establishing by a preponderance of the evidence. Their allegation that the extension agreement was executed for valuable consideration raised an issue of fact that precluded a judgment on the pleadings. See Mayflower v. Suskind, Fla.App.3rd, 1959, 112 So.2d 394. Appellees are, of course, free to utilize the various means of discovery at their disposal and seek a summary judgment.

REVERSED and REMANDED for further proceedings consistent with this opinion.

McNULTY, C. j., and SCHEB, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Bonita F. ROBERTS, Appellant, v. Harold Jerome DAVIS and wife, Frances B. Davis, Appellees.
    No. 75-993.
    District Court of Appeal of Florida, Second District.
    March 24, 1976.

      John W. Burton, Wauchula, for appellant.
    W. Daniel Kearney of Kearney, Matthews & Mulock, Bradenton, for appellees.
   PER CURIAM.

Bonita Roberts, the natural mother of Troy and Deanna Davis, minors, appeals from the award of visitation privileges given appellees-paternal grandparents in a final judgment which otherwise denied a petition to adopt said minors brought by the grandparents. The grandparents cross-appeal the denial of the adoption.

We reject the cross-appeal and affirm the denial of the petition; but we are compelled to reverse the judgment insofar as it seeks to confer visitation rights on the grandparents. That portion of the order is unjustified and unenforceable.

Accordingly, the cause is remanded for deletion of the visitation privileges awarded appellees. In all other respects the judgment should be, and it is hereby, affirmed.

Reversed in part; affirmed in part.

McNULTY, C. J., and GRIMES and SCHEB, JJ., concur.

      . See Jones v. Allen (Fla.App.2nd, 1973), 277 So.2d 599. Cf., Sheehy v. Sheehy (Fla. App.2nd, 1975), 325 So.2d 12 and cases cited therein.


author: PER CURIAM. GRIMES, Judge

text:
    James GRINAKER, Appellant, v. PINELLAS COUNTY et al., Appellees.
    No. 75-52.
    District Court of Appeal of Florida, Second District.
    March 24, 1976.

      James I. Knudson, St. Petersburg, for appellant.
    James A. Helinger, Jr., Asst. County Atty., Clearwater, for appellees.
   PER CURIAM.

Appellant raises only one meritorious point on this appeal from an order awarding costs in a condemnation suit, and that relating to the award for appraiser fees.

Appellee County offered $7,500 for appellant’s parcel, which was rejected. A jury awarded appellant $10,500. Thereafter, appellant sought an award for certain costs and fees including appraiser fees for two appraisers. No dispute exists as to the reasonableness of the fees claimed by each appraiser nor did the trial court determine that two appraisers were unnecessary. The court was of the view, however, that because the jury award was only $3,000 in excess of the good faith offer and deposit made by the County, and because- appellant’s parcel was not large nor the issues involved in its taking complicated, appellant was entitled only to what was in essence one reasonable appraiser’s fee, which the court set in the approximate amount sought severally for each of the appraisers. He ordered it split almost equally between them. We think the court was wrong.

While it is true that it is the duty of the trial court after a condemnation suit to inquire into the items of costs and to be satisfied in his discretion that appraisers or other experts are not too numerous nor their -charges improper, it is nevertheless also well settled in this state “ . . . that a property owner whose land is taken from him upon the theory of a genuine public need therefor does not receive ‘just’ or ‘full' compensation if he is required to pay such expert witnesses from the monies received for the value of his land and that upon the issue with reference to the value of the land sought to be taken he should be accorded the right to meet the condemning authority upon an equal footing without loss to himself.”

We would think that two appraisers, per se, do not necessarily put appellant on a superior footing with the County if the County only has one. But in any case, the •trial court here determined that it was not unreasonable for appellant to retain two appraisers. Indeed, each was awarded a fee. As noted, however, the total of the fees merely approximated a reasonable fee payable for one. Under the facts herein, and in accord with the foregoing authorities, we think this was an abuse of the discretion called for and that appellant was entitled to a “full” reasonable fee for each appraiser, not merely the approximate equivalent of a single reasonable fee for just one. Particularly is this so when, as the record herein reflects, no objections or questions were raised on the point either by the court or the County at the pre-trial procedures and conferences, at which notice was given of appellant’s intention to use two appraisers.

In view whereof, the order appealed from should be, and it is hereby, reversed insofar as it relates to the award of appraisers’ fees; and the cause if remanded for further proceedings with respect thereto not inconsistent herewith. In all other respects the order is affirmed.

McNULTY, C. J., and BOARDMAN, J., concur.

GRIMES, J., concurs specially with opinion.

GRIMES, Judge

(concurring specially).

Where the condemning authority was using only one appraiser in an uncomplicated condemnation proceeding involving an inexpensive parcel of land, I believe the court would be within its discretion to award the payment of the equivalent of only one appraiser’s fee, provided the property owner was made aware of this prior to the trial. Here, however, the determination to award the equivalent of only one fee was not made until after trial when the property owner had already incurred the expenses of two, and the judge made it clear that he was not holding that the use of two appraisers was unnecessary.

      . See Dade County v. Brigham, (Fla.1950), 47 So.2d 602.

      . See Florida East Coast Railway Co. v. Martin County (Fla.1965), 171 So.2d 873.


author: DENNIS, Justice.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. ROSS CONTINENTAL MOTOR LODGE, INC.
    No. 56784.
    Supreme Court of Louisiana.
    Feb. 23, 1976.
    Rehearing Denied March 26, 1976.

      S. Chris Smith, III, Jackson & Smith, Leesville, for defendant-applicant.
    D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Alva J. Jones, Johnie E. Branch, Jr., Baton Rouge, for plaintiff-respondent.
   DENNIS, Justice.

This is an expropriation suit initiated by the Department of Highways under the quick-taking statute, La.R.S. 48:441 et seq. The property taken was a strip of land 300 feet long by five feet in depth across the front of defendant’s motel property situated on U.S. Highway 171 in Leesville, Vernon Parish, Louisiana. The property was taken to widen the highway, and the Department deposited $5,097.00 in the Registry of the Court.

The trial court rendered judgment awarding defendant $36,088.95, including $1,500.00 as the value of the land taken; and $20,800.00 in severance damages. The judgment also awarded $3,107.03 and $3,365.61 in fees to two expert witnesses called by defendant.

Plaintiff appealed, complaining that the trial court erred in its award of severance damages and excessive fees to defendant’s experts. The court of appeal reversed the trial court’s severance damage award and reduced by one-half the expert witness fees. Upon application of defendant, we granted certiorari. 320 So.2d 206.

The physical characteristics of the property were correctly and succinctly described by the court of appeal:

“The motor lodge located on the parent tract contained 70 guest rooms, a swimming pool, a cocktail lounge, restaurant, meeting rooms and banquet facilities. Prior to the taking there were parking places for 99 automobiles on the property for the use of guests and employees of the motor lodge. Most of these parking spaces were located along the north and south sides of the property, near the entrances to guest rooms, but some parking spaces were located in the front of the building, that is, between the front of the motel and Highway 171.
“A concrete walk, about eight feet wide, ran along the front or east side of the building, parallel to the highway, and a concrete curb was located on or along the east edge of the property, at about the right-of-way line of the highway. Prior to the taking the width of the space between the above sidewalk and the curb on the highway right-of-way line was approximately 65 feet. As a result of the taking the width of that space was reduced to about 60 feet. By actual measurement, the distance between the east edge of the sidewalk and the right-of-way of the highway after the taking ranged from 59.91 to 60.25 feet. A part of that space was occupied by the covered entrance to the motel and by a large electric sign, but the balance of it was used as parking spaces for vehicles of guests and employees of the motor lodge and as a means for vehicles to get to and from the establishment.
“The parking area in front of the motel was marked and controlled so that ordinarily two rows of automobiles parked in that area. The cars in one row parked side by side, adjacent and perpendicular to the sidewalk, facing west toward the motel, with the front bumpers of those vehicles extending over the edge of the sidewalk. The automobiles in the second row parked adjacent and at right angles to the curb on the east line of the parent tract, facing east toward the highway, with the front bumpers of those vehicles extending over the curb line. Prior to the taking there were spaces for 12 automobiles to be parked “straight in” on the second or last mentioned parking row. The parties agree that before the taking there was ample room for other vehicles to be driven or maneuvered between these two rows of parked cars.”

Defendant contends that as a result of the taking the parking area between the front of the motel and the highway was reduced to the extent that defendant lost eight parking spaces, or 8.1 per cent of the total parking spaces. Because of the loss of these spaces, defendant argues the value of its remaining property has been reduced and that it has suffered severance damages.

The Highway Department offered the testimony of two experts in support of its position that the remainder suffered no severance damages. Defendant introduced the testimony of its experts, and the trial court, in awarding severance damages to the defendant, accepted the testimony of Mr. Will S. Holmes, one of defendant’s appraisers.

In calculating his estimate of severance damages, Mr. Holmes primarily followed this procedure: first, he determined that the total net income for the year ending June 30, 1970 for the motel, restaurant and lounge was $108,000.00. By using what he called the “capitalization process” with a capitalization rate of 14% in a life span of twenty-five years, he reasoned that the motel had a value of $771,500.00 before the taking. Holmes did a study of the occupancy rate of the motel for each month of the year 1970 and determined that during four months of the year the occupancy rate of the motel was as follows: February, 77%; June, 90%; July, 92%; August, 90%. He concluded that during those four months of each year the reduction in the number of parking spaces would affect the income of the business establishment. He reasoned that the net income from all phases of the business during those four months should have been $35,964.00, or about one-third the average annual income, and he concluded that because of the loss of 8.1% of the parking spaces for the motor lodge, defendant would sustain a loss of 8.1% of its earnings from all phases of that enterprise during four months of each year after the taking, amounting to a loss of $2,913.08 per year thereafter. He found, therefore, that because of the loss of 8.1% of the parking facilities, the net income of the motel thereafter would be only $105,100.00 per year. Using the same “capitalization process” he reasoned that the value of the motel property after the taking was only $750,700.00, or $20,800.00 less than its value before the taking.

