text:
    STATE of Louisiana v. Matthew HENDERSON.
    No. 59335.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Matthew Henderson applying for remedial writs.

Writ denied. The petitioner was granted an appeal on December 10, 1976. Post-conviction review is not available while the appeal is pending, La.C.Cr.P. art. 363, with exceptions not here pertinent.


source: Caselaw Access Project

license: Public Domain

text:
    Jacquelyn CALDWELL v. A. Mark PARKER, M.D., et al.
    No. 59301.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Jacquelyn Caldwell applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 340 So.2d 695.

Writ denied. On the showing made, the result is correct.


text:
    J. P. PEEVY, represented by Adrian G. Peevy, et al. v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS.
    No. 59323.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Adrian G. Peevy, et al. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 340 So.2d 642.

Writ denied. On the facts found by the court of appeal, there is no error in the judgment.


text:
    Shirley Jordan MITCHELL, Individually and as natural tutrix of her children v. EMPLOYERS MUTUAL LIABILITY INSURANCE CO. OF WISCONSIN et al.
    No. 59356.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Shirley Jordan Mitchell applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Sabine. 341 So.2d 35.

Writ denied. Upon the facts found by the court of appeal, the result is correct.


text:
    STATE of Louisiana ex rel. Herman J. WALLACE v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 59321.
    Supreme Court of Louisiana.
    March 18, 1977.
   In re: Herman J. Wallace applying for writ of habeas corpus.

Writ denied. Based on a prior evidentia-ry hearing, the trial court found no merit to the petitioner’s allegations. We find no error in the trial court’s conclusions. See also transcribed evidence in State ex rel. Thompson v. Henderson, 306 So.2d 713 (La. 1976).


author: SAMUEL, Judge.

text:
    K. D. WOLF v. Ernest WALKER, Jr.
    No. 7835.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1976.
    Thomas J. Taylor, New Orleans, for plaintiff-appellee.
    Kiefer, Glorioso & Fleming, Anthony L. Glorioso, New Orleans, for defendant-re-convenor-appellant.
    Before SAMUEL, REDMANN and BEER, JJ.
   SAMUEL, Judge.

Plaintiff, an evicted tenant, filed this suit against his former landlord for damages allegedly resulting from their oral lease agreement and the eviction. Defendant answered and reconvened for two months’ rent allegedly due. Following trial on the merits, there was judgment in favor of plaintiff in the sum of $395.30. The judgment also dismissed the reconventional demand. Defendant has appealed.

The lease agreement was entered into during the month of April, 1975. Plaintiff agreed to lease the residential property located at 3135 Orleans Avenue, New Orleans, for the sum of $80 per month, provided plaintiff would make necessary repairs. The condition of the property was deplorable. A front screen door was broken, the bathroom floor was falling, the commode was supported by only one beam, the wall behind the bathtub had separated, the kitchen floor had only five pieces of linoleum tile, some of the wallpaper was completely loosened from the ceiling and various walls, paint was peeling, an area where pipes went from the house to the ground had many holes, and the entire interior of the house needed repainting.

The testimony establishes that plaintiff made these repairs and that the work was expertly done. The defendant did supply three gallons of paint but this was not sufficient for all of the painting required. Plaintiff, at his own expense, bought the necessary glue, cement, extra paint, linoleum tiles, and all other materials needed to repair the property. He hired a helper to assist in making the repairs and disposing of the trash.

Plaintiff received an eviction notice on September 3, 1975 (apparently for alleged non-payment of rent for the months of July and August), and moved out three days thereafter. Following plaintiff’s eviction, the defendant (according to his testimony) rented the premises for $90 per month.

To some extent the testimony is in conflict as to rent payments. Plaintiff testified he had paid the rent through the month of July; the defendant testified rent for the months of July and August was not paid. The record does establish that defendant did receive cheeks for August and September rent but returned them un-cashed.

In this court defendant-appellant contends: (1) the trial court erred in not dismissing plaintiff’s demand because plaintiff was obligated to make the repairs under the provisions of Civil Code Article 2716; and (2) the trial court further erred in not awarding appellant $160, being rent for the months of July and August, on the recon-ventional demand.

We do not agree with appellant’s first contention. Civil Code Article 2716 is inapplicable in this case for the reason that the repairs required by the article to be made at the expense of the tenant are those repairs the making of which becomes necessary during the lease. Here the repairs were necessary prior to the inception of the lease and the making of the repairs was a part of the lease contract. Although the lease agreement in suit did not stipulate a definite lease term, in our view it did contemplate a reasonable time, and plaintiff clearly was evicted prior to the expiration of any time which might be considered reasonable. In this connection, we note that Civil Code Article 2693 requires the lessor to deliver the thing leased in good condition, free from any repairs, and further requires him to make certain other repairs when necessary. Civil Code Article 2694 provides that when the lessor refuses or neglects to make these necessary repairs when called on to do so, the lessee may himself cause the repairs to be made and deduct the price from the rent due. Thus, by analogy, it appears to us the lease agreement here should be interpreted as not terminating until the plaintiff reasonably had been compensated for the repairs he made.

Nor do we agree with the second contention. Plaintiff testified: he incurred expenses of $37.50 for moving caused by the eviction and $39 per month for four months for storing his furniture; he worked a total of 104 hours repairing the property and his services were worth $3.50 per hour; and he paid $60 to the helper who assisted him, a statement verified by that helper who also testified. The demand, including cost of materials, etc., made by plaintiff in his petition is itemized and totals $709.12. The trial court awarded plaintiff $395.30. Although the trial judge did not state which items were awarded and which were not allowed, we are of the opinion he took into consideration the fact that plaintiff had occupied the premises during the month or months for which he found the $80 monthly rental was not paid, and that his award of $395.30 accordingly reflects these considerations. Thus, the defendant already has received the $80 per month rent to which he is entitled.

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

AFFIRMED.

      . In pertinent part the article reads:
      “The repairs, which must be made at the expense of the tenant, are those which, during the lease, it becomes necessary to make:” LSA-C.C. Art. 2716.


author: BEER, Judge,

text:
    Evelyn Kubes, wife of Rufus DOUGLAS v. Rufus DOUGLAS.
    No. 8063.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 15, 1976.
    Martin A. Welp, New Orleans, for plaintiff-appellant.
    Clyde A. Ramirez, New Orleans, for defendant-appellee.
    Before SAMUEL, REDMANN and BEER, JJ.
   The plaintiff-wife filed this suit for separation from bed and board on the grounds of cruel treatment and habitual intemperance. The husband answered in the form of a general denial and reconvened for a separation on the grounds of cruel treatment and abandonment. The trial judge found mutual fault and dismissed both the main and reconventional demands. Plaintiff has appealed contending the trial court erred in failing to apply the doctrine of comparative rectitude.

Imprimis, we note that Act 495 of 1976, which provides that a separation from bed and board shall be granted even though both spouses are mutually at fault, is not applicable in this case. The act adds a new article (141) to the Civil Code, is concerned with substantive rather than procedural law, and became effective October 1, 1976, subsequent to the March 3, 1976 judgment here appealed from.

While there are some comparatively minor conflicts in the evidence adduced, the record contains testimony establishing or supporting the following facts:

The litigants had been married for approximately 33 years and had two children both of whom were over 21 years of age. On several occasions during the marriage the defendant had struck his wife, the last such occasion occurring three or four weeks prior to the actual separation in March, 1975. At that time the husband had struck the wife several times on the leg with one of her slippers, causing bruises to the leg and injuring her to some slight degree, as she testified, in “several other places.” The defendant drank an excessive amount of beer, on some occasions becoming intoxicated, and frequently would return to the house at late hours of the morning.

On the other hand, the defendant has an excellent work record. He has been em-. ployed as an air compressor operator during all of the years of the marriage, works all week and approximately half of the weekends out of each year, plus frequent overtime during the week. Until shortly before the separation he gave his wife his entire weekly pay check, and when he stopped doing this he turned over to her $100 each week from the check. The wife habitually and persistently has nagged the husband, finding fault with him both in public and in private. Because of the nagging, on many occasions he has left the house or locked himself in a bathroom or utility shed, even eating there, to get away from her bickering. It is clear that the wife’s nagging provoked much of the husband’s actions and made their living together “insupportable” as required by Civil Code Article 138(3). In addition to the excessive nagging over the years and although she now claims the statements were made in jest, plaintiff admitted telling the defendant he had better watch his food because it might be poisoned and if she had a gun she would shoot him.

Regarding the doctrine of comparative rectitude, our jurisprudence has been that where the spouses were guilty of mutual wrongs toward each other of the same general character and so proportional as to make it difficult to ascertain which party is mainly at fault, the courts will not grant relief to either. In the instant- case, it is either difficult or impossible for us to conclude which of the two litigants is mainly at fault.

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

AFFIRMED.

BEER, J., concurs with written reasons.

BEER, Judge,

concurring.

I respectfully concur for the same reasons set forth in my concurring opinion in Cousin v. Cousin, 327 So.2d 136 (La.App. 4th Cir., 1976).

      . This is the sole incident of striking the wife in which any of the facts involved are mentioned in the testimony. Their television set and telephone were in the den of their home. The husband was in the process of calling his sister in Maryland regarding their mother’s financial affairs and the wife was looking at television. Unable to converse with his sister because of the television noise, the husband asked the wife to turn the volume down. She adamantly refused; he turned the volume down; an argument and the striking incident then ensued.

