author: BLANCHE, Judge. YELVERTON, Judge

text:
    Earl BRENNECKE et al. v. TRANSPORTATION INSURANCE CO. et al.
    No. 10280.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Rehearing Denied En Banc March 5, 1976.
    Writ Refused April 13, 1976.
    John W. Anthony, Bogalusa, for appellants.-
    Tom H. Matheny, Hammond, for appel-lees.
    Before LANDRY, ELLIS, BLANCHE, LOTTINGER and YELVERTON, JJ.
   BLANCHE, Judge.

The plaintiffs, Earl Brennecke and Bernadine Hall Brennecke, are the parents of Larry D. Brennecke, a minor, and brought this suit against the defendants, Mrs. Marcia Crockett and her husband Walter Crockett, and their liability insurer, Transportation Insurance Company, for injuries sustained by their minor son as a result of an automobile-bicycle collision.

The trial judge found that both Mrs. Crockett, the driver of the automobile, and Larry Brennecke, who was riding the bicycle were negligent but that Mrs. Crockett had the last clear chance to avoid the accident. He rendered judgment in favor of plaintiffs in the sum of $15,000 for the injuries sustained by their minor son and in the further sum of $2,317.90 for special damages.

The single error assigned by the defendants on appeal is that this is not a proper case for the application of the doctrine of last clear chance. We agree and reverse, because we find that Mrs. Crockett was not guilty of negligence since no duty was breached by her toward young Brennecke.

The accident happened on a street in a residential subdivision in Hammond, Louisiana. Mrs. Crockett had been visiting her mother-in-law who lived about four houses down the street from the point of the accident. After leaving her mother-in-law’s home, Mrs. Crockett proceeded in an easterly direction on David Drive. She was accompanied by her young children and her sister-in-law, Miss Debra Crockett, who was seated on the right front seat. The record shows that Mrs. Crockett was driving between ten and twelve miles per hour and at the time it was raining quite hard. Mrs. Crockett had her lights and windshield wipers on and was driving slowly because of the downpour. Both Mrs. Crockett and Debra Crockett were looking straight ahead as they approached oncoming traffic. There is no evidence that any children were playing in or near the street. Though Mrs. Crockett knew there were children in the neighborhood, she did not expect to see any at that time because of the hard rain. Thus, while her attention was directed toward approaching traffic in a hard rain, young Brennecke and his friend Kevin Sims were in the driveway leading to the Sims carport, and they decided to leave on their bicycles to ride over to Larry’s house to play. With young Brennecke in the lead, they rode down the Sims driveway out into the street. At the moment young Brennecke reached the edge of the street, he collided with the. right front side of the Crockett car at a point approximately a foot or so behind the headlights. Neither Mrs. Crockett nor Debra Crockett saw the Brennecke youth until a moment before he struck the right side of the Crockett vehicle.

Marie Carver, a disinterested witness who at the time of the accident was proceeding in the opposite direction from Mrs. Crockett at about the same speed, was able to see all that transpired up until the moment of impact. When she first observed the youths, they were halfway up the driveway, facing toward the Sims house. The driveway was estimated by another witness to be approximately forty feet long. Mrs. Carver realized that an accident was about to occur because the young boys turned and started toward the street when, according to her estimate, Mrs. Crockett was at most a car’s length away. She described the boys as coming down the driveway “suddenly” and as taking “just a couple of seconds.”

The Crocketts and Mrs. Carver testified that Larry Brennecke ran into the car rather than the Crockett vehicle colliding with him. Photographs of the vehicle introduced into evidence showed a dent on the side of the fender where the bicycle struck the side of the car. Significantly, Mrs. Carver testified that she applied her brakes when she saw the boys start down the driveway and that she was driving at about the same speed as Mrs. Crockett. Though she immediately applied her brakes at the time of the collision, she was unable to bring her vehicle to a complete stop and, like Mrs. Crockett, stopped about a car’s length past the point of collision.

Undoubtedly, Mrs. Crockett had no chance to avoid the collision. The events leading up to this unfortunate accident happened very quickly, within a few seconds, and when Mrs. Crockett was so near the Sims driveway that she had no chance, either last or clear, to bring her vehicle to a stop in order to avoid the collision.

However, the crucial question in the case is not whether she had the last clear chance to avoid the accident but whether she was even under a duty to observe young Brennecke in the Sims driveway on his bicycle under the conditions herein-above described. Absent a showing that Mrs. Crockett should have been alerted to the fact that children were playing in the area at the time and would thus come under a duty to look out for their safety, we find no duty on her part to look for young Brennecke poised in a heavy rain halfway up the Sims driveway and to guard against the possibility of his running into the street. As we see it, traffic conditions at that particular time were adverse and her duty was to keep her eyes on the road ahead and 'on approaching traffic and not on young Brennecke who might suddenly descend into the street from a point halfway up a private driveway.

To impose such a duty on her under these circumstances would virtually make her an insurer of young Brennecke’s safety. Rainwater v. Boatright, 61 So.2d 212 (La.App. 2nd Cir., 1952); Kessinger v. Ashford, 165 So.2d 534 (La.App. 1st Cir., 1964).

Finding no negligence on the part of Mrs. Crockett, we reverse the judgment of the trial court and render judgment in favor of defendants, Mrs. Marcia Crockett, Walter Crockett and Transportation Insurance Company, and against plaintiffs, Earl Brennecke and Bernadine Hall Brennecke, dismissing plaintiffs’ suit at plaintiffs’ costs.

Reversed and rendered.

LOTTINGER, J., concurs.

YELVERTON, J., dissents with reasons.

YELVERTON, Judge

(dissenting).

I respectfully submit that there is no basis on this record to reverse the trial judge. The majority concludes that Mrs. Crockett was under no duty to observe the boys because there was a “hard rain” in progress and her duty in a “heavy rain” was to look straight ahead. The trial judge in his written reasons for judgment found that the children rode out of the driveway in a “light rain”, that “the defendant driver had a completely clear and unobstructed view of the entire length” of the driveway and that “a mere glance in that direction would have been sufficient to reveal the presence of the child and his companion”. The trial judge was impressed by the fact that Mrs. Carver, the other driver on the street who witnessed the development of the accident and the accident itself, said she saw the children, that she was afraid an accident might happen, and she accordingly brought her vehicle to a stop. I do not find manifest error in these factual conclusions. The record adequately supports them. While there was some testimony it was raining hard, there was at least an equal amount of testimony that it was not. Two witnesses testified it was merely sprinkling. The police, arriving after the accident, found the streets dry. Positive proof that the rain was not bad enough to obstruct vision lies in the testimony of Mrs. Carver, whose testimony the majority accepts as true. She saw everything, and she was a greater distance from the accident scene than Mrs. Crockett. I am compelled to conclude, as did the trial judge; that Mrs. Carver saw what she saw because the rain was not coming down hard enough to prevent her from seeing it. In my opinion, the trial court’s conclusions of fact as to the force of the rain and conditions of visibility have a reasonable basis in the record, and I would accept his findings of fact that only a light rain was in progress and that this should not have obstructed Mrs. Crockett’s view any more so than it did Mrs. Carver’s. I would follow the test for appellate review laid down in Canter v. Koehring Company, 283 So.2d 716 (La.1973):

“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.”

I also disagree with the majority’s conclusion that Mrs. Crockett had no chance to avoid the collision. Here again, the majority bases its reasoning upon factual conclusions which differ from those found by the trial court, without first having determined that the trial court was manifestly erroneous in its conclusions of fact.

The majority gives three reasons why Mrs. Crockett had no chance to avoid the accident. The first reason given was that the boy’s bicycle struck the car (about a foot from the front end) rather than the car striking the boy; I submit this fact has no relevance to last clear chance. The second reason was that Mrs. Carver, the other driver, was unable to stop until she had reached a point about a car’s length past the point of collision. I submit that this is an incorrect factual conclusion. The record reveals she stopped a car length before the point of collision. Based on the erroneous assumption that Mrs. Carver stopped a car length past the point of collision, the majority concludes that Mrs. Crockett likewise could not have stopped in time. There is nothing in the record to support the majority’s conclusion that Mrs. Carver stopped a car length past the point of collision (except a similar comment in defendants’ brief). There are only two places in the entire testimony where Mrs. Carver’s stopping point is mentioned and that is in her own testimony. In one place she said she stopped a car length from the accident. In the other place she said:

“Well, the accident was in front of me and I stopped a car length at most in front of the accident . . .”

The third reason the majority gives for concluding Mrs. Crockett had no chance to avoid the collision is based upon what I submit is still another erroneous conclusion of fact. The majority places Mrs. Crockett’s car one car length from the Sims driveway when the events leading up to the accident happened, concluding therefrom that she was too close to the scene to have avoided the accident. The events leading up to the accident, as testified to by Mrs. Carver, began with the boys 20 feet up the driveway, facing away from the street, with one foot on the ground. It is not possible that Mrs. Crockett traveled only a “car length” during the time it took the boys 'to mount their bicycles, turn around, and from a standstill, travel 20 feet down the driveway and some more distance out into the street to strike the front end of her car. Traveling 10 to 12 miles per hour, Mrs. Crockett had to be much farther than a car length down the street when the accident began to develop, and had she seen what she should have seen, she had ample time to have stopped or slowed down sufficiently to avoid the accident. The trial judge so concluded, and I can find no manifest error in this conclusion.