The factual issue of whether the defendant actually suffered a diminution in parking area was sharply contested by the parties. The court of appeal reversed the trial court’s factual finding that the defendant had lost eight parking spaces by virtue of the taking. We pretermit discussion of whether the court of appeal committed manifest error in reversing the trial judge on the fact issue because its decision is supportable on another basis.

Severance damages are ordinarily calculated as the difference between the market value of the remaining property immediately before and immediately after the taking. State, Department of Highways v. Hoyt, 284 So.2d 763 (La.1973). The burden of proving alleged severance damages to the remainder of property involved in an expropriation proceeding rests upon the owner who must establish such damages with legal certainty by a preponderance of evidence. State, Department of Highways v. Levy, 242 La. 259, 136 So.2d 35 (1962); Texas Pipeline Co. v. Barbe, 229 La. 191, 85 So.2d 260 (1956); Central La. Electric Co. v. Dunbar, 183 So.2d 111 (La.App. 1st Cir. 1966). The informed and reasoned opinion of experts, corroborated by the facts in the record, may adequately prove a severance damage loss, especially where accepted by the trier of facts. State, Department of Highways v. Denham Springs Development Co., 307 So.2d 304 (La.1975).

After a careful review of the record, we are convinced that the defendant failed to adequately prove severance damages because its expert testimony was not supported by the facts and therefore should be accorded no weight.

Generally, the market data approach is regarded as being the soundest method of determining whether severance damages have been suffered on account of an expropriation. Losses of rents or other revenues, or the cost to cure various physical damages caused by the taking may be relevant only as they indicate a diminution in value of the remainder, but can form the basis, of an award only in unusual cases. State, Department of Highways v. Mason, 254 La. 1035, 229 So.2d 89 (1969).

Insofar as we have determined, no decisions of this Court have allowed severance damages derived from the application of the income-capitalization method employed by Mr. Holmes in the instant case. It is conceivable, where the defendant has established actual loss of income due to expropriation, that this method may provide an adequate procedure for determining severance damages. ' However, Mr. Holmes’ determination was based on anticipated rather than actual loss of income and was derived somewhat arbitrarily from the facts of the case.

It is unclear how Mr. Holmes arrived at his conclusion that there would be inadequate parking and therefore loss of income for the four months chosen. The only explanation offered was his assumption that during the four months named, the near capacity occupancy of the motel would cause a shortage of parking spaces for lounge and restaurant patrons. However, there was no showing of how many parking spaces were needed to serve the lounge and restaurant in addition to those used by the motel patrons, and it is questionable from the testimony that parking space would be needed by lounge and restaurant patrons at the same time during the day or on the same days of the week as the periods of greatest use by motel guests. Moreover, there was no factual basis to support the expert’s determination that the business would lose 8.1% of its income during the four rush months because the taking had reduced the parking area by 8.1%. At the time of the trial it was disputed whether the defendant had in fact lost any parking spaces.' There was testimony as to inconvenience experienced by some customers because of construction in the area, but it was not demonstrated that this inconvenience actually resulted in loss of income. Therefore, we conclude that the correlation between loss of parking area and loss of income, which Holmes ultimately converted to loss of market value of the property, was highly tenuous and speculative.

If the landowner elects to demand full compensation, including severance damages, prior to completion of the highway project, he must assume some of the risk or loss because of the speculative factors involved in an earlier determination of his severance damages. He nevertheless may have his demand for severance damages tried prior to completion of the project, and when he does the burden rests on him of proving to the degree of certainty required by law what his severance damages will be upon completion of the project. State, Department of Highways v. Black, 207 So.2d 583 (La.App. 3rd Cir. 1968). Damages are a matter of proof which must be borne by the landowner and establishment of the mere possibility of severance damages is not a sufficient basis upon which to predicate an award. Central Louisiana Electric Co., Inc. v. Covington & St. Tammany Land & Improvement Co., 131 So.2d 369 (La.App. 1st Cir. 1961).

Defendant cites a recent decision of this Court, State, Department of Highways v. Denham Springs Development Co., Inc., 307 So.2d 304 (La.1975), supra, in support of its argument that the severance damage award by the trial court was proper. In that case the trial judge accepted the opinion of defendant’s expert that the property had suffered severance damages on account of loss of parking spaces which destroyed the potential for future development of the shopping center located on the property. The basis of the expert’s opinion was that the otherwise certain prospect of expansion of the shopping center was impossible, given the generally recognized requirement of a three-to-one ratio of parking space to store space in shopping centers and the absence of any alternative space for expansion of the existing parking area. The expert for the developer calculated that the shopping center would have received a certain amount of rental income from the amount of building potential lost. By capitalizing the income, he estimated severance damages to the property.

The facts in the Denham Springs case are markedly different from those in the instant proceeding. Here there is no evidence that the parking ratio at the motel has been reduced below generally accepted standards. Nor was any attempt made to demonstrate severance damages by using comparable sales or rental values. In fact, one of the defendant’s expert witnesses testified that the market value of the motel had actually increased during the year following the taking. Moreover, the present case is distinguishable from the Denham Springs case by the circumstance that here it was proven that the remaining tract contained ample area behind the motel where additional parking space could have been Constructed.

A second issue with which we must deal is whether the court of appeal properly reduced the expert witness fees awarded below. The fees were calculated on the basis of the time and effort expended by the experts in making their appraisals. The trial court simply awarded them fees in accordance with the bills they submitted. It is apparent from the record that at least half of the time expended by these experts was devoted to the determination of severance damages which the court of appeal properly disallowed. Accordingly, we find no impropriety in the reduction of the fees based upon this record.

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

SUMMERS, J., dissents.

TATE, J., dissents, being of the belief that severance damages were sustained and should be judicially fixed on the basis of the evidence.

CALOGERO, J., dissents. Some severance damages were sustained.


text:
    Mrs. Leonard LEVY v. Mrs. Gayle K. DUCLAUX and Mrs. Patsy Desforges, d/b/a The Lazybug Shop, Defendants, Appellants, and Employers Commercial Union Insurance Company of America.
    No. 57514.
    Supreme Court of Louisiana.
    March 9, 1976.
   In re Mrs. Gayle K. Duclaux and Mrs. Patsy Desforges, d/b/a The Lazybug Shop, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 324 So.2d 1.

Writ denied. No error in the Court of Appeal judgment.

SUMMERS, J., is of the opinion the writ should be granted.

MARCUS, J., is of the opinion that the writ should be granted.

DENNIS, J., is of the view that the writ should be granted.


text:
    Mrs. Leonard LEVY v. Mrs. Gayle K. DUCLAUX, and Mrs. Patsy Desforges, d/b/a The Lazybug Shop, and Employers-Commercial Union Insurance Co. of America.
    No. 57531.
    Supreme Court of Louisiana.
    March 9, 1976.
   In re Employers Commercial Union Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 324 So.2d 1.

Writ denied. No error in the Court of Appeal judgment.

SUMMERS, J., is of the opinion the writ should be granted.

MARCUS, J., is of the opinion that the writ should be granted.

DENNIS, J., is of the view that the writ should be granted.


author: CALOGERO, J.,

text:
    Albert J. BALDO v. Lester J. THIBODAUX.
    No. 57637.
    Supreme Court of Louisiana.
    March 19, 1976.
   In re: Albert J. Baldo, applying for Certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.-

Writ denied. Although judgment of Court of Appeal is apparently incorrect, we will not exercise our supervisory jurisdiction where applicant’s earlier untimely application for writ of review has been denied by this court. Relator’s remedy is to set the matter for immediate hearing in the trial court.

CALOGERO, J.,

dissents. The Court of Appeal decision was wrong. The result of such judgment renders this litigation non-final; the eviction proceeding persists in the district court. Under these circumstances I would have this Court exercise its general supervisory jurisdiction and grant the writ.


author: SANDERS, Chief Justice. TATE, Justice

text:
    STATE of Louisiana v. Nestor SOSA.
    No. 57017.
    Supreme Court of Louisiana.
    Feb. 23, 1976.

      Ronald P. Herman, Metairie, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Ma-moulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged the defendant, Nestor Sosa, with armed robbery in violation of LSA-R.S. 14:64. After the jury returned a verdict of guilty as charged, the trial judge sentenced him to ninety-nine years imprisonment. Upon appeal to this Court, defendant relies upon five assignments of error. Finding merit in none of them, we affirm his conviction and sentence.

ASSIGNMENT OF ERROR NO. 1

Defendant contends that the trial court erred in denying his motion for a continuance and his motipn for a change of venue.

The record includes a motion for a continuance filed by defendant on May 10, 1974 (three days before trial). Of the three grounds for this motion argued at trial and on appeal, only one was included in the written motion, i. e., that the defendant would be prejudiced because of recent publicity in the Times-Picayune newspaper concerning his involvement in an escape attempt. Under Article 707 of the Louisiana Code of Criminal Procedure, the other arguments advanced by the defendant at trial and on appeal which were not in his written motion present nothing for our review. See, e. g., State v. Hubbard, La., 279 So.2d 177 (1973); State v. Tennant, 262 La. 941, 265 So.2d 230 (1972); State v. Callihan, 257 La. 298, 242 So.2d 521 (1970).

With'regard to the newspaper article portraying the defendant in an escape attempt, there was no showing that a continuance would eliminate public prejudice, if any in fact existed as a result of the news article. The granting or refusing of a motion for a continuance rests in the sound discretion of the trial judge, and his ruling will not be disturbed on appeal absent an abuse of discretion. See, e. g., State v. Williams, 262 La. 317, 263 So.2d 306 (1972); State v. Richardson, 258 La. 62, 245 So.2d 357 (1971). We find no abuse of discretion in the trial judge’s ruling.

