text:
    Joel I. FORREST, Plaintiff-Appellee, v. Bill LYNCH and Times-Picayune Publishing Company, Defendants-Appellants.
    No. 11361.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.

      Robert Kleinpeter, Baton Rouge, of counsel for plaintiff-appellee Joel I. Forrest.
    Frank W. Middleton, Jr., Baton Rouge, of counsel for defendant-appellant Bill Lynch and Times Picayune Pub. Corp.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This is a defamation suit arising out of an article that appeared on January 26,1973 in the States Item, a newspaper of general circulation in the New Orleans area.

Plaintiff, Joel I. Forrest (appellee) is a consulting electrical engineer. He was engaged by the architect to prepare plans and specifications, including bid specifications, for the television-sound system for the Louisiana State School for the Deaf, Baton Rouge, Louisiana.

The article itself was written by Bill Lynch. The headline attending the article was prepared by an unidentified staff member of the owner-publisher, Times Picayune Publishing Company (appellant).

Appellee named as defendants the author, Lynch, and the appellant publisher. The trial judge rendered judgment in favor of appellee and against the publisher only, absolving the author of any liability. We affirm.

The facts are not in dispute. The taking of bids and related matters are under the supervision of the State Bond and Building Commission, Bob Baskin, Director. However, the law requires the prior approval of the Louisiana Educational Television Authority (LETA) on that portion of the project relating to the communication system. Robert D. Blazier and Max Fetty are the Educational Television Engineer and Executive Director, respectively, of LETA.

On the Tuesday preceding the Monday on which the bids were to be taken, the plans and specifications pertaining to the communication system were submitted to Blazier and Fetty. On the intervening Thursday, January 25, 1973, Blazier and Fetty addressed a letter to Baskin, which in pertinent part stated:

“After reviewing the specifications for the communication system for the Louisiana State School for the Deaf in Baton Rouge, I must commend the writer for the use of very innovative television tech1 nology. The functions described in these specifications require sophisticated interconnection and planning.
“In order to properly evaluate the true quality of these specifications, it will be necessary that one-line functional drawings be provided. It is incumbent upon us to determine that the system as specified will function in accordance with the desires of the School for the Deaf. The nature of these specifications seem somewhat proprietory (sic) to certain manufacturers. Nonetheless, it is our desire to have specifications that all responsible bidders can bid with impunity. In evaluating these specifications, it would assist us greatly to have manufacturers specifications sheets for each of the major electronic devices. * * * ” (Emphasis ours)

Bill Lynch, capital correspondent for appellant, was given a copy of the letter. The subject article was then written and transmitted to appellant for publication. It appeared in appellant’s paper on the following day, Friday, January 26, 1973.

The lead paragraph set the general tenor of the article:

“BATON ROUGE — Specifications for an expensive television-sound system for the new school for the deaf scheduled for bidding Monday appear to be proprietary, officials of the Louisiana Educational Television Authority today advised the State Bond Commission. * * * ”

The above portions of the letter of January 26, 1973, are also quoted in their entirety. With respect to appellee the article stated:

“ * * * The school is being designed by the architectural firm of August Perez and Associates of New Orleans and the electrical engineering is by Joel Forrest of Baton Rouge. * * * ”

However, the headline of the article stated:

“BID SPECS REPORTED ‘RIGGED’ ”

The article was placed on page one of the paper and was continued to page six. The headline for the continued portion of the article read:

“Bid Specs Questioned”

The record reflects that on the evening of January 25, 1975, Forrest met with Blazier and it was determined that the bid specifications were in order and were therefore approved by LETA as prepared. However, Lynch was not informed of the approval or of the letter of January 26,1973 confirming such approval.

Appellee originally objected to and claimed to be defamed by both the article itself and the headline. However, his emphasis on appeal, in brief and oral argument, is really directed to the headline and the use of the word “rigged”. The trial judge, and we agree, found nothing objectionable about the article itself. The author, Lynch, reported no more than the legitimate concern of LETA and the possibility of preferential treatment given the certain manufacturers, i.e., proprietary. There has been no appeal from that portion of the judgment dismissing appellee’s suit against Lynch. Accordingly, the dispute now centers around the article and the headline and appellee’s claims against and the defenses raised by appellant.

Appellant argues that the trial judge erred (1) in holding that in the context of the news article the use of the word “ ‘rigged’ ” in the headline gave rise to an action in defamation; (2) in refusing to hold that appellee was a “public official” or “public figure”, thereby requiring proof by clear and convincing evidence that the publication was made with knowledge of its falsity or a high degree of awareness of its probable falsity; (3) in holding that the use of the word “ ‘rigged’ ” constituted fault under C.C. Art. 2315, and (4) in assessing excessive damages.

Appellant’s first assignment of error is based on the well established rule that truth or substantial truth is a defense to an action in defamation. Rosen v. Capital City Press, 314 So.2d 511 (La.App.1st Cir. 1975). Further, that R.S. 38:2290-2296 prohibits closed specifications in public bidding. In this connection, appellant argues that the entire article, including the headline, must be viewed as a whole in determining whether any libel has been committed, Mulina v. Item Co., Inc., 217 La. 842, 47 So.2d 560 (1950); that the article is based on the letter (January 25, 1973) which raised the question of improper, perhaps illegal, conduct; and, in this context, that the headline connotes no more or less than that which is actually stated in the letter and would certainly be so understood by the everyday reader. Thus, appellant claims that an examination of the entire story, including the headline, clearly shows that the word “rigged” was used as a synonym of or paraphrase for “proprietary” or “closed” specifications, and that the headline was true or at the least, substantially true. This argument must be rejected.

We do not construe the word “rigged” as being synonymous with the word “proprietary”, particularly when it is used in the sense that illegality is inferred. The proprietary interest called to attention in the article may or may not be illegal, improper or otherwise questionable. However, the use of the word “rigged” leaves little doubt as to its import and brands the activity of appellee as fraudulent, illegal and improper. Whereas one not particularly versed in or blessed with a superior knowledge of word meanings might attach some improper motive to the proprietary inquiry contained in the letter, the word “rigged” dispels any doubt. The average, everyday individual does his talking, listening, reading and writing without constant reference to an unabridged dictionary.

Appellant’s second assignment of error pertains to the failure of the trial judge to hold that appellee is a public official or public figure so as to require a finding of malice on the part of the author or the publisher. The appellee is neither a public official nor a public figure under the holdings in New York Times Company v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) or Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

The designation of “public official” applies, at a minimum, to those persons employed by a public or governmental body who have, or appear to have, substantial responsibility for or control over the conduct of governmental affairs. Rosen-blatt v. Baer, 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966). Appellee does not fall within the above category. He is a private consulting engineer who was hired by the architect. While he was responsible for the plans and specifications of the subject communications system, he was nonetheless totally accountable only to the architect. The eventual expenditure of public funds on the proposed building does not in itself make appellee a public official.

A person not a public official, who voluntarily injects himself or who is drawn into a particular public controversy becomes a public figure as regards that controversy and assumes a special prominence in the resolution of the controversy. In such a case the same rules apply to a public figure as apply to a public official. Gertz v. Welch, above. In such cases, malice or a total disregard as to the probable falsity of the objectionable material is required. Again, appellee does not fall within that class of persons deemed to be a public figure.

Appellant’s third contention is that the trial judge erred in holding that the use of the word “rigged” constituted fault under the law of Louisiana so as to impose liability. We find the case of Wilson v. Capital City Press, 315 So.2d 393 (La.App.3rd Cir. 1975), writ denied 320 So.2d 203 (La.1975), to be in point. There (315 So.2d 393, 397) the cohrt stated:

“Under the mandate of Gertz v. Robert Welch, Inc., supra, a publisher may be held liable for defamatory falsehood only if there is some fault on his part. The Supreme Court did not hold that the printing of an untruth would itself constitute fault. There must be some culpability on the part of the publisher.” (Emphasis ours)

The same rationale was followed in LeBoeuf v. Times Picayune Publishing Corporation, 327 So.2d 430 (La.App.4th Cir. 1976). In each of these eases an error in identification was made by a law enforcement agency. There were no independent acts of culpability on the part of the defendants. In essence, the courts held that the reporters there concerned were not at fault when they failed to seek additional verification before publishing the names of persons given to them as having been arrested. In the case at bar, the facts are quite dissimilar. Here the use of the libelous term “rigged” was solely the act of an unidentified copy editor of the appellant-publisher. It was a poor and erroneous choice of words and, in our opinion, constitutes fault. C.C. Art. 2315.

Lastly, appellant argues that the award of $10,000.00 is grossly excessive “ . . .in the absence of any evidence of more than temporary irritation and slight embarrassment”. Appellee, while admitting that the article caused him some aggravation, testified that he had never been involved in any type of controversy, had always endeavored to practice his profession in keeping with proper ethics, and had always sought to abide by the law. Additionally, appellee claimed that he had received no state-associated work between the date of the article and the trial of this cause, a period in excess of three years. Under these circumstances, we are not disposed to hold that the trial judge abused the great discretion accorded him in such matters. C.C. Art. 1934(3).

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

AFFIRMED.

        , Webster’s Third New International Dictionary defines “rigged” as “a fraudulent or a cheating trick.”

      . Ibid., defines “proprietary” as “made and marketed by person or persons having the exclusive right to manufacture and sell.”


source: Caselaw Access Project

author: SARTAIN, Judge.

license: Public Domain

text:
    Clara Christine Green DONICA, Plaintiff-Appellant, v. Glen I. DONICA, Defendant-Appellee.
    No. 11373.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.

