text:
    Anna Mae LEWIS v. The ST. CHARLES PARISH HOSPITAL DISTRICT d/b/a the St. Charles Hospital et al.
    No. 7233.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearings Denied Jan. 13, 1976.
    Writ Granted Feb. 13, 1976.
    See 326 So.2d 377.

      Daniel E. Becnel, Jr., Reserve, for plaintiff-appellee.
    Henderson, Hanemann & Morris, Charles Hanemann, Douglas H. Greenburg, Houma, for defendants-appellants.
    Before LEMMON, BOUTALL, and BEER, JJ.
   BEER, Judge.

Plaintiff-Appellee, Anna Mae Lewis, a twenty-five year old mother of three young children, was employed by the housekeeping department of Defendant-Appellant, St. Charles Parish Hospital Service District, d/b/a St. Charles Hospital, in February of 1973.

Her duties as maid in the housekeeping department consisted primarily of cleaning the various rooms and hallways of the hospital. She made use of a certain phenolic detergent germicide which, she alleges, has caused depigmentation of the skin of both hands particularly the dorsum of the fingers and the distal portion of the hands in patched areas originally comprising approximately seventy-five percent of her right hand and fifty percent of her left hand. Repigmentation has now reduced the original depigmentation by about fifty percent.

Four qualified physicians specializing in the field of dermatology essentially agree that the' depigmentation noted above most probably resulted from contact with a phenolic detergent germicide variously referred to as Micro-Phene Bacteriacidal Detergent or Micro-Biocidal Detergent. The nomenclature is unimportant; the record supports the conclusion that the phenol content of the cleaning compound that was used at the hospital caused the depigmentation of Mrs. Lewis’ hands.

Anna Mae Lewis is black. As a result, the depigmentation is more obvious insofar as the cosmetic consequences are concerned.

Dr. Guinter Kahn of the Division of Dermatology of the University of Colorado Medical Center in Denver, acknowledged by all of the physicians who testified as well-informed in this particular specialized field, has written a scholarly article with respect to allergic reaction to phenols and the resulting depigmentation which further supports the conclusion noted above but Dr. Kahn restricts his interesting article (which is in evidence) to a consideration of cause and effect and does not deal with any possible disability that this allergic reaction may provoke.

The physicians who testified either by deposition or at the trial generally agree that the depigmentation occasioned to Mrs. Lewis had not caused any loss of integrity of the skin of her hands nor resulted in any broken skin or scaling or extensive or severe blistering but also find that the contact effects did — in the acute state — cause some redness and itching and did produce one small blister (this, during the course of a patch test administered under controlled conditions when she was being seen by one of the physicians). None of the doctors who testified were able to say with any certainty that Mrs. Lewis would experience complete repigmentation although there is clear indication that there has been considerable repigmentation since the onset of the problem as evidenced by Dr. F. E. Pal-omeque’s observation (after conducting an examination of Mrs. Lewis in open court) that repigmentation has progressed “a great deal” since his initial examination.

The medical evidence indicates that Mrs. Lewis’ present condition does not cause any perceptible degree of pain and that its only serious impairment or obstacle to her general employment is that she should avoid direct physical contact with detergents which are composed of chemical compounds that include phenol; that is, phenolic compounds. However, one further conditional impairment to general employment exists due to the finding, by some of the doctors, that the areas of her hands which continue to be depigmentized are probably more susceptible to sunburn than the other parts of her body. This finding restricts her outdoor employment opportunity to some extent. In this respect the doctors agree that the sun would not be a factor if the sun’s effects were controlled by a sun screen type lotion or gloves.

There is some consensus of agreement among the doctors that the cosmetic effect of depigmentation can, even in a stable person such as Mrs. Lewis, be emotionally disconcerting. However, no direct testimony on this issue was elicited from any expert in the field of psychiatry and we do not find any evidence in the record to form the basis for a claim of disability based upon any sort of neurosis. No testimony whatsoever was introduced to show that the cosmetic problem noted above has, in any way, actually hindered Mrs. Lewis’ ability to obtain other employment subsequent to her quitting her job as maid with the hospital. Quite the contrary, she admits on cross-examination that she has not sought employment at any other place or in any other field of endeavor. She gives no reason or explanation for this.

