author: LEMMON, Judge.

text:
    Jimmy PARKER v. STATE FARM FIRE AND CASUALTY COMPANY and B & R Masonry Company, Inc.
    No. 7293.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 31, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 26, 1977.

      Henderson, Hanemann & Morris (Philip E. Henderson), Houma, for plaintiff-appellant.
    Porteous, Toledano, Hainkel & Johnson (C. Gordon Johnson, Jr.), New Orleans, for defendants-appellees.
    Before LEMMON, GULOTTA and STOULIG, JJ.
   LEMMON, Judge.

In this tort action plaintiff, who was injured when he fell through a hole in a scaffold while working on a building construction site for B. E. King & Sons, Inc., a plastering sub-contractor, sought to recover damages against defendant B & R Masonry Company, Inc., the masonry sub-contractor who owned the scaffold. Plaintiffs suit was dismissed after a trial on the merits on the basis that “plaintiff has failed to prove, by any preponderance of evidence, that any board was removed by any agent or employee of B & R Masonry . . . .” The principal issue on appeal is the sufficiency of plaintiffs proof on this point.

I

At the time of the accident work was in progress topping off the wall of a 35-foot high building.

In the subcontracting schedule of this particular phase of construction the bricklayers completed the concrete block wall; then the carpenters attached wood strips to the masonry; then the lathers nailed laths (sheets of wire mesh) to the wood strips; and finally the plasters completed the exterior finish. King, whose plastering subcontract included the lathing work, had used a power-operated “swinging stage” scaffold for earlier work on this job. However, on the day plaintiff was injured, he was working with express or implied permission on B & R’s scaffold, which was designed for masonry work.

The two-level masonry scaffold consisted of a series of upright metal towers, eight feet apart, with scaffold boards (2 x 10-inch planks) laid horizontally across the tower’s crossarms. The lower level, two boards wide and adjacent to the building, was the level where the bricklayers worked. The upper level, seven boards wide and 20 inches higher, served two functions. Masonry mix and blocks were placed on the inner side of the upper level, within reach of the bricklayers, while hod carriers (masonry laborers) used the outer side of the upper level to transport additional materials by wheelbarrow.

Most of the scaffold boards were 16 feet long, but between the points where towers extended through the scaffold’s upper level, there were shorter scaffold boards {Th feet long) specially cut to fit between the towers. The hole through which plaintiff fell was between two towers, where one of the short scaffold boards was missing.

When the lathing crew used the masonry scaffold, the lathers worked from the upper level (on the third row of boards), moving from left to right while nailing the 27-inch wide laths to the wood strips. As plaintiff moved in this fashion facing the wall, and because the tower protruding several feet into the air obstructed his view of the hole as he moved to his right, plaintiff never saw the hole until he fell through it as he turned and stepped to reach for materials, which were lying on the scaffold boards behind him and to his left.

II

Nothing in the record even suggests any inherent defect in the scaffold. Thus, plaintiff’s case in negligence is based on a hazard created by the removal of one or several boards. Since the owner of the scaffold with no inherent defects ordinarily would not be deemed negligent when a hazard is created by removal of a board by a third person without the owner’s knowledge, plaintiff’s claim against B & R based on negligence depends upon proof that B & R’s employee or agent removed the board or that some other related act or omission by B & R contributed in some manner to causation of the accident.

III

Plaintiff attempted, by use of both direct and circumstantial evidence, to prove that one of B & R’s employees removed the board in the area through which plaintiff fell.

The direct evidence was the deposition testimony of B & R’s former bricklayer foreman, Merle Hancock, who stated that a B & R labor foreman, Joe Gaines, said after the accident that he (Gaines) had “taken a plank from there to use on another scaffold”. At trial Gaines denied removing a board from the scaffold and denied telling Hancock he had removed a board. Thus, there was a conflict in the testimony as to whether Gaines removed the board, and while an admission by an employee of the defendant is strong evidence against the defendant, we would not reverse on the sole basis of this disputed admission.

However, the circumstantial evidence strongly indicates that a B & R employee removed the board.

B & R’s work had progressed from left to right along the outer wall of the building, and as B & R and the carpenters (employees of the general contractor who customarily used B & R’s scaffold on that job) completed their work in a given area, B & R’s laborers dismantled the scaffold on the left end and added on to the scaffold at the right end, where work was yet to be done.

It is undisputed that in the pertinent area of time B & R’s employees were dismantling the section of scaffold at the left end. The carpenters finished their work on the scaffold on the day before the accident. Moreover, B & R’s president admitted “(o)ne of the scaffold we were in the process of stripping off”. And King’s lather foreman testified without contradiction that on the afternoon before the accident he and plaintiff had walked the entire length of the scaffold, marking off the places for expansion joints, and had seen several boards missing but only at the left end of the scaffold where B & R’s men were moving boards to set up the scaffold at the other end.

Since B & R was dismantling the scaffold on the day before the accident, the most reasonable inference is that B & R’s employees removed the several boards missing from the scaffold. Except for the carpenters, only King and B & R had employees (King had three or four, and B & R had 20) on the scaffold in that area of time, and the carpenters had completed their work in the area on the day before the accident. King’s employees had no reason to remove scaffold boards, since they were using the scaffold which had been set up earlier to accommodate B & R’s employees and the carpenters. On the other hand, B & R’s employees at the time were in fact dismantling one end of the scaffold and adding on to the other end in order to perform bricklaying work there. There was also other testimony that B & R had scaffold towers at another point on the construction job.

The only suggestion that the board was removed for some other reason was testimony by a B & R laborer that on the morning of the accident he saw three men on the scaffold take a board out of the scaffold in order to pull laths through with a rope and hook. He stated he watched this for over two hours before the accident, but didn’t see any men on the ground (where the witness was) hooking up the materials, and that the men on the scaffold on about four occasions during that period pulled up three or four pieces at a time through the same hole.

The laborer’s testimony was contradicted by all King employees, who testified that laborers hoisted the materials by pulley or by use of the swinging stage onto the roof in large bundles before the lathers began hanging the laths, and that the materials were later handed off the roof, several pieces at a time, to lathers on the scaffold who stacked them at various points along the wall before starting to hang them. Logical analysis also contradicts that testimony, since it is highly improbable that materials would be hoisted (by higher paid lathers rather than laborers) in small bunches through the same hole over a period of more than two hours, when the lather is moving quickly, hanging 27-inch wide sheets by tacking with three nails. (In the process a second lather follows, completing the nailing down of the laths.) Moreover, if it were necessary to obtain laths in small numbers from the ground, it would have been a great deal simpler to hoist the materials over the back end of the scaffold (which was protected by a hand rail and not a fence) rather than creating a seven-foot opening through which to pull the eight-foot long laths.

Finally, B & R’s president checked the scaffold immediately after the accident and observed the hole created by removal of the board but did not report seeing the missing board in the area. And a B & R foreman testified that he saw King’s employees covering the hole with plywood after the accident, further indicating that the missing board had not simply been temporarily removed and placed on the side. Indeed, the board, if removed for any reason suggested except for use on another scaffold, would still have been near the opening.

Proof by direct or circumstantial evidence is sufficient to constitute a preponderance when the evidence taken as a whole shows that the fact or causation sought to be proved is more probable than not. Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971); Boudreaux v. American Ins. Co., 262 La. 721, 264 So.2d 621 (1972). The plaintiff has successfully borne his burden when the evidence indicates that the defendant’s negligence was the most probable cause of the casualty and that no other factor can as reasonably be ascribed as the cause. Hanover Ins. Co. v. Jacobson-Young, Inc., 294 So.2d 564 (La.App. 4th Cir.1974). From the circumstantial evidence in this case, considered with Hancock’s testimony that Gaines admitted removing the board, we conclude that B & R was negligent in partially dismantling a scaffold that was being used by another trade firm under a rental agreement or with B & R’s permission.

IV

Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, the standard being that of a reasonable man under like circumstances. Smolinski v. Taulli, 276 So.2d 286 (La.1973). The issue here is. whether plaintiff’s failure to see the hole constituted substandard conduct under the circumstanc.es,.... „ ...•,

Plaintiff had walked the length of the scaffold several times the day before, and boards were missing only at the left end. As he worked on the morning of the accident, he was facing the wall, moving from left to right on the third row of boards. As he approached the hole, the 12-inch wide upright tower, extending several feet above the scaffold floor, reasonably interfered with his view of the hole. He passed the upright tower while facing the wall, and when he turned to pick up another lath from the pile of materials to his left, he had no reason to anticipate a missing board, and he stepped onto the place where the board should have been.

Defendants argue that plaintiff could easily have seen that the board was missing. This argument, while based on an obvious fact, has no legal significance. The determinative issue is not what plaintiff could have seen, but what he should have seen in the exercise of reasonable care, and this basically involves the duty to discover.

Under the circumstances of this case plaintiff had no duty to check for missing scaffold boards before each step that he took, as he had no reason to anticipate that someone would remove a board and create a trap for those working on the scaffold (either as lessee or permittee). In exercising reasonable care for his own safety, he had no duty to discover this trap which was partially hidden and completely unexpected.

We hold that plaintiff was not contribu-torily negligent in failing to anticipate that someone would create a trap and submit him to an unreasonable risk of injury. Compare Canter v. Koehring Co., 283 So.2d 716 (La.1973).

V

In the October 19, 1971 accident plaintiff sustained a displaced fracture of the left wrist, an open fracture of the left tibia and fibula, a depressed fracture of the skull, a brain contusion, a fractured pelvis and a severe fracture of the cheekbone. He underwent surgical removal of the skull-bone particle and suturing of the brain covering, as well as reduction of the fractures of the extremities and, eventually, reduction of the cheekbone fracture and plastic surgery. He recovered progressively in the hospital and was transferred on November 5, 1971 to a rehabilitation center.