      Robert L. Raborn, Baton Rouge, of counsel for intervenor-appellant Robert L. Ra-born.
    Palsy Jo McDowell, Baton Rouge, of counsel for defendant-appellee Glen I. Doni-ca.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This suit involves the liability of a husband, individually and as head and master of the community, for attorney’s fees incurred by the wife.

Robert L. Raborn (Intervenor) represented Mrs. Clara Christine Green Donica in two suits (Nos. 31,706 and 31,210) in The Family Court for the Parish of East Baton Rouge. Suit No. 31,706, Glen I. Donica against his wife, was dismissed. In Suit No. 31,210, Mrs. Donica against her husband, judgment therein was signed on April 18, 1975 decreeing a divorce between the parties and fixing attorney’s fees incurred by her in the sum of $750.00.

The present action was instituted on June 5, 1975 by Intervenor on behalf of Mrs. Donica and seeks a judicial partition of the property formerly belonging to and forming a part of the community of acquets and gains that existed between Mr. and Mrs. Donica.

On January 27, 1976, Mrs. Donica entered into a retainer fee agreement with Interve-nor and in connection therewith she executed a promissory note in the amount of $500.00 payable to Intervenor as an advance against his fee.

On June 14, 1976, Mrs. Donica discharged Intervenor as her attorney. On June 21, 1976, Mr. Raborn filed the present intervention wherein he seeks to be recognized as a creditor of the community for legal services rendered by him in both of the Family Court suits and for the sum allegedly due him for his representation of her in the present action, which includes the $500.00 note.

Mr. and Mrs. Donica filed similar exceptions of no right of action to the intervention claiming, (1) that an original judgment obtained by Intervenor against Mr. Donica has been set aside and is therefore no longer viable, 334 So.2d 471 (La.App. 1st Cir. 1976), writ refused 338 So.2d 111 (La.1976); (2) that the fee owed by Mrs. Donica in the present action, including the note, is not a community obligation, and (3) that Mr. Do-nica is not personally liable for any of the above.

The trial judge, by judgment signed on October 21, 1976, sustained the exception insofar as Intervenor’s claim on the note is concerned and overruled the exception as to the liability of the community for attorney’s fees and costs incurred by Mrs. Donica in Suit No. 31,210.

Intervenor has appealed claiming that the trial judge erred in dismissing his claim for services rendered to Mrs. Donica in Suit No. 31,706 and for dismissing his right to proceed for services rendered in the present action, and for not holding Mr. Donica as personally liable for these charges. Mr. and Mrs. Donica have answered the appeal seeking a declaration to the effect that the community alone is responsible for the attorney’s fees incurred in the two Family Court suits and for damages against Inter-venor for a frivolous appeal.

The issues thus presented are (1) what is the liability of Mr. Donica, and (2) what is the liability of the community.

We construe the law to be settled to the effect that a husband is not individually liable for attorney’s fees incurred by the wife in a suit that dissolved the community of acquets and gains that formerly existed between himself and his wife. Tanner v. Tanner, 229 La. 399, 86 So.2d 80 (1956); Malone v. Malone, 260 La. 759, 257 So.2d 397 (1972); McAdams v. McAdams, 267 So.2d 908 (La.App. 1st Cir. 1972); and Guillory v. Guillory, 339 So.2d 529 (La.App. 4th Cir. 1976).

In Tanner, above, the court reviewed in detail the jurisprudence and stated:

“The above cited cases, particularly the early ones in which the doctrine was developed (except Tucker v. Carlin [14 La.Ann. 734]), clearly disclose a view on the part of the court that in the public interest the husband, as head and master of the community, should be condemned to pay for the services rendered to the wife in prosecuting a suit for separation from bed and board or divorce, as well as for a settlement of the community, even though there is no specific provision in the statutory law providing for such liability. And while the language used in the opinions has occasionally been rather loose in referring to the claim for her attorney’s fees as a ‘community obligation or debt’, generally speaking it carries the definite implication that, in the creation of the obligation, the intention was that such claim be acquitted only out of the assets of the community. In so condemning the husband as head and master of the community, in other words, the court has not considered the obligation as a debt for which the husband’s separate property would be liable in the event that the community had no assets. In effect, the holdings have been that the wife, or her attorney, may look to the assets of the community for payment of the attorney’s fees, and that if the community did not acquire and own any property there is no liability on the part of the husband separately. (Emphasis added)
“Our stated interpretation of the cited cases is fortified by the decision in Glorioso v. Glorioso, 223 La. 357, 65 So.2d 794, 795, in which the wife, as plaintiff in reconvention, was successful in her demand for a separation from bed and board. In the action she had also sought attorney’s fees, and under the jurisprudence discussed above she would have been entitled to an award therefor except for the fact that the community had no assets. In denying the claim the court said: ‘ * * * It is, of course, settled that, in a suit in which a wife obtains a judgment of divorce of separation from bed and board, her attorney’s fee is a community debt. * * * Accordingly, since the community (if any) was dissolved by the judgment of separation from bed and board, Article 136, LSA-Civil Code, this attorney’s fee is payable out of it. However, there was no personal liability on the part of the husband for this debt other than as head and master of the community, which is now dissolved. It is evident that the judge in the instant case was of the opinion that there was no community property and, hence, no liability for the attorney’s fee.’

Thus we hold that the husband is not individually liable for the attorney’s fees incurred by his wife in either a suit for a separation or a divorce, but that such fees must be satisfied out of the assets of the community. C.C. Art. 155.

We think the trial judge erred if his ruling is to be construed to the effect that intervenor can not assert against the community a claim for legal services rendered to Mrs. Donica in Suit No. 31,710 of the Family Court, above, which suit was dismissed. In a suit for a separation or a divorce, where the wife is either unsuccessful or the suit does not go to judgment, her attorney’s fee is a charge against the community. Since the wife is still in community with her husband and can not sue him, the attorney has a cause of action against the husband as head and master of the community to recover his fee. The award must be based on quantum meruit because the wife can not bind the community to a contracted fee. This has been the law since Gosserand v. Monteleone, 164 La. 397, 113 So. 889 (1927). See Parker, Seale & Kelton v. Messina, 214 La. 203, 36 So,2d 724 (1948); and Barranger, Barranger & Jones v. Farmer, 289 So.2d 295 (La.App. 1st Cir. 1973).

Intervenor relies heavily on Courtin v. Lenz, 42 So.2d 882 (Orl.App.1949), which specifically held that a husband was personally liable for attorney’s fees incurred by his wife in a suit that dissolved the community and where there were no community assets. We consider this case to have been overruled by the Glorioso and Tanner cases, above.

The cases which have held the husband, as head and master of the community, liable for his wife’s attorney’s fees (Gosserand, Messina and Farmer, above), are not applicable here. In the cited cases the community was not dissolved and the earnings of the husband, out of which the obligation was to be acquitted, remained as a community asset. In the case at bar, the community has been dissolved and there are sufficient assets to satisfy Intervenor’s claim. Nonetheless, these, claims for Mrs. Donica’s attorney’s fees must be satisfied out of and limited to the assets of the community.

We find that the ruling of the trial judge is correct in sustaining the exception of no right of action insofar as the same pertains to Intervenor’s claim for services rendered to Mrs. Donica in the present suit. In this connection it must be noted that the instant cause is not a matter incidental to a suit for a separation or a divorce, it is a suit between co-owners for the partition of property now held in common by them. The community that previously existed between Mr. and Mrs. Donica is not liable; Mr. Donica, as the former head and master of that community, is not liable. The obligation owed Intervenor is the separate debt of Mrs. Donica.

The claim for damages for frivolous appeal urged by appellee is rejected.

Accordingly, the judgment of the trial court is amended to hold that attorney’s fees incurred by Mrs. Donica in both Family Court suits are obligations to be satisfied out of the assets that formed a part of the community of acquets and gains that previously existed between the parties; that Mr. Donica is not personally liable; and, the obligation of Mrs. Donica to Intervenor for attorney’s fees in connection with the present suit is declared to be the separate obligation of Mrs. Donica. In all other respects, the judgment appealed is affirmed. All costs of this appeal are to be borne one-third by Intervenor, one-third by Mr. Donica, and one-third by Mrs. Donica. All other costs are to await a final determination on the merits.

AMENDED AND AS AMENDED AFFIRMED.


text:
    Bob PATTERSON and Beth Burns Miller Patterson, Plaintiffs-Appellants, v. Anthony B. LEGGIO, M.D. and St. Paul Fire & Marine Insurance Company, Defendants-Appellees.
    No. 11393.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.

      Winston W. Riddick, Baton Rouge, of counsel for plaintiff Bob Patterson, et ux., appellant.
    Donald S. Zuber, Baton Rouge, of counsel for defendant Anthony B. Leggio, M.D., et ah, appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

When this medical malpractice suit was called for trial on the merits, plaintiffs’ counsel announced that they were not prepared to proceed. They now appeal from a judgment dismissing their claims with prejudice. We affirm.

Suit was filed on October 30, 1975. Named as defendants were Dr. Anthony B. Leggio and his liability insurer, St. Paul Fire & Marine Insurance Company (appel-lees). The petition avers that Dr. Leggio misrepresented to Mrs. Patterson the need for a hysterectomy.