The motion for a change of venue was made orally the day of the trial. Defense counsel failed to comply with the requirements of Article 621 of the Louisiana Code of Criminal Procedure which sets forth the following procedure for filing such motions:

“An application for a change of venue may be made by either the state or the defendant. It must be made at least five days prior to the date then fixed for commencement of trial; or thereafter, in the discretion of the court, any time before the first witness is sworn at the trial on the merits. The application shall be in writing, sworn to by the applicant or his counsel, and shall contain:
“(1) Allegations of fact upon which the application is based; and
“(2) A statement that the application is not made for the purpose of delay, but to obtain a fair and impartial trial.

This article specifically superseded prior law under which an application for change of venue could be made either orally or in writing. State v. Peterson, 2 La.Ann. 921 (1847). The failure of the defendant to conform with the required procedure in applying for change of venue precludes our review of his complaint on appeal.

We find no merit to either of these arguments.

ASSIGNMENT OF ERROR NO. 2

This assignment of error addresses itself to the following remark made by the prosecuting attorney during his opening statement:

“ . . . He forced Mr. Murphy Major-ia to lie behind the counter and at this, time Mr. Majoria noticed that the Defendant’s eyes were not upon him and God knows this time and age the man had a pistol on him. Murphy Majoria had a forty-five automatic and he pulled the gun out.”

Defense counsel moved for a mistrial, arguing that the comment of “this time and age” was very prejudicial. The trial judge overruled the motion, but admonished the jury as follows:

“ . . . Gentlemen, you are to disregard completely that portion of the remark made by the District Attorney. It is not evidence in this case and you are to disregard it.”

The comment by the prosecutor is not among those prejudicial remarks delineated in Article 770 of the Louisiana Code of Criminal Procedure for which a mistrial is mandatory. Rather, we ■ hold that Article 771 governs this comment, and the admonition of the trial judge was sufficient to cure any prejudice and to assure the defendant of a fair trial.

ASSIGNMENT OF ERROR NO. 3

Defense counsel objected to the introduction into evidence of a pair of pants identified by Officer Denoux as belonging to the defendant; however, he cited no reasons for the objection at that time. In brief, he states that the ground for the objection is that no connexity had been established between the pants and the defendant. However, it is well settled that counsel must state the basis for his objection when he makes it, pointing out the specific error which the trial court is allegedly making so that the trial judge has an opportunity to rule upon it. An assignment of error reserved to a trial court ruling where no basis for objection has been stated presents nothing for this Court’s review. LSA-C.Cr.P. Art. 841; State v. Burgy, La., 320 So.2d 175 (1975); State v. Preece, La., 270 So.2d 850 (1972); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967).

ASSIGNMENT OF ERROR NO. 4

Defendant complains that “the State, in its opening statement, closing argument and rebuttal closing, was allowed by the trial court excessive leeway including comment that the State had never found a more perfect case, all to the extreme prejudice of the defendant.” We have carefully reviewed the State’s opening statement, closing argument, and rebuttal and find no support for defendant’s complaint. Moreover, defense counsel failed to obj ect contemporaneously • to the State’s opening argument or rebuttal, thus precluding our review of them at this time. LSA-C.Cr.P. Art. 841 and cases cited in Assignment of Error No. 3, supra. The only objection raised during the State’s closing argument was defense counsel’s objection to the prosecutor’s arguing of the law; and the trial judge properly ruled that the objection was unwarranted. LSA-C.Cr.P. Art. 774.

Significantly, it was defense counsel who first mentioned in his own closing argument that the prosecutor had never seen a more perfect case; the prosecutor merely reiterated this remark on rebuttal. The assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 5

In this assignment of error, the issue is whether the clerk of court used the proper procedure in polling the jury. Upon being directed by the court to poll the jury, the clerk announced, “Gentlemen, as I call your name answer if the verdict is yours by answering yes or no. . . . ” He then called each name individually and each juror responded affirmatively.

Defendant asserts that this procedure did not conform with Article 812 of the Louisiana Code of Criminal Procedure which provides that the clerk “shall announce to each juror the verdict returned, and ask him, ‘Is this your verdict ?’ ” However, defendant made no objection at trial to the manner in which the jury was polled, raising the matter for the first time on appeal. He cannot now avail of this assignment of error. LSA-C.Cr.P. Art. 841; State v. Burgy, supra; State v. Preece, supra.

For the reasons assigned, the conviction and sentence are affirmed.

TATE, J., assigns additional concurring reasons.

TATE, Justice

(concurring).

The majority refuses to pass upon the merits of a motion for a change of venue because the motion is not in writing, as required by La.C.Cr.P. art. 321. The state did not object to the accused’s raising the issue by oral motion (rather than by first requesting a recess in order to confect a written pleading asserting the grounds, most of them just then discovered).

I would prefer to rest our ruling upon the merits: The showing made did not justify a change of venue. The trial court did not err in refusing it.


author: DENNIS, J.,

text:
    Lloyd C. FOX v. The MUNICIPAL DEMOCRATIC EXECUTIVE COMMITTEE OF the CITY OF MONROE and W. L. Howard.
    No. 57604.
    Supreme Court of Louisiana.
    March 9, 1976.
   In re: Lloyd C. Fox, applying for writs of certiorari and/or review of decision of the Court of Appeal, 328 So.2d 171.

Writ denied. The result is correct.

DENNIS, J.,

respectfully dissents. Because of the significant constitutional issues raised by this case the writ should be granted and a decision rendered after a full hearing.

SUMMERS, J., is of the opinion the writ should be granted.


author: BLANCHE, Judge.

text:
    Dorothy Spillman SHARPE, now Dorothy Spillman Teer v. Norman C. SHARPE.
    No. 10599.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.

      Mike J. Balen, Covington, for Norman Sharpe.
    Wm. F. Kline, Jr., Clinton, for Dorothy S. Sharpe.
    Robert A. Connell, Jackson, for the Spillmans.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

This is a contest over the custody of Leslie Sharpe, the minor son of the marriage between Dorothy Spillman Sharpe, now Dorothy Spillman Teer (hereinafter sometimes referred to as “mother”), and Norman C. Sharpe (hereinafter sometimes referred to as “father”).

In the court below the father lost and has appealed. We affirm.

After dissolution of their marriage in 1970, Leslie was placed in the custody of his grandparents, Mr. and Mrs. Leslie R. Spillman, by a judgment of the Twentieth Judicial District Court dated October 20, 1970. Mr. and Mrs. Spillman have also answered the various rules filed herein and desire the custody, of their grandson be maintained with them in the event their daughter is unsuccessful in obtaining his custody. Thus, the contest is really between the mother and the father and between the grandparents and the father, in the event the matter is determined adversely to their daughter.

Both Dorothy Spillman and Norman Sharpe have remarried and their respective spouses have suffered their share of abuse during the proceedings. The present Mrs. Sharpe was used by the mother to discredit the home of the father by showing the instability of the father and of his marriage to the present Mrs. Sharpe. The criminal record of the present husband of the mother was used by the father to discredit the mother’s home. Another child of the marriage was also used by the mother against the father.

The trial judge found in favor of the mother, stating that she had sustained the so-called double burden of proving that the conditions in which the child was living were detrimental to the child’s best interests and that she, as an applicant for custody, could and would provide a good home and better environment if given the custody of the child, citing Decker v. Landry, 227 La. 603, 80 So.2d 91, 92 (1955).

Assuming arguendo that the mother carried such a burden as against her parents, there was no necessity for such a finding, as the mother’s parents had consented to her having custody. Thus, as the real controversy here is between the mother and father, the general rule in such case should be followed, i. e., that it is in the best interests of the children of the marriage to grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally or otherwise unfit, or unless she is incapable of giving them proper care and guidance. Nethken v. Nethken, 307 So.2d 563 (La.1975), and Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971).

The father has failed to make such a showing, and to the contrary, as the following review of the evidence will show, Leslie’s best interests and welfare lie with his- mother.

After the mother and father’s divorce, young Leslie went to live with his grandfather and grandmother, Mr. and Mrs. Spill-man, who at the time of trial were ages 78 and 72, respectively, and were residents of Jackson, Louisiana. They preferred to see Leslie in the custody of his mother but were willing to continue to care for him in the event the court declined to award custody to Leslie’s mother. They unselfishly looked after Leslie up until the time he went to live with his mother in Baton Rouge during the summer of 1974. The move to his mother was accomplished under an ex parte court order for the purpose of Leslie’s taking a remedial mathematics course that was offered in one of the East Baton Rouge Parish schools. After moving to Baton Rouge, Leslie’s scholastic record improved considerably, he made new friends and was an active participant in sports at his school. He is also closer to his older brother and sister who now live in Baton Rouge. At the home of the mother, Leslie has his own bedroom and bath and travels to school by boarding a bus approximately half a block from his home. He also attends church regularly with his mother and her present husband at the Stevendale Baptist Church in Baton Rouge.

Leslie also testified at trial that he would prefer to live with his mother, and the trial judge, while noting that the desires of the child are not always controlling in a custody matter, felt that Leslie’s desires as an intelligent and alert thirteen year old should be given some consideration. The trial judge’s action in this regard is the proper application of a legal principle which this Court has recognized, Cenac v. Power, 211 So.2d 408 (La.App. 1st Cir. 1968).

The trial judge noted that Leslie appeared to be happy and well adjusted in his Baton Rouge school and environment.

Both the mother and her husband work and provide a comfortable income and reside in a three-bedroom house in River Oaks Subdivision in Baton Rouge. Although the mother’s husband has a criminal record and is out on parole, he is presently working and, as noted by the trial judge, appears to have been rehabilitated. The trial judge further observed that except for the prior Criminal record of the mother’s present husband, they appeared to be a normal family.

The father also accuses the mother of committing a fraud to obtain Social Security benefits for Leslie and the other children of their marriage. According to the mother, the benefits arose out of a prior marriage after her divorce from the father. Whether such benefits were obtained by fraud was not proved in the record, and we are unable to conclude in the absence of such proof, as did the father, that they could only have been obtained through the mother’s fraudulent misrepresentations.