In June, 1972 he entered the Veterans Administration Hospital after exhibiting strange behavior, confusion and memory loss. The doctors diagnosed cortical damage, secondary to the skull fracture, and organic brain syndrome as the cause of his rage reaction, personality change and loss of memory. He was administered thora-zine and hospitalized for two months, after which he was discharged to outpatient status on thorazine and declared not then suitable for employment.

Plaintiff continued under the care of a psychiatrist, and at time of trial his psychiatric problems appeared to be controlled by medication. He also had a slight limp attributable to the leg injury. However, he had not returned to gainful employment at the time of trial in December, 1974.

At the time of the accident plaintiff was a 30-year old skilled worker who had earned $8,780.05 during 1971 before the October accident. While the psychiatrist testified that it would be dangerous for plaintiff to work on scaffolds while on the essential medication, there was no evidence that he could not work at other types of employment.

Plaintiff suffered a severe injury which has permanently affected his life and outlook, his family relationships and his earning capacity. While the evidence is skimpy as to the extent of permanent disability and the degree of impairment of earning capacity, the record justifies a total, award of at least $100,000.00.

For these reasons the judgment of the trial court is reversed, and it is now ordered that there be judgment in favor of plaintiff and against defendants in the sum of $100,-000.00, plus legal interest from the date of judicial demand and all costs in both courts.

REVERSED AND RENDERED.

      .In a sub-issue, in which B & R and King each attempted to disclaim responsibility for the scaffold on .the date of the accident, B & R's president testified that he rented the scaffold to King and sent King an invoice for rental for six days, beginning the day before plaintiffs accident. Although King’s president denied renting the scaffold, he admitted payment of the invoice for that period.

      . The two rows of boards closest to the building formed the lower level. The third row of ..boards was the first , row on the upper, level. The fourth row of boards included the short boards, because the support towers extended through at this point.

      . All witnesses agreed that immediately after the fall there was a missing short scaffold board directly above the point where plaintiff hit the ground.

      . B & R’s president checked the scaffold immediately after the accident and found three or four short boards missing on either side of the place through which plaintiff fell.

      . The discovery deposition, taken while Hancock still worked for B & R, was introduced at trial because Hancock was living out of state at time of trial.

      .Gaines testified B & R had about 30 scaffold towers on the job (the rental invoice to King was for 14) and “didn’t have them all in the same spot".

      . B & R’s president testified that King had earlier been refused use of the scaffold, and there was no evidence of a communication to B & R’s employees that King would begin using the scaffold on the day before the accident. Therefore, it is logical that, once the masonry workers and carpenters had completed their work in the area, B & R’s employees (unless instructed to the contrary) would follow their usual procedure and dismantle and reassemble the scaffold without concern for safety of workers in the area, since no one else would be expected to work there.

      . At trial the neurosurgeon who treated plaintiff for two months after the accident stated that a brain contusion in that area can cause loss of emotional control, rage reaction and loss of memory.

      . Medical expenses and compensation benefits paid by the workmen’s compensation insurer were demanded in a consolidated suit, but the judgment dismissing that suit was not appealed.


source: Caselaw Access Project

author: REDMANN, Judge. BEER, Judge,

license: Public Domain

text:
    Martha G. AGUILLARD v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 8226.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Sept. 27, 1977.
    William F. Dodd, New Orleans (Dodd, Barker, Boudreaux, Lamy & Gardner, New Orleans), for plaintiff-appellee.
    Floyd F. Greene, New Orleans, for defendant-appellant.
    Before REDMANN, GULOTTA and BEER, JJ.
   REDMANN, Judge.

Although the testimony of the then-student of bus driving would support a contrary conclusion, the testimony of the actual bus driver (now a policeman) and the investigating policeman support the conclusion that the fluid on the bus floor was slippery (yet another of defendant’s employees confirm it was not water) and came from a part of the air-conditioning system of the bus, and that the size of the slippery area was small enough, especially in the early morning light, and its appearance (similar to a little water) on the grooved flooring presented no suggestion of danger, so that plaintiff was not contributorily negligent.

Affirmed.

BEER, J., filed a dissenting opinion and was of the opinion that rehearing should be granted.

BEER, Judge,

dissenting.

I respectfully dissent, being of the view that plaintiff has failed to prove any negligence whatsoever on the part of the defendant.


author: BEER, Judge.

text:
    Oscar POYNOT, Individually, and as the duly appointed Provisional Curator of Edna LaCroix, widow of Walter F. Poynot, v. Gerald G. PFISTER and Ernest J. Hessler, Register of Conveyances for the Parish of Orleans, State of Louisiana.
    No. 8230.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Nov. 4, 1977.
    Many, Lo Coco & Dwyer, Vincent T. Lo Coco, New Orleans, Harry R. Cabral, Jr., Metairie, for defendants-appellants.
    Reuter & Reuter, Arthur C. Reuter, New Orleans, for plaintiff-appellee.
    Before REDMANN, GULOTTA and BEER, JJ.
   BEER, Judge.

Mrs. Edna LaCroix Poynot, the then 81-year-old widow of Walter F. Poynot (who had died on August 12, 1974, leaving his entire estate to Mrs. Poynot), allegedly executed an authentic Act of Adoption of Gerald G. Pfister on August 28, 1974, before a notary public in Jefferson Parish, Louisiana. On September 4, 1974, a petition for interdiction of Mrs. Poynot was filed. As a result, Oscar Poynot was appointed provisional curator.

The Act of Adoption was, thereafter, recorded in Orleans Parish on December 13, 1974, and in Jefferson Parish on July 8, 1975. Thereafter, on June 26, 1975, Oscar Poynot filed suit to have the Act of Adoption declared null and void. Meanwhile, on July 3, 1975, a judgment of interdiction was rendered, naming William M. Duett and Henry J. Guidry as co-curators of Mrs. Poynot.

A motion for summary judgment annulling the adoption was then filed and, after hearing, maintained with written reasons assigned. Separate suspensive appeals bring the correctness of that summary judgment before us for adjudication.

Appellants contend that the trial court erred by concluding that registry is an essential requirement under LSA-R.S. 9:461(2) and not merely directory. Appellee urges that adoption is stricti juris, thus all statutory requirements, including a legally effective registry, must be fulfilled.

LSA-R.S. 9:461 provides:

“Any person above the age of twenty years may adopt any person over the age of seventeen years, according to the following conditions, limitations and procedure:
(1) That the adoption shall be effected by the execution of a notorial act signed by the adoptive parent or parents and the person to be adopted, where the person to be adopted is a major or an emancipated minor, or by the adoptive parent or parents and the living parent or parents or guardian or tutor, or a tutor ad hoc appointed for the purpose, of the person to be adopted where the person to be adopted is an unemancipated minor over the age of seventeen years; provided, however, that whenever proceedings are instituted to appoint a tutor or tutors ad hoc, as herein provided, that all proceedings in connection therewith shall be heard by the judge, in chambers, that records of the proceedings, except the act of adoption proper, shall not be opened for inspection except on authorization by the Court, and there shall be no publication thereof, and all pleadings and offerings filed under this Section since January 1, 1952, save the said act of adoption, shall be confidential, and indexed and filed by the clerk of Court, as provided in R.S. 9:437.
(2) That the notorial act executed in accordance with paragraph (1) of this Section shall be registered with the clerk of court of the Parish in which the act is executed, except in the Parish of Orleans, where it shall be registered with the registrar of conveyances for the Parish of Orleans. The clerk of court or registrar of conveyances shall record all such noto-rial acts of adoption, except as otherwise provided in paragraph (1) hereof, in a separate book kept by him for the purpose and shall keep an index of the same under the names of the adoptive parents and the person adopted. As amended Acts 1952, No. 514, Sec. 1.”

Adoption statutes are strictly constructed. In Re LaFitte, 247 La. 856, 174 So.2d 804 (1965); In Re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963); In Re Brannon, 340 So.2d 654 (La.App. 2nd Cir., 1976). Yet, strict construction does not necessarily provide solutions to the problems raised in this litigation.

In Succession of D’Asaro, 167 So.2d 391 (La.App. 4th Cir., 1964) (cited in “Adoption of Adult,” 21 A.L.R.3d 1012, 1033), this court considered the historical, statutory and jurisprudential development of the adoption laws in Louisiana and held that registration was an essential element of LSA-R.S. 9:461. On the other hand, the Court of Appeal, Third Circuit, has recently — and in the past — strongly differed with this court’s conclusion in D’Asaro. See In Re Bourque, 245 So.2d 525 (La.App. 3rd Cir., 1971); Fontenot v. Fontenot, 339 So.2d 897 (La.App. 3rd Cir., 1976) writs denied La., 342 So.2d 217.

Appellant argues that the D’Asaro case is, at any rate, distinguishable by reason that in D’Asaro the issue was whether an act of adoption not registered until after the death of the adopter is valid, whereas in the matter now before us, the adopter was alive but interdicted at the time the act was registered. In the case at bar, the trial judge’s written reasons are significant on this issue:

“This Court views the present problem to fall under Article 401 of the Code of Civil Procedure [Civil Code]. That Article reads as follows:
‘All acts done by the person interdicted from the date of the filing the petition for interdiction, until the day when same is pronounced, and null.’
This Court reads that Article to mean that as of the date that the interdiction proceedings were filed; that is, September 4, 1974, any acts either done by Mrs. Poynot or on Mrs. Poynot’s behalf, or which affected a right involving Mrs. Poynot, were null and void.
It is this Court’s belief that under Article 401, that the action here of filing the adoption after the interdiction proceedings had been filed is a vain and useless thing. Once the interdiction was filed, and it became a matter of record, no action legally could extend from Mrs. Poynot.”

Giving us further insight as to the basis for its ruling, the court went on to observe:

“As indicated heretofore, the Court believes that the additional question of reasonable time was presented to it for determination. Since it, however, has ruled the entire Act of Adoption null and void, the time element of registration is moot. However, it is conceivable that the question is one that should be answered in the event the matter should'go for appellate review. To that end, this Court believes that a reasonable length of time to file and record in the proper parish an act of adoption should be a reasonable length of time, which this Courts holds to be no more than thirty-one days.”