The chronology of events is as follows: Accompanying the petition was a prayer for a trial by jury. The same was filed and bond was set at $850.00. The answer and responses to all interrogatories were filed by February 17, 1976. On June 4, 1976, counsel for appellees requested a pretrial conference which was set for June 23,1976. Plaintiffs’ counsel asked that the conference be deferred until the end of July, due to his heavy trial schedule. By notice dated July 30, 1976, the court advised the parties that the pretrial conference would be held on August 5,1976. Plaintiffs indicated that they had not completed pretrial discovery and again requested that a later date be selected for the pretrial conference. The trial judge again granted the request and reset the conference for August 26,1976, on which date it was actually held. On this occasion counsel for plaintiffs opposed an early trial date (normally within one to two months of the date of the pretrial conference! so the district judge set the matter for trial on December 1, 1976. Nothing is contained in the record up to this date as to whom plaintiffs desired to depose or what matter was the subject of additional pretrial discovery. On October 5, 1976, the court, at the instance of plaintiffs’ counsel, directed Womans Hospital, Baton Rouge, Louisiana, to make available to him “any and all pathology slides” relating to Mrs. Patterson’s treatment at that institution.

Apparently on or about November 17, 1976, plaintiffs’ counsel requested a continuance of the trial judge for December 1, 1976, because the minutes reflect that the court, ex proprio motu, set this request down for hearing for November 29, 1976. On this date the request was denied. On November 30, 1976, this court denied writs (No. 11,270) and on December 1, 1976, the Supreme Court likewise refused writs (No. 58,919).

On December 1,1976, when the matter was called for trial, plaintiffs’ counsel first asked for a continuance on the grounds that he had asked for a jury trial. The court properly denied the same because no bond had been filed. The only bond in the record is in the amount of $750.00 and that was filed in response to appellees’ motion for security for costs.

Counsel for plaintiffs then sought a continuance apparently on the same grounds that were urged on November 29, 1976. This request was also denied. Counsel then stated he was “. . . not at this time prepared to go forward on the merits.” and offered no evidence. The court then granted defendants’ motion to dismiss.

The record contains the full colloquy between counsel for all parties and the court, including all of the court’s correspondence reflecting the above noted chronology of events.

Plaintiffs’ counsel contends that he acted diligently in preparing his case for trial and that the trial judge’s refusal to grant the requested continuance was an abuse of discretion on his part. We find no such abuse.

A continuance, of course, may be granted in any case if there are good grounds therefor. C.C.P. Art. 1601. The granting or refusing to grant a continuance, absent peremptory causes (C.C.P. Art. 1602), lies within the sound discretion of the trial judge. Weighed against the possibility of injustice, unfairness and inequity which might result from a premature trial, is the effect that a continuance might have on the administration of justice, including congested court dockets, and just as important, a defendant’s corollary right to have serious charges against him judicially resolved within a reasonable time. Lambert v. Heirs of Adams, 325 So.2d 331 (La.App. 3rd Cir. 1976), writs refused, 329 So.2d 458 (La.1976).

Plaintiffs contend that it is essential that they depose a Dr. Stuckey prior to seeking additional expert testimony from an independent pathologist, and that this discovery could not be commenced until they had obtained certain information from Womans Hospital. The record reflects that the information desired and the persons sought to be deposed were not contained in the pretrial order and that no effort was made to obtain any information from the hospital between the date suit was filed on October 30, 1975, until August 30, 1976, by letter request, and October 5, 1976, by subpoena, notwithstanding the fact that plaintiffs’ petition clearly stated that a pathology report rendered by Dr. Stuckey did not justify the operation recommended and performed by Dr. Leggio.

The trial court noted that it had deferred at appellants’ request holding a pretrial conference from June 23, 1976 until August 26, 1976, and did not assign the matter for trial until December 1, 1976, to afford plaintiffs’ counsel ample time to obtain the information he desired.

Under these circumstances, we find no abuse of discretion on the part of the district judge and affirm at appellants’ costs.

AFFIRMED.


author: COVINGTON, Judge.

text:
    Martha Ann WAGNER and Gary Wagner v. Albert E. HAZELQUIST et al.
    No. 11349.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.
    Robert A. Anderson, Jr., Covington, for plaintiff appellees.
    Dale E. Branch, Bogalusa, for defendants-appellants, State Farm Mut. Ins. Co. and Albert E. Hazelquist.
    Donald S. Zuber, Baton Rouge, for defendants-appellants, State Farm Mut. Ins. Co., Albert E. Hazelquist, and St. Paul Fire & Marine Ins. Co.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This suit arises out of a sand-dune buggy accident which occurred in or near Winchester Bay, Oregon, on June 14, 1973. Both plaintiffs and defendants were residents of Covington, St. Tammany Parish, Louisiana, at the time. Suit was brought by the plaintiffs in the Twenty-second Judicial District Court for the Parish of St. Tammany on April 30,1974. Originally joined as defendants were Albert E. Hazelquist, State Farm Mutual Automobile Insurance Company (State Farm), as the insurer of Albert E. Hazelquist, and Allstate Insurance Company (Allstate), the uninsured motorist carrier of the plaintiffs, Martha Ann Wagner and Gary L. Wagner. On June 13, 1974, by supplemental and amending petition, St. Paul Fire and Marine Insurance Company (St. Paul) and Howard Rondeau, the latter being a resident of the State of Oregon and the owner of the vehicle involved in the accident, were named as parties defendant. Also, in the supplemental petition the plaintiffs alleged that Allstate was contractually obligated to pay their medical expenses, alleged that the company had arbitrarily refused to pay their claim, and asked for statutory penalties and attorney’s fees. Thereafter, declinatory exceptions and motions were filed on behalf of St. Paul and Rondeau, objecting to the jurisdiction of the court over Rondeau and also attacking the right of a direct action against St. Paul by the plaintiffs, Martha Ann Wagner and Gary L. Wagner. These exceptions and motions were disposed of by the trial court, and this aspect of the case is not now at issue before this Court.

Subsequently, by third party demand, defendants, Albert E. Hazelquist and State Farm, joined as a party defendant St. Paul, alleging in general that St. Paul afforded primary coverage to Hazelquist as the driver of the vehicle, which was owned by Ron-deau, St. Paul’s insured. Similar pleadings were also filed by Allstate, but it was eventually dismissed voluntarily by the plaintiffs, so that this issue also is no longer before the court. Safeco Insurance Company was later named as an insurer, but it was also dismissed from the suit. An answer by St. Paul was filed to the third party demand which, in effect, denied that it afforded coverage to Hazelquist, the driver of Rondeau’s vehicle, on the basis that he was driving the vehicle without permission of the insured.

Thus, as of the time of trial on May 11, 1976, the issues in this case had been narrowed, by the various exceptions, motions, pleadings and dismissals, to the following questions: whether Hazelquist was negligent in his operation of the Rondeau vehicle; whether the plaintiffs, Mr. and Mrs. Wagner, were contributorily negligent; the quantum, if any; and whether the policy of insurance issued by State Farm or the policy issued by St. Paul covered the driving of Hazelquist.

Following the trial, the matter was held open pending the filing of certain depositions pertaining to the coverage question which were to be taken in the states of Oregon and Washington. Upon the filing of these depositions, the case was considered as submitted, trial briefs were filed and, on September 10, 1976, for written reasons assigned, the trial judge rendered judgment in favor of the plaintiffs, Mr. and Mrs. Wagner, finding that Hazelquist was negligent in his operation of the vehicle. The trial judge further found that the policy of insurance issued by St. Paul afforded coverage to Hazelquist, and was primary to the policy issued by State Farm. The trial judge awarded Mrs. Wagner the sum of $30,000.00 in general damages and awarded Mr. Wagner $3,984.00 for medical expenses incurred on behalf of his wife. The judge also awarded Mr. Wagner the sum of $1,500.00 for his general damages, together with medical expenses of $122.00. The judgment was signed in this matter on October 1, 1976.

There followed a substitution of counsel. Then, a motion and order for suspensive and, in the alternative, devolutive appeal was filed on behalf of Albert E. Hazelquist, State Farm, and St. Paul. These steps were taken because coverage and defense as between State Farm and St. Paul is no longer at issue. The suspensive appeal was perfected. No appeal has been taken from that portion of the judgment holding St. Paul to be the primary carrier. The limits of liability under the State Farm policy are $100,000 per person, $300,000 per accident. The judgment of the trial court was in favor of the plaintiffs and against Hazel-quist and his insurer, State Farm; further, judgment was rendered in the same amount, plus all costs, in favor of State Farm and in its third-party demand against St. Paul. Its policy limits are $50,000 per person and $100,000 per accident. Thus, presented for review by this Court are the questions of the liability of Albert E. Hazel-quist and quantum.

The Wagners and the Hazelquists, very good friends and neighbors in Covington, had agreed to meet in Reedsport, Oregon, for a few days of fishing and sightseeing before flying on to Hawaii for a further vacation together. The Hazelquists had preceded the Wagners so that they might visit with some friends, Bill and Beverly Miller. The Wagners arrived there on June 13. That evening the Wagners, the Hazel-quists, and the Millers dined together. During the course of the evening, it was suggested that they all go riding the next day on the sand dunes located near Reeds-port. The Wagners had not seen the dunes before; the Millers and Hazelquists thought that they would enjoy the scenic beauty of the dunes.

Arrangements were made to borrow a 1969 Willis Jeep which was owned by Howard Rondeau, who was a friend of Miller, and who also had known Hazelquist when the latter lived in Oregon. The vehicle was specially equipped for excursions on the sand dunes, e. g.; it had four wheel drive, low pressure tires, and a roll bar. The trip to the dunes took place on the afternoon of June 14, 1973.

Bill Miller and the Wagners picked up the Rondeau jeep that afternoon and met the Hazelquists and Beverly Miller at the dunes. The couples agreed that the Hazel-quists and the Wagners should take the first ride. Albert Hazelquist was selected to drive the jeep because he had lived in this area several years before, had owned a jeep similar to the Rondeau jeep, and had driven on the dunes on numerous occasions. Marilyn Hazelquist rode on the passenger side of the front seat, Gary Wagner in the left rear seat, and Martha Ann Wagner in the right rear seat. Neither Mr. nor Mrs. Wagner had ever ridden on the sand dunes; therefore, neither knew what to expect.