This accident happened in the afternoon after school hours in a residential area known to be frequented by children and where a IS mph speed limit was posted. The trial judge found conditions of visibility were unobstructed, a fact which has ample support in the record, particularly in the testimony of the disinterested witness who saw the accident develop and was able to stop her car before the point where it happened. The trial judge found that Mrs. Crockett should have seen the boys and, had she done so, she could have avoided the accident. I cannot find manifest error in the trial judge’s findings both as to the duty and opportunity of defendant to avoid the accident and, for .these reasons, I would affirm.


source: Caselaw Access Project

author: ■PAVY, Judge. CULPEPPER, Judge

license: Public Domain

text:
    Herbert Ray JACK, Plaintiff-Appellee, v. FIDELITY & CASUALTY CO. OF NEW YORK, Defendant-Appellant.
    No. 5265.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 9, 1976.
    Rehearing Denied March 4, 1976.
    Writ Refused April 23, 1976.

      Allen, Gooch & Bourgeois, by Arthur I. Robison, Lafayette, for defendant-appellant.
    Preston N. Aucoin, Ville Platte, for plaintiff-appellee.
    Before CULPEPPER, DOMENGEAUX and PAVY, JJ. .
   ■PAVY, Judge.

On November 30, 1973, while working as a roughneck for Hercules Drilling Co., plaintiff sustained a comminuted fracture of the distal phalanx of his left great toe. In a previous suit filed April 18, 1974, and tried May 20, 1974, the trial judge awarded total and permanent disability benefits, but on appeal, an exception of prematurity was upheld and the claim dismissed as of non-suit. (306 So.2d 806).

The instant suit was filed February 4, 1975, and tried April 3, 1975. The trial judge found plaintiff neither totally nor partially disabled but granted benefits for impairment or loss of a physical function, subject to credit for compensation previously paid. An award was also made for travel expenses plus penalties and $500 attorney fees.

Defendant, insurer of the employer, has appealed and plaintiff has answered the appeal seeking an award for general disability and for additional penalties and attorney fees.

Dr. Ramson Vidrine initially treated plaintiff on an out-patient basis. He confirmed the fracture and gave supportive treatment until March 11, 1974, when he discharged plaintiff as able to return to work. He had no further contact with the plaintiff.

Dr. Vidrine had referred plaintiff to Dr. Frazar Garr, an orthopaedist in Opelousas, on January 23, 1975. He saw plaintiff off and on until March 6 at which time he released him as able to return to work with the use of a steel-toe boot. The patient returned to Dr. Garr on May 6 with an infection of the toe caused by the nail growing into the flesh. The toenail was removed surgically, and the patient followed by Dr. Garr for healing of the wound. He was discharged on September 9, 1974, as able to return to work with the protective boot. At the first trial, Dr. Garr testified that the wound from the toenail surgery would heal in about three months and, at that time, plaintiff would experience only minor discomfort, would not be disabled from performing his accustomed work and would have a 25 per cent permanent physical impairment or loss of the physical function of the left great toe. He indicated a possibility of arthritis in future years but did not think it would alter his ability to work or increase the amount of physical impairment. His reports subsequent to the first .trial were used instead of live testimony. These confirmed the original prognosis and did not suggest any change in his evaluation of plaintiff’s condition.

Plaintiff complained of pain, stiffness, inability to support weight on the foot, tiptoe or stand or walk for long periods of time. He stated that he experienced swelling, discoloration and a sticking sensation and claimed that the conditions were getting worse. He had started taking a mechanics course at a trade school. His wife generally corroborated his testimony regarding the various complaints.

Apparently, the trial judge was not sufficiently impressed with the testimony of plaintiff and his wife to conclude that it overcame Dr. Garr’s positive opinion. We cannot say that he was in manifest error.

Plaintiff argues that Dr. Garr’s expressions regarding arthritis are sufficient to prove disability. We have carefully examined the many questions and answers put to this doctor and can only conclude that his opinion was that in future years some arthritic changes would possibly occur but that such would not substantially alter his evaluation of plaintiff’s condition. This was his testimony at the first trial. No attempt was made by plaintiff to show that any arthritis had set in at the later trial one year later. It is clear to us that this possibility is very much in the future.

The court stated that the award of $40 per week for 100 weeks was for a “. . . serious impairment of a physical function which is of a permanent nature”. Apparently, the court must have based this on the provisions of R.S. 23:1221(4) (p). Defendant argues that provision cannot be applied because, any award other than for disability must be under the provisions of R.S. 23:1221 (4) (c & o). We agree. Paragraph (c) of Subsection 4 of said Section 1221 provides benefits for loss of the great toe and Paragraph (o) of the same provides for benefits for partial loss of use of such a member. Paragraph (p) of said Subsection 4 provides:

“In cases not falling within any of the provisions already made, where the employee is seriously permanently disfigured about the face or head, or where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and as in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-five per centum of wages during one hundred weeks.”

It is well settled that no award can be made for disfigurement or impairment of a physical function as provided by the above quoted language where either the disability provisions or the specific injury schedule applies. See Malone, Louisiana Workmen’s Compensation, Sections 283 and 284, pages 362 et seq. and the numerous authorities cited therein.

In Bergeron v. New Amsterdam Casualty Co., 243 La. 108, 141 So.2d 832 (1962), dealing with Paragraph p, the court stated:

“The plaintiffs contend that this section provides for compensation in three instances: in cases not falling within any provisions already made, in cases of serious, permanent disfigurement, and in cases in which the usefulness of a physical function has been seriously, permanently impaired. In our opinion, this construction does violence to the statute. The section authorizes compensation only for disfigurement or the impairment of the usefulness of a physical function in cases which do not fall within any other benefit provision of the law. Since the section provides compensation .for disfigurement or impairment unattended by disability, it transcends the historic base for workmen’s compensation : the diminution of earning capacity. However, it is not a catch-all clause, as contended by plaintiffs.” (Footnotes omitted)

Plaintiff sustained a partial loss of the use of the great toe. That is compen-sable under Paragraphs c and o of Subsection 4 of R.S. 23:1221. He was paid compensation through September 18, 1974, for a total of $2,665. The formula for computing benefits under the said pertinent provision is 25 per cent of 65 per cent of $226.56, the weekly wage. By that formula, plaintiff would be entitled to $736.60. This is less than the payments for disability so that no further amount is due, and the lower court’s grant is incorrect.

We now consider the travel expense claim and imposition of penalties and attorney fees in connection with it. R.S. 22:658 provides that an insurer shall pay certain claims, including workmen’s compensation claims, within 60 days after receipt of satisfactory proof of loss and that failure to pay within 60 days of such receipt and demand subjects any such insurer to a penalty of 12 per cent of the total amount of the loss with reasonable attorney fees for prosecution and collection of the loss.

There is no question that a claimant’s traveling expenses in seeking medical attention form part of his medical expense claim and that it is subject to the statutory penalty provisions. See Walters v. General Accident & Fire Assurance Co., 119 So.2d 550 (1st Cir. La.App.1960); Murry v. Southern Pulpwood Insurance Co., 136 So. 2d 165 (3d Cir. La.App.1962).

The court allowed plaintiff $238 travel expenses, of which $18 was for a 90-mile round trip between Ville Platte (plaintiff’s home) and Lafayette (where he sought emergency medical attention) and of which $220 was for twenty-two 40-mile round trips between Ville Platte and Ope-lousas (Dr. Garr’s office). It imposed the 12 per cent penalty and $500 attorney fees. Defendant-Appellant contends the amounts (25‡ per mile except per mile on the Lafayette trip) are excessive and that penalties and attorney fees were not warranted because it timely tendered a reasonable amount of 10{i per mile.

We think proof of the trips is sufficient to establish a prima facie claim for travel expenses on a mileage basis. If the insurer thinks they are not justified or if either party thinks the particular circumstances justify an adjustment from the mileage rate, proper proof could be offered as to such. In this case, no such special proof was offered. We note that state employees were allowed 12^ per mile from 1972 to July 1, 1974, when it was increased to 16^ per mile. Perhaps that adjustment was late in coming but we think such rates were and are generally realistic. Most of the expenses herein were incurred before that rate changed. For an overall adjustment in this case, we will allow 15^ per mile or $145.50.

Defendant-Appellant made tender of 100 per mile. Even if this amount is assumed to be reasonable, the tenders were not timely. One tender (for seven of the trips and apparently those incurred after the trial of the first suit) was made November 12, 1974, in response to a demand on September 3, 1974. This was beyond the 60 days. The other tender (for sixteen trips) was made February 12, 1975. Defendant contends this tender was timely because of a suspensive appeal from the judgment awarding travel expenses in the first suit and because it was made within 60 days of rendition of the appellate decision in that first suit. Regardless of prematurity in the first suit and suspension of the judgment, the evidence at the first trial constituted proof of loss and demand upon defendant for those travel expenses. Defendant did not make a tender although it continued to pay the weekly benefits. Litigation does not suspend the running of the 60-day time limitation nor otherwise render inapplicable the provisions of the penalty statute. Therefore, we think the second tender was also untimely and the statute is applicable.

We do not think the attorney fee award should be increased. Much of counsel’s endeavors in this regard occurred before expiration of the 60 days or after tenders. It is true that, even without suit, these small travel expense claims can be time-consuming and troublesome and that collection of them is dependent upon substantial attorney fees being awarded. However, there are many peculiar circumstances in the history of this litigation. The trial judge was much more familiar with the efforts of plaintiffs attorney than we can ever be and we defer to his award.

Accordingly, the judgment of the lower court is amended so as to reduce the award to $145.50 plus 12 per cent penalty thereon and $500 attorney fees and, as amended, the judgment is affirmed.

Amended and affirmed.

CULPEPPER, J., concurs in part and dissents in part and assigns written reasons.

CULPEPPER, Judge

(concurring in part and dissenting in part).