Mrs. Lewis testified that her contact with the phenolic detergent had more far-reaching consequences than those described by the physicians who have treated and examined her. She complains of burning sensation, redness, some blistering and itching. However, she admits on cross-examination that the itching was directly dependent on her actual use of the phenolic compound. She acknowledges being the author of a general observation to the effect that if she did not use “the stuff” (cleaning detergents containing phenol) it doesn’t itch — if she uses it at all, it itches.

Mrs. Lewis filed this workmen’s compensation suit claiming permanent and total disability in March of 1974 and the matter was tried in the Twenty-Ninth Judicial District Court on October 23, 1974.

The trial court correctly determined that Mrs. Lewis was engaged in hazardous employment within the contemplation of the law as defined by LSA-R.S. 23:1035 and further determined, correctly, that the depigmentation hereinabove described took place within the course and scope of her employment and as a result thereof.

The trial court further concluded that she was totally and permanently disabled and awarded her:

“* * * the sum of THIRTY-TWO THOUSAND FIVE HUNDRED & NO/100 ($32,500) DOLLARS payable at the rate of SIXTY-FIVE & NO/100 ($65) DOLLARS per week beginning on December 14, 1973 not to exceed five hundred (500) weeks, with interest at the rate of twelve (12) per cent per an-num as provided under R.S. 23:1201.2, •on each of the past due payments from its due date until paid, and ordering that each accrued amount with interest from the due date of each until paid at said rate be in a lump sum, subject to credit for any compensation that may have previously been paid by the defendant.”

The court entered an additional decree as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED THAT: Plaintiff recover judgment against the defendant for all medical and incidental expenses up to the maximum sum provided by law, with interest at the rate of twelve (12%) percent per annum from the date of judicial demand until paid, subject to appropriate credit for any payments that may have been made on that score by defendants. The fee for all experts be taxed as court costs. All experts recognized by this court and testifying in open court are to be paid a $200 expert fee, all other experts testifying by deposition are to be paid an expert fee of $100. All other claims be and they are hereby denied. All court costs are to be assessed against defendants.”

Defendants-appellants, St. Charles Parish Hospital and its insurer, Argonaut Southwest Insurance Company timely appealed that judgment to this court.

We conclude that the judgment in its present form cannot stand.

There is no serious contention that Mrs. Lewis could be entitled to payments of weekly benefits in an amount greater than $48.10. Her rate of pay was $1.85 an hour which amounts to $74.00 per week. LSA-R.S. 23:1021(11). She could not be entitled to weekly benefits greater than $48.10. (65% X $74.00). LSA-R.S. 23:1221 (2).

The trial court’s decision to render a lump sum judgment of $32,500 was erroneous. Although the court may grant one award to cover the weekly benefits that have accrued as of the entry of judgment, it cannot make a lump sum award for future benefits. Hull v. Liberty Mutual Ins. Co., 236 So.2d 847 (La.App.1st Cir. 1970) writs denied 256 La. 862, 239 So.2d 361 (1970).

Having determined that defendant’s actions in denying liability were not arbitrary or capricious, the court erred in awarding interest at the rate of twelve percent; the proper interest rate being the “legal rate” of seven percent. LSA-C.C. Article 2924; Panebiango v. Main Insur. Co., 293 So.2d 536 (La.App.4th Cir. 1974); Lanclos v. Homer Knost Const. Co., 258 So.2d 224 (La.App.4th Cir.) writs refused 261 La. 467, 259 So.2d 915 (1972).

Thus, even an award based upon a finding of permanent and total disability would have to be substantially recast taking all of the above into account.

However, we are not able to agree with the trial court’s determination that Mrs. Lewis is permanently and totally disabled. As we review and analyze the generally uncontradicted testimony of the competent physicians who testified in this case a rather clear picture unfolds.