Before the two couples proceeded on to the dunes, Bill Miller stuck his head inside the jeep to remind Marilyn Hazelquist to buckle her seat belt. When Martha Ann Wagner asked where her seat belt was, Bill Miller replied, “Honey, you just hang on,” indicating that there was no seat belt.

Prom this point, the Wagners’ and the Hazelquists’ versions of what happened concerning the incidents just prior to the accident are somewhat in disagreement; however, they do not differ substantially as to how the accident happened. The Wagners testified that Hazelquist drove the jeep onto the sand a short distance and was apparently testing its handling ability. They proceeded over one dune and started up another one, but the jeep was not able to make it up this dune because of insufficient speed. According to the Wagners, Hazel-quist then backed it down the incline and told them that he would increase his speed for a second attempt. As the jeep reached the crest of the dune, traveling at a speed of 10 to 15 miles per hour, its front wheels went into a depression or hole which was not visible to any of the parties until the jeep went over the crest. Mrs. Wagner was leaning forward at the time, with her head extended over the back of the front seat. When the front wheels of the jeep went into the hole, it caused the Wagners to be thrown up and down resulting in the injuries complained of in this suit.

The Hazelquists’ version as to how the accident occurred is slightly different, but not materially divergent. Mr. Hazelquist testified that when he first drove on to the sand dunes, he wanted to make sure the jeep was a safe vehicle. In order to familiarize himself with its handling and its power, he drove up a long, gradual incline to test the power of the jeep. When the jeep bogged down, he felt he knew its power, so he proceeded to come back down off the incline. Then he drove along the base of the dunes, attempting to follow the tracks of dune buggies that had been out there earlier. As they were driving along, they came to the top of one of the small mounds that are found frequently on the dunes. When they came to the top of the mound, he saw that there was a drop-off on the other side, so he told the others to “hang-on.” Mr. Hazelquist also testified that he noticed nothing unusual in the way the jeep came down on the other side of the mound and that he continued on for a distance of from thirty to fifty feet before noticing that the Wagners had been injured.

The primary issue involved in this case is whether the manner in which the defendant, Hazelquist, was driving the Rondeau jeep constitutes actionable negligence on his part. The defendants do not deny that Hazelquist owed to his passengers a duty of reasonable care in driving on the sand dunes. However, the question again is whether the manner in which he was driving the dune buggy amounts to a breach of that duty of reasonable care, so as to render him and his insurer liable to the plaintiffs.

We have examined carefully the testimony of each of the parties in describing the accident.

The testimony of Martha Ann Wagner included:

“Q. Well, then describe how the Jeep proceeded onto the dunes and what you did.
A. After Bill left the Jeep, we started to go through the dunes up to the dunes through the sand and we spun as you will do with the back end kind of swinging around once and then taking the wheel and going around this way with the back end, and we proceeded over one incline, or crest, or dune, whatever you want to refer to it as, and started to go up another one, which we weren’t able to make, and we backed off again because in going up, the wheels apparently went down into the sand, or whatever happened, and we backed down the incline and this is where A1 said, ‘Well, let’s get a little more speed and we can make it over the hill.’ So this is where we started up again with more rate of speed and as we hit the top and we started up a little faster, this is when I leaned up behind Marilyn or where I could see out the front window. Gary actually, I believe, was leaning back because you could not see out any of the side windows and I was looking out over the front, and as we went over the incline, A1 at that time said, ‘Watch out,’ and simultaneously as he said, ‘Watch out,’ we hit a hole and the wheels of the Jeep, the front wheels of the Jeep fell down into the hole and bounced up and first we were going up and then going down over and this is when I flew up to the top of the Jeep, came down on, hitting the top of the roll-bar because of leaning up and looking at the window, hitting the roll-bar and coming back down and around the back of each of the front seats is a tubular piece of metal, and I came down, and this is where I hit the impact of my mouth and cut it from here up and then down and the pieces of my lip was hanging down here.
“Q. As you were proceeding along in the Jeep up the dune that you have described, were you on any particular road or path?
A. No, not that I am aware of.
Q. You could not see out the side?
A. No, definitely not.
Q. And you could see forward only by leaning as you did?
A. Yes, by leaning up and looking out the front windshield.
Q. Were you attempting to hold yourself in place?
A. Yes, I had actually taken a hold on the side of the Jeep and the back of Al’s seat when I was looking up as we started up over because I wanted to see where I was going, and that’s when I, when we hit the hole and I came down, I was right there where the impact was on.
Q. But you were holding on?
A. Yes, I was holding.
Q. Even at that time?
A. Yes, sir, and as we hit the hole, A1 said, ‘My God, oh my God,’ and I remember putting my head down ■ there, of course, all of the blood, I had white pants on at the time and Marilyn put her arm around me to hold me forward. I kept wanting to lean backwards and she was holding me forward and I feel if I would have gone back, I would have probably passed out completely, but by her holding me forward with my head down, I did not pass out completely.
Q. Now, when you entered this Jeep to go on the dunes, had you ever had any idea of the nature of the ride on the dunes?
A. No, this was something that was new to me and I had never been on the dunes previously, didn’t know what dunes were.
Q. You had never lived around them?
A. No, sir.
Q. You had never ridden on them before?
A. No, sir.”

With reference to speed, Mrs. Wagner testified on direct examination:

“Q. Can you estimate the speed that you were going the second time when you tried to make it.
A. I would say fifteen to twenty. Because you just . . . .”

Gary L. Wagner described the accident as follows:

“Q. Describe how the trip ensued on the dunes after Mr. Hazelquist became the driver, tell the court how the trip went.
A. We actually were when we originally pulled into the area on the parking lot, I think we were right out on the edge of the area where you drive into the dunes. We were right there. I think I recall we took off to the left and started driving. We were gone, I’d have to guesstimate how far, maybe fifty or a hundred yards. A1 did swerve the wheels was, I guess, what anyone would do, bringing it back and forth is another thing you obviously do when you get on the sand dunes, because it is very easy to slide on sand. We proceeded over either one dune or around the edge of a dune and went over and down, came over another area, and I believe we came again and angled left, can’t recall exactly, was a fairly steep incline going up and guesstimate twenty five percent, just have to estimate how—
Q. It wasn’t very steep?
A. I don’t think it was very steep, no. We couldn’t make it up the hill. We weren't going fast enough. I recall there were some tracks going different directions. I don’t know — we did not follow those tracks. They went some other direction. It was not a road, possibly where a previous dune had gone, sand buggy or something. We were three-fourths of the way up the incline and couldn’t make it, don’t recall how we backed down, and Al’s comment at that time also was very vague, that there was something stated about this time we make it. We went up and, as I recall, we had just gotten to the crest of the top of the dune and it was like I would imagine dropping off another edge, because I do remember him saying something about watch out at that very moment, the front end of the Jeep dropped into something and I tried to reach, I do recall trying to reach Ann. She had been sitting a little forward of me up here and I was still back enjoying myself really, and the next thing I recall is seeing her bleeding and I couldn’t see out of my left eye. I reached up and, of course, my hand was full of blood at the time.”

With respect to speed, Mr. Wagner testified:

“Q. And what at that time the Jeep dropped off or fell in the hole, approximately what was the speed of the vehicle?
A. Since we were either just right at the crest of the hill or were going over the hill, we certainly couldn’t have been going too fast, because it took some effort to get up to that area. I’d say fifteen miles an hour at the most.”

Albert E. Hazelquist described the accident as follows:

“Q. As you went onto the dunes and began to drive, you made a maneuver or two with the vehicle. Would you describe to the court what maneuver you made. How was it done?
A. Yes. I don’t specifically remember those particular maneuvers. What I was concerned with was we left the parking lot area through a short approach road to a flat area in front of the dunes. My first concern was to familiarize myself with the Jeep to make sure it was stable and sound, that I was familiar with its handling characteristics and that I was confident it was a safe machine. So I drove out this small access road and then continued ahead and wanted to see how much power and how this Jeep behaved and went up this kind of a long, gradual incline to see how much power we had, and continued to do that until the Jeep bogged down. Then I knew its capabilities and made a swing and came back down off the hill.
Q. Did you cross a hill—
A. No.
Q. Before you had the accident?
A. No, I went up this lone incline and until the car stopped and then I turned and came back down the hill. In my mind I knew the characteristics of the Jeep, felt confident in its stability, and then came back down off that long incline and came at the base of this flat area that follows along the base of the dunes and there was some tracks of other dune buggies before us and we were kind of motoring along in this flat area where these tracks were, and as the wind sometimes does, it will blow these dunes kind of up into a little mound, and this is when we were continuing along and I came up, we came up to the top of one of these small mounds. When we came up to the top of it, I could see that there was going to be a decline on the other side of it, so I said, ‘Hang on,’ and we went over that mound and came down and it wasn’t unusual to me, the characteristics of that particular situation weren’t unusual and I continued to drive, and I must have gone thirty to fifty feet when I heard Ann in the back seat and when I turned around and saw the tragedy that happened, I just stopped the Jeep and said, ‘Oh, my God, we’ve got to do something.’ Marilyn turned around and saw the situation. Ann was in pain and mentioned that her back was hurting and she wanted to get out of there right away. I waited just a few more seconds to see how Gary was and he was bleeding from a cut up here, but it looked like a superficial kind of a cut and so we just turned the Jeep and slowly went out the same access road that we had come in on and stopped the car by the stationwag-on.
Q. You didn’t see anything unusual about the way you went over the tip?
A. No, I really didn’t. I really didn’t. That’s why I continued to drive for another thirty to fifty feet.
Q. How fast were you going as you went over the tip?
A. It was level ground for all purposes up until that time, so I would estimate ten to fifteen miles an hour, closer to ten.”