I concur in that portion of the majority decision which holds that the trial judge erred in awarding $40.00 per week for 100 weeks. I also agree with the majority that the judgment appealed must be amended so as to hold that under LSA-R.S. 23:1221(4) (c), (o) plaintiff is entitled to only 25% of 65% of his weekly wage for a period of 20 weeks, under which formula plaintiff would be entitled to only $736.60. Since the defendant has already paid more than this amount in benefits, the plaintiff’s claim for any further disability bene'fits must be rejected.

However, I find myself in serious disagreement with that portion of the majority decision which finds the plaintiff is entitled to 150 per mile for travel expenses to the offices of the physicians. And, of course, I disagree with the majority’s award of penalties and attorney’s fees, which is based entirely on the contention that defendant was arbitrary in tendering only 100 per mile for. travel expenses, when it should have tendered 150 per mile.

I agree with the majority that the plaintiff is entitled to the actual amount of reasonable travel expenses incurred in connection with medical treatment. But I am of the opinion that the plaintiff must introduce evidence to prove these actual travel éxpenses. The Court cannot simply take judicial notice, as the majority has done, that plaintiff is entitled to 150 per mile.

The record shows that at the beginning of the trial the parties stipulated that the plaintiff made a total of 23 trips to the offices of the physicians for medical treatment. But, there is no stipulation and not one shred of evidence introduced to show the actual cost of these trips. The defendant timely tendered to plaintiff 100 per mile. However, there is no evidence to show that plaintiff incurred this amount of expenses or any expense whatsoever on these trips. We don’t know whether he went in his own automobile, or by bus, or perhaps with a friend or relative who charged plaintiff nothing.

The trial judge arbitrarily awarded plaintiff 25{i per mile, a total of $238.00, and found defendant was liable for penalties and attorney’s fees for tendering only 10{5 per mile. The majority decision in this Court, without any evidence whatsoever, opines that 1S{S per mile is reasonable, and reduces the award for travel expenses to $145.50, but affirms the award of penalties and attorney’s fees. This dramatically illustrates the difficulty for the parties, the attorneys and the courts if we depart from the established rule that the employee must prove his actual travel expenses.

The jurisprudence is established that plaintiff must introduce evidence to prove the amount of his actual reasonable travel expenses. Bananno v. Employers Mutual Liability Insurance of Wisconsin, 299 So. 2d 923 (3rd Cir., La.App. 1974); Pennywell v. Crawford, 262 So.2d 830 (2nd Cir., La.App.1972) and Murry v. Southern Pulpwood Insurance Co., 136 So.2d 165 (3rd Cir., La.App. 1961).

In Murry v. Southern Pulpwood Insurance Company, supra, Judge Tate, now a justice on our Supreme Court, was the author of the opinion of this Court which states:

“However, although the claimant proved that he was treated at the physician’s office on over twenty occasions, there is no proof that these visits occasioned him any expense by use of his own car (nor of the appropriate mileage cost) or otherwise. The trial court correctly disallowed any recovery for such unproved expense.”

The majority decision in the present case is in direct conflict with the above established rule of our jurisprudence.

For the reasons assigned, I concur in part and dissent in part.


author: HOOD, Judge.

text:
    L. JOHNSON et al., Plaintiffs-Appellants, v. LA BOKAY CORPORATION, Defendant-Appellee.
    No. 5338.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.
    Rehearing Denied March 4, 1976.

      Gahagan & Gahagan by H. C. Gahagan, Jr., Natchitoches, for plaintiffs-appellants.
    Smitherman, Smitherman, Lunn, Hussey & Chastain by John B. Hussey, Shreveport, for defendant-appellee.
    Before HOOD, GUIDRY and PETERS, JJ-
   HOOD, Judge.

This is a possessory action instituted by the ten surviving children and grandchildren of the late Willie King Johnson and Sudie King Johnson, both deceased, against La Bokay Corporation. Plaintiffs allege that they have been in possession of a 100 acre tract of land in Sabine Parish for more than one year, that their possession has been disturbed by defendant, and that they are entitled to judgment maintaining them in possession and ordering defendant to assert any title it may have to the property within a delay to be fixed by the court.

Defendant La Bokay filed several exceptions, all of which were overruled by the trial court. It then answered, denying that plaintiffs have been in possession of the property. And, it filed a reconventional demand, alleging that it has been in possession of the subject property for more than one year prior to its being disturbed in possession, that “the filing of this suit constitutes a disturbance in law, and the acts of possession of plaintiffs constitute a disturbance in fact of the possession of La Bokay,” and that defendant is entitled to judgment maintaining it in possession and ordering plaintiffs to assert any claim of ownership they may have to the property.

Judgment was rendered by the trial court (1) in favor of L. Johnson, one of the plaintiffs, maintaining him in possession of approximately five acres of the subject property, and directing defendant La Bokay to assert any adverse claims of ownership it may have to that tract within 60 days; (2) in favor of La Bokay, maintaining it in possession of the remaining 95 acres of the subject property, and ordering L. Johnson to assert any adverse claim of ownership he may have to that 95 acres within 60 days; and (3) in favor of La Bokay, and against all defendants other than L. Johnson, rejecting the demands of those plaintiffs, and denying that they are entitled to possession of any part of the subject property. Plaintiffs appealed.

The principal question presented is: Was La Bokay or were some or all of plaintiffs in possession of the 95 acres in dispute here (that is, all of the property affected by this suit except the five acres which the trial court found to be in the possession of L. Johnson) for the one year period provided in LSA-C.C.P. art. 3658?

The property involved in this proceeding is a rectangular shaped tract of land containing 100 acres, located in Sabine Parish. A dirt road runs generally north and south through the center of that property, dividing it so that about 50 acres of the property lie west of the road and 50 acres lie east of it.

Prior to 1948, Willie King Johnson and his wife, Sudie King Johnson, lived in a house which was located on the east 50 acres. Mr. Johnson died in 1948, and his wife died in 1969. They left several children and grandchildren as their surviving heirs. Two of their children, L. Johnson and Iona Johnson, lived in the family home substantially all of their lives, and they have continued to live in it since their mother died in 1969. L. Johnson has possessed the home and the cleared area around it as owner since that time, while Iona Johnson has occupied it as a tenant, having paid rent to L. Johnson for the privilege of staying there.

The residence building in which L. Johnson lives is located in an area which has been cleared of trees and brush, and it is surrounded by a few small out houses, by a fenced in garden area and by some enclosed stock pens or corrals. Johnson has possessed and used those improvements and the cleared area as a home, for raising chickens and some farm animals and for truck farming purposes. The cleared area comprises a total of 5.057 acres, and the judgment appealed from maintains L. Johnson’s possession of that cleared area, but of no other part of the original 100 acre tract. Defendant has not appealed, so that part of the judgment which maintains L. Johnson in possession of the above five acre tract will not be disturbed. The principal issue presented here is whether plaintiffs or defendant are entitled to be maintained in possession of the remaining 95 acres of the original tract. ■

All of the subject property, except the five acre tract occupied by L. Johnson, is wooded, undeveloped land. It is in an “open range” area, there being no stock laws or ordinances affecting it. There are no improvements on the 95 acre tract at issue here, and it has been used largely for grazing cattle and goats and for cutting and harvesting timber.

The record shows that the 100 acre tract was sold to defendant La Bokay by deed dated May 19, 1966, and recorded in the Conveyance Records of Sabine Parish at about that time. The property is correctly described in the deed, so defendant thus has had at least an apparent title to the subject property since that time. The record does not show that any of the plaintiffs, or their ancestors, had an apparent title to the property, so we presume that the possession which they have exercised over this property has been without color of title.

This suit was instituted on September 30, 1971. Plaintiffs alleged in their original petition that they have been in possession of the entire 100 acre tract “for more than one year immediately preceding the filing of this suit,” and that defendant is slandering their title by claiming to be the owner of the property by virtue of a deed dated May 19, 1966, and recorded in the Conveyance Records of Sabine Parish.

An answer and reconventional demand was filed by defendant La Bokay on April 10, 1972. In those pleadings La Bokay alleged that it and its predecessors have been in possession of the 100 acre tract for a period in excess of 25 years, and that its possession has been disturbed by plaintiffs.

The trial of the case was concluded on February 14, 1975. On that day, pursuant to an- authorization signed by the trial judge, plaintiffs filed a supplemental petition alleging that “beginning in 1954 and continuing through August or September, 1971, the defendant .... wrongfully cut and removed timber and pulp wood” from the subject property, and that plaintiffs suffered substantial damages as a result thereof. In that supplemental petition, plaintiffs pray for judgment maintaining them in possession of all of the property and awarding damages to them. Alternatively, they pray that the right to claim damages be reserved to them.

The trial judge concluded that plaintiff Johnson “has possessed the area consisting of approximately 5 acres where the home is located, and that his possession has been quiet and uninterrupted for a period in excess of one year prior to the institution of this suit.” He thus rendered judgment maintaining Johnson in possession of those five acres, and ordering defendant to assert any claim of ownership it may have to that tract.

With reference to the remaining 95 acres, the trial judge found that defendant La Bokay “has maintained property lines on the .... tract, maintained fire lanes, supervised for timber purposes, and actually cut timber undisturbed for a period in excess of one year immediately preceding the filing of this suit,” and that La Bokay thus “possessed said 95 acre tract during the requisite period of time.”

LSA-C.C.P. art. 3658 provides:

“To maintain the possessory action the possessor must allege and prove that:
“(1) He had possession of the immovable property or real right at the time the disturbance occurred;
“(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
“(3) The disturbance was one in fact or in law, as defined in Article 3659; and
“(4) The possessory action was instituted within a year of the disturbance.”

Article 3660 of the Louisiana Code of Civil Procedure provides,' in part, that:

“A person is in possession of immovable property or of a real right, within the intendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper.”