      . Grappe v. Grappe, La.App., 315 So.2d 866; Schillaci v. Schillaci, La.App., 313 So.2d 599; Maranto v. Maranto, La.App., 297 So.2d 704; Davis v. Davis, La.App., 258 So.2d 138; Geraci v. Geraci, La.App., 226 So.2d 543.


author: MARVIN, Judge.

text:
    J. W. JONES, Plaintiff-Appellee, v. Robert R. LaBARBERA, Defendant-Appellant, and Caddo Parish Democratic Executive Committee, Defendant-Appellee.
    No. 13234.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 7, 1977.

      Pugh & Nelson by Robert G. Pugh, Henry C. Walker, IV, Shreveport, for defendant-appellant.
    J. W. Jones, in pro. per.
    William F. Baldwin, Shreveport, for defendant-appellee, Democratic Committee.
    Before BOLIN, PRICE and MARVIN, JJ.
   MARVIN, Judge.

Article 5, § 29, La.Const.1974, in part, requires that the coroner shall be a “licensed physician,” but that this requirement “. . . shall be inapplicable in any parish in which no licensed physician will accept the office.

The issue presented is whether the appellant, who is licensed to practice medicine in Spain but not in Louisiana, may qualify as a candidate for coroner in Caddo Parish.

Appellant, a native-born citizen of the United States, received a degree as a Doctor of Medicine and Surgery from the University of Valladolid in Spain in 1974. He is a member of Southern Medical Association and the American Medical Association. He will not be eligible to be licensed in Louisiana until he has completed three years of training and has passed an examination as required by the Louisiana State Board of Medical Examiners.

Appellant filed papers to qualify as a candidate for coroner of Caddo Parish with the Caddo Parish Democratic Executive Committee. One other person, who is a physician licensed in Louisiana, qualified as a candidate. A member of the Executive Committee formally objected to appellant’s qualifications to be a candidate. After a hearing by the Executive Committee, this objection was overruled. Suit was then brought in the district court to declare appellant unqualified and to set aside the Executive Committee’s certification of appellant as a candidate. Judgment below was as prayed for and was appealed here.

In considering constitutional provisions, we employ the same rules and principles of construction which are applicable to statutes. Barnett v. Develle, 289 So.2d 129 (La.1974). The safest rule of legislative interpretation is to look to the nature and object of the provision under consideration, with all the light and aid of contemporaneous history, and to give the provision such operation and force as is consistent with its legitimate purpose. Tennessee Gas Transmission Co. v. Violet Trapping Co., 248 La. 49, 176 So.2d 425 (1965).

The term license has been defined as the formal permission granted by a sovereign to a person to pursue some occupation, without which license the pursuit of the occupation permitted by the license would be illegal. Ewell v. Board of Supervisors, etc., 234 La. 419, 100 So.2d 221 (1958).

The 1921 Constitution (Art. 6, § 12) contained a statement of public policy against the unqualified practice of medicine in Louisiana. A definition of licensed physician, however, is not found in either of the most recent constitutions (of 1921 or 1974), or in the revised statutes. R.S. 37:1261 et seq., which establishes the Louisiana State Board of Medical Examiners and regulates the practice of medicine in Louisiana, makes definite reference to unlicensed physicians in section 1284.

“Unlicensed physicians shall not be exempt from jury or military duty, or be permitted to collect any fees or charges for services rendered, or be allowed to testify as a medical or surgical expert in any court, or execute public or legal documents as a physician or surgeon, or hold any medical office, or be recognized by the state or parish or municipal corporation as a physician or surgeon; or be entitled to enjoy any of the privileges, rights, or exemptions granted to physicians or surgeons by the laws of this state.” R.S. 37:1284. (Emphasis supplied).

The privileges, rights and exemptions granted to physicians by the laws of this state (as mentioned in the above section) are granted to those physicians who hold the certificate issued under Title 37 by the Board of Medical Examiners. See R.S. 37:1273, 1278-1280. Provisions of this type had been in our law for more than a half century at the time the 1921 Constitution was adopted. See Act 56 of 1914.

Our review of the transcript of the deliberations of the 1974 Constitutional Convention compels us to conclude the delegates intended the coroner to meet essentially the same requirements as the 1921 Constitution provided. See Vol. XI, Transcript of Constitutional Convention, August 24, 1974, 36th day, pp. 64-73. We are also of the opinion that the term licensed physician had acquired definite meaning during the course of the state’s history since 1914 of certifying physicians to practice in Louisiana, as distinguished from unlicensed physician, the direct opposite term.

We also take notice that the provisions of the 1974 Constitution (similarly again to the 1921 Constitution) relating respectively to Judges, District Attorneys and the Attorney General, require that each, as a qualification, “. . . shall have been admitted to the practice of law in this state for at least five years . . . These provisions also stem from the 1921 Constitution. Both Constitutions can be said to require particular public officers of the legal professions to have been licensed in Louisiana for a term of years, without imposing a similar requirement on the coroner, a public officer, preferably of the medical profession. We conclude that the reason for the distinction is not that the convention delegates thought a physician licensed, say in Texas, would be acceptable as a coroner, while a lawyer admitted in Texas would not be acceptable as a judge or public attorney, but the distinction is that the delegates desired to require a minimum of five years experience in legal practice as a qualification for the other positions. We also take notice that the work of the 1974 Constitutional Convention was accomplished by committees and that ostensible differences in language in the several sections of the 1974 Constitution does not necessarily indicate substantive legal distinctions. Were it otherwise, the decision of who is and who is not a licensed physician (and thus qualified to be a candidate for coroner) would rest, not with a professional medical body, but with the party executive committees.

We hold therefore that licensed physician in Art. 5, § 29 of the 1974 Constitution means a physician licensed to practice medicine in Louisiana.

Appellant further contends the qualification provision (“The requirement that he be a licensed physician shall be inapplicable in any parish in which no licensed physician will accept the office.” Art. 5, § 29, La. Const.1974, in part), makes his eligibility for the office solely dependent upon the whim of licensed physicians within the parish and thereby deprives him of the equal protection guarantees of the federal and the state constitutions.

It appears the U.S. Supreme Court has recognized two approaches toward the issue. The most recent approach inquires whether the statutory provision in question either classifies persons on the basis of “suspect criteria” or arbitrarily infringes upon the “fundamental rights” of the complaining party. If either case (arbitrary infringement of fundamental right or classification upon suspect criteria) is present, it is incumbent upon the state to show a compelling state interest for the existence of the provision. In the absence of a finding of arbitrary infringement of a fundamental right or of classification on suspect criteria, the traditional equal protection approach is utilized. This approach requires the state to prove that the provision in question bears a rational relation to a valid legislative objective. See cases, infra.

Appellant contends in this respect that his classification as a non-physician as opposed to a licensed physician is based on suspect criteria, and that when the test of compelling state interest is inquired into, the test fails because the constitutional provision allows or provides that a non-physician (layman) may be eligible to serve as coroner where no licensed physician desires to seek the position.

The U.S. Supreme Court has found the following to be suspect criteria: Race: Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Alienage: Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Indigency: Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); and Illegitimacy: Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972).

Four justices held sex to be a suspect criteria in Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). A physician-non-physician class is not based on the suspect criteria which have been recognized. Likewise, appellant does not contend that the qualification provision violates any of his fundamental rights. The compelling state interest test then, is not applicable as appellant ingeniously contends.

The provision in question does not violate the equal protection clause when measured by the traditional rational-basis test. A licensing requirement for coroner is rationally related to the valid governmental objective of having professionally qualified people in the office. The Constitution provides for non-physician coroners only in parishes where no licensed doctor qualifies for the office.

“In applying that clause, this Court has consistently recognized that the Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways, [cites omitted]. The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920).” Reed v. Reed, 404 U.S. 71, 75-76, 92 S.Ct. 251, 253-254, 30 L.Ed.2d 225 (1971).

In Bonomo v. Louisiana Downs, Inc., 337 So.2d 553, 557 (La.App.2d Cir. 1976) we said:

“The federal and state authorities prohibit any discrimination based on race, religion or national ancestry. They do not prohibit discrimination based on other reasons which are not arbitrary, capricious, or unreasonable, or which are not applied in that fashion, under particular circumstances which may be in question.”

The difference in qualification requirements is not arbitrary but rather is a rational distinction based on the distribution of physicians in this state. Aware of both the need for licensed physicians in the coroner’s office and the scarcity of physicians in some parts of the state, the constitutional redactors devised a rational scheme for the qualification of coroner candidates. We hold the provision does not deny appellant the equal protection of the law.

At appellant’s cost, judgment is

AFFIRMED.

      . This section is similar to the provisions of Art. 7, § 71, La.Const.1921, which stated that the coroner shall be “. . .a doctor of medicine, regularly licensed to practice.”

      . The quoted provision is from Art. 5, § 24, “Judges; Qualifications.” Almost identical language is found for the Attorney General (Art. 4, § 2) and for District Attorneys (Art. 5, § 26).


author: BOLIN, Judge.

text:
    STATE of Louisiana, in Interest of Jeffery SKINNER.
    No. 13220.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 10, 1977.
    G. Allen Walsh, Baton Rouge, for James E. Skinner.
    Kolb & Rooks, Rhett R. Ryland, Baton Rouge, for Mr. and Mrs. Luther Frith.
    Before BOLIN, PRICE and JONES, JJ.
   BOLIN, Judge.

A routine screening of the appeals lodged in this court revealed that we probably lacked jurisdiction in this case because the appeal was not perfected by the timely filing of the appeal bond. (Louisiana Code of Civil Procedure Article 2088). Appellant was given ten days notice to show cause why the appeal should not be dismissed.

The natural father petitioned to obtain custody of his child from the child’s grandparents. A judgment rejecting the father’s demands and maintaining the grandparents’ custody was rendered July 30, 1976. A new trial was applied for August 2 and denied September 10. Subsequently plaintiff retained new counsel and a second application for new trial was made which was denied on October 19. Appellant sought and obtained an order of appeal on November 15; the appeal bond was not filed until January 12, 1977.