Mr. Hazelquist testified further:

“Q. You were going to drive it over and around these crests.
A. That’s right.
Q. The use of the power is necessary because you are sometime on an angle, on the side of a dune, is that why you need power?
A. No, it’s not. I guess I don’t quite understand the question.
Q. You said you were testing it out to see what power it had for the purpose of making these crests, is that right?
A. Yes.
Q. You stated that you were surprised when you came over the crest and you had this unusual, I suppose, dip, is that right?
A. Those kind of drop offs are, you know, quite prevalent.
Q. Quite prevalent. So you should have expected that at the top of the hill, the top of the crest?
A. You keep your eyes open for them and when you see them, you say hang on or whatever.
Q. But you are on top before you can see how much of a dip?
A. Well, by on top, I don’t mean right on top. It’s out here, you know, a short distance from the car.”
* * * * * *
‘Q. So at that point you could not see over the tip, you just proceeded over the tip without stopping?
A. No, well, yes I saw the dip and cautioned them and we proceeded to go over it because it wasn’t, you know, it didn’t .
Q. You didn’t stop, you just went right over it and you said hold on or something?
A. I said, ‘Hang on.’ And then proceeded at what I considered to be a safe motoring speed.
Q. There was a considerable dip and a considerable jar as a result of that?
A. But it wasn’t out of the ordinary and I just continued to drive.
Q. You didn’t slow down as you approached the top and you didn’t stop as you crossed the top, is that right?
A. Well, we were going, I felt we were going so slow anyway this was kind of a speed that we would motor with.
Q. But at the point as you approached this tip, you could not tell the severity of the dip on the other side?
A. Well, we were in an area where at the base of these dunes . . . you don’t have real severe, you know, six and eight foot drop offs and these kind of things that you can encounter way back in the dunes.”

The trial judge stated:

“The Court finds that the accident was the sole result of negligence on the part of Hazelquist. He simply drove the vehicle into a depression or mound (hole) which caused enough impact to injure the parties in the rear seat who had no way to secure themselves other than to hold on.
“Additionally, the Court finds no contributory negligence nor any assumption of risk on the part of the Wagners. They had no means of securing themselves except by holding on, and the impact that occurred was too great for this to be sufficient. Also the Wagners, to the knowledge of the other parties, had not been on the dunes and did not know what to expect. The impact that did occur was apparently unexpected even to Hazel-quist since his testimony is that they were basically riding to enjoy the view rather than test the vehicle. “Consequently, there was no reason for them to expect a jolt of the violence that occurred.”

We agree. We have reviewed the record and it amply supports the trial judge’s findings. See Dyson v. Gulf Modular Corp., 388 So.2d 1385 (La.1976).

The parties have been unable to discover any Louisiana cases involving the operation of dune buggies, and our independent research has uncovered none. The appellant suggests that the situation in the instant case is analogous to cases involving automobiles confronted by hidden obstructions or hazards in a public highway. We believe that there is more of a similarity between the instant case and cases involving terrain-traversing vehicles, such as snowmobiles, rather than road-traveling vehicles.

Our research reveals two snowmobile cases that are helpful in resolving the liability question in the instant case. They assist us in supporting the holding of the trial court.

The first is Ujifusa v. National Housewares, Inc., 24 Utah 2d 219, 469 P.2d 7 (1970), where the plaintiff had been riding as a passenger behind the driver on a snowmobile driven by an executive officer of the defendant company, for whom the plaintiff was working as a commercial photographer. He was injured as the snowmobile catapulted into the air and landed some distance away. The accident occurred at a ski resort near Salt Lake City, Utah. The facts were that in ascending a hill, the snowmobile was driven around a mogul (a man-made snowbank); but, in descending, the driver, instead of bypassing the mogul, drove over it and was catapulted in the air about 10 or 12 feet. In landing, the driver was thrown upward and to the rear and on top of the plaintiff, causing him to strike his back against a vertical backrest, injuring his back. The plaintiff had never ridden a snowmobile, he had no previous warning of the jump over the mogul and, being seated behind the driver, he could not see the mogul and had no opportunity to take any preventive action. In remarking on the jury’s finding for the plaintiff, the court considered that the recited facts reflected that there was evidence to support a finding of negligence. Relative to contributory negligence, the court observed that the jury did not choose to find for the defendant on this question although the court had given a proper instruction on this question. On the question of assumption of risk, the court said:

“It does not appear that there were any circumstances so obvious and knowledgeable to a person like the plaintiff here as to reflect a hazard that would lead a reasonable person to protect himself against a likely injury.”

The second case is Olson v. Hansen, 299 Minn. 39, 216 N.W.2d 124 (1974), where there was an action arising out of a snowmobile accident resulting in injuries to the plaintiff passenger when the snowmobile rolled over on her. The accident occurred on Big Island in Lake Minnetonka. The plaintiff was a passenger on a snowmobile with the defendant. They were out sightseeing on the island in the company of another snowmobiling party. Before the accident, the plaintiff had only briefly been on a snowmobile, while the defendant had considerable experience with those vehicles. The defendant, being aware of her inexperience, had previously given her instructions on holding on and leaning into turns. He had exclusive control in the election of the path they traversed. They were following the other snowmobiling party, but had lost sight of them. As defendant’s snowmobile traversed a hillside, the defendant realized the hill was too steep because the vehicle showed a tendency to roll. Thereupon, he assumed a semi-standing position to stabilize it and he cautioned the plaintiff to lean with him. As he leaned into the hill, she also leaned in that direction. Suddenly, the vehicle tipped to the right and rolled downhill. The defendant was thrown from the snowmobile and the plaintiff attempted to throw herself clear of the vehicle but it landed partly on her right leg. The court found the defendant to be negligent and the plaintiff not to be contributory negligent. The court also specifically found that the plaintiff had not assumed the risk since she had no knowledge of the danger being encountered, either through prior experience or warning by the defendant.

The appellants also complain that the awards made by the trial court to the plaintiffs were excessive. The only basis for appellants’ contention that the awards, particularly to Mrs. Wagner, are excessive, is that appellants cite six cases in which the range of awards was from $10,000.00 to $22,000.00. We would have thought that Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974), and now Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), had permanently disabused any appealing parties of the idea that “similar” injuries necessitates “similar” awards. Anderson and Coco dictate, without the use of sesquipedalian words, that other reported decisions on quantum serve merely the limited purpose of indicating whether an issue of abuse may exist due to a disproportion-ateness in the awards; similar cases provide no “scale of uniformity.”

The trial judge, in his reasons, detailed the nature of Mrs. Wagner’s injuries, the type of treatment that she underwent, the residual effect, and other factors that went to make up his award, as follows:

“The remaining question is quantum. Gary Wagner suffered a laceration to the left front forehead and back pain. He had medical expenses of $122.00 including $61.00 for his broken glasses. The Court finds that he will be adequately compensated by a judgment in his favor for pain and suffering in the amount of $1500.00 plus special damages of $122.00.
“Mrs. Wagner was given emergency treatment at the hospital in Reedsport and then hospitalized. On June 15, she was allowed to fly home under restrictive conditions where she was immediately seen by her family doctor Dr. Keller. He reviewed x-rays taken in Oregon and found that Mrs. Wagner had a minimal fracture of T-12, L-l vertebra. She has additional bruise type injuries to the right arm. He treated her conservatively by the use of steroids and physical therapy from June 16, 1973 through February of 1974 for her back. Medical for these injuries amounted to $176.00.
“The more immediate problem was to Mrs. Wagner’s face particularly in the area of her mouth. She had suffered considerable damage to her teeth and her family dentist, Dr. Beatty, was able to get her into his office on Sunday, June 16. He found that both maxillary lateral incisors were fractured above the gingiva so there was nerve exposure on each. Additionally, the maxillary right central incisor, the left central incisor and the mandibular right cuspid were fractured. “Dr. Beatty first put on a temporary crown merely to relieve pain and cover the exposed nerve. On June 28, 1973, he referred Mrs. Wagner to an oral surgeon who removed the two lower teeth. Two temporary teeth were put in until healing could take place.
“On July 16, he removed the front four teeth on top and inserted a partial plate for healing. In October of 1973, he made a permanent lower bridge and in November of 1973 he made a permanent upper bridge. The dental charges were $1525.00.
“Dr. Gertrude Waite, a plastic surgeon saw Mrs. Wagner in June of 1973 for the tissue damage to her face. She found that Mrs. Wagner had a pitted scar, mid-upper lip, a displaced septum with partial destruction of nasal airway on the right. “In September of 1973, she did a sub-mucous resection which involved removing some bone and cartilege (sic) of the nose. This procedure was performed in the hospital under local anesthesia.
“On March 1, 1974, she excised and revised the scar on the lip, and on October 7,1974, she performed a second procedure to this same area. Her charge was $940.00 and the results were excellent. “The total of special damages incurred by Mrs. Wagner, including medical, amounts to $3,984.10. Mr. Wagner is entitled to judgment in this amount in addition to the amounts awarded him above for his own injuries. Mrs. Wagner will be adequately compensated by an award in her behalf for general damages in the amount of $30,000.00.”