When a person has title to a tract of land and he takes possession of it con-formably to that title, his possession of a part of the property described in the title ordinarily will be held to constitute possession of the whole. LSA-C.C. art. 3498; Manson Realty Company v. Plaisance, 196 So.2d SSS (La.App. 4 Cir. 1967); Zeringue v. Blouin, 192 So.2d 838 (La.App. 1 Cir. 1966); Bolding v. Eason Oil Company, 248 La. 269, 178 So.2d 246 (1965). If he does not have an apparent title, however, he ordinarily will be considered as possessing only that part of the property over which he exercises actual, adverse, corporeal possession by enclosures, and his claim will not extend beyond those enclosures. His possession under those circumstances, in order to maintain a possessory action, must be evidenced by an enclosure of some type to definitely fix its limits, or it must be evidenced by some external and public signs sufficient to give notice to the public of the character and extent of the possession. LSA-C.C. art. 3437, 3499-3505; Prevost's Heirs v. Johnson, 9 Mart. (O.S.) 123 (1820); Robertson v. Morgan, 116 So.2d 141 (La.App. 1 Cir. 1959); Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952); Kilchrist v. Conrad, 191 So.2d 705 (La.App. 3 Cir. 1966).

In Hill v. Richey, supra, our Supreme Court said:

“What the court means by ‘enclosures’, as that term is used in the numerous cases found in the jurisprudence, is that the land actually, physically, and corporeally possessed by one as owner must be established with certainty, whether by natural or by artificial marks; that is, that they must be sufficient to give definite notice to the public and all the world of the character and extent of the possession, to identify fully the property possessed, and to fix with certainty the boundaries or limits thereof.”

The corporeal possession required to support a possessory action is identical to the possession which is required to establish the acquisitive prescription of 30 years. The term “corporeal possession” ordinarily means the actual, physical, open, public, unequivocable, continuous and uninterrupted possession of property with the intent of possessing it as owner. Kilchrist v. Conrad, supra. The acts which must be shown to establish possession are governed to a large extent by the use to which the land is destined or for which it is suitable. The type of possession essential to establish acquisitive prescription, or to maintain a possessory action, for one kind of property may differ from that required for another.

In Ernest Realty Company v. Hunter Company, 189 La. 379, 179 So. 460 (1938), our Supreme Court said:

“It is a well settled and established principle of law that where the legal and rightful owner of a tract of land has actual possession of a part thereof, he is in legal and constructive possession of the whole, except such portion thereof that may be in the actual possession and occupancy, by inclosure or otherwise, of a party claiming either by title under article 3478 or thirty years’ adverse possession, article 3499. The reason for the rule is that both cannot have constructive possession.”

The evidence introduced in the instant suit, consisting of numerous photographs and documents and the testimony of many witnesses, shows that the boundaries of the five acre tract on which the Johnson home is located is marked by fences, by the cultivation of a garden, by small farming operations and by the clearing away of timber and brush. We think the boundaries of that five acre tract are definite enough to give notice to the public of the fact that Johnson was possessing that tract when this suit was filed, and for more than one year prior to that time.

Johnson testified that he maintained possession of the remaining 95 acres of the subject property in 1971, and prior thereto, by allowing his cattle and goats to graze on it, and by placing four “stobs” (consisting of metal pipes or markers) at each of the four corners of the subject property. A path or a trail exists around the outside perimeter of the property, and he stated that he frequently uses that path or trail. He also testified that his sister occupied a log cabin on the west SO acres many years ago, and that a well was located near that cabin. No remains of such a cabin or well exist now, although Johnson pointed out to some witnesses a place on the west SO acres which he says was the location of that cabin.

The evidences chows that some standing fences now exiW on the remaining 95 acre tract, and that in addition thereto there are some vestiges or remains of old fences which apparently existed on that property many years ago. There is nothing to indicate that there was ever a fence along some stretches on the boundary of the subject property. In other places, vestiges of fences, or marks on trees indicate that fences did exist many years ago, either along or inside the boundaries. Most of the fences on the remaining 95 acre tract, however, have deteriorated, or disappeared, or have been removed, so that in '1971 the fences which did exist around that tract were not capable of restraining cattle or livestock of any kind. It also would have been impossible at that time to locate the boundaries of the 95 acre tract solely from those fences or vestiges of fences.

Johnson owned some cows and some goats in and prior to 1971, and he permitted them to graze on the 95 acre tract which is at issue here. This is open range territory, however, and since the property was not enclosed there was nothing to prevent him or any other stock owner from permitting cattle to roam or to graze on that property. In our opinion, the fact that he permitted his cattle and goats to graze on this open range property did not constitute an act of possession sufficient to entitle him to maintain a possessory action. Broussard v. Motty, 174 So.2d 246 (La.App. 3 Cir. 1965).

The markers which Johnson placed at each of the four corners of the property were difficult to see or to locate, and we do not feel that the erection of those markers, although an act of possession, was sufficient to give notice to the public that Johnson was possessing all of the property which was within those four corners.

We agree with the trial judge that the evidence fails to show that any of the plaintiffs possessed the remaining 95 acres of the subject property for the period of time required by LSA-C.C.P. art. 3658.

The evidence convinces us, as it did the trial judge, that La Bokay and its predecessor possessed the 95 acre tract at issue here for at least 25 years prior to the time this suit was instituted. They exercised that possession by patrolling and surveying the property, cutting and removing timber from it, plowing fire lanes around and on that property, painting boundary lines around it, and erecting markers at the corners of that tract.

In 1960 La Bokay’s predecessor, as a fire preventive measure, plowed a fire lane around the entire boundary of the 100 acre tract, and it also plowed a fire lane around the five acres which were being occupied by the Johnsons. It also did some control burning on the property from time to time thereafter.

Defendant’s predecessor also had the property surveyed in 1947, to establish the boundary lines around the 100 acre tract. It then marked the boundary around that entire tract that year by painting white markers on trees. These markers were repainted in 1949, 1955, 1960, and 1965. They were visible in 1971 when this suit was filed, and they were still plainly visible in 1975 when the case was tried. After the property was surveyed, La Bokay’s predecessor also had white markers erected at each corner, and it marked trees near each such marker to further locate the corners. All of these markers were plainly visible when the suit was filed and at the time of the trial.

La Bokay and its predecessor cut and removed timber from the property regularly from 1947 up to and including most of the year 1971. In evidence are records kept by defendant showing when the various timber cuttings on that property were made. Plaintiff apparently concedes that timber was cut regularly, because it alleges in its supplemental petition that “beginning in 1954 and continuing' through August or ■ September, 1971, the defendant, its agents, servants, employees or assignees wrongfully cut and removed timber and pulpwood” from the subject property.

The evidence shows that during all of the above operations conducted by La Bo-kay and its predecessor on the subject property, no protest was ever raised by any of the plaintiffs until this suit was filed.

Plaintiffs argue, however, that although defendant cut timber from the subject property in January, July and August, 1971, the evidence indicates that no timber was cut from 1965 until January, 1971. They contend that plaintiffs were in peaceable possession of the property for at least one year between the two last mentioned dates, and that the cutting of timber in January, 1971, constituted a disturbance of that possession.

We find no merit to that argument. One reason is that none of the plaintiffs possessed the 95 acre tract sufficient to support a possessory action during that period. Another is that defendant continued to possess the property from 1966 to January, 1971, despite the fact that no timber was cut and removed from it during that time. The acts of possession exercised by defendant during that period included patrolling the property at least once a year, and “intermittent surveillance” of the property about every six months. A period of about one-half day was required to patrol the property. These acts of possession, coupled with the fact that defendant initially had corporeal possession, it possessed under color of title and its boundary markings and fire lanes remained visible on the property, constituted at least constructive or civil possession during that period.

We agree with the trial judge that defendant La Bokay has had possession of the 95 acre tract which is in dispute here for a period of substantially more than one year prior to the time this suit was instituted. Since defendant possessed by an apparent title, its act of possessing parts of the property constituted possession of the whole, except for the portion thereof which was in the corporeal possession, by enclosure, of L. Johnson. See Ernest Realty Company v. Hunter Company, supra; and Missouri Pacific Railroad Company v. Littleton, 125 So.2d 37 (La.App. 2 Cir. 1960). Defendant La Bokay thus is entitled to the relief sought in its recon-ventional demand, that is, for judgment maintaining it in possession of the 95 acre tract, and ordering plaintiffs to assert their claims of ownership within 60 days of the judgment.

Plaintiffs contend, however, that the trial court erred in admitting evidence offered by La Bokay tending to show the condition of fences and markers on the property subsequent to September 30, 1971, that being the date on which this suit was filed.

We agree that the issue presented in this case was whether plaintiffs or defendant possessed the subject property for at least one year prior to the filing of the suit, and that ordinarily evidence tending to show the condition of the property after the suit was filed would be immaterial. In this case, however, at least two witnesses testified that the condition of the fences and the markers on the property were substantially the same in 1975 as it was in 1971. For instance, John Porcell, a witness called by plaintiffs, testified on direct examination that the fence was the same at the time of the trial as it had been during the past five years. He stated, “I don’t see any difference, not a bit.” And, Daniel Crump, another witness called by plaintiffs, testified on direct examination that he found the property on the day before the trial to be in generally the same condition that he had known it to be during the past four or five years. In view of that testimony, we find no error in the ruling of the trial court admitting evidence which tends to show the condition of the property after the suit was filed.

Since we have concluded that plaintiffs have not been in possession of the 95 acre tract involved here for the period of time specified in LSA-C.C.P. art. 3658, it necessarily follows that plaintiffs are not entitled to recover damages from defendant, at least at this time, for the cutting and removal of timber from that 95 acre tract. We recognize, however, that they may be entitled to recover damages if they institute a petitory action, as the judgment allows them to do, and are successful in establishing their ownership of the property which is in dispute.