From this record, it is apparent to us that the actual recordation of the Act of Adoption in Jefferson (and Orleans) Parish was accomplished by the notary and attorney who prepared same, albeit at times more than a little removed from the date of the Act itself.

On this issue, we are in disagreement with the trial court’s categorization of that registration as “a vain and useless thing” simply because the registration was accomplished after the interdiction.

At least for the purpose of determining the correctness of the summary judgment, and, limited only to that consideration, we conclude that the registration of an otherwise regular act of adoption subsequent to the interdiction of the adopter is not nullified by LSA-C.C. Article 401.

Furthermore, there is no statutory or jurisprudential rule which mandates registration of the act of adoption at any particular time. Nor is there any clear indication that the time within which the recordation takes place (if, indeed, it is required) need be “reasonable.” Finally, there is certainly no authority for the gratuitous imposition of a specific number of days upon which to make the ultimate determination of reasonableness where the legislature, itself, has chosen not to be definitive.

When this case is tried on its merits, all litigating parties shall then have an opportunity to adduce such testimony and other evidence as may be supportive of their contentions regarding the validity of the act of adoption, and nothing contained in this opinion shall be construed as a restraint on the rights of all parties to the litigation to develop such facts as they believe may be persuasive with respect to the ultimate validity or lack thereof of the adoption proceedings.

Accordingly, it is now ordered that the motion for summary judgment be and the same is hereby overruled, and this matter is remanded to the Civil District Court for the Parish of Orleans for further proceedings not inconsistent with this holding. Costs of this appeal are taxed against the appellees.

REVERSED AND REMANDED.

      . Mr. Pfister, the adoptee, and Ernest J. Hes-sler, as representative of the Register of Conveyances in the Parish of Orleans, were made defendants in this matter.

      . Mr. Duett is married to a niece of the deceased, Mr. Walter F. Poynot. He initiated the interdiction proceeding in behalf of other Poy-not family members.

      .Mr. Guidry, in addition to his duties as co-curator of the interdict, Mrs. Poynot, is the dative testamentary executor of the estate of the deceased, Mr. Walter F. Poynot.

      . Interestingly, this “split” is reflected in two law review articles. Compare Walter J. Wa-dlington, III, “Adoption of Adults in Louisiana,” 40 Tul.L.Rev. 1, 14 (1965), which supports the D’Asaro strict constructionist approach, with Note, “Adoption — Requirement of Recordation,” XXVI La.L.Rev. 143 (1965), which criticizes, as hypertechnical, the holding in D’Asaro requiring recordation.


author: GULOTTA, Judge.

text:
    Gloria Morgan, wife of/and Willie MORGAN v. Dr. Irving SHEEN.
    No. 8233.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 13, 1977.
    Carl & Roussel, Wayne M. Babovich, R. T. Hughes, New Orleans, for plaintiffs-appellants.
    James J. Morse, New Orleans, for defendant-appellee.
    Drury, Lozes & Curry, Madison C. Moseley, Robert H. Wood, New Orleans, for third-party defendant-appellee, McGraw Edison Co.
    Before REDMANN, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

While using a top-loading, coin-operated washing machine in a laundromat, plaintiff suffered injury to her finger resulting in an amputation when she attempted to retrieve a bedspread from a spinning washtub in the machine. From a dismissal of plaintiff’s suit for injuries sustained, plaintiff appeals. We affirm.

It is Mrs. Morgan’s contention that after the machine had completed the entire cycle and had come to a complete stop, she opened the door of the machine and attempted to take out the bedspread, whereupon the tub commenced to spin, causing the injury. Specifically, plaintiff contends that the lid lock and the safety switch were defective. According to plaintiff, these defects in the machine caused the washtub to go into a spin cycle after the machine had completed the entire wash-rinse-and-spin cycle and had come to a stop while plaintiff’s hand was in the machine and without the insertion of an additional coin into the slot.

The trial judge, in written reasons, stated:

“This Court is not persuaded that the accident happened as plaintiff and her witness testified. Without this finding of fact, there is no basis to conclude that the machine was defective.
“The more likely hypothesis, i. e., that a defective lid lock allowed plaintiff to reach into the machine while it was still spinning, convicts plaintiff of contributory negligence.”

The description of the operation of the machine by a serviceman who inspected it sometime after the accident supports the trial court’s conclusion that the safety switch was not defective and the accident could not have occurred as claimed by plaintiff. According to this witness, before the machine reentered the wash or spin cycle, the tub would commence to rotate slowly. Presumably, one could withdraw his hand from the tub without receiving injury.

Under the circumstances, we conclude the evidence supports the court's finding of contributory negligence. In order for plaintiff to have sustained the injury, plaintiff could only have placed her hand into the machine while the washtub was spinning. Having concluded that the record supports the trial judge’s factual determination of contributory negligence, we affirm.

AFFIRMED.

      . A properly operating lid lock prevents the door from opening while the machine is in the spin cycle.

      . This switch, when operating properly, causes the washtub to stop spinning when the door is opened.

      . A properly functioning safety switch would shut off the motor when the lid is opened. (See Footnote 2., supra.) The serviceman testified, however, that after the motor goes off following the completion of the spin cycle, the tub continues to spin, by momentum, for approximately 30 to 45 seconds.

      .Our courts have recognized contributory negligence as a defense to an action under LSA-C.C. art. 2695 for injuries caused by a defect in the thing leased. As stated in Anslem v. Travelers Insurance Company, 192 So.2d 599 (La. App. 3d Cir. 1966), the article pertains only to defects “of a nature reasonably expected to cause injury to persons using ordinary care under the circumstances". See also Turner v. Aetna Casualty and Surety Company, 175 So.2d 304 (La.App. 2d Cir. 1965), writ refused, 247 La. 1094, 176 So.2d 147 (1965); Redd v. Sokolski, 2 So.2d 266 (La.App. 2d Cir. 1941); Wilson v. Virgademo, 258 So.2d 572 (La.App. 4th Cir. 1972).


author: SAMUEL, Judge. REDMANN, Judge,

text:
    Haywood JACK v. LAMBERT’S IN METAIRIE, INC., Precision Motors, Inc. and Allstate Insurance Company.
    No. 8785.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.

      Murphy & Simon, E. Kelleher Simon, New Orleans, for mover.
    Before SAMUEL, REDMANN and BOU-TALL, JJ.
   SAMUEL, Judge.

This matter is before us solely on a motion to dismiss the appeal taken by the plaintiff insofar as that appeal affects the mover-defendant-appellee, Allstate Insurance Company.

From our examination of the motion and attachments thereto (memorandum in support of the motion, copy of a letter written by the attorney for mover to the attorney for the plaintiff and copy of a satisfaction of judgment signed by the plaintiff and witnessed, apparently, by his attorney) and of the record, we find the following facts:

The judgment appealed from, which was signed on February 7,1977, casts Allstate in the amount of $2,316.07, together with legal interest from date of judicial demand, and for court costs. The judgment also dismisses plaintiff’s demands against the two other defendants. On March 4, 1977 counsel for Allstate wrote plaintiff’s counsel enclosing an original and copies of a satisfaction of judgment and also enclosing Allstate’s draft payable to plaintiff and his counsel in the amount of $2,316.07, the full amount of the judgment against Allstate, and another check payable to the same payees in the sum of $178.46 covering court costs and interest due under the judgment. Both the draft and the check were negotiated and the satisfaction of judgment was signed by the plaintiff on March 9,1977 and returned to counsel for Allstate. In the satisfaction of judgment signed by the plaintiff, he acknowledged receipt of full payment and satisfaction by Allstate of the February 7, 1977 judgment and he authorized his attorney to mark the docket “judgment paid— docket satisfied” and further authorized the clerk of the district court to issue a certificate of satisfaction of that judgment. Despite these facts, as of May 12, 1977, the day on which the motion to dismiss was filed in this court, plaintiff’s counsel had not marked the docket satisfied and the appeal was taken as to all defendants on April 6, 1977.

Under these facts it is clear that, insofar as mover is concerned, the judgment appealed from has been paid and settled in full and that the plaintiff-appellant has voluntarily and unconditionally acquiesced in the judgment and in its payment and settlement. Thus, plaintiff has no right of appeal from that part of the judgment which casts Allstate.

For the reasons assigned, the motion to dismiss the appeal is maintained and the appeal as to Allstate Insurance Company is dismissed at plaintiff-appellant’s costs.

MOTION MAINTAINED; APPEAL DISMISSED.

REDMANN, J., dissented with written reasons.

REDMANN, Judge,

dissenting.

“[Acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.” C.C.P. 2085.

      . We have received no opposition or response of any kind to the motion to dismiss from counsel for the plaintiff-appellant.

      . LSA-C.C.P. Art. 2085; Theriot v. Castle, La. App., 343 So.2d 399.


author: MORIAL, Judge.

text:
    Antoinette Jacob, widow of Joseph Icar HYMEL v. TOM ALEXANDER BROKERAGE COMPANY et al.
    No. 8161.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Rehearing Denied Aug. 1, 1977.
    Writ Refused Oct. 13, 1977.

      René A. Pastorek, Gretna, for plaintiff-appellee.
    Bienvenu, Foster, Ryan & O’Bannon, Robert N. Ryan, New Orleans, for defendants-appellants.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

This suit arose out of an accident which occurred on October 19, 1975 when a tractor-trailer truck, operated by George J. Willis, an employee of Tom Alexander Brokerage Company and insured by Empire Fire and Marine Insurance Company, left the roadway of Highway 51 near LaPlace, Louisiana and struck the residence of Mrs. Antoinette Hymel causing extensive damage to the home. Defendant Empire Fire and Marine, the insurer, stipulated to liability and the case was tried on the issue of quantum alone. Defendants George Willis and Tom Alexander Brokerage Company were dismissed from the suit without prejudice. The trial judge rendered judgment in favor of plaintiff in the amount of $36,-752.35. In his reasons for judgment he stated that he relied on plaintiff’s post trial memorandum in awarding plaintiff $31,-752.35 in property damages. The trial court also awarded plaintiff $5,000.00 as damages for mental anguish. Defendant has appealed on the question of damages.