Since this is an appeal from a judgment relating to custody, the delay for perfecting the appeal is 30 days. La.C.C.P. Article 3943. Assuming the time for perfecting this appeal did not begin to run until October 19 (rather than September 10), the 30 days for perfecting the appeal had clearly expired.

The appeal is dismissed at appellant’s cost.


author: SARTAIN, Judge.

text:
    Harold Glenn SCOGGINS et al., Plaintiffs-Appellants, v. Charles B. SMITH et al., Defendants-Appellees.
    No. 11086.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Joseph A. Gladney, Baton Rouge, of counsel for plaintiffs-appellants.
    Bart Eaton, Baton Rouge, of counsel for defendants-appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

This is an appeal from a judgment sustaining a motion for summary judgment.

Plaintiffs sued Charles B. Smith, his employer, Florida Parishes Recappers, Inc. (Recappers), and its alleged liability insurer, Newark Insurance Company of New York (Newark), a member of the Royal-Globe Insurance Group.

The accident giving rise to this litigation occurred on November 4, 1973. Newark in its motion for summary judgment attached a certified copy of its policy showing the effective dates thereof to be February 9, 1972 through February 9, 1973. It is their position that inasmuch as the accident occurred some nine months after the expiration of the policy period and the policy was not renewed before it lapsed, it afforded no protection.

Plaintiffs counter with the argument that Dameron-Jones, Inc. (Dameron), a general insurance agency in Hammond, Louisiana, is the agent of Newark; that Dameron was negligent in not timely renewing the policy; and, that Dameron’s negligence is imputable to Newark.

The depositions and affidavit offered by Newark in support of its motion disclosed the following facts:

Recappers had for at least thirteen years prior to the accident obtained all of its insurance through the Dameron agency. When a policy was about to expire Damer-on would automatically renew the same and bill Recappers for the premium.

Dameron is an insurance agency. It sells all types of insurance and represents numerous companies. It may place the insurance it sells with any one of the companies it represents. At the time of the accident and for several years prior thereto Damer-on placed all of its casualty insurance with Newark. Mr. Dameron deposed that the subject policy was not renewed upon its expiration through an oversight on his company’s part. He stated that with respect to liability insurance for commercial vehicles (such as here involved) he did not have the authority to renew the same without first submitting it to Newark for renewal. In instances such as the present one his office would forward to Newark all of the pertinent data relative to the insured, whereupon Newark would type the policy and transmit it to Dameron for forwarding to the designated insured.

The affidavit of Mr. Howard Pope, commercial lines manager of Newark, confirmed the above procedure and further corroborated the lack of authority on Dam-eron’s part to renew a commercial policy without prior approval.

The deposition of Pete S. Danna, general manager of Recappers, disclosed that the latter was not concerned about the details of coverage or the placement of its insurance but left the entirety of these matters in the hands of Dameron.

The above statements of fact were not countered by plaintiffs. In response to Newark’s motion and the aforementioned depositions and affidavit, plaintiffs submitted only an affidavit of their counsel, which affidavit referred only to the basic allegations of negligence of Dameron and the averment of an agency relationship between Newark and Dameron as set forth in plaintiffs’ supplemental and amending petitions. This response contains nothing more than mere conclusions of law. Written v. Police Jury of Parish of St. Mary, 297 So.2d 708 (La.App. 1st Cir. 1974).

C.C.P. Art. 966 sanctions the use of a motion for summary judgment to dispose of litigation where there is no genuine issue as to a material fact.

The trial judge found (and we agree) that the foregoing depositions and affidavit do not present any factual contradictions — only conclusions based upon the facts. The issue presented is whether these facts establish a legal relationship between Newark and Dameron as that of principal-agent to the extent that vicarious liability is imposed on the former for the acts of the latter.

In Blanchard v. Ogima, 253 La. 34, 215 So.2d 902 (1968), the Supreme Court, through Justice Barham, stated that the legal relationships of principal-agent, employer-employee, and master-servant may not be equated with each other. In drawing a distinction between the principal-agent relationship which imposes vicarious liability and a similar denoted relationship which does not, the court stated: 215 So.2d 902, 906, 907

“A master or employer is liable for the tortious conduct of a servant or employee which is within the scope of authority or employment, but a principal is not liable for the physical torts of a non-servant agent.
“ ‘A principal is not liable for the harm caused by negligent physical activities of a non-servant agent. * * * ’ Seavey, Law of Agency, § 91, I, p. 161.
“ ‘A principal is not liable for physical harm caused by the negligent conduct of a non-servant agent, during the performance of the principal’s business * * *.’ Restatement of the Law Second, Agency 2d, sec. 250, p. 549.’
“The comment under this section states the problem succinctly:
“ ‘ * * * Thus, the principal is not liable for the negligent physical conduct of an attorney, a broker, a factor, or a rental agent, as such. In their movements and their control of physical forces, they are in the relation of independent contractors to the principal. It is only when to the relation of principal and agent there is added that right to control physical details as to the manner of performance which is characteristic of the relation of master and servant that the person in whose service the act is done becomes subject to liability for the physical [tortious] conduct of the actor. * * * ’
“Although a servant may possess the qualities of an agent, all agents do not qualify as servants. The master-servant relationship cannot be equated with the principal-agent relationship. Employer-employee status may be included within the master-servant relation, but principal-agent status cannot unless the agent is also a servant. Neither jurisprudence nor modern commerce will allow us to define ‘servant’ as one who does only physical acts. ‘Servant’ must be interpreted as that particular kind of agent who has a very close economic relation to, and is subject to very close control by, the principal. A servant is one who offers his personal services for a price. He is an integral part of his employer’s business and must submit to the control of his physical conduct as well as of his time. A non-servant agent contributes to the business of his employer, but he is not such a part of it that his physical acts and the time to be devoted to the business are subject to control.”

Unless the agent may also be deemed a servant or employee of the principal, his negligent acts may not be imputed to his principal. See Ocmond v. Eserman, 259 So.2d 600 (La.App. 4th Cir. 1972), writs refused 261 La. 825, 261 So.2d 230 (1972). The test generally is one of control.

In the instant case Dameron was not required to place applications for casualty insurance for its customers with Newark. It could not bind Newark on renewals and both Newark and Dameron were privileged to discontinue their relationship at anytime. Further, Newark could not determine and had no control over any of the details of how Dameron conducted its business. Dameron was truly an independent insurance agency. Under these circumstances, Newark cannot be held liable for the negligent act of Dameron when the latter, by oversight, failed to secure the renewal of Recappers’ liability insurance.

Plaintiffs’ alternative argument is that Newark is liable for its failure to notify Recappers twenty days prior to the expiration of its policy in accordance with the provisions of R.S. 22:636.1(D)(E) and our holding in Auto Owners Insurance Company v. Freret, 280 So.2d 638 (La.App.1973). The vehicle sought to be covered is the same vehicle as described in the policy, namely, a 1972 Chevrolet pickup truck. It is also not disputed that at the time of the accident Recappers’ employee was acting within the course and scope of his employment. Under these circumstances, the twenty day notice generally required by R.S. 22:636.1(D) is not required. Paragraph (A) of Section 636.1 specifically includes a policy issued to a “single individual or husband and wife resident of the same household” covering a “private passenger or station wagon type” vehicle. More particularly, the statute excludes any other type vehicle “used in the occupation, profession or business of the insured.” We have carefully examined the attached policy and find no automatic renewal provisions or any other contractual language that conforms to plaintiffs’ contention that the policy was either automatically renewed or that the insured was otherwise entitled to notice pri- or to the expiration of its policy. It is evident that the legislature sought to exclude policies covering commercial vehicles from any notice requirement or statutory obligation of renewal.

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

AFFIRMED.


text:
    KENTZEL TRUCK LINES, INC., Plaintiff-Appellant, v. STATE FARM INSURANCE CO. and Daniel G. Holcomb, Defendants-Appellees.
    No. 11117.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Robert J. Klees, Chalmette, for plaintiff-appellant.
    Richard W. Brown, Bogalusa, for defendants-appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

Plaintiff appeals from a judgment of the district court rejecting their claims for special damages arising out of an accident which occurred on April 3, 1974 at approximately 1:30 o’clock p. m. on Louisiana Highway 41 between Bogalusa and Pearl River, St. Tammany Parish, Louisiana. We affirm.

Louisiana Highway 41 near the scene of the accident runs in a generally north-south direction. It is a typical asphalt roadbed, twenty-four feet in width, with narrow shoulders. Near and north of the scene of the accident the highway takes a rather sharp, abrupt turn to the right. Plaintiff’s gravel truck was traveling in a southerly direction. Defendant’s pickup truck was entering Highway 41 from a private driveway located on its eastern side. Defendant was pulling a small trailer loaded with a tractor. Plaintiff’s driver, Walter Vaughn, testified that he was traveling in a southerly direction at a speed of approximately 55 m. p. h. and that as he reached a point to where he could see around the curve, he observed defendant’s pickup truck and trailer “halfway cross” the highway. He estimated that at this point the offending vehicle was approximately 75 feet from him. He immediately applied his brakes, steered his vehicle to the right in an effort to avoid the accident, but his truck eased off the road and eventually turned over in the ditch along the highway’s western boundary.

Defendant driver, Daniel G. Holcomb, testified that as he was in a private driveway on the eastern edge of the highway he looked first to his right (north) and then to his left (south) and again to his right and seeing no traffic he proceeded to enter the highway, crossed its northbound lane of travel, and turned to his left (south). As he was in the process of this turn he heard the horn from plaintiff’s vehicle and then felt a “jar.”