The trial judge stated that, after completion of the testimony taken at the trial he was prepared to award the custody of Leslie to his mother but delayed that ruling at the request of all parties to afford the Louisiana Health and Social Rehabilitation Services Administration, Division of Family Services, an opportunity to evaluate the homes of the respective parties. After receiving the report of that agency, he wrote in his Reasons for Judgment, “Nothing contained in said report is at variance with the conclusion reached by the court.”

For the above reasons, the judgment of the trial court is affirmed, at the cost of defendant-appellant, Norman C. Sharpe.

Affirmed.


author: BOUTALL, Judge.

text:
    Susan STANHOPE v. Hugo DERMODY et al.
    No. 7309.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.

      Dorsey & Marks, New Orleans, for Susan Stanhope, plaintiff-appellant.
    Herbert B. Bowers, III, and Laurence E. Larmann, Frederick S. Haygood, Metairie, for Allstate Ins. Co., defendant-appellee.
    Before REDMANN, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Susan Stanhope claims damages for personal injuries which she sustained when a vehicle owned by Oscar Duran and driven by Hugo Dermody collided with her car. The defendants are Duran, Dermody and Allstate Insurance Company, Stanhope’s uninsured motorist carrier. Allstate filed a third party demand against Duran and Dermody. Dermody filed a reconventional demand against Stanhope and Allstate. Consolidated for trial with the above claims was Angel Junio’s suit against Stan-hope and Allstate. Junio was a guest passenger in the Duran vehicle. The trial court dismissed all claims and only Stan-hope has appealed.

Stanhope claims that she approached the corner of Magazine Street and Third Street with the intention of parking in that area and visiting a friend. She stopped at the stop sign and looked to her left in the direction of the traffic flow. She admitted that her vision of oncoming traffic was hampered by cars parked along Magazine, so she pulled up slightly and looked again. This time the way was clear so she pulled out and proceeded down Magazine slowly some four or five car lengths. Her intention was to stop parallel to a parked car and back into a vacant space to park next to the curb on Magazine. Just as she was about to stop she was struck from the rear by the vehicle driven by Dermody.

The version of the accident offered by Dermody and his guest passenger Junio is quite different. They claim that the Stan-hope car ran the stop sign and was making her turn onto Magazine when the accident occurred. Dermody testified that the first time he saw the Stanhope car was when the left rear tail light became visible midway through her turn. At this time he was two to four car lengths from the Stan-hope car. He stated that the collision definitely occurred at the intersection and that his car traveled one or two car lengths down Magazine after the accident. Under cross examination Dermody stated that the reason he did not see the Stanhope car until the tail light became visible is that his headlights had a defect, being focused at a distance of only 30 feet and not straight ahead, and that it was raining.

The investigating police officer testified that when he arrived on the scene the Stanhope car was forty feet from the intersection and beside it was some debris. The Dermody driven car was twenty to twenty-five feet from the intersection. He could not place the point of impact from the evidence at the scene.

The trial court found Dermody to be negligent for operating a car with defective headlights and for failing to see the Stanhope car when he should have. It also found Stanhope to be contributorily negligent.

The question of whether the court correctly found Stanhope to be contributorily negligent is the issue before this court. In its Reasons for Judgment the trial court states that the Stanhope car was in a . diagonal position across Dermody’s lane of travel and that from this position she would have been unable to turn her head to see up Magazine towards the oncoming traffic. Obviously, this position entirely discounts Stanhope’s testimony that she was stopped some five car lengths from the intersection. The trial court neglected to make a specific finding as to where the point. of impact was and does not specifically discuss the credibility of the witnesses. However, it is apparent from a reading of the Reasons for Judgment that the trial court felt the impact occurred near the intersection and that Stanhope pulled into Dermody’s .lane without properly ascertaining if the way was clear.

The physical evidence is not in any way conclusive of either version of the accident. Therefore, for the trial court to have reached the conclusions it obviously has as to the point of impact and Stan-hope’s contributory negligence, it must have felt Dermody’s and Junio’s testimony to be the more credible. Their testimony would fully explain the ruling of the trial court and we find no manifest error in that ruling.

For the above reasons the judgment of the trial court is affirmed. Appellant is to pay all costs of this appeal.

AFFIRMED.


author: SCHOTT, Judge. REDMANN, Judge

text:
    R. C. BURSE v. BOH BROTHERS CONSTRUCTION COMPANY, INC. and Collins Thibodeaux.
    No. 7328.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Writ Refused May 26, 1976.
    Garland Rolling, Metairie, for defendant-appellant, Collins Thibodeaux.
    Murphy & Simon, James C. Murphy, Jr., New Orleans, for third-party defendant-ap-pellee, Home Indemnity Co.

      Before SAMUEL, REDMANN and SCHOTT, JJ.
   SCHOTT, Judge.

Defendant Collins Thibodeaux has appealed from a summary judgment dismissing the third-party demand he brought against his liability insurer.

The original petition for damages was brought against appellant and his employer based upon allegations of negligence on the part of appellant. The original petition alleged that plaintiff was hauling dirt from a construction project when a dragline bucket was dropped on his truck, that the dragline was being operated by appellant and that the accident was caused by the negligence of appellant in his reckless and careless operation of the dragline. In his answer appellant denied the allegation of the occurrence of the incident for want of sufficient information, categorically denied the allegation of negligence but admitted he was operating the dragline. In response to the motion for summary judgment he did not dispute that the accident occurred in the manner plaintiff alleged in his petition.

Appellant’s insurer denied coverage on the basis of the following exclusions:

“This coverage does not apply:

“(b) To bodily injury or property damage arising out of (1) business pursuits of any insured except activities therein which are ordinarily incident to non-business pursuits . . . ”

Appellant contends that the term “business pursuits” does not include his activities as an employee. He argues that the term implies the ownership of a business by the insured. This same argument was made in Pitre v. Pennsylvania Millers Mutual Insurance Co., 236 So.2d 920 (La.App. 3rd Cir. 1970), and was rejected by the Court. The instant case cannot be distinguished from the cited case, and since we agree with the reasoning and result in the cited case the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, J., dissents.

REDMANN, Judge

(dissenting).

There are three questions.

First. Is every employee’s employment “business pursuits” within the meaning of this “Comprehensive [sic] Personal Insurance” policy ? Within four lines (including three for the exclusion half-quoted by the majority), it refers to “employment”, then “business pursuits”, then “professional services”, just as did the policy in Firestine v. Poverman, 388 F.Supp. 948 (D. Conn.1975), which discussed the issue and decided that a maintenance man’s employment was not “business pursuits”. Pitre v. Pennsylvania Millers Mut. Ins. Co., La. App. 3 Cir. 1970, 236 So.2d 920, which may have involved a similar policy, gives no explanation for following Berry v. Aetna Cas. & S. Co., La.App. 2 Cir. 1969, 221 So. 2d 272, which construed a plainly dissimilar policy on the basis of a definition of “business” not present here. (Our policy defines “business property” by again distinguishing between “business pursuits” and “professional services”, further suggesting that “business pursuits” is understood not to be a catch-all.)

Second. Is every act one does at work a business pursuit? (Jackson v. Lajaunie, La.App. 1 Cir. 1971, 253 So.2d 540 [reversed in part, La., 270 So.2d 859], had reasoned that practical joking at work was not.)

Third. Might there be applicability of the exclusion’s exception from business pursuits of “activities therein which are ordinarily incident to non-business pursuits” ? Jackson v. Lajaunie, La., 1972, 270 So.2d 859, 863, reasoned (in obiter dicta) that an owner’s injury of a customer by practical joke while receiving the customer’s payment on the business premises was within the exception: “Practical jokes are ‘ordinarily incident to non-business pursuits’ and are excepted from the exclusion.”

We know enough to answer the first question, and I dissent from the answer given. We should be agreeing with Fire-stine, rather than uncritically following Pitre, which uncritically followed Berry.

We do not know enough to answer the second and third questions, because there is no hint — nowhere in the entire record— of what the insured was doing that caused the bucket to fall. On these second and third points, the majority position is, apparently, that the allegation the insured was operating the dragline shows both that he was engaged in business pursuits, and that “therein” he was not involved in any activity ordinarily incident to non-business pursuits. For the majority, if he was playing some practical joke while he was (supposed to be?) operating the dragline and the practical joke caused the bucket to fall, it matters not a whit; the practical joke cannot have been an “activity” because operating the dragline was his activity.

The majority view comes perilously close to Davis v. Frederick’s Inc., 1973, 30 Utah 2d 321, 517 P.2d 1014, which refused to apply the exception to the exclusion to a cafe employee’s injury of a passerby by opening a back door to go home from the cafe. Davis effectively erased from the policy the exception to the exclusion.

The Louisiana supreme court’s dicta in Jackson assert that the exception has meaning. We should apply the exception and set aside the summary judgment because granted without showing, as required by C.C.P. 966, that mover is entitled to judgment as a matter of law.


author: STOULIG, Judge.

text:
    Dr. Eugene A. GARCIA v. HOLLYWOOD POOL CORPORATION.
    No. 7324.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Writ Refused June 2, 1976.

      Malcolm A. Coco, Jr., Metairie, for plaintiff-appellee.
    Jesse S. Guillot, John G. Lankford, New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   STOULIG, Judge.

Plaintiff, Dr. Eugene A. Garcia, was awarded a judgment of $2,217.29 against defendant, Hollywood Pool Corporation, representing the cost of having a defectively constructed swimming pool repaired. Conceding its responsibility to remedy faulty workmanship, defendant has limited this appeal to the question of how much or what type of remedial work plaintiff may demand.