Defendant contends that the trial court erred in awarding plaintiff $31,752.35 in property damages. Defendant also argues that plaintiff is not entitled to recover damages for mental anguish and in the alternative that the amount of damages for mental anguish is excessive.

PROPERTY DAMAGES

The test for determining the damages due in cases such as this one is set out in Davis v. Roberts, 194 So.2d 772, 774 (La.App. 1 Cir. 1967).

“In arriving at the amount of damages to property, our courts have in the past followed generally three approaches. The cost of restoration, if the thing damaged can be adequately repaired. * * * The difference in value prior to the damage and the value following the damage. * * * If the value before and after the damage cannot be reasonably determined or if the cost of repairs exceed the value of the thing damaged, the measure of damages to the owner has been the cost of replacement new, less reasonable depreciation. * * (citations omitted)

There was no evidence presented at the trial to substantiate the value of the house prior to the damage and its value following the accident. Therefore, we may eliminate the second method of valuation suggested in Davis, supra. Accordingly, we must determine whether or not plaintiff is entitled to recover the cost of repairing her home or the cost of replacing it new less reasonable depreciation.

Four contractors inspected the damage to the Hymel home and provided estimates as to the cost of repairing or replacing the building.

Plaintiff introduced the testimony of two contractors from the LaPlace area, Mr. Edward Rome and Mr. Dewey Johnson. Mr. Johnson testified that he could repair the home for $27,350.00. Mr. Rome estimated that he could repair the house for $27,-200.00. Both believed that the house was a total loss and that it would cost less to rebuild the house new than to repair it. They agreed that the house could be rebuilt for $20.00 per square foot or $26,520.00. The defendants’ contractors believed that it would cost less to repair the house than to rebuild it. Mr. Karl James estimated that the house could be repaired for $16,744.68 and rebuilt for $15.00 per square foot or $19,890.00. Mr. Robert Beck testified that he could repair the home for $18,466.14 and rebuild it for $14.54 per square foot or $19,279.68.

The trial judge apparently believed that the estimates given by the contractors testifying on the plaintiff’s behalf were more credible and realistic. He accepted them in making the award. In matters where there is considerable variance in the estimated damages which render calculation thereof difficult much discretion is accorded to the trier of fact. See Davis v. Roberts, supra. However, once the trial judge accepted the opinion of the contractors that the cost of repairs would exceed the cost of rebuilding the home, he was bound under the above cited jurisprudential rule to award plaintiff the cost of replacing the home new ($26,520.00) less reasonable depreciation. We are compelled to remand the case in order to have evidence presented as to a reasonable rate of depreciation to be employed in determining the award.

DAMAGES FOR MENTAL ANGUISH

Mrs. Hymel, who was seventy-eight years old at the time, was in her bedroom on the morning of the accident when she heard a loud noise and was thrown against a door injuring her right arm. She was treated by a Dr. S. J. St. Martin for a large contusion and swelling of her right forearm. Plaintiff complained of pain for two or three weeks. Plaintiff had lived in her home for forty-six years. Following the accident she lived with her son in his home on the back portion of the tract of land on which her house stood. Plaintiffs daughter-in-law testified that prior to the accident she was well, cheerful and very active in her garden. After the accident she became very depressed, cried often about her home and was very disoriented. At times she forgot about the accident and wished to return to her own house. A neighbor testified that she began acting strangely. When her condition did not improve after three or four weeks, plaintiff’s daughter-in-law took her to see Dr. Remy Gross.

Dr. Gross testified that he saw plaintiff on November 14, 1975 and found her to be in a very depressed state. He said she was crying and emotionally upset over the future of her home and where she would live. He was of the opinion that she had suffered a depressive psychosis and prescribed an anti-depressant, Tofravil. The doctor felt that if she did not respond to the treatment that she should be placed under psychiatric care. However, her family did not seek psychiatric help because Mrs. Hymel became very distraught when it was suggested and begged them not to take her to a psychiatrist.

Damages for mental anguish are allowed to persons who are present or nearby when the accident causing the damage occurred and experienced a real psychic trauma in the nature of or similar to a physical injury as a result of the incident. Fontenot v. Magnolia Petroleum Company, 227 La. 866, 80 So.2d 845 (1955); Farr v. Johnson, 308 So.2d 884 (La.App. 2 Cir. 1975); Cooper v. Christensen, 212 So.2d 154 (La.App. 4 Cir. 1968); Holmes v. Le Cour Corporation, 99 So.2d 467 (La.App. Orleans 1958). Plaintiff was present in the house and suffered a physical injury as well as a great deal of emotional distress as a result of the accident. We find that she is entitled to recover damages for mental anguish. Although we find that the award for mental anguish is rather high, the trial judge has wide discretion in awarding damages and we do not find an abuse of his discretion on his part.

For the reasons assigned, that part of the judgment appealed from which awards $31,752.35 in property damages is annulled and set aside and the matter is remanded to the trial court solely for the purposes of making an award for property damages in accordance with the views expressed in this opinion. In all other respects the judgment is affirmed. All court costs to date are to be paid by the appellants. Trial court' costs on remand are to await a final determination in that court.

AFFIRMED IN PART, SET ASIDE AND ANNULLED IN PART, AND REMANDED IN PART.


author: GULOTTA, Judge. REDMANN, Judge,

text:
    ADOPTION OF Howard Lawrence RAPP, III.
    No. 8184.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Rehearing Denied Aug. 1, 1977.

      Ralph L. Barnett, Gretna, for natural father-appellant.
    George M. McCulloch, Jr., New Orleans, for petitioner-appellee.
    Before REDMANN, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

A divorced, legitimate father appeals from a final decree of adoption of his child rendered in favor of a stepfather, the second husband of the mother of the child. The decree was rendered pursuant to the provisions of LSA-R.S. 9:422.1 which permits adoption by the stepfather without the consent of the resident, legitimate father provided 1) the custody of the child has been granted to the mother and 2) the legitimate father has failed or refused to comply with a court order of support for a period of one year. We reverse.

The undisputed facts are that the child, Howard Rapp, III, was born of a marriage between Lyn Kahn and Howard Rapp, Jr. In November, 1970, a judgment of separation was granted and the custody of the child sought to be adopted was granted to the mother. The father was ordered to pay support for the child in the sum of $20.00 per week. On March 28, 1971, the father was incarcerated and following a conviction for simple burglary was sentenced to serve eight years in the Louisiana State Penitentiary. He remained incarcerated until November, 1973, when he was released on parole. Prior to his release, a divorce decree was rendered in September, 1973, and permanent custody of the child was awarded to the mother. This judgment was silent on support payments. The mother of the child married the adoptive father in October, 1974. In December, 1974, Howard Rapp, Jr.; was arrested and incarcerated for a parole violation. He remained imprisoned through the date of the adoption hearing.

In order for a legitimate parent to be deprived of his right to consent to the adoption of his child under LSA-R.S. 9:422.1, two of three conditions set forth in the statute must exist. The conditions sought to be applied in our case are: 1) that the mother, in this case the spouse of the adoptive parent, has been granted custody of the child sought to be adopted and 2) that the other legitimate parent has refused or failed to comply with a court order of support for a period of one year. The mother’s custody of the child is undisputed.

The sole issue confronting us is whether the legitimate father “has refused or failed to comply with a court order of support for a period of one year”.

Though the father testified that he had made small support payments on two occasions during the four-month period between the judgment of separation in November, 1970, and his first incarceration in March, 1971, the trial judge in oral reasons rejected the claim that any payments had been made. Admittedly, no payments were made by the father during his periods of incarceration or during the period in excess of a year when he was released as a parolee.

It is the father’s contention that his failure to make the support payments ordered in the separation decree was due to his involuntary incarceration which rendered him incapable of making any payments. Because his failure to pay was not willful, he argues that he has not “refused or failed to comply” with a court order within the meaning of the statute. He further contends during the period in excess of one year between 1973 and 1974 when he was free on parole, he was not under any order to make support payments for the reason that the divorce decree rendered prior to his release was silent with regard to child support and had superceded the judgment of separation. We agree.

It is well-settled that adoption statutes are in derogation of a natural right and must be strictly construed. See Roy v. Speer, 249 La. 1034, 192 So.2d 554 (1966); In re Ackenhausen, 244 La. 730, 154 So.2d 380 (1963). Equally well-settled is the rule that the consent of both parents is required before an adoption will be decreed, except in those instances where parental consent has been specifically dispensed with by law. LSA-R.S. 9:422.1; In re Genin, 240 So.2d 46 (La.App. 4th Cir. 1970). Furthermore, where the failure to support the child has been based on just cause or reasons beyond the parent’s control, the parent is not deprived of his right to give his consent. See In re Hughes, 176 So.2d 158 (La.App. 4th Cir. 1965); In re Adoption of Bickerstaff, 190 So.2d 117 (La.App. 4th Cir. 1966), writ refused, 249 La. 770, 191 So.2d 144 (1966); In re Adoption of Schieman, 204 So.2d 433 (La.App. 4th Cir. 1967); In re Spraggins, 234 So.2d 462 (La.App. 1st Cir. 1970).