The judgment rendered by the trial court made no mention of plaintiffs’ claim for damages for the cutting and removal of timber, and under some circumstances the failure of the court to specifically determine that issue would be construed as a rejection of that part of plaintiffs’ demands. In this case, however, the trial court should not consider and determine the issue of damages until the parties at least have had an opportunity to assert their claims of ownership. We thus do not construe the judgment rendered here as preventing plaintiffs from asserting their claim for damages in some other proper proceeding.

Our ultimate conclusion is that the trial judge was correct in maintaining La Bo-kay in possession of the 95 acre tract in dispute here, and in ordering plaintiffs to assert any title they may have to that tract within 60 days after this judgment becomes final.

For the reasons herein set out, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiffs-appellants.

Affirmed.


author: CUTRER, Judge.

text:
    Donald W. WHITE, Plaintiff-Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Defendant-Appellee.
    No. 5255.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 4, 1976.

      Guillory, McGee & Mayeux by Robert K. Guillory, Eunice, for plaintiff-appellant.
    McBride & Brewster by Norman P. For-et, Lafayette, for defendant-appellee.
    Before MILLER, WATSON and CU-TRER, JJ.
   CUTRER, Judge.

Plaintiffs, Donald W. White, individually and as administrator of the estates of his three minor children, Shannon White, Donald W. White, Jr. and Billy White, and Lonell B. White, his wife, claim damages for personal injuries and automobile damages sustained as the result of a vehicular collision allegedly caused by the negligence of defendant’s insured. The defendant, State Farm Mutual Automobile Insurance Company, filed an answer, reconventional demand against plaintiffs and a third party demand against the City of Eunice. Following a trial on the merits, the trial judge rendered a judgment dismissing the recon-ventional and third party demands of defendant. In addition, he dismissed the demands of Mr. White, individually, and Mrs. White on a finding of contributory negligence. The judgment awarded damages to Mr. White on behalf of two of the three minor children. We affirm the judgment with respect to the awards to Mr. White as administrator and reverse and render judgment with respect to the claims of Mr. White, individually, and Mrs. White. The defendant has neither appealed nor answered the appeal so the dismissal of the reconventional and third party demands are not before us.

The collision which is the subject of this suit took place about 3:15 P. M. on August 1, 1972, in Eunice at the intersection of Nile Street and Moosa Boulevard. Lonell B. White, one of the plaintiffs, was driving her husband’s 1970 Mercury sedan in a westerly direction on Nile Street crossing its intersection with Moosa Boulevard. She had almost completed the crossing maneuver when her car was struck in the right side by the left front of a 1965 Ford owned by Louis E. Norris, insured by State Farm Mutual Automobile Insurance Company and being driven by the owner’s 16 year old daughter, Mary K. Norris. The White vehicle was crossing the intersection at a 45 degree angle from northeast to southwest. The Norris vehicle was traveling south on Moosa. There is a stop sign facing east on Nile Street directing all traffic approaching Moosa on Nile from the east to stop. After stopping at that point and then entering the intersection vehicles crossing Moosa Boulevard have the right-of-way to traverse the western, or southbound, half of Moosa due to the existence of a yield sign facing southbound traffic on Moosa.

The record indicates that Mrs. White was proceeding west on Nile Street and came to a complete stop when she came to the stop sign at the intersection of Nile and Moosa Boulevard. Then she proceeded to cross the boulevard at a speed of 10 miles per hour. She had traversed the northbound lanes of Moosa and had almost completed traversing the southbound lanes of the boulevard when her vehicle was struck by the Norris vehicle, a distance of 103 feet from the stop sign to the point of impact. According to the testimony of Mrs. White, she was not concerned with traffic coming from the north on Moosa because the curve in the intersection required her to watch for oncoming traffic and because she was aware that she had the right-of-way to traverse the southbound lanes of the boulevard.

The testimony of Miss Norris indicates that she and a friend had been at Moosa Memorial Hospital just prior to the accident and that they were leaving the hospital parking area and proceeding south on Moosa Boulevard when the accident occurred. Miss Norris stated that she had traveled through the same intersection on earlier occasions but was unaware of the yield sign located at the intersection which required her to yield the right-of-way to vehicles in the intersection moving from east to west on Nile Street. In addition, she stated that cars were parked on the neutral ground between the northbound and southbound lanes of Moosa Boulevard just to the north of the intersection and that the position of these vehicles blocked her view to the east, the direction from which Mrs. White was coming at the time of the accident. She was traveling about twenty-five miles per hour just prior to the collision and she stated in her testimony that she did not slow her vehicle as she approached the intersection, even though her view of the area to the east was blocked by the parked cars. Her driving experience was somewhat limited in that she had been licensed to drive for slightly more than fourteen months.

The testimony of Melinda Ryder, the passenger in defendant’s vehicle, is of little assistance in connection with the determination of liability. According to her testimony, she was looking through her purse at the time of the accident. She looked up only a fraction of a second before the collision to see the plaintiff’s vehicle in the intersection. Her testimony also indicated that vehicles were parked in the neutral ground of the boulevard. But she was not able to state whether the positioning of those vehicles blocked the view of the area from which Mrs. White was traveling.

Willard Matt, a member of the Eunice Police Department at the time of the accident, investigated the accident. He stated at trial that it had been raining the afternoon of the accident but that it was not raining when the accident occurred. The road surface was asphalt and it was still wet when he arrived on the scene a short time after the accident. The White vehicle was located in the ditch on the southwest corner of Nile Street. He made no estimate of speed for either vehicle but relied on the statements of the drivers, that plaintiff was traveling ten miles per hour and defendant was traveling twenty-five miles per hour. No skid marks were visible on the road surface. He testified that the speed limit for both vehicles was twenty-five miles per hour.

In his written reasons for judgment the trial judge found that Miss Norris was negligent. We find that the record fully supports this conclusion. She was required by the yield sign to yield the right-of-way to all vehicles in the intersection. It is impossible for Miss Norris to have reached the intersection prior to Mrs. White when she was traveling more than twice the speed of the White vehicle and •hit that vehicle when it had almost completely traversed the intersection. In addition, Miss Norris was negligent in failing to slow her vehicle before entering the intersection when her vision was blocked, according to her own testimony, in such a way as to prevent her from seeing vehicles moving from east to west across the intersection on Nile Street. However, the trial judge also concluded that Mrs. White was contributorily negligent in failing to see the Norris vehicle traveling south on Moosa Boulevard. We cannot agree with this conclusion.

A certified copy of an ordinance of the City of Eunice was introduced into evidence by plaintiffs which provides, in part, as follows:

******
“SECTION 1: That the intersection of Moosa Blvd. and Nile Street within the corporate limits of the City of Eunice is designated a dangerous intersection and that southbound traffic on Moosa Blvd. will henceforth yield to traffic in the intersection.
“SECTION 2: That all vehicles approaching said intersection from Nile Street will come to a complete halt before entering the intersection, but that all vehicles going south on Moosa Blvd. shall yield the right-of-way to all vehicles having first entered said intersection.”
******

In effect, this ordinance gives “favored street” status to vehicles in the position of the White, vehicle in the present case.

The jurisprudence of this state is to the effect that a motorist traveling on a favored street is entitled to assume that drivers on the less favored street will obey the law and respect his right-of-way. It is well settled that it is only in exceptional circumstances, where the motorist on the favored street could have avoided the accident by the exercise of the slightest sort of observation and care, that he will be found negligent. Bourgeois v. Francois, 245 La. 875, 161 So.2d 750 (1964). The favored driver can assume respect of his right-of-way on the part of other drivers until he sees or should see that another driver has not observed or is not going to observe the law. Richard v. Southern Farm Bureati Casualty Insurance Co., 212 So.2d 471 (La.App. 3rd Cir. 1968).

The point of impact in the southbound lanes of Moosa Boulevard combined with the fact that Miss Norris was traveling more than twice the speed of Mrs. White leads to the conclusion that Mrs. White was in the intersection prior to Miss Norris reaching the point where the yield sign ■required her to yield the right-of-way to Mrs. White. Mrs. White was familiar with the intersection and with the fact that vehicles traveling south on Moosa Boulevard are required to yield the right-of-way to her. She was on the favored street and entitled to assume that drivers moving in the direction of Miss Norris would yield the right-of-way to her. The evidence produced at trial does not indicate that she saw or should have seen that Miss Norris was not going to yield the right-of-way to her. For these reasons we find no contributory negligence on the part of Mrs. White.

As to the issue of damages, Mr. White, individually, sought damages in the amount of $1,274.80 for the loss of the family automobile and $600 for the loss of the use of that automobile. In addition, he sought as administrator of the estates of his three minor children damages in the amount of $2,000 for each child. Mrs. White sought damages in the total amount of $35,000, alleging whiplash injuries, lower back injuries, and head and shoulder injuries.

Mrs. White’s testimony indicates that she felt some soreness in the neck and had a headache in the evening following the accident. The following morning she could not move her head without severe pain. She saw Dr. Samuel Stagg, Jr., of Eunice, and was given some muscle relaxants and pain pills. She saw Dr. Stagg on four other occasions during the next four months in connection with pain in her neck. She stated that Dr. Stagg referred her to Dr. Lionel Mayer, of the Opelousas Orthopedic Clinic, for consultation in connection with her injuries. She was only able to do light housework and required the assistance of her husband and oldest child to do other housework during the four months following the accident. This testimony was corroborated by that of her husband.