The left front of plaintiff’s vehicle came into slight contact with the right side of defendant’s vehicle near its right rear wheel.

Defendant’s vehicle after impact proceeded a short distance south on Highway 41 and stopped.

The only other eyewitness to the accident was Clarence Bennett. This witness was following Holcomb. He observed Holcomb enter Highway 41 and turn left. He also “heard” the approach of plaintiff’s gravel truck in the distance, and shortly thereafter the horn, skidding of tires, and the collision.

Trooper Patrick J. Canulette investigated the accident and placed the point of collision near the center line of Louisiana Highway 41.

There is a considerable difference of opinion between these witnesses as to the distance between a point on the curve north of the scene of the accident and the point of collision. As stated above, Vaughn testified that it was approximately 75 feet. On the other hand, Holcomb and Bennett testified that it was 315 feet. The trial judge accepted the figure of 315 feet. In his written reasons for judgment, he stated:

“The case appears fairly well summarized by Mr. Holcomb’s response to the question of whether he thought it would have been safer if he had someone flag traffic at the curve when he started out. He testified he guessed it would be safer, but he didn’t anticipate a truck ‘flying’ around the curve.
“The court reaches the same conclusion. It is apparent that when Vaughn got where he could see at all around the curve, Holcomb was in the road. By the time the gravel truck got to the point of impact with Holcomb, Holcomb was straight in the south bound lane. Consequently, it could only be concluded that Vaughn was traveling at a speed where he could not avoid an accident with a vehicle coming from the Singletary drive even though it had already left the drive. The court finds this was too fast under the circumstances as the court accepts the measurements given of 315 feet from the drive to the curve.”

On appeal plaintiff strenuously argues that there was no evidence that Vaughn was “flying” around the curve, as Holcomb never did see the approaching truck and Bennett only “heard” it.

We do not find that the conclusion reached by the trial judge is unreasonable nor that it is unsupported by the testimony. We are satisfied that the testimony relative to the distance of 315 feet is more accurate than the estimates of plaintiffs witnesses. Several other measurements placed in the record by plaintiffs witnesses appear on the face of the record to be in error.

All of these witnesses testified that the curve located north of the point of collision was a dangerous one. As a matter of fact there is a sign beyond the curve which indicates that a safe speed for this curve is 35 m. p. h. These signs are not placed along our highways for ornamental purposes. They are used to indicate reasonable speeds at which a curve is to be negotiated.

We do not mean to say that failure to adhere to this suggested speed is in itself negligence. Nonetheless, the existence of this sign together with Vaughn’s own admission that he was acquainted with the nature of the curve lends support to the trial judge’s conclusion that Vaughn was traveling at an excessive rate of speed under the circumstances.

R.S. 32:64A requires that no person shall drive a vehicle on the highways of this state at a speed greater than that which is reasonable and prudent, consistent with the traffic thereon, the highway surface, and the condition of the weather. In conformity with this statute our courts have consistently adhered to this statutory requirement.

We are well aware of those cases cited by appellant to the effect that a heavy duty is placed upon a motorist entering a highway from a private driveway and the statute of similar import. R.S. 32:124.

The question is whether or not the defendant driver discharged that duty. Implicit in the trial judge’s ruling is that he did. It is a fact question.

Equally true is the issue of whether plaintiff’s driver discharged the responsibility of maintaining a proper control over his vehicle under the circumstances. The trial judge ruled that he had not.

There is ample evidence in the rec0rd to support the conclusion reached by trjer of fact. Canter v. Koehring Co., 283 So.2d 716, (La.1973)

_ ,. the above reasons, the judgment of the distnct court 18 afñrmed at aPPellant 8 costs-

AFFIRMED.


text:
    Richard D. FELTON, Sr., Plaintiff-Appellant, v. Donnie Jackson FELTON, Defendant-Appellee.
    No. 11121.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.

      Dale P. Martin, Lippman, Hunter & Rawls, Morgan City, for appellant.
    Donnie Jackson Felton, in pro per.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

Richard D. Felton, Sr. appeals from a judgment of the district court granting his wife, Donnie Jackson Felton, a separation from bed and board on her reconventional demand. Appellant also asserts that the amount awarded his wife as alimony pen-dente lite for herself and for the support of the three minor children is excessive and should be reduced.

The record reveals that initially appellant filed suit alleging, inter alia, that on or about June 20, 1975, his wife told him.she no longer loved him and that he should find another place to live. Based on this conduct of his wife, he left the matrimonial domicile. He contended that her actions entitled him to a separation on the grounds of abandonment (constructive) or cruel treatment.

Mrs. Felton answered denying that she gave her husband any cause to leave the matrimonial home and by reconventional demand averred that she was entitled to a separation in her favor on the grounds of abandonment and/or cruel treatment based on her husband’s excessive drinking.

When the matter was heard on the merits, appellant abandoned his claim on the main demand and the cause proceeded to trial on Mrs. Felton’s reconventional demand.

Appellant did leave the matrimonial home on June 20, 1975. However, the reasons assigned by each are different.

Mrs. Felton testified that her husband was staying out late at night, drinking excessively, and seeing another woman. She acknowledged that about a month after his departure he called and stated that he wanted to return home. Late that same evening he returned to discuss the matter with her. She said he told her that the other woman had informed him that she was pregnant and that he was certain that he was not “the father.” She claims that this discussion became rather emotional on their parts and that it was decided that Mr. Felton would return home. He did so but resided in one of the children’s bedrooms. Approximately three days later another argument ensued and he left, never to return. As to this latter occasion, Mrs. Felton first stated that she again asked him to leave. However, during the course of the trial she changed her version and testified that on this incident he had physically abused her. Whereupon, their oldest daughter sought to protect her with the family shotgun. She admitted that her first explanation was erroneous and was given only to avoid bringing their daughter into this dispute in the court.

Mr. Felton denied any association with another woman, any excessive drinking, or that he gave his wife any reason to order him to leave the home. He claims that she constantly provoked him and it was only after considerable provocation that he left the home.

The other witnesses to appear limited their testimony to the alleged act of abandonment on June 20, 1975. The record contains considerable evidence which is not related to the June 20, 1975 incident. However, this evidence on the part of both parties was admitted without objection. Under these circumstances the pleadings must be considered as enlarged.

The trial judge in his written reasons for judgment concluded that Mrs. Fel-ton had successfully borne the burden of proving that she had not given her husband sufficient cause to leave the home and was therefore entitled to a judgment of separation. His written reasons for judgment are not very specific as to the abandonment aspect of the ease. The judge a quo refers to a “dispute of long standing” whereupon the Feltons “came to a parting of the ways.” A fair and reasonable construction of these written reasons is that the trial judge concluded that Mrs. Felton was justified in asking her husband to leave on June 20, 1975. Neither party contends that any reconciliation resulted from Mr. Felton’s return to the home a month later. Under these circumstances we do not find manifest error on the part of the trial judge.

Appellant’s principal argument on appeal regarding the merits of his wife’s claim is that it was her word against his and particularly that no other witnesses were called by her in corroboration of her allegations as to the averments of cruel treatment on his part. The granting or refusal to grant a judgment of separation or divorce in domestic litigation quite often involves weighted considerations as to the credibility of witnesses. Many times obvious and hopeless conflicts in the litigants’ respective testimony can only be resolved by assigning greater weight to one litigant’s testimony and conversely giving little or no weight to the other’s. It is impossible to measure the degree to which any person’s testimony should be accepted or rejected. The court must take such evidence as the nature of the case permits, circumstantial, direct or positive, and bring to bear reasonable human experience and observations of life. A resolution of the evidentiary problem thus presented is a question of fact. On this issue the trial judge’s determination, based on his evaluation of the testimony, is entitled to great weight. We are not in a position to say that he committed manifest error in accepting the wife’s testimony over that of her husband. See, Sunseri v. Sunseri, 256 So.2d 673 (La.App.4th Cir. 1972) and the authorities therein cited.

On the question of alimony pendente lite for the wife and maintenance and support for the minor children, the trial judge ordered Mr. Felton to continue to pay certain fixed community obligations and, in addition, to pay to his wife a sum equal to one of his two monthly cheeks, generally in the net amount of $292.00. On the community obligations, appellant was paying $451.77 per month.

It is difficult for us to review this issue because appellant stated that he was willing to continue to make these payments as long as he was able to do so and so long as the bank would continue to loan him a sum sufficient to meet his obligations. In addition, he was not very definite as to his own living expenses or on his arrangement with the bank.

We question the wisdom of exacting the payment of all community obligations by a judgment relating to the wife’s and children’s support payments. However, alimony and support for a wife and children are always subject to review pending a change of circumstances and should the demands of the judgment herein, particularly as to community obligations, prove to be too burdensome or impossible to meet, plaintiff can apply to the trial judge for a modification of the judgment.

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

AFFIRMED.


text:
    Lorenzo PRICE and Dorothy D. Price, Plaintiffs-Appellants, v. IBERVILLE PARISH POLICE JURY et al., Defendants-Appellees.
    Nos. 11125, 11126.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    J. Byron Stringer of Franklin, Moore & Walsh, Baton Rouge, for plaintiff, appellant in No. 11125.
    Joseph B. Dupont, Sr. of Dupont, Dupont & Dupont, Plaquemine, for plaintiffs-appellants in No. 11126.
    John W. Barton, Jr., John R. Tharp of Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   SARTAIN, Judge.

In this appeal the sole issue is one of quantum. Mrs. Dorothy D. Price sustained a lumbosacral strain in an automobile accident on January 24, 1974. Following trial on the merits she was awarded the sum of $3500.00 for pain and suffering. She contends that this sum is grossly inadequate and should be increased to $12,000.00. Cited as authority for such an increase are numerous cases involving similar injuries wherein the awards were made in amounts ranging from $7500.00 to $16,000.00. We affirm.