Although not quarreling with the established jurisprudence cited above, the adopting parent, citing In re Brannon, 340 So.2d 654 (La.App. 2d Cir. 1976), claims that incarceration as a result of the voluntary commission of a criminal offense is not just cause for the legitimate father’s failure to support the child. In Brannon, the legitimate father was convicted of first degree murder and sentenced to serve 50 years in an out-of-state penitentiary. The court noted that the record contained no evidence indicating the possibility of a parole and concluded that the natural father had, through his own fault, “placed himself in the position where he can no longer provide financial assistance nor a satisfactory relationship with his children for an indeterminate number of years”. In concluding that the provisions of LSA-R.S. 9:422.1 were applicable to the situation, the court expressly recognized “that there can be no set rule that will resolve the question of whether incarceration is justification for non-support under different circumstances, and each case must be decided under its own particular facts”. Unlike the father in Brannon, the legitimate father in our case will not be incarcerated indefinitely. Presumably, the possibility exists that the father, upon his release, may become gainfully employed and could respond to a support order. Our case and Brannon are clearly factually distinguishable. Based on the facts in the instant case, we conclude that the father’s incarceration is a just cause for his failure to comply with the separation decree ordering child support payments.

While Howard Rapp, Jr., the father, did not make support payments for a period in excess of one year when he was released on parole (from November, 1973 through December, 1974), no court order was in effect requiring support payments to be made. The divorce decree rendered in September, 1973, prior to his release, was silent on support payments. Under these circumstances, the father was under no continuing order to make support payments after September, 1973, and upon his release from prison, there existed no “court order of support” with which he could be considered as refusing or failing to comply. See In re Stanford, 313 So.2d 849 (La.App. 2d Cir. 1975).

Because we conclude that the father’s failure to make child support payments was based on cause, i. e., that he was involuntarily incarcerated during the time that the court order of support payments was in existence, and because during a later period of time when he was released from prison, no court order was in effect requiring support payments, we conclude that no showing has been made that Howard Rapp, Jr., “has refused or failed to comply with a court order of support for a period of one year” within the meaning of LSA-R.S. 9-422.1. Under the circumstances, he cannot be deprived of his right to consent to the adoption of his minor legitimate child. Accordingly, the final decree of adoption is reversed and the petition for adoption is dismissed.

REVERSED AND RENDERED.

REDMANN, J., concurs with written reasons.

REDMANN, Judge,

concurring.

Thornton v. Floyd, 1956, 229 La. 237, 85 So.2d 499, holds that a divorce judgment terminates the child support order which was granted as part of an earlier judgment of separation. A gaggle of court of appeal cases follow Thornton. We must, too.

Thornton’s reasoning, however, does not support its conclusion. Thornton reasoned that, because earlier cases held that alimony pendente lite to a wife ordered in a separation judgment terminates with the judgment of divorce (that is, once the lis was no longer pendens), a child support order in a separation judgment must also terminate with the judgment of divorce. The court reasoned, 85 So.2d at 502:

While the cases above cited involve questions of alimony for the wife, the findings and reasonings therein apply as strongly to the case at bar involving alimony in favor of the children.

This reasoning errs, in overlooking three radical differences between temporary alimony for a wife and child support for a child.

In the first place, unlike child support, temporary, or pendente lite, alimony for a wife is, by statutory description, an allowance “pending the suit for separation”, C.C. 148, or divorce, C.C. 151 (“The action for divorce shall be accompanied with the same provisional proceedings to which a suit for separation from bed and board may give rise”). Once the divorce judgment is definitive, the suit is no longer pending and art. 148 alimony “pending the suit” of its very nature is no longer due.

In the second place, again unlike child support, permanent alimony is not due to all needy ex-wives, but only to those who were not at fault. Thus the grant of temporary alimony carries no guarantee that permanent alimony will also be due.

In the third place, unlike child support, alimony for a wife changes its measure after divorce. Before the divorce, C.C. 148 authorizes temporary alimony “proportioned to [the wife’s] needs and to the means of her husband” and, after the divorce, C.C. 160 authorizes, “out of the property and earnings of her husband, alimony which shall not exceed one-third of his income . . . .”

Child support is not due only while a separation or divorce suit is pending; it is due for all needy children (even the ill-behaved); and its measure is not affected by the circumstance that the parents’ divorce judgment has been affected.

See also Pascal, Work of the Louisiana Supreme Court, 1957, 17 La.L.Rev. 294, 312-313. (“The termination [in Thornton ] of the alimony judgment in favor of the children is even less understandable.”)

We are, however, bound by Thornton.

      . LSA-R.S. 9:422.1 reads as follows:
      § 422.1 Adoptions by step-parent, grandparent; consent
      “If the spouse of the petitioner is the legitimate parent of the child or if the petitioner is the grandparent or grandparents of the child, then the consent of the other legitimate parent is not necessary if the first and second or the first and third conditions exist:
      (1) The spouse of the petitioner or the grandparent or grandparents or the mother or the father have been granted custody of the child by a court of competent jurisdiction and
      (2) The other legitimate parent has refused or failed to comply with a court order of support for a period of one year or
      # # * »

      . The father testified that his “good time discharge date” is October 5, 1977.

      . See Thornton v. Floyd, 229 La. 237, 85 So.2d 499 (1956); Kennedy v. Kennedy, 261 So.2d 657 (La.App. 4th Cir. 1972).

      . White v. Morris, 1959, 236 La. 767, 109 So.2d 87, similar to Thornton in its ruling but even less self-explanatory, is also criticized by Pascal, in Work of the Louisiana Supreme Court, 1960, 20 La.L.Rev. 201, 216.


author: BOUTALL, Judge.

text:
    Dale CHATELLIER v. OCHSNER FOUNDATION HOSPITAL and Doctor Duncan McKee.
    No. 8205.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Rehearing Denied Aug. 1, 1977.

      Stewart E. Niles, Jr., of Jones, Walker, Waechter, Poitevent, Carrere &. Denegre, New Orleans, for Ochsner Foundation Hospital and Doctor Duncan McKee, defendants-appellees.
    George M. Leppert, New Orleans, for Dale Chatellier, plaintiff-appellant.
    Before LEMMON, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Plaintiff, Dale Chatellier, filed suit against Dr. Duncan McKee and Ochsner Foundation Hospital (properly Alton E. Ochsner Medical Foundation) for damages allegedly arising from negligent treatment and abandonment of treatment. The trial court dismissed plaintiff’s suit and plaintiff has appealed.

Plaintiff had suffered from a deviated nose and internal obstruction of the nose from early childhood. In 1966, plaintiff was referred to Dr. McKee, an expert in the field of plastic and reconstructive surgery. Dr. McKee recommended corrective surgery procedure for plaintiff’s nose, and on July 11, 1966, a rhinoplasty and submucuous resection was performed on plaintiff’s nose. Within a few days Mrs. Chatellier was discharged from the hospital and her nose was splinted and temporarily immobilized.

The plaintiff returned to Dr. McKee on August 12,1966 and gave a history of being forcibly struck on the nose by one of her children. Plaintiff’s nose became unstable after that trauma, and Dr. McKee determined that a second surgical procedure should be performed, although the internal obstruction was not as bad as before.

Plaintiff reentered the defendant hospital for the second procedure, and the operation was performed on January 4, 1967. That second procedure consisted primarily of placing silastic implants under the,skin.of plaintiff’s nose to fill out the shape to make it more esthetically pleasing. Following the January hospitalization, plaintiff was examined post-operatively by Dr. McKee four times, but plaintiff never returned after February 3, 1967.

In 1973, subsequent to suit, plaintiff was struck with a pool cue stick which caused pain and swelling and damage to the nose of plaintiff, the extent of such damage and its effect on the nose not being determined at the time of the trial.

Plaintiff filed suit on January 3, 1968, alleging that the operations did not correct the deviation of her nose, but instead aggravated her condition. Plaintiff contends that the defendant doctor’s liability arises from his failure to exercise standards of ordinary care and failure to take further corrective procedures by abandoning treatment of the plaintiff.

After the trial, judgment was rendered in favor of the defendants. In his reasons for judgment, the trial judge found:

<< * * *
“In a claim such as this, plaintiff must prove the physician, in this case Doctor McKee, was guilty of acts of omission or commission which would be at variance with the medical standards prevailing in the community. From a review of the pleadings, testimony and evidence, the plaintiff has failed to carry this burden of proof, nor does the record support the plaintiffs allegation that she was refused medical care and treatment by either Doctor McKee or Ochsner Foundation Hospital.” * * *
We affirm the finding of the trial court.

In a medical malpractice suit it is incumbent upon the physician to show he is possessed of the required skill and competence and in applying the same he exercised reasonable care along with his best judgment.' See Foster v. St. Paul Fire and Marine Insurance Co., La.App., 212 So.2d 729. The law only exacts of physicians and surgeons that degree of skill and care usually possessed and exercised by practitioners of their profession in the same community. Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1953).

Our review of the record convinces us that Dr. McKee met that standard of care and skill. Aside from Dr. McKee’s own testimony as to his performance meeting the required standards of care and skill, the defendant called Dr. George Hoffman, chief of plastic surgery at the Louisiana State University Medical School, for his expert testimony as to problems involved, procedures used, and the results obtained.

Dr. Hoffman testified that even with the best attempts to straighten a nose the cartilage of the nose has a tendency to warp or turn back to its former position because of scar tissue inside the nose. Additionally, Dr. Hoffman expressed his opinion that the blow suffered by the plaintiff in August of 1966 would aggravate the turning of the nose. As to Dr. McKee’s alleged negligence, Dr. Hoffman could discern no basis for any lack of skill or any negligence, nor could he determine that any denial of treatment would have affected the cause of the problem or the results of the operations.

Plaintiff had called Dr. Jack R. Anderson, an otolaryngology specialist who also does cosmetic facial surgery, as an expert. Although Dr. Anderson described the nose as not being esthetically pleasing, he nonetheless found the nose improved in appearance after the second operation. Dr. Anderson acknowledged that in operations such as these results are never guaranteed or warranted. As for any negligence on the part of Dr. McKee, Dr. Anderson testified that at no time did he feel the doctor or the hospital staff to be negligent in performance of the surgery.

Nowhere in the record is there contained any testimony or evidence that the defendants were negligent in deviating from the standard of care and skill required of them, and thus plaintiff’s allegations necessarily fail for lack of proof.