The plaintiffs-appellees, in their brief, correctly set out the injuries to Martha Ann Wagner, and their impact, as follows:

“Ann Wagner suffered the following injuries: A crushing excoriation of the upper lip, pain lumbar spine and fracture T-12 and L-l, Flexion compression fracture of superior anterior surface and two broken upper lateral incisors.
“These injuries resulted in months of dental treatment, facial surgery and was complicated by the discomfort of her back, along with the necessary the prolonged periods of sitting in the dentist chair. The dental and surgical procedures were described in detail by Drs. Waite and Beatty. Dr. Beatty testified that x-rays were made which revealed that both maxillary lateral incisors were fractured about four millimeters above the gingiva with nerve exposures on both teeth. The Maxillary right central incisor had the incisal angle fractured while the left central incisor was fractured on the root. It was also noted that the mandibular right cuspid was fractured. Only palliative treatment was given at the inception due to other injuries sustained by Mrs. Wagner. Because of her back injury she was unable to withstand long dental treatment periods. The initial treatment consisted of occlusal adjustments and temporary crowns over the exposed nerves.
“Because of the nature of the injuries sustained by the involved teeth, Dr. Beatty stated, it was necessary to extract the mandibular right lateral incisor and cuspid. This was done at Dr. Beatty’s request by an oral surgeon. The maxillary lateral and central incisors were extracted in his office. In both cases, the extracted teeth were replaced with acrylic partíais while healing took place. Dr. Beatty’s charges from June 16, 1973 to November 26, 1973, were $1,595.00.
“Dr. Gerald C. Keller testified that Mrs. Wagner sustained several injuries, including a fracture of T-12 and L-l vertebras, a multiple jagged laceration of her upper lip, several broken teeth, and muscular injury of her right arm, and a cervical strain. She was seen at home on the 16th day of June, 1973 and placed on house rest with only minimum activity. She was seen in his office on June 20, 1973 whereby she was still complaining of moderately severe pain in her back, neck and arm. On June 27, 1973, her sutures were removed and it was noted that her back pain was dissolving and she was allowed that activity which would not produce back discomfort. At that time, she was referred to Dr. Gertrude L. Waite, a plastic surgeon, for evaluation of her scar and she was being followed by Dr. Edwin Beatty for care of her teeth injuries. Mrs. Wagner’s back pain, as well as neck pain, continued for a prolonged period. As a matter of fact, Mrs. Wagner suffers with her back in ordinary household chores, standing or sitting for long periods still produces pain in her back. The charges of Drs. Keller and Greggory from June 20, 1973 through September 21, 1973 were $85.00; and from September 23 through February 8, 1974, she incurred an additional $91.00 in expense.
“Dr. Gertrude L. Waite stated that she evaluated Mrs. Wagner for nasal and upper lip deformity and scarring, that Mrs. Wagner had suffered considerably from nosebleed at the time of the accident, and her central upper lip was numb and teeth ached.
“Dr. Waite further stated that there was a pitted scar in the mid-philtrum of the upper lip. There was an inferiorly based flap measuring %" X 5/s" over the lower philtrum, based on the tubercle of the upper lip, extending through the mucocu-taneous junction upward to the pit in the skin just to the right midline xh" below the insertion of the columella. There appeared to be a fracture of the spine of maxilla displaced to the left, resulting in a cartilaginous septal deformity with displacement of the anterior septum and partial obstruction of the nasal airway on the left side, with some depression of the nasal tip and deviation of the tip to the left.
“On August 27, 1973, Mrs. Wagner was re-evaluated and it was determined that her surgical repair would be done in two stages; namely, (1) reconstruction of the nasal tip and septum; and (2), excision and revision of the scars of the lip. Dr. Waite’s fee for consultation of June 29, 1973 was $15.00.
“On September 24, 1973, a submucous resection and nasal tip reconstruction were done at St. Tammany Parish Hospital in Covington, Louisiana. Her surgery fee for this procedure was $450.00. The charges for St. Tammany Parish Hospital were $541.70 for this confinement.
“On March 1, 1974, Dr. Waite performed an excision and revision of scars of the lip, for which her surgical fee was $350.00. The charges of St. Tammany Parish Hospital were $318.00.
“Relative to the surgery for revision of her upper lip done on March 1, 1974, there was a small area of hypertrophic scarring along the margin to the right of the tubercle. This small residual deformity could further be improved by a revision of this area. This revision was performed on October 7, 1974. Dr. Waite’s fee for this surgery was $125.00.
“The outline of the prolonged personal, financial and medical involvement of Mrs. Wagner as a result of' the severe facial injuries suffered in the accident along with the spine fractures as defined, is to demonstrate injuries for the purpose of evaluation of the damages due Mrs. Wagner.”
******
“It is recalled that Mrs. Wagner stated that she was very much upset with the tragedy insofar as it involved her appearance and it is worthy of comment that Mrs. Wagner was an extremely attractive woman who cared fastidiously for her appearance. Thank to Dr. Waite, Dr. Beatty and Dr. Keller, Mrs. Wagner, at the time of trial, is again very attractive. The Plaintiffs’ Exhibits P-1 and P-2 show Mrs. Wagner’s appearance during the period of trauma resulting from the blow to her face and mouth. As these conditions, repair and restructuring of her teeth and face progressed, Mrs. Wagner had great difficulty maintaining her appearance and confidence.
“Beauty is an asset of any individual. Mrs. Wagner testified that she was very much concerned about her appearance and about whether or not her teeth and face would again be representative of her natural advantages. Dr. Waite indicated to the Court the slight defects in Mrs. Wagner’s appearance which are remaining since the surgery was completed and also indicated the area of numbness of the lip which is a permanent defect of which Mrs. Wagner is aware.
“The distinguishing factor concerning the injuries of Ann Wagner is that there were cumulative in effect as to her pain and suffering along with her diligent attempt to recover entailing the foregoing time and involvement. For a good general discussion of an injured plaintiff with similar injuries, involving prolonged dental repairs and facial surgery see: Knotts v. Employees [Employers] Casualty Company, 177 So.2d 630, Court of Appeal Third Circuit, 1965.”

The plaintiffs-appellees also accurately describe Gary Wagner’s injuries as lacerations of his forehead and back pain.

We find no abuse of the much discretion vested in the trier of fact; LSA-C.C. art. 1934(3). Rather, the record substantiates the contentions of the plaintiffs and his awards.

Accordingly, we affirm. the judgment. The costs are to be paid by the defendants-appellants.

AFFIRMED.


text:
    Margie Shemin FRAZIER et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 11352.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.

      Arthur Cobb, Baton Rouge, of counsel for plaintiffs-appellants Margie Shemin Frazier et al.
    David W. Robinson, Baton Rouge, of counsel for defendants-appellees State Farm Mut. Auto. Ins. Co. et al.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This case comes on appeal from a judgment sustaining the peremptory exception of no cause of action filed by defendant, Republic Underwriters Insurance Company.

The suit was.brought by Margie Shemin Frazier, the mother of a small child who was allegedly injured when run over by the automobile driven by Susan Vedros, the daughter of Albert L. and Beula Vedros. The suit was filed against State Farm Mutual Automobile Insurance Company, the liability insurer of the Vedros automobile, and Republic Underwriters Insurance Company, insurer under the Vedros homeowners policy (CPL). The basis for holding Republic Underwriters liable is set out in paragraph 2 of the plaintiff’s petition as follows:

“Albert L. and Beula Vedros were at fault in not minding said child and knowing the whereabouts of said child and seeing to it that said child was not in the way of any vehicles driven by anyone on said property since Beula Vedros was temporarily tending said child for plaintiff and they were otherwise at fault.”

It is the exceptor’s position that “the generating source of the accident” was the alleged negligent operation of an automobile owned by exceptor’s insured, Albert L. Vedros; hence, the claim asserted by the plaintiff is for

“. . . bodily injury . . . arising out of the ownership, maintenance, operation, use, loading or unloading of: (2) any motor vehicle owned or operated by . any insured,”

and is excluded from the homeowners policy-

We reverse and remand.

The petition alleges two distinct causes of action, i. e., one for the negligence of Mr. and Mrs. Vedros in not properly attending to the child while baby-sitting, and one for the negligent operation of the motor vehicle by the Vedros’s daughter. The first cause of action is obviously concerned with the homeowners policy (Republic), while the second is based upon the automobile insurance policy (State Farm).

Republic could be held liable for the alleged negligence of the Vedroses even though, under the exclusionary clause, it does not afford coverage for the operation of the motor vehicle.

Hurston v. Dufour, 292 So.2d 733 (La.App. 1 Cir. 1974) writ denied, La., 295 So.2d 178, merely stands for the proposition that a homeowners policy is not to be substituted for an automobile liability insurance policy.

Accordingly, the judgment sustaining the exception is reversed at the appellee’s cost.

REVERSED AND REMANDED.


text:
    BONFOUCA INVESTMENT CORPORATION v. Jack EUBANKS.
    No. 11356.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Gus A. Fritchie, Jr., Slidell, for plaintiff-appellee.
    Ronald W. Guth, Slidell, for defendant-appellant.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This matter is before us on an appeal from the confirmation of a default judgment rendered by the trial court against the defendant, Jack Eubanks.

It arose from a suit on a contract of lease (actually a sub-lease) and for sequestration. Bonfouca Investment Corporation, the plaintiff-appellee, sued Jack Eubanks, the defendant-appellant, on May 19, 1976, for the sum of $45,640.00, together with interest and attorney’s fees for past due rent and rent becoming due under an acceleration clause in the lease. The plaintiff also asked that its lessor’s privilege be protected by a writ of sequestration. An order of the Court to that effect was signed on May 20, 1976. The defendant was personally served on June 1, 1976. The record does not reflect that the defendant filed an answer. The minutes of the Court show that preliminary default judgments were entered against the defendant on June 18,1976, and also on September 9, 1976. On September 17, 1976, the plaintiff confirmed the default. The evidence offered on the confirmation was the petition, the original lease between the plaintiff and the defendant which was signed by them on December 30, 1975, the sheriff’s return showing personal service on the defendant on June 1, 1976, the minute entry showing the entry of a preliminary default on September 9, 1976, the testimony of David E. Cooley, Jr., and a lease, affecting the same premises, from the plaintiff to C. J. Price, dated September 3, 1976, at a lesser rental rate. The trial judge rendered judgment on the aforementioned evidence, showing that a preliminary default was entered on June 18, 1976, in favor of the plaintiff, Bonfouca Investment Corporation, and against the defendant, Jack Eubanks, in the sum of $9,940.00, together with interest and attorney’s fees. The defendant has appealed this judgment. We reverse.