It becomes evident that the restrictions imposed upon Mrs. Lewis’ future employment opportunities are minimal. All four physicians indicated that any field of employment was open to her other than those housekeeping type jobs which involved direct contact with phenolic cleaning compounds. Difficulty which might be encountered with outdoor employment is obviated by the use of sun screen type lotion which all agree will eliminate the effects of exposure to the sun. The record lacks proof of any actual limitation of job capabilities from the standpoint of ability to perform or proof that the cosmetic effects of the depigmentation imposes an onerous burden on Mrs. Lewis in seriously seeking or securing employment. Her position at the hospital could not be characterized as other than that of an unskilled laborer. Her job did not require, nor did she possess, any special skill, training, or preparation that were prerequisite to her having been offered the position. The job description primarily detailed duties requiring only the most basic and fundamental performance of daily cleaning chores.

As the special skill or training required for a job decreases, the range of different possibilities for future employment broadens. An unskilled laborer will not be deemed totally incapacitated when she is unable to return to identical duties when it appears that she is fully able to adequately function in another, though dissimilar, area of the general labor market. A condition that might be disabling in certain limited specific jobs can be irrelevant in others. Ory v. Metal Building Products Co., Inc., 265 So.2d 338 (La.App.4th Cir. 1972); Flowers v. E. M. Toussel Oil Co., 190 So.2d 147 (La.App.4th Cir. 1966), writs refused 249 La. 835, 191 So.2d 639 (1966). If an unskilled laborer is prevented from engaging in one or two, or even a few particular kinds of common labor but is able to do many other kinds of common labor, she is not totally disabled. Olivier v. Liberty Mutual Ins. Co., 241 La. 745, 131 So.2d 50 (1961).

Each case rests on its own particular facts. Roberie v. Ashy Const. Co., Inc., 215 So.2d 857 (La.App.3rd Cir. 1968). In cases of this nature, the test to be applied is whether the injured employee can no longer substantially compete for regular employment with other able-bodied workers in the flexible market for common labor. Comoletti v. Ideal Cement Co., 147 So.2d 711 (La.App.1st Cir. 1962).

We conclude that the nature and extent of the partial depigmentation does not so preclude Mrs. Lewis from doing “work of any reasonable character” as provided in R.S. 23:1221(2) as to cause her to be totally and permanently disabled within the meaning of the workmen’s compensa-. tion act.

We do, however, find that Mrs. Lewis has experienced a degree of partial disability which falls within applicable provisions of LSA-R.S. 23:1221 (3).

A claim for benefits under this provision of the act was not specifically sought in plaintiff’s original petition for permanent and total disability. Nevertheless, we conclude that in view of the remedial purpose of the act, an injured workman’s claim, which is provided for in some manner by the act, will not be disallowed simply because meritorious contentions in support of a particular type of injury were not specifically raised in the pleadings. Thus, even though compensation for partial disability was not specifically sought in the trial court (where only an award for permanent disability was claimed) we should nevertheless allow compensation for partial disability.

In Babineaux v. Great American Ins. Co., 245 La. 718, 160 So.2d 591 (1964) the Supreme Court stated:

“It is obvious to us that by its adoption of Act No. 85 of 1926, shortly after the release of the decision in the Bell case, the legislature intended to liberalize the compensation act and extend coverage so as to include, as nearly as possible, recovery for every type of injury suffered by a workman while acting within the course and scope of his employment. However, realizing it to be almost impossible to provide for every conceivable loss, the legislature inserted what is now R.S. 23:1221(4)(o) to permit the courts to arrive at what might be considered a just and reasonable computation of loss when the injury sustained does not fall squarely within the strict and narrow confines of those set out above in this same section under the specific injury schedule in subsection (4).”

Although this is not a R.S. 23:1221 (4) (o) case, the observation is important to show the manner in which the act is to be interpreted.

Accordingly, we deem that Mrs. Lewis has experienced a partial disability to do work of any reasonable character and thus is entitled to benefits as outlined in LSA-R.S. 23:1221(3).