The plaintiff complains mainly that the desired result from the two operations was not obtained, that is, after the two operations her nose was still not as attractive or photogenic as she would prefer. However, physicians and surgeons are not insurers of the results of treatment afforded patients. Fox v. Argonaut Southwest Insurance Co., La.App., 288 So.2d 102 (1974). In this case there was no specific contract for the desired result, and even the plaintiff testified that the defendant doctor made no guarantee of result. As the court said in Phelps v. Donaldson, 243 La. 1118, 150 So.2d 35 (1963):

“. . .in the absence of a special and peculiar contract, the fact that treatment has resulted unfavorably does not even raise a presumption of want of proper care, skill, or diligence.” * * *

As for plaintiff’s claim that she was denied treatment, we note that there is not a single piece of evidence, other than plaintiff’s testimony, that she was denied further treatment because she could not pay her bill. The testimony by all doctors and hospital personnel was that follow up treatment was never denied a patient; that neither the defendant doctor nor defendant hospital had such a practice of' refusing treatment to post-operative patients for failing to pay their bill.

Accordingly, for the foregoing reasons, the judgment appealed is affirmed.

AFFIRMED.


author: SAMUEL, Judge.

text:
    Herman ACOSTA, Sr. v. Harry MASTERS.
    No. 8213.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Rehearing Denied Aug. 1, 1977.

      Oliver S. Livaudais, Jr., Charles H. Livau-dais, Robert J. Klees, Chalmette, for plaintiff-appellee.
    Fitzpatrick, Fasterling & McMillan, John F. Fox, Jr., New Orleans, for defendant-appellant.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit to recover property damages sustained by a 25 foot motorboat owned and operated by him when it collided with a 26 foot motorboat owned and operated by defendant. Defendant answered, denying any fault on his part, and reconvened to recover for his personal injuries and property damage resulting from the accident.

After trial on the merits, there was judgment in favor of plaintiff on the main demand; defendant’s reconventional demand was dismissed. Defendant has appealed.

Both vessels were in the Mississippi River-Gulf Outlet, a ship channel which roughly parallels the Mississippi River between New Orleans and the Gulf of Mexico. The channel has a width of 500 feet and runs approximately 75 miles inland. Thirty-five miles from the channel entrance into the Gulf it is crossed by Bayou La Loutre, which runs roughly in an east-west direction. The collision took place near the western entrance of Bayou La Loutre into the channel on August 28, 1971 at approximately 9 p. m., a dark but clear night.

Plaintiff had transported a bar pilot to an outbound ship which he met in the channel some distance south of Bayou La Loutre. With two passengers, the river pilot who had taken the ship down river and another man who had “gone along for the ride”, he was returning up the channel in a northerly direction away from the Gulf. Defendant intended to fish the “flares” at night. With one passenger aboard, his 23 year old stepson, he was proceeding down the channel in a southerly direction. The accident occurred as plaintiff was executing a left turn for the purpose of entering Bayou La Lou-tre. The starboard bow and side of plaintiff’s boat struck the port side of defendant’s boat. Both vessels were damaged and the defendant sustained bodily injuries.

Plaintiff and his two passengers testified his running lights were on and the lights of no other vessel were visible in the vicinity. Their testimony is to the effect that, the defendant vessel’s lights were not on as it was running down the ship channel and, consequently, they were unaware of its presence until too late to avoid the collision.

In substance, the defendant and his stepson testified: The western bank of the channel was 100 to 150 feet to starboard as they proceeded down the channel with their running lights on. When they neared the entrance to Bayou La Loutre they saw a white light separate from several others off the port bow about a mile ahead. The white light appeared to be coming toward them in a course opposite theirs and parallel to their port side. As they observed that light, the stepson told defendant a green light had appeared under the white light approximately 100 yards off their port bow. At this time the defendant realized another vessel was beginning to cross his bow from port to starboard. The defendant maintained both his course and his speed until he ascertained the other vessel did not intend to give way, and then he executed a hard starboard turn in an unsuccessful attempt to avoid the collision.

In the most important area of conflicting testimony, that of whether or not proper lights were being maintained on the defendant vessel at the time of the accident, the trial court accepted the testimony of plaintiff and his two witnesses.

The rules governing navigation of the Mississippi River-Gulf Outlet are known as the Inland Rules of the Road. Article 29 of those rules provides that nothing in the rules shall exonerate any vessel from the consequences of any neglect to carry lights or signals or to keep a proper lookout. Given the trial court’s finding that defendant did not have lights on his vessel, Article 29 of the Inland Rules clearly imposed fault upon defendant’s vessel.

Defendant attempts to impose fault on plaintiff’s vessel by claiming plaintiff, the burdened vessel, failed to grant the right of way to him as the privileged vessel. Article 19 of the Inland Rules provides that when two steam vessels cross in such a way to cause risk of collision the vessel being approached from the right shall take evasive action. In addition, Article 22 of the Inland Rules provides every “vessel, which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other.” Defendant also refers to Article 21 which provides that when for any reason one of two vessels is obliged by the rules to keep out of the way, “the other shall keep her course and speed.”

Applying these rules to the situation before us, defendant’s vessel would, under ordinary circumstances, be privileged with the right of way. However, circumstances of the collision must be carefully considered in determining the effect of such a right of way. It is clear the collision occurred long after sundown and it was a dark night. Especially under these circumstances, mere possession of a statutory right of way does not relieve a vessel or its master from the consequences of imprudent actions. In Postal S. S. Corporation v. The El Isleo, the United States Supreme Court stated the rule as follows:

“. . . The so-called privileged vessel has no absolute right to keep her course and speed regardless of the danger involved in that action. Her right to maintain her privilege ends when there is danger of collision . . ..”

To recognize the statutory right of, way in favor of the defendant’s vessel in these circumstances would negate any duty on the part of a privileged vessel to take evasive action when faced with imminent danger. As we understand the testimony of the defendant himself, he said he maintained his course and speed even after he was aware plaintiff’s vessel would cross his path. In addition, the evidence accepted by the trial court establishes plaintiff turned into defendant’s path because, as a result of the absence of lights on the defendant vessel, neither plaintiff nor his passengers were aware of defendant’s presence.

In Canter v. Koehring Company, our Supreme Court stated:

“When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Stated another way, the reviewing court must give great weight to factual conclusions of the trier of fact; where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.”

A similar rule of appellate review applies in federal maritime cases by statute, which provides findings of fact by a trial judge sitting without a jury shall not be set aside unless clearly erroneous and the appellate courts must give due regard to the opportunity of the trial judge to weigh the credibility of the witnesses. Hence, the standard for appellate review of findings of fact in Louisiana and in federal maritime cases is essentially the same.

Here we cannot conclude the trial judge was either manifestly or clearly erroneous in accepting plaintiff’s version of whether or not the defendant vessel’s running lights were being properly maintained at the time of the accident. The trial judge was particularly impressed, and we believe properly, by the testimony of the river pilot because of his experience and expertise in matters such as these.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

      . 33 U.S.C.A. § 151 et seq.

      . 33 U.S.C.A. § 221.

      . 33 U.S.C.A. § 204.

      . 33 U.S.C.A. § 207.

      . 33 U.S.C.A. § 206.

      . 308 U.S. 378, 60 S.Ct. 332, 84 L.Ed. 335 (1940).

      . La., 283 So.2d 716, 724.

      . 28 U.S.C.A. § 52(a).


author: REDMANN, Judge.

text:
    Frank J. D’AMICO and Anthony J. Vesich, Jr. v. NEW ORLEANS PUBLIC SERVICE, INC. and City of New Orleans.
    No. 7776.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Rehearings Denied Aug. 1, 1977.
    Writs Refused Oct. 26, 1977.

      Frank J. D’Amico, New Orleans, for plaintiffs-appellees.
    A. R. Christovich, Jr., New Orleans, for New Orleans Public Serv., Inc.
    David S. Cressy, Deputy City Atty., for City of New Orleans.
    Before SAMUEL, REDMANN and LEM-MON, JJ.
   REDMANN, Judge.

The city of New Orleans and its public transportation company appeal from a judgment which cast them in solido for part of a $195,000 estimate for repairing plaintiffs’ building. Plaintiffs answer this appeal seeking increase in quantum and personal injury damages as well.

The broad legal question is whether a building owner may recover from the city and the bus company for damages to the building resulting from vibrations caused by 11- to 16-ton omnibuses using a public street not designed for their weight following a route change occasioned by the city’s action. Appellants also question whether causation and damages were proven.

Plaintiffs bought in 1966, for $120,000, the “Gardette-LePretre House located at 716 Dauphine Street [corner of Orleans] in the French Quarter, a property of major architectural and historical importance,” a three-story brick building constructed in 1834. Its foundation is probably the French Quarter’s typical “spread footings of cor-beled brick on. top of a timber underjayment.” The building extends to the sidewalks, with balconies supported by iron columns extending over the sidewalks, on both its 77-foot Dauphine street frontage and its 33-foot Orleans street frontage. A year or two previous to plaintiff’s acquisition, the building was left in “good condition” (with no cracking) by a contractor who testified he “had the building plastered” at that time. (Whether the plaster was at that time cracked or simply deteriorated from age is not shown.)

For 20 years two public bus routes had passed along the Dauphine street side of the building, in recent times totalling 1,265 buses a week. These buses weighed about 23,000 pounds empty and 33,000 with a maximum load. Nevertheless, plaintiffs testify, the Dauphine street bus traffic did not cause cracking or otherwise damage their building during the five years they owned it prior to 1971.