Defendant contracted to install a swimming pool for $7,875, which its literature describes as an “ * * * . investment in fun, beauty, health * * Because of improper installation and/or defective materials, patches of plaster flaked away from the bottom of the pool causing unsightly cracks and discoloration almost immediately after it was tendered as complete. Only one expert pool repairman was called to testify. William Harper, who'has been engaged in the pool construction business for more than 20 years, gave two separate repair estimates. He stated it could be repaired for $640.19 by fixing the leaks causing the plaster to work loose and then patching the cracks. He could not recommend this procedure because it would result in a noticeable discoloration which would in time become unsightly. To achieve color harmony, he said the entire pool should be replastered and gave an estimate of $2,-067.29 to do the job.

Appellant argues the owner is entitled only to the cost of remedial work once the contract has been substantially performed and may not demand the entire job be redone. The cases cited in support of this position are inapposite because they do not involve the type of repairs where aesthetics are of any significance. In this case, the appearance of the pool is a very important factor which is established by defendant’s own literature. It is unreasonable to expect an owner to accept a functional pool with unsightly patches and discolorations after investing $7,875 in its installation.

Any manifestation of poor workmanship or lack of quality in the materials furnished adversely and noticeably affecting the appearance of the pool constitutes a breach of the construction agreement, which renders the defendant liable for its repair in such sums as are necessary to make it conform with the representation contained in defendant’s letter proposal that “ * * * the owner’s investment in a swimming pool is an investment in fun, beauty, health relaxation and togetherness.” (Emphasis added.) Poche v. Landry, 57 So.2d 808 (La.App.Orl.1952). Under the terms of the contract, plaintiff is entitled not only to a basically well-constructed and functional swimming pool, but one that is new in appearance and pleasing to the eye.

Finally, appellant argues plaintiff contractually bound himself to accept the patchwork after meeting with defendant’s representatives in March, 1974 and wrote a letter to this effect. As we interpret the record on this point, in the light of plaintiff’s testimony patchwork is acceptable only “if it [the pool] could have been made into a new like construction at that time.” Even had the defendant attempted to perform the patchwork, it would not have been an acceptable fulfillment of the “alleged compromise,” for it would have lacked the aesthetically satisfactory appearance of new construction. This result was later confirmed by the opinion of the expert,,Mr. Harper.

Defendant cannot escape liability for the entire cost of replastering because it failed to perform the repair work that only would have been acceptable as a compromise had it been aesthetically satisfactory. Defendant made only perfunctory attempts to correct the substantial defects. Within a few days after the March meeting, defendant’s workmen appeared to correct minor leaking problems and this they failed to do properly on their first call. When they returned a second time they succeeded in repairing most of the leaks; however nothing was done on the major complaint— the defective and flaking plaster. There is a disagreement in the record as to how the replastering was to be scheduled. Defendant’s representatives insist plaintiff was to have called them; plaintiff denies this. The trial court resolved the factual conflict against defendant and we see no reason to disturb this conclusion.

Included in the judgment was $150 for alleged expenditures plaintiff incurred to repair defendant’s faulty workmanship. This aspect of the judgment is not supported by the record and accordingly it will be reduced by this amount.

For the reasons assigned, the judgment appealed from is amended to reduce it from $2,217.29 to $2,067.29, and, as amended, affirmed. Defendant is to pay all costs.

AMENDED AND AFFIRMED.

      . Defendant was awarded $358 ón its recon-ventional demand, representing the balance due for a pool sweeper, which payment plaintiff admittedly withheld until some adjustment was made on his complaint. Plaintiff has not appealed or answered this appeal.

      . Harper testified that in his opinion the cracks in the bottom of the pool were either the result of poor workmanship or defective materials.

      . This is transposed in the transcript to read $2,607.29. A written quotation, which we accept, sets the price of $2,067.29.

      . Wigginton v. Globe Const. Co., 223 La. 695, 66 So.2d 613 (1953) ; Sarver v. Barksdale, 24 So.2d 649 (La.App. 1st Cir. 1946).


author: BEER, Judge.

text:
    Larry WILLIAMS, Sr., as Administrator of the Estate of his minor daughter, Cathy v. Jack V. HARVEY, as Administrator of the Estate of his minor daughter, Kerri Harvey.
    No. 7320.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.

      Daniel E. Becnel, Jr., Reserve, for plaintiff-appellee.
    Frederick S. Haygood, G. Michael Bourgeois, Metairie, for defendant-appellant.
    Before SAMUEL, MORIAL and BEER, JJ-
   BEER, Judge.

Plaintiff-appellee, Larry Williams, Sr., instituted suit in behalf of his minor daughter, Cathy Williams, seeking to recover damages for injuries she sustained as a result of the alleged negligence of Kerri Harvey, daughter of Jack V. Harvey, defendant-appellant. From a judgment awarding damages in the amount of $31,-080.50 defendant-appellant appeals.

On July 19, 1974 teenagers Cathy Williams, Kerri Harvey and Leslie Cox were en route to a dance in Lutcher, Louisiana. Kerri was driving her father’s 1973 Mazda automobile. As they approached the intersection of Louisiana 53 (on which they were proceeding) and Airline Highway, Kerri drove across the railroad tracks that parallel Airline Highway “faster than normal.” Although she saw a vehicle directly ahead of them proceeding in the same direction, Kerri took her eyes off the road at that moment in order to adjust her ring. When she looked up it was too late to prevent the rear end collision that immediately followed.

LIABILITY

On appeal, defendant-appellant does not seriously challenge the jury’s finding of Kerri’s negligence, nor is there any evidence in the record sufficient to rebut the presumption of negligence which clearly results from these undisputed facts. Rodrigues v. Trebitz, 304 So.2d 396 (La.App. 1st Cir. 1974). Appellant does, however, strenuously urge that Cathy Williams was contributorily negligent and assumed the risk of driving with an incompetent driver. In support of the first contention, appellant relies on Cathy’s admission that she failed to use the seat belt and, in support of the second, a claim that Cathy knew or should have known that Kerri was in the habit of driving when under the influence of marijuana or other intoxicants.

An injured guest passenger does not forfeit his right to recover because of his failure to use a seat belt. Lawrence v. Westchester Fire Ins. Co., 213 So.2d 784 (La.App. 2nd Cir. 1968) application denied 252 La. 969, 215 So.2d 131. The record does not support a conclusion that Kerri’s physical functions were obviously and materially impaired by intoxicants at the time of the accident. Dahlquist v. Canal Insurance Co., 212 So.2d 246, (La.App. 3rd Cir. 1968) writs refused 252 La. 951, 215 So.2d 125; Marcotte v. Travelers Ins. Co., 258 La. 989, 249 So.2d 105 (1971). Furthermore, Cathy denies knowledge of any use by Kerri of alcohol or marijuana on the night in question and there is no credible evidence to refute her testimony on this issue. Finally, Cathy testified that when she learned Kerri intended to frighten Leslie Cox by speeding over the railroad tracks, she warned against such a course of action. Thus, she satisfied the duty as a guest passenger “to protest or try to stop the obviously negligent acts of the driver.” Badeaux v. Patterson Truck Lines, Inc., 247 So.2d 875 (La.App. 3d Cir. 1971) writs denied 259 La. 77, 249 So.2d 209; White v. State Farm Mutual Auto. Ins. Co., 222 La. 994, 64 So.2d 245 (1953). We cannot conclude that the jury’s findings with respect tO' these factual issues are unsupported by the evidence or that they are manifestly in error and thus appellant’s contentions with respect to liability must fail.

QUANTUM AND RELATED MATTERS

Cathy’s physical injuries resulting from the accident included flying glass cuts upon her forehead, cheeks, nose, eyelids and knees and a sufficiently hard blow to her head to cause some swelling which eventually subsided without apparent complicar tions. Immediately after the accident she was seen by Dr. Joseph LaNasa. He felt that the lesions on her face were superficial and without need for any sutures. She saw Dr. Robert Albrecht three days after the accident. He found a number of facial abrasions, especially above her right eye, on the bridge of her nose, and on the left side of her upper lip. He noted that healing was “very satisfactory” and found no evidence of infection.

She was then seen by Dr. Herbert B. Christianson who referred her to Dr. J. Michael Kelly, a plastic surgeon.

Cathy first saw Dr. Kelly on August 21, 1974. He observed that there was a scar on her nose approximately one-half to three-fourths inch in length and three-eighths inch wide with a one to two millimeter elevation. He also observed that it did not conform to the normal concavity of the nasal bridge. He observed that a scar on her upper lip obscured the “vermillion border.” It was prominent and extended up into her lip about one-half inch. He noted several minor scar areas on her right cheek which he described as having a cobblestone effect. In the area of the right eyelid he noted a scar about three and one-half centimeters that extended up to her right temple. This apparently created two “folds” in her right eyelid and caused some elevation of the eyelid.

Under a general anesthesia Dr. Kelly performed surgical excision and removal of the scars on Cathy’s lip and nose and, by dermabrasion, the removal of the right cheek scarring. The eyelid scars were also surgically removed. The redness of the plaintiff’s complexion which temporarily existed after the operation was an anticipated postoperative effect of two to three months duration.

Dr. Kelly indicated that dermabrasion can be a fairly painful process. Cathy did experience some pain for which Tylenol III was prescribed during her hospital stay from September 2 through 7, 1974. Dr. Kelly further indicated that the dermabrasion associated pain would, essentially, subside when the scab fell off within three to seven days after the procedure. The pain associated with.the surgical excision would subside on removal of the stitches which took place soon after the operation. He also testified that the pain associated with the original trauma occasioned by the collision would have probably lasted from three days to two weeks. He also observed that Cathy overreacted to postoperative discomfort and pain and testified that she was not as cooperative as she might have been. He felt that additional corrective surgery might be required to narrow the width of the nose and lip scars and further indicated that some evidence of the scarring was permanent in nature; it could be improved, but not completely erased, although makeup would reduce same to negligible proportions.