The trial judge in his written reasons for judgment, in part, stated: “The medical evidence indicates that although Mrs. Price complained vociferously, and really believed her complaints, the doctors were unable to find any objective medical reasons for these complaints; on the contrary, they seemed to believe she was exaggerating as she was a chronic complainer.”

Mrs. Price was initially seen and treated by Dr. James Durand at Rhodes J. Spedale Hospital in Plaquemine, Louisiana. Dr. Du-rand was not called to testify. However, it was stipulated that his testimony would be the same as that of Drs. Joe Almond Morgan and Allen Jackson, both of whom are orthopedic specialists. These doctors’ testimony was offered by deposition.

Mrs. Price testified that she was disabled from the date of the accident until December of 1974. She further stated that she continued to have severe pain and discomfort up to the date of the trial (September 22, 1975); that she is unable to do any unusual amount of walking, “standing around” or lifting; and, that she is unable to perform her normal household tasks. She continued to wear a lumbosacral corset.

Dr. Morgan deposed that he first saw Mrs. Price about a month after the accident. He caused her to be hospitalized from February 19 through March 1, 1974. He described her initial lumbosacral strain as “probably moderate at most.” She was treated with the use of traction, various forms of heat, medication, and fitted for a corset. On her release from the hospital Dr. Morgan felt that she was improving. With respect to the lumbosacral corset that Mrs. Price has worn since the accident, Dr. Morgan did not think it was necessary as “. . . she could have done without it long ago.” He described it as her “security blanket.”

Dr. Jackson saw her on one occasion, October 28,1974, at the request of the defendants. His examination was essentially negative except as to her complaint of pain. He did concede that her excessive weight was “obviously, an aggravating feature which has prolonged her symptoms.”

It is apparent from a reading of these doctors’ depositions that each had considerable question as to the justification for Mrs. Price’s continued complaints.

Under these circumstances, we do not find that the judge a quo abused the discretion accorded a trier of fact in assessing damages. C.C. Art. 1934(3).

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

AFFIRMED.

      . It should be noted that Mrs. Price’s employer’s workmen’s compensation insurance carrier paid Mrs. Price weekly compensation benefits totaling $3,250.00 and medical benefits in the amount of $4,239.93. This insurer (Bituminous Insurance Companies) instituted a separate suit against the defendants herein to be reimbursed for these amounts. Mrs. Price’s judgment included the sums paid to her as workmen’s compensation benefits and the additional sum of $3500.00 for pain and suffering. These two cases were consolidated for trial. Following the rendition of judgment, the defendant in this action (Travelers) reimbursed Bituminous the sums it had paid to Mrs. Price. Bituminous did not appeal from the judgment.


author: COVINGTON, Judge:

text:
    Ethel JOHNSON v. ASCENSION PARISH SCHOOL BOARD et al.
    No. 11115.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.

      James B. Dupont, Sr., Plaquemine, for plaintiff and appellant.
    Robert W. Smith, Seale, Smith & Phelps, Baton Rouge, for defendants and appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

This is an appeal from a judgment dismissing plaintiff’s claim for workmen’s compensation benefits. We affirm.

Plaintiff, Ethel Johnson, brought this action against her employer, the Ascension Parish School Board, and its workmen’s compensation insurer, Fireman’s Fund Insurance Company, alleging that she had become totally and permanently disabled as a result of an accident happening on April 6, 1971. Compensation totalling $627.90 was paid to plaintiff, covering a period of several weeks. At the end of this time payments were terminated as the defendants contended the plaintiff was able to return to work. After a trial primarily on this issue, the trial court rendered judgment dismissing the plaintiff’s claim for further workmen’s compensation benefits.

' Plaintiff appealed devolutively from this judgment, contending that the trial court erred in not finding the plaintiff was permanently and totally disabled from doing the same type of work being performed at the time of the accident.

The sole question for our decision is the nature, extent and duration of the plaintiff’s injuries.

The evidence in the record reflects that plaintiff, a 59 year old woman, had been employed for 15 years by the Ascension Parish School Board as a lunchroom worker. Her duties consisted mainly in cooking, serving food and cleaning up the kitchen. She was earning about $199.00 per month at the time of the accident.

On the date of the accident the plaintiff was carrying some empty garbage cans in the lunchroom when she slipped, but did not fall or strike any object. In slipping she twisted her back in some way, causing her lower back to hurt. The evidence shows that the plaintiff experienced a minor accident, which caused a mild lumbosacral strain. The plaintiff went to see Dr. Percy H. LeBlanc, a general practitioner, who treated her conservatively from April 6, 1971 to May 21,1971. Thereafter, she went to Dr. C. E. Major, Jr., a general practitioner, for treatment. The plaintiff was subsequently examined by Dr. John F. Loupe, an orthopedist.

The depositions of Dr. Major and Dr. Loupe were in evidence, and Dr. LeBlanc testified at the trial. The only other evidence was the testimony of the plaintiff, and of a school teacher, Mary Jackson, describing the accident as an “awkward slip,” not a fall. No members of her family and no co-worker testified to the alleged accident or to the alleged disability of the plaintiff.

Dr. LeBlanc, who had treated the plaintiff for a number of years, testified at the trial that he considered the injury to Ethel Johnson’s back as a minor injury. His testimony on this point is:

“Q. Could you tell me what your diagnosis was at this time?
A. Lumbosacral strain.
Q. Doctor, do you know how she got this strain?
A. She told me that she was walking across the kitchen floor and she slipped, but did not fall, and in some way she twisted herself, causing her back to hurt. She didn’t strike herself on anything, nor did she fall.
Q. Doctor, you say a lumbosacral strain. That would be a strain of the lower part of the back, is that correct?
A. That’s right.
Q. Did you take x-rays of her at this period of time?
A. No. She had no fall or anything, so we thought it was a very simple injury — if you would call it an injury — and we treated her; . . .

When Dr. LeBlanc saw the plaintiff for the last time, on May 21, 1971, he informed her that he was ready to discharge her to return to work. His testimony on this point is:

“Q. I understand your testimony is that you felt she had a mild injury, is that correct?
A. A mild injury, yes.
Q. On May 21st, which is the last time you saw her, did you advise her at that time you thought that she could return to work?
A. That’s correct. I thought she could go back to work.”

When questioned about whether the back injury had anything to do with the plaintiff’s complaint of hypertension, Dr. Le-Blanc gave a negative answer. He also testified that the type of injury sustained by the plaintiff would not aggravate her arthritic condition. Dr. LeBlanc was asked whether or not the injury required hospitalization and his answer was that while he was treating her, it did not.

Dr. C. E. Major, Jr. testified by deposition and indicated his opinion that the plaintiff was totally and permanently disabled. Dr. John F. Loupe testified by deposition that he thought that the plaintiff could go back to work. He further stated that if there were no substantial neurological findings at six months after her injury (and the doctor’s neurological findings were normal), the plaintiff (the patient) “should be back to her preinjury status.” At another point in his deposition in discussing plaintiff’s ability to return to work, the doctor said:

“Q. Now, in this particular case, when you examined this woman, do you feel at that time that she could have returned to the same type work that she was doing at the time that she slipped, which was working in a school cafeteria?
A. Right, I did. I thought that she could go back and do what she was doing before . . . .”

It is well settled in workmen’s compensation suits, as in other civil actions, that the decision of the trial judge, who has weighed and determined the amount of credibility to be given to each witness, is entitled to great weight and is not to be overturned on appeal in the absence of manifest error. Gradney v. Vancouver Plywood Co., Inc., 299 So.2d 347 (La.1974). In workmen’s compensation suits, as in other civil actions, the plaintiff must establish his claim for benefits by a preponderance of the evidence and to a legal certainty. This burden of proof is not relieved by the liberal construction which must be placed upon the workmen’s compensation laws. Pelt v. Cement Products Service, Inc., 323 So.2d 191 (La.App. 1 Cir. 1975); see also Dunman v. Kroger Company, 333 So.2d 427 (La.App. 3 Cir. 1976).

We are urged by the appellant to reverse the judgment of the trial court on the basis of the holdings in: Christophe v. Southern Bridge Company, 250 So.2d 822 (La.App. 1 Cir. 1971); Cooley v. Insurance Company of North America, 216 So.2d 388 (La.App. 3 Cir. 1968); Ellerman v. Insurance Company of North America, 209 So.2d 519 (La.App. 2 Cir. 1968); and Shaw v. Swift & Co., Ltd., 74 So.2d 299 (La.App. 1 Cir. 1954).

An examination of the cited cases reflects that results contrary to that in the instant case were reached because of factual differences. In the cited cases the plaintiff proved his disability by a preponderance of the medical evidence.

Our conclusion is that the evidence fails to establish that the plaintiff has been disabled as the result of a job-related injury since the date on which the payment of compensation benefits were discontinued. We find no error in the judgment rendered by the trial court which rejected the plaintiff’s demands. Rather, the evidence supports the conclusion that the plaintiff sustained a minor injury by twisting her back when she slipped, causing a mild lumbo-sacral strain and that, after a short period of conservative medical treatment, she had recovered from her job-related disability sufficiently to be able to return to the same job or to the same type of work. Therefore, we affirm the judgment of the trial court at the costs of the appellant.

AFFIRMED.


author: COVINGTON, Judge: LOTTINGER, Judge,

text:
    David L. DUPLANTIS, Individually and as Administrator of the Estate of his minor daughter, Angela R. Duplantis, Plaintiff-Appellant, v. UNITED STATES FIDELITY & GUARANTY INSURANCE CORPORATION, Defendant-Appellee.
    No. 11122.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.
    Andrew Reed, Aycock, Horne, Caldwell, Coleman & Duncan, Morgan City, for plaintiff-appellant.