In order to confirm a judgment by default, the plaintiff must prove the essential elements of the claim by competent evidence with legal certainty, as fully as though each allegation was specifically denied by the defendant. Wall v. Sun Insurance Co. of New York, 189 So.2d 713 (La.App. 1 Cir. 1966), writ den. 249 La. 764, 191 So.2d 141.

While there is a presumption that a judgment by default was rendered upon sufficient evidence, this is merely a prima facie presumption and it may be overcome by evidence to the contrary. Baker Finance Co. v. Hines, 255 La. 971, 233 So.2d 902 (1970).

LSA-C.C.P. art. 1702 provides:

“A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of the holidays, from the entry of the judgment of default.
“When the sum due is on an open account, promissory note or other negotiable instrument, an affidavit of the correctness thereof shall be prima facie proof. When the demand is based upon a promissory note or other negotiable instrument, no proof of any signature thereon shall be required.”

Our review of the record convinces us that the plaintiff has failed to offer proof of its demand “sufficient to establish a pri-ma facie case.”

This was a suit on a lease. It was offered in evidence. The lease specifically provides that in order for the lessor to accelerate the rent payments, as the lessor does in this suit, he must give prior notice to the lessee. There is no evidence in the record that such notice was given. The lease refers to the primary lease, between the sub-lessor (lessor herein) and its lessor, to which the lease sued upon is subject. That primary lease was not presented in evidence. The record does not reflect that Mr. Cooley was authorized by the corporation to enter into the lease, or sub-lease, with the defendant. In this connection, it is interesting to note that the re-lease of the premises to Price is signed by David E. Cooley, Jr., individually and as president of the corporation, and by Harry C. Sherman III who, the Eubanks contract states, was one of the original lessees, along with Cooley and Donald Nyberg, from one Bill Allen.

It is also necessary to point out that there was no proof of the signature of the defendant, Eubanks. The lease agreement was in the form of a private act acknowledged by one of the subscribing witness. An inverse interpretation of the last sentence of LSA-C.C.P. art. 1702 indicates that it is only where a negotiable instrument forms the basis of the demand that proof of signature is dispensed with in proving a judgment by default.

We feel that the plaintiff has failed to offer sufficient evidence to establish a pri-ma facie case for a default judgment.

For the foregoing reasons, the default judgment is reversed and the case is remanded to the district Court for proceedings consistent with this opinion. Costs of this appeal are assessed to the plaintiff-ap-pellee. All other costs are to await final disposition.

REVERSED AND REMANDED.

      . However, the evidence offered on confirmation was the September 9, 1976, preliminary default.


text:
    Diane Allen JOHNSON, as natural tutrix of the Estate of her minor son, James V. Johnson, Jr. v. INTERNATIONAL INSURANCE COMPANY.
    No. 11359.
    Court of Appeal of Louisiana, First Circuit.
    June 13, 1977.
    Rehearing Denied July 11, 1977.

      Paul H. Due, Baton Rouge, of counsel for plaintiff-appellant Diane Allen Johnson, et al.
    James E. Moore, Baton Rouge, of counsel for defendant-appellee International Ins. Co., et al.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge.

This is a devolutive appeal by Diane Allen Johnson, as natural tutrix of the estate of her minor son, James V. Johnson, Jr., whom the family called “Jamie”, seeking an increase in the award of damages made by the trial court and recovery of elements of damage denied by the trial court. The appeal also seeks reversal of the judgment dismissing the claim for the wrongful death of Dominick Johnson.

This action arises out of a motor vehicle accident which occurred on May 16, 1975, when Diane Allen Johnson was driving a car in which her husband, James V. Johnson, and their one year old son, Dominick Johnson, were guest passengers. Mrs. Johnson lost control of the automobile and collided with the rear of a truck parked on the shoulder of the roadway, as a result of which both her husband, James, and also her son, Dominick, were killed. Mrs. Johnson sustained severe personal injuries.

The suit instituted by Diane Allen Johnson was brought solely in her capacity as natural tutrix of the estate of the surviving child, James V. Johnson, Jr., asking for damages for the wrongful death of the child’s father, damages for the wrongful death of his brother, and recovery of funeral expenses for both. Named defendant in the suit was International Insurance Company, the liability insurer of the vehicle being operated by Mrs. Johnson. At trial, liability of the defendant was admitted; also, applicable insurance coverage was stipulated at $100,000.00 per person and $300,000.00 per accident. The matter remaining to be determined by the court was the value of the loss sustained by the minor.

The trial judge rendered judgment in favor of plaintiff, in her representative capacity, for and on behalf of James V. Johnson, Jr., awarding general damages to the minor for the wrongful death of his father in the principal sum of $17,500.00, and further awarding him $17,500.00 for loss of support and services flowing from the wrongful death of his father, or a total of $35,000.00. Judgment was also rendered dismissing the claim for the wrongful death of the minor’s brother, Dominick Johnson, and denying recovery of funeral expenses. From this judgment, plaintiff-appellant has perfected this appeal. Defendant has not appealed or answered the appeal.

The plaintiff-appellant first contends that the trial judge erred in awarding an inadequate amount as general damages. We agree. The trial judge manifestly abused his much discretion in making this award.

A review of the record in this case convinces us that the award for general damages should be increased. The trial judge’s award for this item of damages does not measure up to the minimum allowable award in accordance with the standard provided by our Supreme Court in the case of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

We, of course, take cognizance of and apply the rule, pursuant to instruction from our Supreme Court, that awards for damages lie within the “much discretion” of the trier of fact and are not to be disturbed on appeal unless there is a “manifest abuse” of the discretion. Coco v. Winston Industries, Inc., supra; Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974).

We are also mindful of the principle that awards in similar cases of this nature do not provide a scale of uniform awards in other cases involving comparable injuries. Such awards serve only as aids in determining whether a particular award is so greatly disproportionate to awards for similar injuries that a manifest abuse of discretion is evident. Temple v. Liberty Mutual Insurance Co., 336 So.2d 299 (La.App. 1 Cir. 1976), writ ref. La., 339 So.2d 23.

In considering the award for general damages, we find that the evidence shows James V. Johnson, Jr., had just made six years of age five days before the death of his father. The testimony demonstrates that Mr. Johnson was a living and attentive father, and the loss sustained by this young son of his father was a grievous one. In view of his work and the ages of his children, this father spent a substantial amount of time with them, taking them out shopping, to parks and the zoo and to watch sailboats race at the city park, taking the entire family to baseball games, playing football and other games with Jamie, having family outings and holiday trips,, regularly accompanying them to church- and Sunday School at the church where Mr. Johnson served on the board of deacons, and assisting his older son with his school homework. He had actively participated in festivities in celebration of Jamie’s sixth birthday just five days before the tragic wreck and his resultant death.

Thus, we have a close-knit and loving family which enjoyed doing things together. The evidence shows that the deceased was a fine man, a good, hard-working husband, and a conscientious and loving father. Of course, the law realizes that such a loss is irreparable and that such a father is irreplaceable to a young son. Thus, it tries to provide merely a measure of recompense by means of a monetary award. It is not easy for a trial judge to determine the amount of such damages, or for the reviewing court to resolve whether the trier of fact has abused his much discretion in fixing damages of that character. We do know that past decisions do not serve as a scale of uniformity. We also are aware that at some point an award must be said to be too low, and we, as an intermediate appellate court, must raise the award to the lowest acceptable discretionary level. Further, we are conscious of the fact that there are general guidelines which a reviewing court must follow. Moreover, we know that each case for decision must ultimately turn on its own unique facts. In this respect, certain human values become important. For example, a devoted parent is worth more than an indifferent parent; the death of a dutiful father during a son’s formative years is a greater loss than the death of a father to an adult son. Admittedly, this creates the necessity for a value judgment, but it is primarily the value judgment of the trier of fact which must be exercised. As a reviewing court, we do not substitute our value judgment for that of the trial judge; we merely review his award to determine if it falls within the acceptable range of awards indicated for a particular injury or death. In applying the “much discretion” rule within the scope of our reviewing authority to the facts in the instant case, we find that the trial judge has manifestly abused his much discretion in fixing the amount of the award. After checking the awards in other cases of some similarity, used only as an aid in ascertaining whether or not there has been such abuse, thoroughly reviewing the evidence in the record, and studying the helpful briefs of counsel for all parties, and taking into account the particular facts and circumstances in the instant case, we can only conclude that the trial judge’s award is inadequate and should be increased to the principal sum of $30,000.00.

The plaintiff-appellant next contends that the trial judge erred in awarding an inadequate amount for loss of support to the minor. We agree.