' On her attorney’s recommendation, Cathy began seeing Dr. Charles R. Smith, a psychiatrist, on October 3, 1974. He found that she was obsessed with her face and physical appearance and that this was causing nervous manifestations such as stomach upset, loss of weight and sleep disturbances. He concluded that Cathy had apparently exhibited essentially normal adolescent behavior prior to the accident, and thus believed that her post-accident depression, which was out of the range of normal behavior, was a direct result of the accident. Basically he felt that the accident had accentuated earlier patterns of nervousness and questioning of self worth which were not originally symptomatic. In other words, the post-accident scarring confirmed and deepened latent fears of worthlessness and not being lovable or attractive to others.

Cathy’s mother had related to the doctor that her daughter’s disposition changed after the accident. She was irritable and prone to just sitting at home and looking at her face in the mirror. She brooded and cried and did not want to attend school. After the accident, she observed her daughter had difficulty in sleeping through the night.

Cathy began seeing Dr. Elizabeth Mc-Dermy in December, 1974. Dr. McDermy noted that Cathy had a mild to moderate case of acne which had apparently preexisted the accident but observed that acne could be aggravated by stress. On her last visit in February 1975, her face had cleared.

LSA-C.C. Article 1934(3) establishes, in pertinent part, that:

“In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury . . ..”

See Molton v. Avrard, 293 So.2d 557 (La. App. 4th Cir. 1974).

The full force and effect of this article’s import was set forth by the Supreme Court in Miller v. Thomas, 258 La. 285, 246 So. 2d 16 (1971) when that court affirmed the jury’s award of $60,000 for the lacerations to the face of a seventeen year old female, reversing this court’s reduction to $25,000. In that case, plaintiff had experienced a curved scar extending from the corner of her mouth to her ear, an eight centimeter scar on the forehead, a three centimeter scar below the right eye, and a two centimeter scar on the right side of the upper lip. Pastic surgery was performed with at least one more surgical intervention indicated. The court declared:

“The pain associated with the injuries, the facial scars, and the psychological efT feet of these scars are all factors to be considered in the award of damages.”

The court therein also restated the rule that prior jurisprudence exerts no absolute control over an award of damages made by the trier of the case and is simply a guide in evaluating whether the trier’s discretion is abused. See Taylor v. Rome, 303 So.2d 844 (La.App. 1st Cir. 1974).

In Knotts v. Employers Casualty Co., 177 So.2d 630 (La.App. 3rd Cir. 1965) plaintiff was a single, twenty-three year old beauty queen and former college student who was thrown violently forward into a windshield when the car in which she was a passenger had a head-on collision with another vehicle. After the accident, she was in the hospital for six days. While in the hospital her four lower teeth, which had been loosened, were removed and her gum was sutured. The four upper teeth, which had been loosened by the blow, were manually forced back into the jawbone. After she was released from the hospital, she began a program of prolonged and painful dental treatment. The lower gum had to be reopened and certain remaining tooth roots and bone fragments removed. The upper teeth eventually died and the nerves from same were removed and the root canals reamed. These four teeth, and one tooth on either side, were ground down to pegs and crowns were applied.

Furthermore, a portion of her lower jawbone, on the inside, was broken off when the teeth were pushed back into the jawbone. The loss of bone and shrinkage of surrounding tissue would necessitate many future changes of the lower bridge and possibly endanger nerves leading to her other lower teeth.

In terms of facial disfigurement it was observed:

“ ‘On the forehead, two scars were present at the junction of the forehead with the hairline on the left side, one an oval area, approximately three quarters of an inch in diameter, which appeared to be a healed abrasion, and the other was a vertically running scar, measuring approximately one inch by one sixteenth of an inch wide, with some elevation of the skin on the inner aspect of the scar, . Next on the eyebrow, three linear inconspicuous areas were present near the inner end of the left eyebrow, the entire area involved measured approximately one half inch by a quarter of an inch. These, as did the one on the forehead, appear [ed] to be something in the nature of a healed abrasion or brush burn. On the nose was a vertical scar, measuring approximately a half an inch in length, which was quite inconspicuous. [0]n the right cheek was a slightly depressed obliquely running scar, measuring one half inch by a sixteenth of an inch in width. On the left cheek was an obliquely running very faint linear scar, one inch in length. . [I]n the center of the upper lip, midway between the nose and the free margin of the lip, was an oval pale scar, measuring an eighth of an inch by three sixteenths of an inch. At each corner of the mouth was an obliquely running scar coursing downward and outward from the corner, measuring a half an inch in length by a sixteenth of an inch in width. There was a very slight depression at the outer portion of each scar. ... . [0]n the lower lip, an elevated zone of the free margin of the lower lip was present, slightly to the left of the center line[.] [T]his was due, againf,] to a puckering effect of an inch scar beginning on the outside and curving to the inside of the mouth, throwing the free margin of the lip in a fold. On the skin of the lower lip near the center, was a slightly elevated scar, measuring one eighth of an inch by three eighths of an inch. On the left shoulder, at the junction of the shoulder and the upper arm, was a vertically running scar, slightly depressed, measuring three quarters of an inch by an eighth of an inch wide. On the left leg, just below the left knee, was an obliquely running scar, measuring one and a half inches in length by one quarter inch in width, at this time the scar was flat and red, and there were several prominent stitch marks still present.’ ”

Plastic surgery was recommended for the longest scar on the forehead, the obliquely running scar on the right cheek, all scars about the mouth and lip, and the scars on the left shoulder and leg. The treating physician admitted, however, surgery might not help scars on the lower lip'.

The Court of Appeal, after reviewing the evidence, affirmed the jury’s award of $10,000 for special damages and $45,000 for general damages.

In Freeman v. Wilcox, 303 So.2d 840 (La.App. 1st Cir. 1974) writ denied La., 307 So2d 630, plaintiff was a twelve year old boy who received lacerations to the right upper eyelid, right lip and right nostril which produced scarring as well as abrasions to the left hand and right knee. He also had three teeth removed. An award of $9,000 was affirmed.

In Ermis v. Government Employees Insurance Company, 305 So.2d 620 (La.App. 4th Cir. 1974) a $4,500 award was granted for scarring to the upper lip and back of a six year old girl. In Carroll v. Aetna Casualty Insurance Company, 301 So.2d 406 (La. App. 2nd Cir. 1974) an award of $17,500 was sustained for lacerations requiring 150 to 200 stitches. Scars several inches in length extending from plaintiff’s mouth across her face and chin existed and required at least two operations to correct. There was numbness at the corner of the mouth affecting ability to eat and drink. In Orfanello v. Pepsi Cola Bottling Co., 290 So.2d 353 (La.App. 4th Cir. 1974) application denied, 293 So.2d 178, plaintiff had a three centimeter scar on her neck resulting from corrective surgery due to other injuries. This court increased the $6,000 award to $25,000 and stated:

“Whether the scar is in itself disfiguring or whether its detracting features have been magnified in the plaintiff’s mind, it is in either case an injury that has produced mental anguish and is hence compensable.”