In 1971 the city decided to close part of Royal street in the French Quarter from 11 a. m. until 7 p. m. daily to create a pedestrian mall. It rerouted three bus lines which had traveled Royal street to Canal by having those buses (523 weekly) turn right from Royal on Orleans and then, two blocks away, left from Orleans on Dauphine and then to Canal. These added buses thus passed along both the Orleans and the Dau-phine street sides of plaintiffs’ house. Because the French Quarter streets are narrow the turn was difficult for the 50-foot-long buses, especially if other vehicles were parked too close to the corner, and sometimes — plaintiff D’Amico, who lived at the house, said “hundreds” of times — the buses would roll across the curbing at the corner.

Plaintiffs allege that this added bus traffic’s vibrations, especially when rolling across the corner curbing, caused the cracking and other damage their building now has. Their architect opined that “vibrations” caused the damage but (erroneously, plaintiff D’Amico admitted) testified there was no device for measuring vibrations. Defendant bus company’s, civil engineer testified to a variety of possible causes of the damage,, among which the trial court properly found four possibly applicable in our circumstances, namely foundation motion problems, normal wear and tear or neglect, temperature and humidity changes, and vibrations from heavy traffic. Evidently concluding that the evidence did not establish any of these causes as more likely than any other, the trial judge attributed a fourth of the damage to the traffic and, on the basis of a week’s traffic count of vehicles turning off Orleans into Dauphine, found that public buses were 33.718% of the weight of the traffic and therefore attributed to the buses that percentage of a fourth of the total cost of repair. The judge accepted a contractor’s estimate of $194,878 as the cost of repairing the building, and awarded $16,427.24.

We agree that the owner of a reasonably-constructed building should not have to suffer damage by mechanical behemoths which elect to use adjoining roadways not capable of handling their heaviness. Yet we are also satisfied that the owner of property adjoining streets does not have a servitude to prevent traffic from using the streets, and cannot recover for a flimsily-construeted house’s collapse from vibrations from traffic of reasonable weight. Perhaps, in the spirit of C.C. 667’s sic utere principle, neither the street nor the adjoining property can be so used as to interfere with the reasonable use of the other: a reasonably-constructed house and reasonably-weighted vehicular traffic can co-exist along a reasonably-constructed street.

Its age, and possibly its foundation, might make the house suspect as in unreasonably weak, condition. However, the showing that the house had been completely replastered and otherwise was in good condition five years earlier prevents blaming on the house’s condition the stucco cracks which suddenly appeared after the bus route change.

Vibrations from the added Orleans street bus traffic are related to both the weight of the buses and the condition of the street. Presumably a modern superhighway would so support slow-moving 16-ton buses that their passage would generate little vibration. And presumably a lightly-surfaced street would not only transmit vibrations but also, as its surface condition degenerated from the too-heavy traffic, contribute to vibrations as it became a series of holes and ruts for the vehicle’s tires to bounce against. However, there is no evidence that Orleans street was a frail-surfaced street, although there is evidence that the street developed a large bump towards the intersection with Dauphine, inferentially because of the buses and other traffic coming to a stop at Dauphine.

Nevertheless we deem permissible the trial judge’s inference — from factual testimony that the building lasted five years uncracked before the route change and from expert testimony that the buses could have caused the cracking — that the Orleans street surfacing was no match for the buses, and that both defendants knew or should have known that routing the buses over Orleans street would result in possibly damaging vibrations. Similarly both defendants knew or should have known that the street dimensions would — especially if other vehicles parked too close to the corner — occasion the buses’ rolling over the corner curbing, causing further vibrations. Some damage-avoiding measure, either strengthening of the street surface or reduction of the bus size, was indicated prior to rerouting. We reject as factually unsupported the bus company’s position that it had no alternative but to accept the city’s rerouting; presumably, it could at least have obtained a delay until lighter buses were available. We therefore conclude that the evidence permits the trial judge’s conclusion that both defendants’ fault in the rerouting was a cause of the cracking in plaintiff’s building.

We agree with defendants that the $195,000 repair estimate includes much that was not shown to be related to vibration damage. We find only the exterior stucco cracking to be due to the bus vibrations because there is no credible evidence which relates other proposed repairs to the bus traffic. But we also agree with plaintiffs that the attribution of the damages to automobiles, trucks and buses equally, proportional to their weight, is erroneous. Because of their much lighter weight, automobiles do not cause the damaging vibrations. We conclude that the proof makes it more probable than not that the buses caused the stucco damage, which will cost $22,000 to repair (4,400 sq. ft. at $5).

Plaintiff D’Amico’s alleged personal injuries were not proven.

The judgment appealed from is amended in quantum to $22,000 and is otherwise affirmed at appellants’ cost (the city being liable for costs only insofar as provided by law).


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    GUEDRY FINANCE COMPANY, INC. v. Charlotte E. SANDERSON et al.
    No. 7940.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Rehearing Denied Aug. 1, 1977.
    Warren M. Simon, Jr., Metairie, for plaintiff-appellant.
    George J. G. Roux, New Orleans, for defendants-appellees.
    Before SAMUEL, STOULIG and MORIAL, JJ.
   MORIAL, Judge.

Guedry Finance Company, Inc., (Guedry) appeals the judgment sustaining defendants’ exception of lis pendens and dismissing Guedry’s suit.

Guedry filed suit against Oscar M. Sand-erson, the maker of a promissory note, on January 21, 1971 in the First Parish Court, Parish of Jefferson. Guedry alleged that Sanderson had defaulted on his payments on the note and was indebted to plaintiff in the amount of $721.00 plus interest, attorney’s fees and costs. Sanderson died intestate on April 15, 1971 without being served with process.

Defendants herein are the children and heirs of Sanderson. The decedent’s succession was opened and a judgment of possession was signed on August 14, 1975 recognizing defendants as the sole heirs of decedent and placing each in possession of an undivided one-fifth interest in the decedent’s estate. Defendants accepted the succession unconditionally without administration or benefit of inventory.

On January 15, 1976 plaintiff filed this suit in the 24th Judicial District Court, Parish of Jefferson against the heirs of the decedent to collect the balance due on the promissory note executed by their father. Defendants filed an exception of lis pen-dens which was sustained by the trial court. We affirm.

Plaintiff argues that the trial court erred in not holding that plaintiff had a separate and independent personal right of action against the heirs of the decedent. Plaintiff relies on Revised Civil Code Articles 1422, 1423, 1013 and Smith v. Huckaby, 141 So.2d 72 (La.App. 2 Cir. 1962). Plaintiff contends that LSA-C.C.P. Article 801, et seq, dealing with the substitution of the legal succession of a deceased party are not mandatory in character and that the articles merely provide an alternative to the bringing of a second lawsuit.

Defendants argue that LSA-C.C.P. Articles 801-804 provide for the substitution of the legal successor for a deceased party during the pendency of an action which is not extinguished by his death.

Defendants argue that plaintiff improperly filed a second suit because it is based on the same cause of action and has the same object as the pending action in First Parish Court. Defendants point out that a plea of res judicata would be sustained in this action if the original claim was reduced to judgment.

Plaintiff correctly cites the principle in our inheritance law that an heir who accepts a succession unconditionally and without benefit of inventory becomes personally liable for the debts of the succession. However, we do not find that this substantive principle of law is dispositive of the procedural issue before us. The issue presented to this court is whether or not the trial judge correctly sustained defendant’s exception of lis pendens in light of the original suit filed by plaintiff against the decedent Oscar Sanderson.

LSA-C.C.P. Article 428 provides:

“An action does not abate on the death of a party. The only exception to this rule is an action to enforce a right or obligation which is strictly personal.”

The obligation of a decedent is a heritable obligation where the heirs accept the succession unconditionally and without benefit of inventory. See LSA-R.C.C. Articles 1423 and 1999. Therefore, the original action instituted by plaintiff is viable and pending.

LSA-C.C.P. Article 531 sets out the circumstances under which an exception of lis pendens may be plead as follows:

“When two or more suits are pending in a Louisiana court or courts on the same cause of action, between the same parties in the same capacities, and having the same object, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.”

A fair test of lis pendens is to inquire whether a final judgment in a former suit be res judicata in the latter, if it would, then the exception of lis pendens is well pleaded. Marston v. Marston, 223 La. 1046, 67 So.2d 587 (1953); Scott v. Ware, 160 So.2d 237 (La.App. 2 Cir. 1964). A final judgment in the original suit filed by Gued-ry would subject the present suit to dismissal on the basis of a plea of res judicata. Plaintiff is pursuing the same cause of action and seeking the same remedy in both actions. The obligation of the defendants herein to plaintiff is the same obligation which bound their father to repay plaintiff. Therefore, we find that the plea of lis pen-dens was correctly sustained and plaintiff’s suit properly dismissed.

For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.


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    Lola Jones, wife of Elzie BOYD v. Elzie BOYD.
    No. 8606.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Rehearing Denied Aug. 1, 1977.
    Roger I. Dallam, Greenberg & Dallam, Gretna, for plaintiff-appellant.
    Walter E. Kollin, Metairie, for defendant-appellee.
    Before REDMANN, GULOTTA and BEER, JJ.
   REDMANN, Judge.

A wife appeals from a judgment which refused her a judgment of separation for abandonment and granted her husband a divorce for two years of living apart.

The wife argues that the trial judge erred in reasoning that she had not proved that the husband “constantly refused to return”, as required by La.C.C. .143 for separation on the grounds of abandonment. But the trial judge’s more basic ruling was that the husband did not leave the marital dwelling in 1976 as alleged. Instead, the trial judge found, the parties had separated in 1973 or earlier and had since then lived apart continuously. The trial judge thus rejected much of the wife’s (and the 18-year-old son’s and a neighbor’s) testimony in accepting that of the husband (and two of his neighbors). We cannot say the trial judge thereby erred.

Thus the wife’s only legal argument is that the husband’s admitted staying at her house one night during the two years prior to suit (sleeping in the children’s room while the wife was in the house) prevents a divorce for “living separate and apart continuously for a period of two years or more . . . ”, as required by R.S. 9:301. We disagree.