In the recent case of Blanchard v. Rodrigue, 340 So.2d 1001 (La.App. 1 Cir. 1976), this Court said:

“The settled jurisprudence of this state is that damages for loss of support are speculative in nature and cannot be calculated with mathematical certainty. The most a Court can do in such cases is to exercise sound judicial discretion and award an amount which, considering all the circumstances, seems just to both parties and is not unduly oppressive to either. Viator v. Gilbert, 253 La. 81, 216 So.2d 821 (1968); McFarland v. Illinois Central Railroad Company, 241 La. 15, 127 So.2d 183 (1961).
“Factors which should be weighed in determining the amount due for loss of support include the decedent’s present earnings, his age and life expectancy, his work-life expectancy, the possibility of a decrease or increase in his earnings, the decedent’s job security, the nature of decedent’s work, his health, his relationship with his family, his personal expenses and his past work record. Other factors are the surviving spouse’s age and health, the minor children’s age, and the effects of inflation and the need to discount future earnings to a present day amount. In short, all factors relevant to a determination of the amount of the loss of support due to the premature demise of the decedent should be considered.”

The record in this case, when considered in light of the trial judge’s award for loss of support and his explained reasons therefor, unequivocally shows that he failed to consider those relevant factors, as set out in the Blanchard case, necessary to determine the amount of the loss of support. The trial judge fixed that sum at $17,500.00, which is the same amount that he assessed for general damages. His “Written Reasons for Judgment” disclose that he placed too great an emphasis on the cost of raising a child from “crib to college”, based upon the Bureau of Labor’s national estimation for rearing a child. We do not accept this study alone as forming a reasonable basis for calculating the loss of support to the minor. Such an analysis can serve merely as an aid in fixing loss of support; it cannot supply a mathematical formula with which to compute loss of support with exactitude.

The only expert witness to testify at trial was Dr. John W. Chisholm, who was called on behalf of the plaintiff. That testimony is summarized in his September 8, 1976, report. It provides a figure representing the present value of the lost earnings to age 18 years for his son, James V. Johnson, Jr., as $113,387.99, which we find to be an acceptable one. Dr. Chisholm arrived at this amount by projecting the earnings of the late James V. Johnson, with Mazda of Baton Rouge for 1975, at $8,858.21 which was computed by using and projecting Mr. Johnson’s earnings for the first five months of 1975, which amounted to $3,690.92. Dr. Chisholm indicated that this figure was reasonable, considering the fact that Mr. Johnson, when he first started work with Mazda about the middle of June, 1974, earned $4,164.72 for about six months of work in the preceding year; that figure, on a twelve months earning period in 1974, would come to $8,329.44, compared with $8,858.21 for the projected earnings in 1975.

Dr. Chisholm pointed out that it was realistic to assume that Mr. Johnson’s earnings would not remain level at the 1975 figures, especially after considering that he was a 28 year old worker. Therefore, Dr. Chisholm used a 3% annual productivity wage increase factor. He also used a 4% price level increase per year, which he explained was less than the actual rate of inflation which has been experienced during the preceding ten years, and which figure is more conservative than the government and economists expect to experience within the next twelve years.

Using the projected earnings with the 3% annual productivity wage increase, plus the 4% price level increase per year, resulted in gross earnings of $162,219.92 to age 18 for this child, which figure was then discounted at the rate of 6%, resulting in the figure of $106,136.90.

Dr. Chisholm further indicated that the appropriate amount of earnings which should be attributed to the support of the minor should be one-third of $106,136.90, or the sum of $35,378.96.

Concerning the jurisprudential approval for taking into account inflation, or price level increase, or the decreasing purchasing power of the dollar, the recent case of Loetzerich v. Texas Pacific-Missouri Pacific Terminal Railroad of New Orleans, 325 So.2d 626 (La.App. 4 Cir. 1976), stated:

“Defendant’s final argument concerns the trial court’s admission of evidence pertaining to inflation in dealing with the future loss of earnings award. Defendant contends inflation is too speculative to be considered in such an award and cites the case of Johnson v. Penrod Drilling Company, 510 F.2d 234 (5th Cir. 1975) as authority. While we admit that Johnson does stand for this proposition, the courts of Louisiana have expressed a contrary viewpoint. Our courts have consistently recognized that the decreasing purchasing power of the dollar due to constant rises in living expenses is a proper element of consideration in damage awards. Edwards v. Sims, 294 So.2d 611 (La.App. 4 Cir. 1974); Goutierrez v. Travelers Insurance Company, 107 So.2d 847 (La.App. 1 Cir. 1959). We see no compelling reason at this time to deviate from this established position.”

In Morgan v. Liberty Mutual Insurance Company, 323 So.2d 855 (La.App. 4 Cir. 1975), the Court had to decide whether to accept an actuary’s projection of inflation and discount or investment yield factors in computing loss of future wages. The Court approved the use of an inflation factor at 3.8% per year, which is a little less favorable than the 4% per year inflation factor used by Dr. Chisholm herein, but also approved the use of a 4.8% investment yield or discount factor, which is more generous to the plaintiff than the 6% investment yield or discount factor used by Dr. Chisholm. The Court said:

“Considering these factors we use a $19,-000 per annum base. We accept an actuarial projection of inflation at 3.8 per cent per year and use a 4.8 per cent investment yield in making our computations. For each $1,000 present value dollars to be paid for 9.2 years (with inflation at 3.8 percent), $8,847.49 is needed. This contemplates paying the first $1,000 in advance and leaving a balance of $7,847.49 to invest at 4.8 percent. A lump sum of $168,102.38 is awarded to produce this yield.
“The Supreme Court has admonished against the use of precise mathematical calculations based upon life expectancy to set the loss of future wages. However, our award makes allowance for the adjustments we deem necessary to adequately compensate for the loss of future wages.
“Stated another way, the award of damages for loss of future wages projected over the period of disability or life expectancy is discounted or adjusted by a reasonable rate of return which could be realized from its conservative investment based upon prevailing market conditions at the time of its award. This adjustment is necessary because the prepayment of this particular anticipated damage for 9.2 years is made immediately upon the finality of judgment, whereas in fact the right to such wages would normally accrue or be payable in successive years in the future over a like period of time.” (Emphasis added, footnote omitted.)

In Triche v. Commercial Union Insurance Co., 329 So.2d 784 (La.App. 1 Cir. 1976), the Court adopted a discount at the rate of 6% annually, applying the provisions of LSA-R.S. 47:2405.

In Reeves v. Louisiana & Arkansas Railway Company, 304 So.2d 370 (La.App. 1 Cir. 1974), writ den., La., 305 So.2d 123, the Court accepted the use of gross earnings rather than net earnings, as Dr. Chisholm used in his computations. See also Menard v. Travelers Insurance Company, 240 So.2d 390 (La.App. 3 Cir. 1970).

Considering all aspects of the instant case, we find that Mrs. Johnson, on behalf of her young son, is entitled to the sum of $35,500.00 for the loss of support. The award of only $17,500.00 constitutes a manifest abuse of discretion by the trial judge. LSA-C.C. art. 1934(3).

The plaintiff-appellant’s third contention is that the trial judge erred in denying the minor child recovery for damages for the wrongful death of his brother.

Under LSA-C.C. art. 2315, the persons who may bring a wrongful death action are designated. The article sets out three separate classes of beneficiaries, and the wording of the article indicates that each class successively excludes the following class. If the spouse and child, or either, survive the decedent, no member of class two or class three has an action; if neither spouse nor child survive, but the parents, or either of them do survive, then no member of class three has an action. In brief, the higher priority class of beneficiaries excludes all others. It is plain that a surviving brother has a right of action only if the decedent “left no spouse, child, or parent surviving.” In the instant case Dominick Johnson, the decedent, left his mother surviving; therefore, James V. Johnson, Jr., the brother, has no right of action to sue for damages for the wrongful death of Dominick.

Accordingly, we affirm the trial judge’s denial of recovery for the death of Dominick Johnson.

The plaintiff-appellant’s fourth contention is that the trial judge erred in denying recovery of funeral expenses. We affirm this action. In Andrus v. White, 236 La. 28, 106 So.2d 705 (1958), the Court refused recovery to the minor son for funeral expenses, remarking:

“In our opinion the fact that one is a ranking beneficiary under Article 2315 is not sufficient of itself to entitle him in all cases to recover the amount of hospital and funeral bills. Recovery should be permitted only where there is evidence that the ranking beneficiary has suffered loss or has been damaged in the amount of these bills. It is the established rule in this state that damages must be proved in order to be recoverable.”

The Court continued:

“In the instant case there is no legal liability on the minor to pay these bills, nor has he paid them or incurred any liability for their payment.”

Lastly, the plaintiff-appellant urges that the trial judge erred in fixing the- expert witness fee of Dr. Chisholm at $250.00, and that the fee should be increased. It is well settled that the fixing of the fee of an expert witness is within the sound discretion of the trial court and should not be disturbed unless manifestly erroneous. See Williams v. Harvey, 328 So.2d 901 (La.App. 4 Cir. 1976); Borenstein v. Joseph Fein Caterers, 255 So.2d 800 (La.App. 4 Cir. 1971). In the present case, the record reflects only that Dr. Chisholm charged $500.00 as his fee for testifying. The amount charged by the expert is not the proper criterion to determine the fee; State, Department of Highways v. Gordy, 322 So.2d 418 (La.App. 3 Cir. 1975).

We find that there was no abuse of the trial court’s discretion in fixing the fee of Dr. Chisholm at $250.00.

Therefore, the judgment of the trial court is amended to increase the amount of general damages awarded to the plaintiff, in her capacity as natural tutrix of her minor son, James V. Johnson, Jr., from $17,-500.00 to $30,000.00; the judgment is further amended to increase the award for loss of support to the minor son from $17,500.00 to $35,500.00.

In all other respects, the judgment of the trial court is affirmed. Costs of this appeal are to be borne by the appellees.

AMENDED AND AFFIRMED.

      . Suit was also initially filed against another insurer, but that defendant was dismissed in response to plaintiff’s motion.

      . The exact date of employment was June 19, 1974.