The plaintiff therein had been nervous and tense since the accident had occurred, had lost weight, and had developed esopha-gitis, a burning sensation in the esophagus. In Funderburk v. Millers Mutual Fire Ins. Co. of Texas, 228 So.2d 169 (La.App. 3rd Cir. 1969) writs refused, 255 La. 158, 229 So.2d 735, 736, a young girl received a total award of $1,000 for a hairline scar measuring two inches, a chin scar on the right side measuring eight-tenths of an inch, and a scar under her chin measuring one inch long. The trial court observed that the only scar that was noteworthy was the one inch scar under the chin. In Deville v. Employers’ Liability Assur. Corp., 232 So.2d 827 (La.App. 2nd Cir. 1970) the trial court’s award of $2,900 was increased to $4,790 for permanent facial scars, not susceptible to improvement by plastic surgery, sustained by a fifteen year old girl. Her lip was severely cut and there was a deep laceration on her cheek. Two of her teeth were broken. In Guidry v. Lockard, 215 So.2d 549 (La.App. 1st Cir. 1968) a young married woman received $2,500 for pain and suffering and disfigurement caused by multiple scars resulting from lacerations on her face and leg. The facial scars that were of significance were a two and one-half centimeter long scar extending from her hairline to her eyebrow and another facial scar two centimeters in length on her face. In Marks v. Fereday, 230 So.2d 290 (La. App. 4th Cir. 1970) plaintiff was a twenty-seven year old married woman who sustained lacerations on her chin and lower lip and complained of neck pains and headaches. She had a scar on the lower lip and chin area that was two centimeters long. It was visible but was not particularly disfiguring. She received $1,500 for pain and suffering and $1,500 for the residual scarring. In Galmiche v. Smith, 269 So.2d 490 (La.App. 4th Cir. 1972) writ refused 263 La. 995, 270 So.2d 126, plaintiff’s father sued for injuries sustained by his minor daughter. $7,500 was awarded for pain and suffering due to a closed fracture of the left pubic bone, possible fracture of the sacrum and back strain. $1,500 was awarded for a five centimeter long scar above the right eyebrow. In Fontana v. State Farm Mutual Automobile Ins. Co., 173 So. 2d 284 (La.App. 3rd Cir. 1965) writ denied, 247 La. 1027, 175 So.2d 644, plaintiff was a twenty year old female divorcee. She sustained a bruise to her right eye and cheekbone with lacerations under the eye requiring sutures which left a scar as permanent residual. $3,000 was awarded for the initial pain and suffering and facial injuries and residual headaches and the one-half inch scar over the eye. In Little v. Safeguard, 137 So.2d 415 (La.App. 3rd Cir. 1962) a twelve year old girl, received $3,250 for slight asymmetry of the left nasal passage noticeable only from certain angles. In Scott v. Lumbermens Mutual Cas. Co., 134 So.2d 553 (La.App. 3rd Cir. 1961) plaintiff was an eight year old girl who received $3,500 judgment. She had four permanent scars: a one and three-quarter inches vertical scar on the forehead above the medial right eyebrow; a three-sixteenth inch vertical scar on the right side of the forehead above her right eyebrow ; a one-half inch scar below the right side of her lower lip; a one and one-eighth inch scar on the left side of the scalp. In Hoffpauir v. Southern Farm Bureau Cas. Co., 124 So.2d 409 (La.App 3rd Cir. 1960) plaintiff, a young girl, received $3,500 for a depressed fracture of the nasal bones with displacement of fragments and with swelling of the soft tissues of the nose. There was some permanent disfigurement postop-eratively and she missed seventeen days of school. In Luke v. Police Jury of Parish of Terrebonne, 257 So.2d 480 (La.App. 1st Cir. 1972) plaintiff was a nine year old female who received $9,000 for permanent scarring and disfigurement to her ankle and leg. In Carr v. Fidelity & Casualty Co. of N. Y., 248 So.2d 917 (La.App. 3rd Cir. 1971) plaintiff was a sixteen year old female. The trial court award of $30,000 was reduced on appeal to $18,500. Three of her front lower teeth were traumatically excised and a fourth was later removed by dental process. She sustained lacerations of her mouth and bruises to her face, chest, trunk, and legs. She experienced a fractured mandible in the area of the missing teeth. She sustained myofascial ligamen-tous strain or sprain of the neck causing muscle spasm and pain complaints. She developed traumatic pleurisy. She had crying spells and was depressed. She could eat only baby foods for six to seven weeks. She had a three-by-one milliliter pigmented scar on her lower lip. Two temporary bridges (for her teeth) and two permanent bridges were applied before a third permanent bridge was finally acceptable but the doctors felt that this third bridge still left something to be desired. The Court observed that she suffered an unusual amount of pain and embarrassment from the dental treatment, and that before the accident she had promise as a singer which was adversely affected by the loss of her front teeth. In Brown v. Hawkins, 244 So.2d 896 (La. App. 1st Cir. 1971) writs refused, 258 La. 572, 247 So.2d 393, a male plaintiff sustained what the court described as very serious lacerations to the forehead resulting in permanent scarring. He received $1,500. In Wicker v. U. S. Fidelity & Guaranty Ins. Co., 211 So.2d 420 (La.App. 1st Cir. 1968) plaintiff’s minor son received $10,000 for permanent scars. He had very severe lacerations of the nose and upper lip. Seventy stitches were required. The initial misalignment was so bad that the doctor was able to flop one half of plaintiff’s nose up over the other eye. Extensive plastic surgery was required. In Talley v. Employers Mutual Liability Ins. Co., 181 So.2d 784 (La. App. 4th Cir. 1965) a male plaintiff received $10,000. He had a fracture of his right tibia and fiblia of the right leg that left his right leg three-eighths inch shorter than- his left. There was a fracture of his jawbone and lacerations of his mouth, face and scalp. In Castrinos v. City of New Orleans, 172 So.2d 357 (La.App. 4th Cir. 1965) application not considered 247 La. 680, 173 So.2d 542, plaintiff received a total award of $8,371.02. $5,500 was awarded for pain and suffering, mental anguish and permanent scars and disfigurement. There was severe laceration óf the forehead, eyelid, and nose which hemorrhaged and required several blood transfusions. Permanent facial scars required plastic surgery. In Faslund v. Kendrick, 169 So.2d 276 (La. App. 1st Cir. 1964) plaintiff was a married woman who received $20,000 for physical and mental injuries. She experienced deep lacerations to her right forehead, eyebrow and scalp. She sustained a fracture of her right arm resulting in thirty-five to forty percent permanent disability. She experienced severe mental anguish and became withdrawn from her family and no longer participated in community affairs. Dr. Charles R. Smith, the same psychiatrist who testified for plaintiff-appellee in these proceedings, found she was completely preoccupied with the circumstances of the accident and that preexisting anxieties were greatly aggravated.

The foregoing resume of several recent awards involving injuries somewhat similar to those experienced by Cathy Williams lead to the inescapable conclusion that cases involving scarring and the attendant psychological and physical implications thereof vary through a wide range. Yet, we are constrained to observe that the amount of the award in this case seems to us to be disproportionate to the injuries occasioned notwithstanding the temporary psychological complications that resulted therefrom.

The record is replete with irrelevant and immaterial personal innuendos of all sorts which have no place in these proceedings. They only highlight the antagonism that was obviously precipitated by this litigation. What is also apparent from the record as a whole is the unfortunate fact that an unwitting teenaged girl who experienced moderate injuries which are now largely resolved has been embittered more by this law suit and its unhappy aspects than by the actual injuries resulting from the accident. We perceive that the' acrimonious relationship which existed 'between the parties to this litigation but which bore no actual relationship to the extent or seriousness of Cathy’s injuries may be one explanation for the manifestly erroneous quantum verdict. We further conclude that some additional explanation for same is available when we consider the manner in which the jury was obliged to respond to the interrogatories propounded to it.

At the conclusion of the trial, the jury was allowed to retire for its deliberations with a page of plaintiff’s original petition for damages which contained this itemized allegation:

1) Past, present and future medical expenses $ 5,500

2) Past, present and future pain and suffering 45,000

3) Past, present and future mental anguish, psychological damage, psychiatric damage, disfigurement and scarring 25,000

4) Past, present and future lost wages and/or loss of school time as a result of her injuries 5,000

The jury was then apparently instructed to award damages by filling in four blank spaces on a piece of note paper marked (1), (2), (3) and (4) which obviously corresponded exactly to the itemized damages noted above. We believe that this procedure of requiring the jury to “fill in the blanks” with respect to several different but very much related items of alleged damages acted as an unintentional but nevertheless significant signal to them that they were obliged to render separate and distinct awards for each itemization — and were to respond in a cumulative manner to each and every aspect of plaintiff’s claim in particularized response to the individual itemi-zations of alleged damages which were set forth in plaintiff’s original petition.

There is' nothing before us to indicate why this unusual procedure was followed but we have little doubt that it caused the jury to feel obliged to specifically respond, as in fact they did, in dollar amounts, to each separate and particularized item of alleged damages.

We do not conclude that the procedure described above requires reversal or remand but we do determine that it was partially causative of the ultimately unacceptable amount of the verdict.

In our considered view, the award is more than double that which is warranted by the record.

It is apparent from the record that, at the time of trial, Cathy had materially improved from the condition that existed when the photographs which are in evidence were taken. It is also clear from all the evidence that the redness of certain area of her face which is apparent in those .photographs was of limited duration and, most important, it is also apparent from the record that the scarring has been materially diminished as a result of the successful excisions and dermabrasion performed by Dr. Kelly.

It is quite true that Cathy experienced some pain following the accident for a period of perhaps two to three weeks (though one doctor thinks that about three days may have been the extent of it) and some moderate pain during the five days that she was in the hospital for the work performed by Dr. Kelly. It is also apparent that she was not ever obliged to suffer severe pain, describing it, herself, as a sort of stinging sensation of limited duration. The moderate pain which was experienced for two very limited time periods (one time under conditions where it was controlled by mild pain relievers) can not be the basis for a large award of damages.

The jury felt that Cathy’s mental anguish, psychological damage, psychiatric damage, disfigurement and scarring required an award of $10,000 and though we believe this to be high under the circumstances we cannot say that it constitutes manifest error. The same might also be said of the award of $1,000 for the very limited amount of time she was absent from school. But an award of $20,000 for pain and suffering is an error so manifest and so disproportionate and inconsistent with the record as to require our intervention. Even so, we are inclined to exercise great restraint in our review of the award in order to be sure as we can that our reaction is tempered to the greatest possible extent.

We conclude that the overall total amount of the award must be reduced to $13,080.50.

EXPERT WITNESSES’ FEES

We acknowledge, perforce, that the fixing of expert fees lies within the sound discretion of the trial court and should not be disturbed unless clearly erroneous. Orleans Parish School Board v. Bond, 200 So.2d 411 (La.App. 4th Cir. 1967) and Borenstein v. Joseph Fein Caterers, Inc., 255 So.2d 800 (La.App. 4th Cir. 1971). Thus, if certain fees appear to be “somewhat high” but not an abuse of discretion, they will not be disturbed by us. However, in this case we are constrained to observe that the trial court has abused its discretion by improperly basing its computation of expert witnesses’ fees on irrelevant factors including, among other things, “the loss of income suffered by each physician as a result of court testimony.”

None of the physicians involved in this fairly uncomplicated and reasonably short trial were obliged to be present in court for anything more than a reasonable minimum of time. Indeed, their testimony in most instances is quite brief, and in no instance is extensive or complicated to any unusual degree. For this reason we are at a complete loss to comprehend the basis upon which awards were made to Dr. Charles R. Smith in the amount of $2,500, Dr. Elizabeth McDermy in the amount of $750, Dr. Herbert B. Christian-son in the amount of $1,500, Dr. J. Michael Kelly in the amount of $2,500. Additionally, the lesser awards to Dr. R. C. Albrecht in the amount of $200 and Dr. Gerald LaNasa in the amount of $300 are clearly in the category of “somewhat high,” but not an obvious abuse. The awards to all of the physicians above noted with the exception of Doctors LaNasa and Albrecht will necessarily have to be reduced to $300 each which, as a matter of fact, is still somewhat high in our view but since we are not upsetting the awards to Doctors Albrecht and LaNasa because of the rule generally set forth in Borenstein, supra, we will not set the awards to the other physicians at a lower figure. No expert fee is due the deputy sheriff whose testimony dealt with his investigation of the accident in his official capacity notwithstanding the fact that he ventured several opinions as to speed, braking action, etc.

CONCLUSION AND DECREE

For all of the foregoing reasons the judgment of the Twenty-Ninth Judicial District Court, Parish of St. John the Baptist must be amended and recast so as to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Larry Williams, Sr., as administrator of the estate of his minor daughter Cathy Williams, and against Jack V. Harvey in the full sum of $13,000.00, plus legal interest from date of judicial demand and all costs;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Larry Williams, Sr., individually, and against Jack V. Harvey in the full sum of $80.50;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that expert witness fees be fixed as follows:

Dr. Charles R. Smith $300.00
Dr. Elizabeth McDermy 300.00
Dr. Herbert Christianson 300.00
Dr. J. Michael Kelly 300.00
Dr. Robert C. Albrecht 200.00
Dr. Gerald LaNasa 300.00

and that such be taxed as costs.