Dr. Stagg testified at the trial and his testimony indicated that Mrs. White had suffered a cervical sprain. This diagnosis was confirmed by X-ray examination performed at Moosa Memorial Hospital on September 5, 1972. After continued complaints of pain from Mrs. White, which Dr. Stagg indicated to be typical in cases involving this type of injury, he referred her to Dr. Mayer. Dr. Mayer’s report to Dr. Stagg was introduced into evidence. It indicates that he found no evidence of any nerve root compression of the upper extremities. He noted that injuries of this type take several weeks to several months for the body’s healing processes to work, and that it is not unusual for patients to continue with some pain and discomfort in the area for several months.

We believe that the above evidence justifies an award in favor of Mrs. White for her pain and suffering in the amount of $3,000. In addition, a bill from Dr. Stagg in the amount of $100, from Opelousas Orthopedic Clinic in the amount of $85 and from Derbes Drug Store in the amount of $21.77, were introduced into the record and proved to have been incurred in connection with treatment of the injuries sustained by Mrs. White in the accident. These special damages should be recovered as well.

As noted above, Mr. White sought damages in the amount of $2,000 for each of the three children. The children, Shannon, Donald, Jr., and Billy, were with their mother when the accident occurred. None was seriously injured. Shannon received some scratches from flying glass and a few bruises. She was treated primarily by her mother, and the trial judge awarded $50 in connection with ' these complaints. Billy became hysterical right after the accident and vomited. He was also bruised and had to be treated by a physician. The trial judge awarded $250 in connection with these complaints. We find no abuse of discretion on the part of the trial judge in the amounts awarded for these complaints. No award was made in connection with Donald, Jr.’s complaints because he suffered no compensable damages.

Mr. White alleged the loss of the family automobile as a result of the accident. In addition, he alleged that damages in the amount of $600 were due as a result of the loss of use of the family automobile. At the trial it was stipulated that the collision coverage afforded under plaintiff’s own insurance policy covered the loss of the family automobile and that plaintiff’s right of recovery for the loss of the vehicle was limited to the $100 deductible he was required to pay under the policy provisions. Proof of the amount plaintiff was required to pay to rent a vehicle for use until the damaged family automobile could be replaced was made by submitting into evidence a bill in the amount of $198.45 from Gilbert Chevrolet, Inc., of Eunice. These expenses have been proved and plaintiff should recover them.

Other expenses for drugs, X-ray examination, wrecker service and the children’s physical examinations were testified to by Mrs. White but were not corroborated by supporting evidence; therefore, there can be no recovery for those items of damage.

For the reasons assigned, the judgment of the trial court in connection with the awards for damages sustained by Shannon White and Donald White, Jr., is affirmed. The judgment dismissing the actions of Mr. White and Mrs. White is reversed, and it is hereby ordered, adjudged and decreed that there be judgment herein in favor of Lonell B. White and against defendant, State Farm Mutual Automobile Insurance Company, in the full sum of three thousand and no/100 ($3,000.00) dollars, together with legal interest thereon from date of judicial demand until paid; it is further ordered, adjudged and decreed that there be judgment herein in favor of Donald W. White, individually, and against defendant, State Farm Mutual Automobile Insurance Company, in the full sum of five hundred five and 22/100 ($505.22) dollars, together with legal interest thereon from date of judicial demand until paid; it is further ordered, adjudged and decreed that defendant-appellee pay all costs.

Affirmed in part; reversed and rendered in part.

      . The distance traveled by defendant from the yield sign to the point of impact was 72 feet.


author: LEMMON, Judge. GULOTTA, Judge

text:
    Rudolph EVANS v. Gabe NAIHAUS.
    No. 6802.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.

      Charbonnet & Charbonnet, New Orleans, Robert P. Charbonnet, New Orleans, for plainti f f-appellee.
    Caryl H. Vesy, New Orleans, for defendant-appellant.
    Before LEMMON, GULOTTA and BOUTALL, JJ.
   LEMMON, Judge.

In this appeal from a judgment awarding workmen’s compensation benefits to plaintiff, who was injured while repairing the roof of a building owned by defendant, the principal issues as to defendant’s liability are whether plaintiff was an employee performing services in the course of defendant’s trade, business or occupation within the contemplation of R.S. 23:1035 and whether that trade, business or occupation was hazardous.

Defendant was a furniture salesman who derived substantial additional income from rental properties, principally from eight wooden two-family dwellings which because of age required considerable maintenance.

Plaintiff, 72 years old at the time of the accident, had been a plasterer by trade, but over the five-year period prior to the accident was generally engaged in performing light carpentry, plastering and painting.

Defendant called upon plaintiff to clean the premises and do needed repairs when a tenant moved, as well as to repair conditions about which tenants complained. Plaintiff normally performed these services with his own tools, but defendant rented special equipment as required and purchased the materials that plaintiff determined would be needed for a particular job. Defendant paid plaintiff on an hourly basis and also paid him an additional amount (determined at a lesser hourly rate) when a helper was required, the helper being hired and supervised by plaintiff. An average job required two to three hours, and defendant called upon plaintiff for these jobs two or three times almost every week.

During the five years preceding the accident defendant collected approximately $10,000.00 annually in gross rental income from the eight properties (an amount roughly equal to his wages as a salesman), and he expended between $1,100.00 and $2,500.00 per year on maintenance and repairs, excluding electrical plumbing and other specialized work. Defendant handled the rentals and rent collections personally, but he hired laborers (usually plaintiff) to perform the maintenance and repairs.

Defendant had no personal skill or knowledge in construction, repair or maintenance work, and he did not ever hire plaintiff or anyone else to perform this type of work for others. Neither did defendant supervise or direct any work performed by plaintiff on properties owned by defendant.

Plaintiff performed the same type of services for others, although he stated he didn’t work for anyone else in the year of the accident.

DEFENDANT’S LIABILITY

Plaintiffs services were performed in connection with defendant’s business of renting residential property, which was one of two businesses in which defendant engaged. The determination of defendant’s liability involves the determination of whether plaintiff’s services were performed “incidental to his employment in the course of his employer’s trade, business, or occupation . '. . .” R.S. 23:1035. The usual test is whether the services constituted an integral part of defendant’s, regular business; that is, whether the services were substantial, essential and recurring. Of necessity, the test is a relative one, depending upon the facts and circumstances of each case. Doss v. American Ventures, Inc., 261 La. 920, 261 So.2d 615 (1972). See also Broussard v. Adams, 270 So.2d 913 (La.App. 3rd Cir. 1972), which found on the facts that defendant was engaged in the business of constructing houses for rental purposes.

A major purpose of the Workmen’s Compensation Act was to remove the burden of industrial and commercial accidents from the victim and to allocate the cost of these accidents over the consumers of the product or the customers of the business. The act was thus intended to apply to workers whose services form a regular and continuing part of the business or cost of the product. On the other hand, the act was not intended to impose potential liability on a businessman for every worker who performs services on the business premises.

Ordinary maintenance and repair work is an essential part of any building rental business. The determination as to whether the person who performs the maintenance and repair work is an employee in that business for purposes of compensation coverage depends upon whether the work is of a substantial and recurring nature.

The record established that defendant’s rental business required him to employ someone to perform substantial maintenance and repair services on a regular basis and that he usually employed plaintiff for these services. We conclude that under the facts and circumstances of this case defendant is liable to plaintiff who was injured while performing maintenance and repair services on defendant’s rental property.

We mention, for completeness, defendant’s argument that plaintiff was an independent contractor. In the determination of the status of a person as either independent contractor or employee, at least for purposes of workmen’s compensation, the nature of the claimant’s work in relation to the regular business of the employer has taken precedence over other relevant factors. Larson, Workmen’s Compensation § 43.50 (Desk ed. 1974). This important factor was discussed above. Nevertheless, even if plaintiff were determined to be an independent contractor, the exception in R.S. 23:1021(6) as to one who spent a substantial part of his work time in manual labor preserves his eligibility for benefits.

As to defendant’s contention that the business of renting property is not hazardous, we have already concluded that maintenance and repair of defendant’s property was an essential, substantial and recurring part of that business. This conclusion has the effect of determining that at least a part of defendant’s business was hazardous, since work in any of the building trades in the repair of any building is included in the statutory list of hazardous businesses. Inasmuch as plaintiff’s employment was incident to that phase of defendant’s business, his injury in the course pf that employment entitles him to compensation benefits.

AWARD OF BENEFITS

In the June, 1973 accident plaintiff sustained a fractured hip, which was surgically repaired by placement of three internal fixation pins across the fracture. After a period of hospitalization, the hip healed uneventfully, and medical treatment was discontinued about five weeks after the accident.

As of March, 1974, plaintiff exhibited a full, painless range of motion and reported to the treating orthopedic surgeon that he had only “slight soreness” in the hip. The doctor opined that plaintiff, from an orthopedic standpoint, could perform any activity that he did prior to the accident and specifically could do “ordinary day to day maintenance type carpentry work”. On the basis of the overall considerations that the pins remained in place, that abundant soft tissue ossification had developed, and that “very mild tightness” was exhibited at the extremes of the range of motion, the doctor estimated a 10 to 15% permanent partial disability of the lower extremity, which was not likely to change. He advised plaintiff to limit his climbing, not because of danger, but because the stress on the hip was likely to produce soreness after continued activity of this type. The doctor admitted the possibility of discomfort after working in certain positions, but declined to classify this as substantial pain.

The medical evidence does not support a finding of total and permanent disability. The percentage disability was physiological, not functional, and the un-contradicted medical testimony established that any permanent impairment of function was not totally disabling. The medical evidence, however, does support an award for permanent partial loss of the use or function of the leg. Under R.S. 23:1221(4) (h) and (o) plaintiff is entitled to 175 weeks of benefits at the rate of $12.50 per week.

The doctor also testified that he would render a “final verdict” upon plaintiff’s reexamination, scheduled for 18 months after the accident (which was after trial but before the record was filed in this court). Either party may apply for a modification if the incapacity increases or decreases after rendition of judgment. R.S. 23:1331.