      Michael J. McNulty, Jr., Bauer, Darnall, McNulty & Boudreaux, Franklin, for defendant-appellee.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   COVINGTON, Judge:

This is an appeal from a judgment of the trial court sustaining the defendant’s motion to strike the plaintiff’s demand for a jury trial. We reverse.

This appeal arises out of a suit by plaintiff, David L. Duplantis, appearing individually and as administrator of the estate of his minor daughter, Angela R. Duplantis, against the defendant, United States Fidelity & Guaranty Insurance Corporation, the liability insurer of two public bodies, the City of Morgan City and the St. Mary Parish School Board. The basis of the suit is the alleged negligence of the City and the School Board in failing to maintain the school grounds in a safe condition for children to play. The case involves a tort claim for damages occasioned when the minor child was allegedly injured while attempting to climb onto the top of a garbage receptacle near the Shannon Elementary School in Morgan City, Louisiana. Under the Louisiana Direct Action Statute, LSA-R.S. 22:655, the only party made defendant herein is the liability insurer of the City and School Board.

Upon being served with the petition, the defendant filed a motion to strike the demand for a trial by jury on the ground that the suit was in essence against the insured public bodies and therefore, under the provisions of LSA-R.S. 13:5104 (now 13:5105), the mover was exempt from jury trial. After hearing the motion, the trial court granted the defendant’s motion to strike. The plaintiff has appealed this interlocutory judgment.

We note initially that even though the judgment of the trial court sustaining the motion to strike the plaintiff’s demand for trial by jury is an interlocutory judgment, it may cause irreparable injury and is therefore appealable. Zuber v. Lafourche Parish School Board, 325 So.2d 764 (La.App. 1 Cir. 1976); Plaisance v. Collins, 234 So.2d 436 (La.App. 1 Cir. 1970).

The statutory law pertaining to trial by jury is as follows:

LSA-C.C.P. art. 1731 provides:
“Except as limited by Article 1733, the right of trial by jury is recognized.
“The nature and amount of the principal demand shall determine whether any issue in the principal or incidental demand is triable by jury.”
LSA-C.C.P. art. 1733 provides:
“A trial by jury shall not be available in:
“(5) All cases where a jury trial is specifically denied by law.”
LSA-R.S. 13:5104 formerly read:
“No suit against the state or other public body shall be tried by jury.”

LSA-R.S. 13-5105 reads (as amended by Act No. 434 of 1975):

“No suit against the state or a state agency or political subdivision shall be tried by jury.”

The question presented is whether the non-jury trial exemption of public bodies is available to its insurer. We find that it is not. This is the express holding of the recent Supreme Court decision in Jones v. City of Kenner, La., 338 So.2d 606.

It is to be noted that LSA-C.C.P. art. 1731 expressly recognized the right to jury trial, except as limited by the provisions of LSA-C.C.P. art. 1733. The official comment to LSA-C.C.P. art. 1731 announces its purpose to preserve inviolate a litigant’s right to trial by jury. The jurisprudence also establishes that this is fundamental in character and that the courts will indulge every presumption against waiver, loss or forfeiture thereof. See e. g., Hicks v. Board of Supervisors of Louisiana State University, 166 So.2d 279 (La.App. 1 Cir. 1964). The right to trial by jury, being a fundamental right, should not be denied in the absence of specific authority for its denial. See Champagne v. American Southern Insurance Co., 295 So.2d 437 (La.1974).

The right to trial by jury is favored in the law, and any doubtful statutory provisions should be liberally construed in favor of the jury trial. While LSA-R.S. 13:5104 (13:5105) prohibits trial by jury in suits against the state or other governmental units in virtually all suits, there is no express statutory provision controlling the situation where such a suit is consolidated with others which are not against the state or governmental units. See Watson v. Hartford Accident & Indemnity Company, 214 So.2d 395, 397 (La.App. 3 Cir. 1968). There is no explicit statutory provision controlling the situation where the state or governmental unit is but one of several parties to an action. See Champagne v. American Southern Insurance Co., supra. Neither is there an express statutory provision controlling the situation where a suit is brought directly against the insurer without naming the public body.

The effect of Jones is that the right of plaintiff to a jury trial against defendant insurer is not prohibited by statute; on the contrary, it is permitted by statute. See LSA-C.C.P. art. 1731 et seq.

We can not accept appellee’s contention that the case of Zuber v. Lafourche Parish School Board, supra, is dispositive of the instant case. In the Zuber case, the suit was against a public body as a co-defendant. The non-jury trial exemption specifically applies in that situation. The instant case is distinguishable in that the suit is not against the public body. The only defendant named in the instant case is the liability insurer. We are not confronted here with the possible fragmentation of a cause of action or severance of an issue. We have one suit, one cause of action and one defendant. The present case does not come within the reasoning of Zuber. The statutory non-jury trial exemption does not expressly include insurers. We can not be persuaded to extend this restrictive personal exemption of governmental units through any imagined fear that juries might possibly raid the public fisc by awarding unconscionably large judgments in favor of plaintiffs. We believe that the average jury is fully prepared to readily accept the responsibility which government chooses to thrust upon it. We are also’ confident that our system of appellate review of both the law and the facts can competently cope with any occasional abuse of such responsibility.

The direct action statute merely gives to the insurer such defenses in the direct action brought by the injured party as it would have in an action brought by its insured. See McDowell v. National Surety Corp., 68 So.2d 189 (La.App. 1 Cir. 1953).

LSA-R.S. 22:655 provides in part:
“It is the intent of this Section that any action brought hereunder shall be subject to all of the lawful conditions of the policy or contract and the defenses which could be urged by the insurer to a direct action brought by the insured, provided the terms and conditions of such policy or contract are not in violation of the laws of this State.”

It is well established that the defense of immunity, which was previously available to governmental entities and to charitable institutions for torts of their agents and servants, was a defense which was personal to the governmental unit or the institution itself and could not be availed of or successfully pleaded by the defendant insurer. Snell v. Stein, 261 La. 358, 259 So.2d 876 (1972); Musmeci v. American Automobile Insurance Company, 146 So.2d 496 (La.App. 4 Cir. 1962); Rome v. London & Lancashire Indemnity Co. of America, 169 So. 132 (La.App.Orl. 1936).

We therefore hold that personal exemptions of the insured governmental units are not available to the insurer.

For the foregoing reasons we reverse and set aside the judgment of the trial court, overrule the motion to strike, and remand the case to the trial court for further proceedings in accordance with law and consistent with the views herein expressed. The costs of this appeal are assessed against the defendant-appellee; all other costs shall await the final outcome of the suit.

REVERSED AND REMANDED.

LOTTINGER, Judge,

concurring.

The Louisiana Supreme Court has for a time settled the question as to whether plaintiffs can have a jury trial as against the insurer of a governmental entity, and thus I agree with the majority opinion. See Zuber v. Lafourche Parish School Board, 325 So.2d 764 (La.App. 1st Cir. 1976), for a resume of decisions on this subject.

However, Jones v. City of Kenner, 338 So.2d 606 (La.1976), rehearing denied (1976), is of no great help in determining the conduct of the trial. In Jones, suit was filed against the liability insurer as well as the governmental entity. The Supreme Court ruled that there would be one trial with the jury deciding the issues as to the nongovernmental defendant, and the judge as to the governmental defendant. It also held that the trial judge had sufficient procedural controls to prevent “disparity of result in this combined single trial, * *.”

The issue as to the governmental entity is liability. Without liability being found on the part of the governmental entity, plaintiffs’ suit must be dismissed. This issue necessarily then under Jones and LSA-R.S. 13:5105 must be decided by the judge alone.

Any language in Jones suggesting that both judge and jury could decide liability, and then the trial judge could correct any disparity is based on language found in Champagne v. American Southern Insurance Company, 295 So.2d 437 (La.1974) and Watson v. Hartford Accident & Indemnity Company, 214 So.2d 395 (La.App. 3rd Cir. 1968). In both of these cases, negligence was alleged on the part of party defendants who were not governmental entities, as well as negligence on the part of party defendants who were governmental entities. One defendant could be held liable without the other, but that is not the situation here. The insurer cannot be cast in judgment unless and until the governmental entity is found at fault, and this cannot be done by a jury.

It is of no concern that the governmental entity was not made a party to this suit. The trial judge should still determine the issue of liability, rather than the jury, which then should only determine coverage and quantum. To do otherwise judicially defeats the intent of LSA-R.S. 13:5105.

Therefore, though I must agree with the majority that a jury trial is in order as against the insurer, I do not believe that the majority goes far enough in that it does not order the trial judge to decide the issue of liability independently from the jury, and only allow the jury to decide the coverage as afforded by the insurance policy and quantum.

Absent these instructions, the issue as to how the trial is to be conducted should be determined well in advance thereof, so as to afford either side the opportunity to seek such necessary relief as they may deem appropriate.

      . La.Const.1974, art. 1, § 4, is an exception to this general rule; it provides that a party in an expropriation proceeding has the right to a trial by jury to determine compensation.


author: LOTTINGER, Judge.

text:
    Bert Joseph CARTER, Sr., et al., Plaintiffs-Appellees, v. ACADIAN AMBULANCE SERVICE, INC., et al., Defendants-Appellants.
    No. 11123.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.

      R. Scott Ramsey, Jr., Berwick, for plaintiffs-appellees.
    Michael J. McNulty, Jr., Franklin, for defendants-appellants.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is an automobile accident case between an ambulance owner, its driver and insurer and a vehicle owned by one plaintiff and operated by the other. The Trial Court found judgment in favor of the plaintiffs and against the defendant without assigning written reasons. Oral reasons however, were given in the transcript of testimony.