As amended and recast, the judgment is affirmed.

AMENDED, RECAST AND AFFIRMED.

       Submitted to the jury was simply a piece of note paper with a list of blank spaces numbered (1) (2) (3) (4) to which the jury responded: (1) $80.50, (2) 20,000, (3) 10,-000 (4) 1,000. The response to (1) was based upon the fact that the medical expenses were paid prior to trial by agreement between counsel. $80.50 is the jury’s computation of interest due on the amount paid as of the date of payment.


author: GULOTTA, Judge.

text:
    William F. McCORMICK v. The FIRESTONE TIRE & RUBBER COMPANY.
    No. 7303.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 16, 1976.
    Rehearing Denied April 13, 1976.
    Writ Refused June 4, 1976.

      D’Antonio & Jones, George H. Jones, New Orleans, Michael E. D’Antonio, for plaintiff-appellee.
    Monroe & Lemann, William J. Hamlin, Michael R. O’Keefe, III, New Orleans, for defendant-appellant.
    Dillon & Williams, Robert E. Birtel, New Orleans, for intervenor-appellee, American Auto. Ins. Co.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   GULOTTA, Judge.

Defendant, Firestone Tire and Rubber Company, appeals from a judgment awarding plaintiff damages for injuries sustained when a truck tire, mounted on a defective rim by a Firestone employee, exploded. The explosion occurred after the tire had been mounted on the truck and while it was being inflated by plaintiff. Suit was initially brought against plaintiff’s employer, Supreme Catering Company, Inc., and a coemployee. However, plaintiff voluntarily dismissed his suit against both of those parties. Quantum is not an issue in this case.

The facts are that plaintiff’s employer operated a fleet of trucks for use in a catering business. Firestone had an agreement with Supreme Catering, whereby Firestone would repair flat tires and mount their new, recapped or repaired tires onto truck rims. On April 25, 1973, a Firestone employee, Lawrence McKinney, was sent to Supreme Catering Company to make needed repairs to flat tires. According to the Firestone employee, four tires were repaired, remounted on the rims, and placed on a tire rack for future use. A fifth tire was repaired and remounted on a defective rim. The Firestone employee, aware that the mounted tire was “extremely dangerous”, warned Supreme Catering’s mechanic of the defective rim.

Up to this point, the facts are clear and apparently undisputed. However, the occurrences following the warning to the Supreme Catering mechanic are unclear. According to the Firestone employee, the four repaired tires were placed in a rack. The fifth tire was left outside the rack in the repair shop, standing upright and against a wall, but not mixed with the four repaired tires. McKinney further stated that in accordance with the mechanic’s instructions, he removed the air from the fifth tire. However, Supreme’s mechanic, Clifford H. Cox, testified that when he (Cox) left the shop on the afternoon of the day preceding the accident, the only tires he saw upon leaving, were those lying in the stack. According to plaintiff, he obtained the new tire from the tire rack, noticed that it had some air in it and mounted the tire on the truck. While the tire was being inflated by plaintiff, it exploded, and plaintiff sustained injuries.

It is Firestone’s contention on appeal 1) that the Firestone serviceman discharged his duty of exercising reasonable care when he warned the garage foreman of the dangerous nature of the tire and surrendered possession of the tire to Supreme’s employees after discovering the defective rim; 2) that assuming, arguendo, the Firestone employee was negligent because of his failure to break down the tire from the defective rim, nevertheless, Firestone is absolved from liability because the proximate cause of the accident was the independent intervening negligent acts of Supreme Catering’s mechanic foreman in failing to isolate the tire from Supreme’s employees or to warn the employees of the dangerous nature of the tire.

Plaintiff, on the other hand, contends that the Firestone serviceman, once aware of the extremely dangerous instrumentality, had a duty to do more than simply warn the repair foreman. According to plaintiff, after McKinney discovered the defect, a duty was placed on McKinney to deflate the tire and dismount it from the rim. Plaintiff also seeks to invoke the rule that one who exercises control over an extremely dangerous instrumentality or engages in a hazardous or ultrahazardous activity is responsible for all anticipated and natural consequences caused by the dangerous instrumentality or dangerous activity.

The trial judge, in written reasons, stated it was his opinion that the tire was not fully deflated by the Firestone employee, and that to all outward appearances, the new tire could be mounted safely on a truck. The trial judge further concluded that the Firestone employee not only had a duty to warn Supreme Catering Company of the dangerous instrumentality, but had a greater duty to remove the tire from the rim. We agree. Accordingly, we affirm.

Well established in our jurisprudence is the rule that the degree of care owed others increases in relation to the increase in the inherent danger. See Culpepper v. Leonard Truck Lines, 208 La. 1084, 24 So.2d 148 (1945); Pagitt Well Service, Inc. v. Sam Broussard, Inc., 293 So.2d 631 (La.App. 3d Cir. 1974), writs refused, 295 So.2d 817 (La.1974).

In Duxworth v. Pat Caffey Contractor, Inc., 209 So.2d 497 (La.App. 4th Cir. 1968), writ refused, 252 La. 258, 210 So.2d 505 (1968), the court stated that if there exists some inherent danger in the character of an object, a heavy duty of care is required in order to avoid injury. Further, the court in Craig v. Burch, 228 So.2d 723 (La.App. 1st Cir. 1969), recognized that the danger incident to providing a motorist with an unsafe tire is obviously “great”.

In Spillers v. Montgomery Ward & Co., Inc., 282 So.2d 546 (La.App. 2d Cir. 1973), modified on appeal, 294 So.2d 803 (La. 1974), a truck owner was injured when a “split rim” wheel exploded after Montgomery Ward employees had mounted the tire on the defective rim. In that case, in stating the duty placed upon Montgomery Ward, the court said:

“As previously stated, we find as a fact that the defective condition of the rim should have been discovered on reasonable inspection by one with experience in dealing with split rim wheels. Thus, it was negligence for Montgomery Ward’s employee to fail to discover the defective condition of the rim and to mount the tire on the defective rim.” (emphasis supplied)

In the instant case, it is undisputed that Firestone, not Supreme, had the contractual duty to “break down” the tires in need of repair and to remount them onto the rims. Supreme employees had the responsibility of mounting the tires on the trucks. Unlike the Montgomery Ward employee in Spillers, the Firestone employee had actual knowledge of the extremely dangerous condition of the tire. However, under the facts and circumstances of the instant case, the Firestone employee is charged with the duty of foreseeing that Supreme employees (other than Cox), not aware of the inherent danger and thinking that the tire was apparently ready for use, might mount the tire on one of the trucks. We conclude, therefore, that McKinney had a greater duty placed upon him than to simply warn the Supreme Catering Company employee of the defective rim. He had a duty to dismount the tire. Failure to do so, under the circumstances, constitutes negligence on the part of the Firestone employee. See Spillers v. Montgomery Ward & Co., Inc., supra.

However, it is Firestone’s contention that the Supreme mechanic, Cox, failed to take reasonable precautions to isolate the tire and to warn Supreme’s other employees about the dangerous condition of the tire. According to Firestone, Cox’s failure constituted an independent, intervening act of negligence which absolves it (Firestone) from liability.

Our courts have held that an initial tort feasor will not be relieved of the consequences of his negligence unless the intervening cause superceded the original negligence and alone produced the injury. See Peats v. Martin, 133 So.2d 920 (La. App. 2d Cir. 1961); Perera v. Johnson, 12S So.2d 493 (La.App. 3d Cir. 1960); Lynch v. Fisher, 34 So.2d 513 (La.App. 2d Cir. 1947). In Waggenspack v. New Orleans Public Service, Inc., 297 So.2d 733 (La. App. 4th Cir. 1974), writ refused, 302 So. 2d 15 (La.1974), a young boy was instructed by a bus driver to disembark a disabled bus at night. While waiting for another bus, the boy was attacked by a teenage gang. In holding NOPSI liable, the court stated:

“A more seriously disputable situation is presented to the Court as to the proximate as opposed to the remote causation of the injuries to Gerard Waggenspack and the foreseeability of the consequences of a negligent act. The general jurisprudence of Louisiana is that negligence in order to be actionable need not be the sole cause of the harm but in fact that it be a cause for which recovery is sought. * * * ”

The court further stated:

“ * * * the Court applied the criterion that the person creating the danger could or should reasonably foresee the accident that might occur and if such were the case that he would be liable notwithstanding the intervening cause. * * *»

Under such circumstance, the court concluded the subsequent act of negligence did not relieve the original tort feasor from liability. See also Prosser on Torts (4th ed.), 1971, § 44 on intervening cause.

In the instant case, the trial judge, at the conclusion of his reasons for judgment, stated:

“Assuming, arguendo, that defendant Cox was negligent in not taking further steps to prevent the occurrence of this accident, it cannot be held that this obviates the duty of Firestone through its agent, McKinney. This appears to be a case of concurrent, contributing negligence which resulted in the injuries sustained by Mr. McCormick.”

We agree with the result reached by the trial judge. As was stated in Dixie Drive It Yourself System New Orleans Co. v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962), when the actionable negligence of two tort feasors contributes in causing harm to a third party, the tort feasors are solidarily liable for the damage.

Accordingly, we conclude that the negligent acts of the Firestone employee was a factual and proximate cause of plaintiff’s accident and injury, and Firestone is not absolved from responsibility by the subsequent acts of the Supreme Catering Company employees. The judgment is affirmed.

AFFIRMED.

      . Intervenor, workmen’s compensation insurer, American Automobile Insurance Company, intervenes on plaintiff’s behalf and seeks reimbursement of the sum of $1,097.15 for workmen's compensation and medical expenses paid. This claim for reimbursement is not disputed.

      . See the recent Supreme Court case of Pence v. Ketchum, 326 So.2d 831 (La.1976) for a discussion of factual and proximate causation.