Accordingly, the judgment of the trial court is amended to award benefits for 175 weeks (rather than 500 weeks) at the rate of $12.50 per week (rather than $17.50). As amended, the judgment is affirmed.

Amended and affirmed.

GULOTTA, Judge

(concurring).

I concur with the result reached by the majority. While it appears, at first impression, that a fracture of the hip requiring the insertion of three pins would render a 73 year old laborer, engaged in carpentry work, permanently and totally disabled, the uncontroverted medical evidence supports the conclusion that the disability is not of a total nature. The medical expert indicated that Evans is able to return to his pre-injury occupation and to resort substantially to the same duties carried out by him prior to the injury. The doctor further testified that the injury would not result in plaintiff’s suffering substantial pain. According to the doctor, perhaps some discomfort might result, but not substantial pain.

LSA-R.S. 23:1221(3) provides compensation payments not beyond a 300 week period for any injury producing partial disability to do work of any reasonable character. This section further provides compensation at the rate of 65% of the difference between the wages at the time of the injury and the wages which the injured employee is able to earn thereafter during the period of disability. In the instant case, there is no showing that any difference exists between pre-injury earnings and post-injury earnings. Under the circumstances it does not appear that LSA-R.S. 23:1221(3) is applicable. In my opinion, the majority properly applied LSA-R. S. 23:1221 (4) (h)(o) providing benefits for permanent partial loss of the use or function of the leg.

      . These annual amounts, reported on income tax returns, were not broken down into labor and material expenses.

      .Several cases cited in brief involve maintenance and repair work to a defendant’s home, which does not entail business activity at all. However, maintenance of a building rented for income purposes is an essential part of the business of renting.
      In this respect we distinguish Ponthieux v. Lindsay, 254 La. 647, 226 So.2d 482 (1969), which involved “the mere isolated use of a casual contractor to move and repair some rental units . . . .” The court specifically found that the defendant had not undertaken to move and repair the buildings as a business venture for profit, but rather to assist his infirm father (who was contractually obliged to remove the buildings within a stipulated time) after a mover had defaulted on a moving contract with the father.

      . We acknowledge the problem asserted by defendant that he was unable as a practical matter to obtain such services from a firm with compensation coverage. This difficulty, however, if accurate, has no relevance to the determination of an injured employee’s right to compensation benefits.

      . Control of the details of the work is the most important factor in the determination for purposes of vicarious liability, which involves injuries inflicted l>y the person alleged to be an employee while performing activities for the employer. Right of control, however, is not nearly so important for purposes of compensation coverage, which involves injuries inflicted upon the person alleged to be the employee, usually by others who may or may not be subject to control by the employer.

      . The record does not establish how long plaintiff was totally disabled between his last treatment in July, 1973 and his next examination in March, 1974. He would nevertheless not be entitled to an award for temporary total disability during his convalescence in addition to benefits under the schedule for permanent partial loss of the use or function of a member. Malone, Louisiana Workmen’s Compensation Law and Practice § 282 (1951); Hall v. Pipe Line Service Corp., 233 La. 821, 98 So.2d 202 (1957).

      . The amendment to R.S. 23:1202, increasing minimum benefits to $17.50, went into effect after plaintiff’s accident.


author: SAMUEL, Judge.

text:
    Mrs. Irma Murphy THORN, Administratrix of the Succession of John Murphy v. WHITNEY NATIONAL BANK OF NEW ORLEANS.
    No. 6972.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.

      Lawrence A. Wheeler, New Orleans, for plaintiff-appellant.
    Milling, Benson, Woodward, Hillyer & Pierson, Richard A. Whann, New Orleans, for defendant-appellee.
    Before SAMUEL, GULOTTA and BEER, J.
   SAMUEL, Judge.

Petitioner, as administratrix of the Succession of John Murphy, filed this mandamus action to compel defendant, Whitney National Bank of New Orleans, to surrender to her funds in a savings account in the name of the decedent, John Murphy.

The defendant bank filed exceptions of no cause of action and unauthorized use of summary proceedings. It also filed an answer in which it admitted possession of a savings account in the name of John Murphy, showing a balance of $1,655.35. In its answer the defendant also stated it was ready to transfer the funds to the adminis-tratrix immediately upon her surrender of the passbook representing the savings account, in accordance with the terms of a contract alleged to exist between decedent and the bank as part of the bank’s savings account program.

The trial court rendered judgment maintaining defendant’s exceptions of no cause of action and unauthorized use of summary proceedings and dismissing plaintiff’s suit. From that judgment, plaintiff has prosecuted this appeal.

Appellant relies on the provisions of R. S.6:66, which states:

“Upon proper authority and upon obtaining a receipt therefor, any bank may transfer any money or other property in its possession, belonging to a deceased person, to the decedent’s successsion representative, heirs, or the legal representatives of the heirs.
The letters of the succession representative or the judgment recognizing and putting the heirs in possession, issued by a court of competent jurisdiction, and accompanied by letters of tutorship or curatorship of the heirs who are not sui juris, shall constitute proper authority for making the transfer, which when so made and receipted for shall be full protection to the bank.
Conclusive proof to the bank of the letters or judgment and of the jurisdiction of the court rendering them shall result from copies thereof, duly certified when rendered by a court of this state, ...” LSA-R.S. 6:66.

Defendant’s argument on its exception of no cause of action is based upon an alleged contract, not of record herein, which provides in part: “Article IX. In all cases where the whole amount is withdrawn, the pass-book shall be surrendered to the bank.” Defendant argues this contract provides a heritable obligation which is binding on defendant as decedent’s admin-istratrix and which supercedes succession law.

The defendant attached to its exceptions a copy of 'a purported affidavit stating the bank book was the object of a manual donation to plaintiff’s sister by the decedent. It attempts to justify its refusal to surrender the funds as an attempt to protect itself from conflicting claims. In so arguing, it contends the word “may” in the above quoted statute'is permissive language allowing the bank to surrender or not surrender the money in its sole discretion. For the purposes of this opinion and decree, we assume that the defendant’s allegations relative to the contract and its provisions and the affidavit and its provisions are in fact true and correct.

Book VI of the Code of Civil Procedure provides for proceedings in probate matters. Title III of Book VI provides the procedural rules for administration of successions, and Chapter 4 of Title III sets forth the general functions, powers and duties of succession representatives. Section 2 of Chapter 4 specifically provides for “Collection of Succession Property.” Article 3211, contained in Section 2, reads as follows:

A succession representative shall be deemed to have possession of all property of the succession and shall enforce all obligations in its favor.” LSA-C.C.P. Art. 3211.

Comment (b) to Article 3211 makes clear the drafters of the Code deemed unnecessary a specific provision regarding transfer to the succession representative of bank accounts in view of the provisions of R.S. 6:66, quoted above. Thus, under Article 3211 a succession representative has the right to obtain possession of succession assets in accordance with law.

We do not agree with defendant’s interpretation of R.S. 6:66. The word “may” as used in the context of that statute is not permissive to the extent of giving the bank the sole discretion as to whether it should or should not transfer funds to a properly authorized succession representative upon receiving due receipt. On the contrary, the statute specifically relieves the bank of any liability whatever upon surrendering the bank held money or property to such a representative upon obtaining due receipt. It is in this connection that the verb “may” is used, i. e., the bank may make the transfer as indicated without incurring liability therefor.

Defendant contends plaintiff should first sue her sister to obtain the deposit book before attempting to obtain possession of the funds. However, should a bank be given the right to tell a succession representative how to proceed in order to gather succession assets, our probate law, both testate and intestate, would be placed in a state of chaos. In the present case, for example, the bank could delay the orderly handling of the succession by pointing to one person after another as potential possessors of the bank deposit book and by requiring the succession representative to sue a possibly endless number of such persons before the bank would be required to surrender the funds.

The heirs are protected in the matter by the bond furnished by the succession representative, or by such bond as the court may require. The bank is protected in the matter by the provisions of R.S. 6:66. Under the circumstances, the defendant is unjustified in refusing to surrender the sum in the decedent’s bank account upon plaintiff’s complying with R.S. 6:66.

There may be some doubt that plaintiff has a right to a writ of mandamus because Article 3861 of the Code of Civil Procedure limits the function of such a writ to compelling the duties set forth in Articles 3863 and 3864 of that code. However, Article 3864 allows the writ to be used to compel a corporation or its officer to perform a duty prescribed by law. This provision was not contained in the source of the article, Article 835 of the old Code of Practice. Mandamus has been used to compel a corporation to transfer stock. Other corporate duties required by statute, but not by charter or by law, are enforceable by mandamus. In view of Article 3862, which provides for issuance of a writ where a delay involved in obtaining ordinary relief may cause injustice, and in view of the provisions of R.S. 6:66, it would seem appropriate that mandamus would lie against the defendant to surrender the funds in its possession. We so hold.

For the reasons assigned, the judgment maintaining the exceptions of no cause of action and unauthorized use of summary proceedings is reversed, those exceptions are now overruled, and this case is remanded to the trial court for further proceedings in accordance with law and with the views expressed in this opinion.

Reversed and remanded.

      . State v. Bunkie Coca Cola Bottling Co., 222 La. 603, 63 So.2d 13.

      . Tichenor v. Dr. G. H. Tichenor Go., Limited, La.App., 161 So. 198.


author: GULOTTA, Judge. SCHOTT, Judge

text:
    Mrs. Georgette W. Chauvin, wife of and Curtis A. CHAUVIN v. Patricia A. CLARK et al. Mrs. Pauline Gauthreaux, wife of and Alvin J. GAUTHREAUX v. Patricia A. CLARK, and her Insurer, General Accident Insurance Company.
    Nos. 7207, 7208.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 1976.