Although the living apart must be visible to the community and therefore is not present when spouses merely live in separate bedrooms in the same house, Hava v. Chavigny, 1920, 147 La. 330, 84 So. 892, a husband’s staying at the wife’s house only one night (in the children’s room) during a period of more than two years would not change the neighbors’ impression of the spouses’ “living apart ... in such a manner that those in the neighborhood may see that the husband and wife are not living together”, as the required living apart is described in Arnoult v. Letten, 1924, 155 La. 275, 99 So. 218. Even less indicative of not living apart is the husband’s allowing the wife to go with him and the children on a family-day picnic given by his employer.

Affirmed.


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    Oscar UMBEHAGEN v. LIBERTY MUTUAL INSURANCE CO. et al. Dorothy Klein VANNEY v. LIBERTY MUTUAL INSURANCE COMPANY et al.
    Nos. 8150, 8151.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1977.
    Rehearings Denied Aug. 1, 1977.
    Writ Refused Oct. 26, 1977.

      Edwin R. Pillault, Jr., Andry & Andry, New Orleans, for Oscar Umbehagen and Dorothy Klein Vanney, W. Monroe Stephenson, New Orleans, of counsel, plaintiffs-appellants.
    Robert M. Johnston, Johnston & Duplass, New Orleans, for the City of Kenner, defendant-appellee.
    Bruce J. Borrello, Metairie, for Clinton L. Scott and Liberty Mut. Ins. Co., defendants-appellees.

      Before LEMMON, BOUTALL and SCHOTT, JJ.
   BOUTALL, Judge.

Plaintiff Oscar Umbehagen, driver, together with owner-passenger plaintiff, Dorothy Klein Vanney, brought these consolidated suits against the driver of the other vehicle involved, Clinton L. Scott, Scott’s insurer, and the City of Kenner, whose police were directing traffic at the scene. Defendants Scott and his insurer filed a third party action against Umbehagen, et al. The trial court found both drivers negligent and imputed the negligence of plaintiff Vanney's driver to her under the theory of joint venture, and on that basis denied recovery to plaintiffs in both the original demands and the third party demands. From that judgment, Dorothy Klein Van-ney and Oscar Umbehagen have appealed.

These suits arise from an accident that occurred on the evening of May 12,1972 at the intersection of 35th Street and Williams Boulevard, a wide boulevard with divided roadways, in the City of Kenner. The traffic at the intersection, because of Jefferson Downs, was controlled by four Kenner policemen; one policeman being positioned at each point of traffic flow. The weather was rainy and dark.

There are almost as many versions of the accident as there are witnesses to it, and we believe it would serve little purpose to recant in detail the various versions. Suffice it to say that no witness gave testimony which was not contradicted by others, and the trial court was faced with a number of credibility determinations. The trial judge determined that Scott proceeded in violation of the instructions of the police and was thus negligent. Umbehagen was found negligent in entering the intersection without looking to his left to ascertain if all oncoming traffic had cleared. We agree with these determinations of negligence, but because we disagree with the application of law in the case of plaintiff Vanney, we are compelled to make a determination of the negligence of the police officers. We find the following to be the facts.

The Scott automobile was east bound on 35th St., the traffic controlled by Sgt. Louis Turner. The Umbehagen-Vanney automobile was north bound on Williams Blvd., the traffic controlled by Patrolman Gullett. To start, the Williams Blvd. traffic was stopped and traffic was proceeding on 35th St. Scott’s car was moving across the intersection at a very low rate of speed, practically crawling, and he was stopping or hesitating momentarily at each traffic lane. Sgt. Turner noticed that his activities were holding up a proposed change in traffic flow and signalled him to stop, but Scott continued until he reached the neutral ground area where he stopped. Sgt. Turner walked over to Scott’s car and told him to remain stopped in the neutral ground area until given a signal. However, as Turner walked back to his post, Scott slowly pulled off across the northbound roadway of Williams to the point of collision. During the period of Scott’s maneuvers, traffic on Williams was stopped and Patrolman Gullett was in the process of stepping from his stopped-traffic position to the edge of the roadway or curbing preparatory to signal-ling the Williams’ traffic to start. Before he reached his moving traffic post, without waiting for a signal to start, Umbehagen started up his vehicle in the right traffic lane and proceeded a few feet into the intersection, when he collided with the right side of the crossing Scott automobile at a point between the front fender and the door. Thus we conclude that Scott was negligent in disobeying the orders of Sgt. Turner, and Umbehagen was negligent in proceeding from his stopped position without receiving a signal to proceed from Patrolman Gullett and without ascertaining that the way was clear. We affirm the trial court’s judgment dismissing both their claims, together with their insurer’s claims.

We now proceed to a consideration of plaintiff Vanney’s claims. We find no negligence on the part of the officers and hence their employer, the City of Kenner. The issue is whether we should find that driver Umbehagen’s negligence also bars her from recovery. The trial judge found Umbehagen and Vanney to have been on a joint venture because both had a mutual interest in their trip to Jefferson Downs for a night of entertainment, and Vanney, as owner of the vehicle, had the implied right to direct the operation of the vehicle notwithstanding her inability to drive. In support of this proposition, we are referred to the cases of Husser v. Bogalusa Coca-Cola Bottling Company, La.App., 215 So.2d 921 (1968) and Rodriguez v. State Farm Mutual Insurance Company, La.App., 88 So.2d 482 (1955).

The facts are these. Mrs. Vanney and Mr. Umbehagen were both fond of attending race tracks and frequently went to Jefferson Downs together. On this particular night, instead of using Umbehagen’s truck, which had a broken window, and was thus subject to be rained into, the parties decided to use Mrs. Vanney’s automobile, which she had just purchased from her brother for $150.00. Mrs. Vanney could not drive an automobile. The record does not show that she attempted to exercise any control of the vehicle on this occasion, and that she was not independently guilty of any negligent conduct. See for example Hicks v. Alphonse, 294 So.2d 602 (La.App. 4th Cir. 1974).

The applicable law is stated in the case of Gaspard v. LeMaire, 245 La. 239,158 So.2d 149 (La.1963), quoting with approval the following on page 152:

‘ “As a general rule, it may be said that in order to impute the negligence of one person to another, there must exist between them some relation of master or superior and servant or subordinate or other relation akin thereto. The relation between them must be one invoking the principles of agency, or the persons must be co-operating in a common or joint enterprise, or the relation between the parties must have been such that the person to whom the negligence is imputed must have had a legal right to control the action of the person actually negligent. As the rule is stated by American Law Institute, the relation between the plaintiff and the third person must be such as to make the plaintiff responsible at common law for the negligent conduct of such third person.” ’ * * *
“We are in accord with the views expressed by the American Law Institute Restatement and we hold that unless a plaintiff could be held responsible, as a matter of law, for the torts of the person whose negligence is sought to be charged to him the doctrine of imputed negligence cannot be applied.”

In that case the court rejected the proposition that a mother passenger who had the theoretical right of control over the son’s operation of the family automobile was barred from recovery by imputation of the driver’s son’s negligence. In so ruling, the court specifically disapproved of the case of Rodriguez v. State Farm Mutual Insurance Company, supra, insofar as it imputed negligence solely on the ground of theoretical right of control. Considering the facts in this case, we find the principles of Gaspard to be controlling, and that Mrs. Vanney is not barred from recovery.

Turning to the question of her damages, we find the following. Mrs. Vanney was thrown against the dashboard and glove compartment door of the car at the time of the collision. She was taken to the emergency room of East Jefferson General Hospital where x-rays revealed no fractures, and within the next several days she presented herself to Dr. George Morlier, her family doctor, for treatment. Dr. Morlier sent her to Dr. Williams, an orthopedist, on May 19, 1972, and he noted that she had a small laceration on her right leg and a large bruise which seemed to be enlarging. He concluded that she was suffering from “ec-chymosis” from the contusion which he thought would probably resolve itself with time, elevation and possibly heat treatments. It should be noted at that time that Mrs. Vanney informed the doctor that the leg did not hurt to walk upon.

Mrs. Vanney also claims injury to her right shoulder in the accident but the medical evidence available indicates that any problem she had with her shoulders “was” due entirely to matters not connected with this accident and we so find. Her leg hurt her for a matter of several months, however she received treatment for that injury only up to July 81, 1972, at which time Dr. Soloboff, who was consulted for her shoulder condition, testified that there was no problem with her legs, and this was generally substantiated by Dr. Stumpe, who took over her general treatment from Dr. Morlier. We further note that there were no more references to Mrs. Vanney’s leg problems in Dr. Morlier’s office notes beyond the visit of June 19, 1972, although from the testimony in general it would appear that her leg still pained her at this time and the doctor continued to observe it when she came to his office for treatment of her other medical problems. We would thus grant her recovery for fifteen office visits to Dr. Morlier at $10.00 per visit, or a total of $150.00. Other medical expenses were East Jefferson General Hospital, $51.75, x-rays, $20.00, Dr. Williams, $35.00, for a total of $256.75. For her injuries to her leg and the pain and suffering, we would grant $750.00. For a total recovery of $1,006.75. Since Mrs. Vanney did not sue Umbehagen, and we find no negligence by the City of Kenner, we cast in judgment Clinton L. Scott and his insurer, Liberty Mutual Insurance Company.

For the reasons above stated, we reverse that part of the judgment appealed wherein Dorothy Klein Vanney’s suit against Clinton L. Scott and Liberty Mutual Insurance Company was dismissed, and we render judgment herein in favor of Dorothy Klein Vanney and against Clinton L. Scott and Liberty Mutual Insurance Company, in soli-do, in the sum of $1006.75, together with interest from date of judicial demand, and for all costs. The judgment is in all other respects affirmed.

AFFIRMED IN PART, REVERSED IN PART, and RENDERED.

      . Dr. Morlier died several months later, and only his records were placed in evidence. These consist of a report and a number of notes of various visits. The doctor had been treating her for some time for her general health condition, and shortly before the accident, for an injury to her shoulder received in a slip and fall incident.