On Friday, August 29, 1975, at about 12:00 noon, plaintiff, Rev. Gale Marie Carter, was driving a 1973 Dodge Station Wagon owned by plaintiff, Bert Joseph Carter, Sr., in an easterly direction on Highway 90 East, Brashear Avenue, in Morgan City, Louisiana. Upon reaching the intersection of Brashear Avenue and Fourth Street, she pulled out into the left hand lane or turning lane which was carved out the median on Brashear Avenue and attempted to make a left turn. Traffic was heavy in both directions and traffic going in a westerly direction was virtually at a stand-still. A driver heading west on Brashear Avenue left an opening in the left lane for the Carter vehicle to cross Brashear Avenue and flagged her across. Plaintiff pulled her vehicle into the left lane of the east bound lane of Brashear Avenue, she stopped, she looked down Brashear Avenue and, according to her testimony, the right lane of traffic heading in a westerly direction was clear of traffic past the stop light on Sixth Street. Plaintiff then proceeded across the right lane of traffic to cross Brashear Avenue and continue on Fourth Street.

As plaintiff pulled into the right lane of traffic on Brashear Avenue, at some point she noticed the ambulance had pulled from the left to the right lane of traffic and as she proceeded to cross, suddenly, as if the ambulance driver did not see her, the ambulance began to accelerate at a high rate of speed. All parties agreed that the speed of the ambulance at the accident was approximately 35 miles per hour. The lights and siren on the ambulance did not come on until immediately before the collision.

The Trial Court found negligence on the part of the plaintiff in attempting to cross the right lane of west bound traffic on Brashear Avenue without clearly being able to determine if any oncoming traffic was in said lane. The Trial Court also held the defendant driver guilty of gross negligence in suddenly pulling from the left lane of traffic into the right lane of traffic, in speeding his vehicle and not noticing the oncoming station wagon. The Court held that the last clear chance was with the ambulance driver and awarded Bert Joseph Carter, Sr. the sum of Two Thousand Seven Hundred and Eighty Six and 42/100 ($2,786.42) Dollars as damages to his 1973 Dodge Station Wagon and Rev. Gale Marie Carter the sum of Fifteen Hundred and no/100 ($1,500.00) Dollars as pain and suffering and the sum of Two Hundred and Six ($206.00) Dollars as medical expenses. All three defendants, namely, Acadian Ambulance Service, Inc., its insurer, United States Fidelity & Guaranty Company and Kim R. Scott, the driver of the ambulance were cast in judgment. The defendants have taken this appeal.

Jonathan Falcon, an unbiased witness testified that the ambulance was stopped directly in front of him and there were some five to six cars on Brashear Avenue between him and the intersection at Fourth Street. There were, therefore, some five or six cars stopped in front of the ambulance. He said that he first saw the station wagon just as it was going through the intersection “. . .at least half of the car was already on Fourth Street.” At the time the ambulance had pulled out to the right lane and was moving without lights or siren. The ambulance put on its flashing lights just a split second before the accident and he doesn’t know if the ambulance driver blew the siren, at least he didn’t hear it.

He said that when the ambulance pulled into the right lane, it sped up pretty quickly going 35 miles per hour at impact, at which time half of the station wagon was already into Fourth Street and the other half in Brashear Avenue. There was about 12' between the rear of the station wagon and the cars waiting in the left lane of Brashear Avenue at the time of the impact. He said that the ambulance had sufficient room to go around the station wagon. He did not see the brake lights of the ambulance go on. He said that the ambulance driver took no evasive action whatsoever, and it looked as though the driver did not even see the station wagon.

Dale Lee Ross, who as the manager of a Doughnut Shop on the corner of Brashear Avenue and Fourth Street said that he was crossing Fourth Street when he heard a siren, looked up and saw the ambulance hit the station wagon. He said the ambulance was going between 30 and 40 miles per hour and it struck the last Vs of the right hand panel of the station wagon, it lifted it about 3 feet off the ground and spun the wagon around and the left rear struck the telephone pole at the intersection. He said that at impact, two-thirds of the station wagon was already into Fourth Street. He also saw no evasive action. He said that he didn’t see the station wagon until he heard the siren at which time was about 50 feet or 60 feet from the vehicles.

The ambulance driver and the medical technician who was riding as his passenger testified that they were stopped in traffic at the corner one block away from Fourth Street. They were heading to Berwick to pick up an injured worker and started off from the ambulance depot under Code One which means to get there as soon as possible. After the heavy traffic had stopped them for some few minutes, they called into the depot to determine what they should do and they were told to go into Code Two which means, lights and siren. They claimed that they looked to the right to see that no cars were coming in the right hand lane and pulled out from the left lane to the right lane and put on the lights and siren. They agreed that at the time of the impact, the speed of the ambulance was some 30 to 35 miles an hour. The technician first looked up when he claims the driver of the ambulance put on his brakes after seeing the station wagon crossing the road.

In reaching his decision, the Trial Judge said:

“The Court finds from the evidence that the ambulance whose driver and insurance company are made defendant in these proceedings was in this lane of traffic headed westerly with the intention of crossing the bridge. The ambulance was idling somewhere in the block between Fourth and Fifth Streets, possibly a little bit closer to Fifth Street or somewhere near the middle of that block.
“As the plaintiff was awaiting her turn, . and as the traffic was stopped at this particular time and as there appeared to be no traffic in the right-hand lane of Brashear, the driver of the first vehicle who had stopped — the first vehicle headed westerly who had stopped so as not to block the intersection of Fourth — motioned to the plaintiff from his automobile for her to come forward. From her position to move forward and into Brash-ear, it was extremely difficult for her to see traffic from the east headed west. Of course, she could see the lane of traffic stalled, but it was difficult for her to see to her right in the right lane of traffic headed west. In order to do so, she would have to clear the left lane of traffic, at least the area where she was seated or partially cleared, in order to look to her right and see traffic approaching. Under these circumstances she was faced with a very dangerous situation and a situation where ordinance required her to make sure that she could effect the maneuver safely before entering into Brashear. Under these circumstances, the Court would have to find that she was negligent in entering into the right-hand westbound lane on Brashear Avenue.
“After entering this lane, at some point she saw the approaching vehicle and continued and had almost cleared the intersection when struck by the ambulance. From the evidence of the parties, the Court finding the evidence of the plaintiff to be much more convincing than the evidence of the defendant, the Court can only conclude that the driver of the ambulance was guilty of gross negligence. He, himself, stated that he recognized this as a dangerous situation; that when an ambulance siren is sounded, frequently traffic in the left lane will attempt to pull off the right lane. He poses a situation to the Court where he had every reason in the world to be extremely careful before proceeding forward and to be sure that no traffic would pull in front of him in making his maneuver. Despite this, the slow moving vehicle of the plaintiff had ample time to almost completely clear the intersection with the driver of the ambulance accelerating at a rapid rate of speed from some 50, 60 or 70 feet to the east of the intersection. The evidence shown that the driver struck his brakes only at the last possible minute, possibly some ten to twenty feet before hitting the vehicle of the plaintiff. All of the evidence shows that the plaintiff’s vehicle was moving very slowly throughout the maneuver. If we accept the evidence of the driver of the defendant’s vehicle, he saw the other car, according to his testimony in one place, only just before he hit it and another time about two seconds before he hit it. At a speed of 25, 30, 35 miles an hour he would have to travel about 60 or 70 feet in a period of two seconds. The evidence shows that he only traveled from ten to twenty feet after he saw the slow moving vehicle. “Under the circumstances, the Court finds the defendant driver guilty of gross negligence. Under the circumstances, the Court feels, considering all of the evidence adduced herein, that this is a proper case for the application of the last-clear-chance doctrine. Our Courts have enunciated this doctrine in a number of cases. Particularly, the Court refers to Anderson versus James, 234 So. 2nd 238, on Page 239. In this case, the Court did not invoke the doctrine, but they spelled out what the doctrine is. The Court states that, ‘Before this doctrine may be applied, three essential facts must be established:
“ ‘One, that the injured party was in a position of peril of which he was unaware of or from which he was unable to extricate himself.’
“The Court finds this applicable in this particular case; that the driver of the plaintiff’s vehicle through her negligence had placed herself in a position where she was totally unable to extricate herself or do anything about it.
“ ‘Number Two, that defendant was in a position to see or discover such peril.’ “The Court finds that the defendant driver in a lane of traffic headed west should have been able to — even though there was traffic between him and the crossing car — he should have been able to see the broad side of this vehicle, some 18 to 20 feet long. It should have stuck out like a sore thumb. He, himself, states that he was watching this left lane of traffic very carefully, the Court holds that he should have at the least have seen this automobile and should have taken appropriate measures to avoid a situation which did subsequently arise.
“ ‘Number Three, that at such time the defendant could have with the exercise of reasonable care avoided this accident.’ “The Court holds that this defendant could have and should have avoided this accident at the time when he should have seen this automobile making this maneuver in front of him.”

The Trial Court found the evidence as adduced by the plaintiff to be much more convincing than the evidence of the defendant. We agree with this finding of the Trial Court. The evidence reflects that, as plaintiff neared the scene of the accident, she pulled into the left turn media, stopped and yielded to oncoming traffic, a motorist left an opening for her to cross, she pulled into the left hand lane of the west bound portion of Highway 90 and, again yielding, checked down the right hand lane and noticed nothing and so proceeded to cross the intersection. Suddenly, and without looking or using its emergency signals, the ambulance pulled out and accelerated rapidly and struck the plaintiff’s vehicle.