      Thomas J. Taylor, New Orleans, for plaintiffs-appellees, Mrs. Georgette W. Chauvin, wife of and Curtis A. Chauvin.
    Christopher T. Grace, Jr., New Orleans, for plaintiffs-appellees, Mrs. Pauline Gauthreaux, wife of and Alvin J. Gauth-reaux.
    Monte J. Ducote, New Orleans, for defendants-appellants, Patricia A. Clark and General Accident Ins. Co.

      René A. Pastorek, Thomas L. Gaudry, Jr., Gretna, for defendant-appellee, Aetna Casualty and Surety Co.
    Before GULOTTA, SCHOTT and BEER, JJ.
   GULOTTA, Judge.

These consolidated cases arise out of an automobile accident which occurred at the intersection of Veterans Highway and Clearview Avenue in Jefferson Parish on May 30, 1972, at approximately 2:00 p. m.

Plaintiff in one of the two consolidated suits, Georgette W. Chauvin, was a guest passenger in an automobile driven by Pauline Gauthreaux in a northerly direction on Clearview Avenue. Mrs. Gauthreaux, plaintiff in the other suit, seeks damages for injuries sustained in the accident.

Patricia A. Clark, defendant in the suits, was traveling in an easterly direction in the left traffic lane of Veterans Highway. While the Gauthreaux vehicle was attempting to cross the eastbound traffic lane of Veterans Highway at the semaphore-controlled intersection, the front end of the Clark automobile struck the left side of the Gauthreaux vehicle.

Both Gauthreaux and Clark claim they had a green light in their favor when they crossed the intersection. Clark claims that she was stopped at the signal light on Veterans for a red light. When the light changed to green, she crossed the southbound traffic lanes of Clearview Avenue, proceeded past the neutral ground, and struck the left side of the Gauthreaux automobile which had crossed the intersection on a red light.

Judgment was rendered in favor of Pauline, wife of/and Alvin Gauthreaux, and Georgette, wife of/and Curtis Chauvin, and against Patricia Clark and her insurer. A suit filed by the Chauvins against the Gauthreauxs and their insurer was dismissed. Defendant Clark and her insurer appeal. We affirm.

It is defendants’ contention the trial judge erred when he concluded that Gauth-reaux had the green light in her favor and that plaintiff, Alvin J. Gauthreaux, proved, by a preponderance of the evidence, his claim for loss of use of the automobile. According to defendants, plaintiff failed to introduce sufficient evidence to show the extent of damage to his automobile and to show that a nine week period of time was required to repair the automobile. Defendants further claim the $4,500.00 general damage award in favor of Mrs. Chauvin is excessive.

We fail to find merit in any of the contentions raised by defendants. The record supports the conclusion that defendant driver crossed on a red light. Mrs. Gauth-reaux and Mrs. Chauvin testified that plaintiff, Gauthreaux, crossed on a green light. Moreover, a disinterested driver, stopped on Veterans Highway for the red light, stated Clark crossed the intersection when the Veterans Highway traffic light was red. Clark and her guest passenger stated the light was green when Clark crossed the intersection. The trial court’s conclusion is based-on credibility. Absent a finding of manifest error, the factual determinations of the trial judge are not to be disturbed. We find no such error.

Conversely, the record does not support Clark’s contention that Gauthreaux’s untimely failure to see the Clark automobile and to take appropriate evasive action constituted negligence which was a proximate cause of the accident. Gauthreaux and Chauvin testified that their view of the Clark vehicle, approaching in the left trafic lane of Veterans Highway, was obstructed by stopped vehicles located in the two Veterans Highway traffic lanes to the right of the Clark vehicle. According to Gauthreaux and Chauvin, they did not see the Clark vehicle until immediately before impact. Likewise, Clark stated that she did not see the Gauthreaux vehicle until immediately before the accident.

Also without merit is defendants’ contention that plaintiff offered insufficient evidence to establish the extent of the automobile damage, requiring the use of a rented vehicle for a nine week period and payment of the $100.00 deductible required under the terms of plaintiff’s insurance policy. Gauthreaux testified that following the accident, without delay, the automobile was taken to Paretti Pontiac. Gauthreaux further stated that nine weeks were required to repair the vehicle. During that time, plaintiff rented a replacement automobile at a total cost of $756.00. According to Gauthreaux, a fire and safety inspector for Shell Oil Company in Norco and a resident of Metairie, his duties required the use of an automobile because he was subject to 24-hour call. Gauthreaux also stated he was not reimbursed by Shell for the cost of driving his vehicle to and from his place of work.

It is true, as claimed by defendants, that Gauthreaux failed to support his testimony with an estimate of repairs or any corroborative testimony or documentary evidence relating to the time required to repair the vehicle, the extent of vehicle. damage or the cost of repair. The only documentary evidence relating to the loss of use claimed is the bill for the rental of the replacement vehicle during the time period the vehicle was being repaired. However, plaintiff’s testimony is uncontroverted. The trial judge apparently accepted this uncontro-verted testimony as true. See Smith v. Frederick, 221 So.2d 306 (La.App. 4th Cir. 1969); Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967); Coleman v. Victor, 326 So.2d 344 (La.1976). We cannot say he erred in awarding Gauthreaux damages for loss of use.

Finally, we reject defendants’ complaint that the $4,500.00 general damage award in favor of Chauvin is excessive. Following the accident, Mrs. Chauvin was taken to Ochsner Foundation Hospital where she was treated for lacerations of the forehead and right hand, and back spasm.

Because of continued pain and weakness in the right hand, Mrs. Chauvin saw Dr. E. J. Alleman on August 10, 1972. She was seen by Dr. Alleman on approximately nine occasions between the initial August 10, 1972 visit and the final visit on October 30, 1973. According to Dr. Alleman, plaintiff sustained a sprain and strain of the cervical area of the neck, causing spasm of the soft tissue in the neck muscles which in turn probably produced tension and irritated some of the nerves in the neck area. Treatment consisted of cortisone, pain relievers and the use of ultrasonic and heat treatment to the affected areas. It was the doctor’s opinion that the injury caused pain to radiate into the right upper extremity and into the face. Dr. Alleman did not anticipate any permanent disability from the accident.

Dr. Jose L. Garcia Oiler, a neurosurgeon, saw plaintiff Chauvin on June 22, 1973 and November 21, 1973. On the initial visit, plaintiff complained of pain in the region of the back of the head and neck which radiated into the right forearm and fingers of the right hand. She also complained of numbness in the area of the chin. According to Mrs. Chauvin, the pain increased with physical activity. Based on his examination and the description of pain from plaintiff, Dr. Garcia Oiler determined that Mrs. Chauvin, as a result of the neck injury sustained in the accident, suffered nerve root involvement caused from irritation, stretching or compression of the nerve roots. The doctor testified that numbness extending from the back of the head to below the ear and into the jaw and the tip of the chin resulted from a whiplash injury that stretched the nerve roots at the C-6 level and also caused other additional nerve involvement.

The trial judge concluded, in written reasons, that Mrs. Chauvin’s injuries “resulted in periods of pain, discomfort and physical disability which occurred intermittently during the period from May 30, 1972, through October, 1973, during which time Mrs. Chauvin experienced periods of recurrence and remission of discomfort and pain and which limited her activity .” The record supports this conclusion. Under the circumstances, we cannot say the $4,500.00 award in general damages constitutes an abuse of the trial court’s discretion. Accordingly, the judgment is affirmed.

Affirmed.

SCHOTT, Judge

(dissenting in part).

I respectfully dissent from that portion of the majority opinion which affirms the trial court’s award to plaintiff, Alvin J. Gauthreaux, of $756 which he paid to rent a replacement automobile.

There is no question but that a plaintiff is entitled to recover the cost of renting a replacement automobile while his damaged automobile is being repaired, but recovery is limited to the damages incurred during the time required to make the necessary repairs to the vehicle, and such damages must be proved by a preponderance of evidence and not left to conjecture or speculation. Nelson v. Hawkins, 244 So.2d 656 (La.App. 2nd Cir. 1971). At 22 Am.Jur.2d, Damages § 153, it is said that a plaintiff may recover for the loss of use “during the time reasonably necessary to make the needed repairs.”

I am mindful of the Supreme Court’s discussion in Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971) to the effect that a plaintiff’s proof may be direct or circumstantial and constitutes a preponderance “when, taking the evidence as a whole, such proof shows that the fact or causation sought to be proved is more probable than not.” Likewise, I have the benefit of the recent case of Coleman v. Victor, 326 So.2d 344 (La. 1976) in which plaintiff’s testimony regarding cost of repair without objection and contradiction was found sufficient to establish the claim for property damage. But in that case there was some testimony or evidence to support the element of damage claimed, whereas in the present case there is none.

The sum total of plaintiff’s proof was that an accident occurred in which his car was damaged and the cost of repairing the damage exceeded his $100 deductible in his collision insurance policy. There are no repair estimates or bills, no photographs, not even a description of the extent to which the automobile was damaged. He produced only the bill from the automobile rental agency showing that he paid $756 for nine weeks for a replacement automobile. We can only speculate whether the repairs made to his vehicle were necessitated by the accident or included some additional repairs, and there is no basis whatsoever for concluding that nine weeks was a reasonable amount of time in which necessary repairs were made. Plaintiff did not prove that his $756 automobile rental bill was incurred because of the accident, but only that he did, in fact, rent an automobile for nine weeks after the accident.

I do not suggest that a plaintiff should be burdened with an impossible task in proving damages, but because this plaintiff offered no evidence whatsoever to support his claim in this case I would amend the judgment of the trial court to delete from the award the $756 for rental of the replacement automobile.

      . 56,651 on the docket of the Supreme Court, decided January 19,1976.