Mrs. Lewis has not sought employment in any of the various fields of endeavor that are clearly open to her. Thus, there is no evidence in the record upon which we can determine the wages that she is “able to earn thereafter” as provided in LSA-R. S. 23:1221(3) in order to then determine the “difference” between that amount and her pre-injury rate of $74 per week.

We do not feel that the difference would be substantial in view of the limited effect that her disability has actually produced.

However, the record established that the trouble-causing germicides were widely used in industrial cleaning; that the depig-mented area, because of decreased resistance, was more susceptible at least to sunlight and perhaps to other chemicals or irritants; and that the depigmentation was unsightly to some extent and to that extent could be detrimental to obtaining employment at jobs in which an unblemished appearance was desirable.

This case presents a marginal situation-plaintiff’s earning capacity was definitely impaired, but plaintiff was still able to do many things to earn a livelihood and definitely was not totally disabled. We believe that we should allow some recovery for a work-connected condition resulting in some earning impairment, but also believe that we should reserve to either party the right to reopen the case in the event the condition worsens or improves.

All circumstances considered, we set the award at the statutory minimum of $17.50 per week, during the period of disability, but not beyond three hundred weeks. Furthermore, we find that she is clearly entitled to reimbursement for those proven out-of-pocket medical expenses which our computation indicates amount to a total of $115.68.

The judgment of the Twenty-Ninth Judicial District Court for the parish of St. Charles dated January 28, 1975 is annulled and set aside.

It is ordered, adjudged and decreed that there be judgment herein in favor of Plaintiff-Appellee, Anna Mae Lewis, and against Defendants-Appellants, St. Charles Parish Hospital Service District d/b/a St. Charles Parish Hospital, and Argonaut Southwest Insurance Company, in solido for workmen’s compensation benefits in the amount of $17.50 per week for three hundred weeks commencing on December 14, 1973 with interest at the legal rate on each of the past due payments from its due date until paid;

It is further ordered, adjudged and decreed that there be judgment herein in favor of Plaintiff-Appellee, Anna Mae Lewis, and against Defendants-Appellants, St. Charles Parish Hospital Service District d/b/a St. Charles Parish Hospital, and Argonaut Southwest Insurance Company, in solido in the amount of $115.68 representing out-of-pocket medical expenses incurred by Plaintiff-Appellee;

It is further ordered, adjudged and decreed that the fees of all experts shall be taxed as court costs. The experts recognized in the trial court who testified in open court are awarded expert fees in the amount of $200 and the experts testifying by deposition are awarded expert fees in the amount of $100.

All costs in the trial court and in this court to be borne by Defendants-Appellants, St. Charles Parish Hospital Service District d/b/a St. Charles Parish Hospital, and Argonaut Southwest Insurance Company.

Original judgment annulled and set aside; judgment recast and rendered.

      . Plaintiff was first examined for the condi-' tion in September, 1973 and left work in December, 1973 at one dermatologist’s suggestion that she “change employment.” She was still losing color on January 20, 1974. ■ Plaintiff, exhibited some irritation on one visit, which this doctor attributed to toilet soaps and advised use of milder soaps.
      Another dermatologist in February, 1974 (five days after an examination revealed no findings other than redness) found swelling after plaintiff had cleaned fish, although plaintiff reported no previous difficulty in this regard.
      None of the three dermatologists called by plaintiff examined her after March, 1974.

      . R.S. 23:1221(4) (p), authorizing an award for disfigurement about the face and head, is a legislative recognition that disfigurement has some detrimental effect upon the ability to obtain employment. Considerations in setting the amount of the award are the degree of disfigurement and the type of plaintiff’s work or trade.


source: Caselaw Access Project

author: HEARD, Judge.

license: Public Domain

text:
    William A. FISKE, Plaintiff-Appellant, v. Barbara Childers FISKE, Defendant-Appellee.
    No. 12776.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 1976.
    En Banc. Rehearing Denied Jan. 6, 1976.
    Writ Refused Feb. 11, 1976.