We believe that not only did the defendant driver have the last clear chance to avoid this accident but we also believe that the doctrine of preemption would prevail to the benefit of plaintiff. In Butler v. O’Neal, 26 So.2d 753, 756 (La.App. 2nd Cir. 1946), the Court said:

“Pre-emption of an intersection, under the principles established by our jurisprudence, does not mean the prior entry of a vehicle simply by a matter of a few feet, or, in relation to the time element, by a fraction of a second ahead of another vehicle, but, in order to support a charge of negligence, such pre-emption must be construed to mean an entry into an intersection with the opportunity of clearing the same without obstruction of the path of another vehicle under normal and reasonable circumstances and conditions.”

The principle has been consistently followed since. See Meek v. State Farm Mutual Automobile Insurance Company, 244 So.2d 661 (La.App. 2nd Cir. 1971) and Moore v. Shreveport Transit Company, 115 So.2d 218 (La.App. 2nd Cir. 1959).

Defendants contend that the Trial Judge misapplied or misinterpreted various facts as presented. We have reviewed these contentions, and in no case do we find that they would have changed the result reached.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed; all costs of this appeal to be paid by defendant.

AFFIRMED.


text:
    Marilyn W. BOYLES, Individually and on behalf of her minor child Carri L. Boyles, and Nanci L. Boyles, Plaintiffs-Appellants, v. Ben Daly BRIDGEMAN et al., Defendants-Appellants.
    No. 11128.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 1977.

      Edward C. Alker, Metairie, for plaintiffs-appellants, Marilyn Boyles and others.
    Monte J. Ducote, New Orleans, for defendants-appellants, Crescent Pole Driving Co., Inc., Cleveland Vinning and General Accident, Fire & Life Assurance Corp., Ltd.
    Edward P. Lobman, New Orleans, for James Todd and State Farm Mutual Automobile Insurance Co., defendants-appellees.
    Before SARTAIN, COVINGTON and LOTTINGER, JJ.
   LOTTINGER, Judge.

This is an action ex delicto for damages as a result of an automobile accident. Plaintiffs are Marilyn W. Boyles, individually and on behalf of her minor child, Carri L. Boyles, and Nanci L. Boyles. Defendants are Crescent Pile Driving Company, Inc., (hereinafter sometimes referred to as Crescent) Cleveland Vinning, General Accident Fire and Life Assurance Corporation, Ltd., (hereinafter sometimes referred to as General) James E. Todd and State Farm Mutual Automobile Insurance Company. The Trial Court rendered judgment in favor of plaintiffs and against Crescent, Vinning and General, from which judgment plaintiffs have appealed and defendants have answered the appeal. The Trial Court also rendered judgment in favor of State Farm and against Crescent, Vinning and General, from which judgment a suspensive appeal was taken.

This accident happened in St. Tammany Parish on November 18, 1972. As the Trial Judge pointed out in his written reasons for judgment:

“A 1970 International truck driven by Cleveland Vinning loaded with concrete culverts was proceeding north on I — 10. On the downslope of an overpass, a culvert fell from the truck onto the roadway.
“Traveling behind the truck was a 1970 Dodge station wagon driven by Mrs. Marilyn Boyles, occupied by her daughters, Nanci Boyles, a major, and Carri Boyles, a minor. Nanci Boyles testifies that as they were proceeding northerly behind the truck, they came across the overpass and the car ahead of her suddenly veered into the ditch. She then saw the culvert rolling down the road from side to side. It rolled into the grassy area and then back out into the highway where they hit it, and almost simultaneously they were struck by a following vehicle.
“James Todd was driving his vehicle in a northerly direction on I — 10. As he came over the crest of the overpass he saw the Dodge station wagon, and the culvert still moving. He was about 40 feet from them. He swerved to the left to try to go into the median ditch, but couldn’t make it, and struck the Dodge. •
“The testimony of the trooper investigating the accident is that the culvert came off the truck on the downslope of an overpass located on 1-10. At the point where he found the culvert located along with the vehicles when he reached the scene, the car could be seen only from the crest of the overpass and that was approximately four car lengths or 40 feet south of the point of the accident.”

The defendants, Vinning, Crescent and General, filed a third party demand against Todd and his automobile insurer, State Farm. To this third party demand, State Farm filed a reconventional demand for the amount it had paid its insured, James Todd and Mrs. Marilyn Boyles under their policies.

Plaintiffs, Marilyn and Nanci Boyles, appealed the judgment of the Trial Court contending that the award for personal injuries is so excessively low as to constitute an abuse of discretion. The Trial Judge in his written reasons for judgment found as to the injuries received by Mrs. Marilyn Boyles as follows, to wit:

“Mrs. Boyles was taken to the emergency room of the Slidell Hospital immediately after the accident, x-rayed, examined and released. On November 20, 1972, she consulted Dr. Byram who diagnosed her problems as cervical strain and contusion of the musculature of the right flank. “On November 22, 1972 she developed abdominal pains and was admitted to the East Jefferson Hospital under the care of Dr. Foti. She was released on the same day when her symptoms stopped. She was readmitted to the hospital in December to try to find the source of a blood-pressure problem she was experiencing. At this time her abdominal problem was asymptomatic. No one can specify the source of the abdominal problems, and so the court has insufficient evidence to relate them to the accident.
“On January 16, 1973, Mrs. Boyles consulted Dr. Redler. He found no objective evidence of injury. However, he did feel that her limitation of the neck on extremes of motion was probably valid, but should clear up in the next few weeks. She actually returned to work on March 15, 1973.
“The court believes that Mrs. Boyles will be adequately compensated by a judgment in her favor for-her pain and suffering in the sum of $3,000.00.”

As to the injuries of Nanci Boyles, the Trial Judge found:

“Nanci was examined and released from the Slidell Hospital on November 18, 1972. She consulted Dr. Byram on November 20, 1972. He diagnosed cervical, thoracic and lumbar sprain with mild spasms. He prescribed a corset and saw her intermittently through May of 1973. She moved out of town and he thought her to be asymptomatic except for lower back discomfort.
“Dr. Redler saw her on January 16, 1973, and could find nothing from an orthopedic standpoint.
“The court believes she would be adequately compensated by a judgment in her favor for her pain and suffering in the amount of $2,000.00.”

Though plaintiffs have cited to this court several cases of similar injuries where larger awards were granted in support of their contention that the Trial Judge abused his discretion, we are not convinced that such abuse is present in this case, and therefore affirm the award of the Trial Judge as to the personal injuries.

In answering the appeal of the plaintiffs, the defendants contend that the Trial Judge erred in awarding Mrs. Marilyn Boyles the sum of $4,458.33 as loss of earnings. Defendants contend that no corroborative evidence was produced to support the testimony of Mrs. Boyles as to her loss of income, and they cite to this court the case of Craig v. Burch, 228 So.2d 723 (La.App. 1st Cir. 1969), writ refused 255 La. 475, 231 So.2d 393 (1970).

We note from the record that no effort was made to corroborate the testimony of Mrs. Boyles as to her loss income by use of her income tax returns, testimony from her employer, or any other supportive evidence, nor was it shown that corroboration was unavailable. Therefore, we are of the opinion that the Trial Judge was in error in awarding to Mrs. Boyles the sum of $4,458.33 for loss of earnings.

The defendants, Vinning, Crescent and General, also appeal from the judgment in favor of State Farm as against them, and contend that the Trial Judge was in error in finding that James Todd was not negligent in rear-ending the Boyles automobile and alternatively by finding that State Farm had proved the amount of its subrogated claims by a preponderance of accreditable evidence.

After a complete and thorough review of the record, we find no error on the part of the Trial Judge in his determination of the facts as we have above approvingly quoted. Under the facts as found by the Trial Judge, there is no question but that there was no negligence on the part of James Todd.

It is further contended by Vinning, Crescent and General that the damages awarded to State Farm under its subrogation claims are not sufficiently substantiated by evidence so as to justify the award.

State Farm introduced the originals of the subrogation receipts from Mrs. Marilyn Boyles as well as James Todd for the amounts that had been paid to Mrs. Boyles under her collision coverage as well as the amount paid to Todd under his medical pay and collision coverage. The investigating officer testified that both the Boyles automobile as well as the Todd automobile were damaged. He noted that the Boyles automobile was severely damaged in the rear and the Todd automobile was damaged on the right hand side. Mr. Todd testified that the subrogation receipt represented the amount of money he received from State Farm in settlement of his claim on his own policy, and that he made no other claim as a result of the accident. Mrs. Boyles identified the subrogation receipt concerning the payment to her by State Farm under her collision coverage, as well as identifying two photographs of her automobile depicting the damage.

From a review of the record we are convinced that both the Boyles automobile and the Todd automobile were damaged as a result of the accident, and that State Farm under policies insuring both automobiles incurred certain loss as represented by the subrogation receipts. Though the damages occasioned by both of these parties is not as well documented as they could have been, there is sufficient evidence in the record, that has gone uncontroverted, to justify the Trial Court in its award to State Farm.

Therefore, for the above and foregoing reasons the judgment of the Trial Court inasmuch as it awarded Mrs. Marilyn Boyles the sum of $7,819.73 is amended to read $3,361.40 and in all other respects as to all parties the judgment of the Trial Court is affirmed. All costs of this appeal are to be shared equally by the plaintiffs and the defendants Crescent Pile Driving Company, Inc., Cleveland Vinning, and General Accident Fire and Life Assurance Corporation, Ltd.

AMENDED AND AFFIRMED.

      . Judgment in favor of Mrs. Marilyn Boyles individually in the sum of $7,819.73, Mrs. Marilyn Boyles on behalf of Carri Boyles in the sum of $500.00, and Nanci Boyles in the sum of $2,223.00.

      . State Farm was the general liability as well as collision insurer of both the Todd and Boyles vehicles.