      Maynard E. Cush, Shreveport, for plaintiff-appellant.
    James L. Fortson, Shreveport, for defendant-appellee.
    Before HALL, GLADNEY and HEARD, JJ.
   HEARD, Judge.

William A. Fiske filed this petition to change child custody on May 20, 1975, seeking legal custody of his two minor children, Terri Lynn Fiske and Jeffrey Allen Fiske, born in 1966 and 1967, respectively. Custody had previously been awarded the mother in a divorce judgment dated November 21, 1973. From judgment rejecting his demands, plaintiff father appeals.

The record established the family formerly lived in Connecticut where the father deserted his wife and children in November, 1971, and came to Shreveport where he subsequently obtained a divorce. The mother, together with the children, remained in Connecticut, the mother having been granted custody of the children in the divorce judgment by agreement. The father was ordered to pay $25 per week child support.

Near the end of 1974, or the beginning of 1975, the mother contacted the father by telephone and advised him it was necessary for her to go into the hospital for serious surgery. It was agreed it would be better for the children to come to Louisiana and stay with the father temporarily until the end of the school term in June of 1975. As a result the father flew to Connecticut and brought the children back to Shreveport where they have resided with their father, his present wife and three children belonging to the latter by a previous marriage.

In May of 1975 the father filed the instant proceeding alleging that the mother had been living in open concubinage with one Joseph Sterpka; that she was not providing a proper home environment for the children; that she was charged with fraud in Connecticut in connection with welfare payments, and that the father had remarried and could provide a better home for the children.

During trial it was developed from the testimony of the mother, Barbara Fiske (now Sterpka) that she had been dating Sterpka in the fall of 1974, and that shortly before she was to go into the hospital Sterpka moved into the apartment with the mother and the children. It was also established that although the man had a drinking problem of long standing, he had slowed down on his drinking after he began his relationship with the mother. There was additional testimony that Sterp-ka had practically ceased drinking since he and Barbara Fiske were married on May 25, 1975. Both are employed and there is no showing there is anything wrong with their home environment at the time of trial.

The mother admitted at the trial that she continued to receive welfare checks from the State of Connecticut after the children came to live temporarily with their father and that she failed to report to the state the money received from the father. She was charged with a felony to which she pleaded guilty and the matter was pending at the time of 'the trial below. She arranged to make restitution and had been advised by her lawyer that she had nothing to worry about as far as punishment was concerned.

Two friends of Mrs. Sterpka came to Shreveport from Connecticut to testify on her behalf. Both witnesses testified they considered her a good housekeeper, a conscientious mother, and a reliable and dependable person capable of providing a good home for her children. Neither of them were well acquainted with Mr. Sterp-ka but they had not observed him drinking to excess. One witness had been instrumental in getting both Mr. and Mrs. Sterp-ka to attend church and she expressed her opinion that both parties had undergone a great change since their church attendance became regular. This witness, Mrs. Abbott, testified she had observed the mother with the children on two occasions and that the children were clean, well-mannered and apparently happy.

It was also established at the trial that the father has remarried and lives with his wife and her three children in an older section of Shreveport; that he has an adequate job with M. L. Bath; that his wife also works and that he and the present wife are offering the children a good home environment. However, it was also shown that the father lived with the present Mrs. Fiske before they were married.

Oral reasons for judgment were dictated by the trial judge into the record at the conclusion of the trial, and although he expressed his sympathy for the father and his wife, he concluded that, in his best judgment and under the facts and the law, the custody should not be changed. Judgment was rendered accordingly.

On appeal the father contends the trial judge erroneously relied on the “maternal preference rule”, which, it is contended, is no longer constitutional under the new Louisiana Constitution adopted in 1974. Appellant also argues that since the award of custody to the mother was by agreement there has been no judicial finding that the mother was a fit person to have custody and that this question should now be determined as though this was an original custody hearing. If it is so considered, he contends it is abundantly clear the award of custody to the father would be in the best interest of the children.

We think the appellant has misconstrued the basis of the finding of the trial judge. While it is true he stated that he felt bound by the decisions of the appellate courts of the state, he nevertheless added that he was bound by certain factual findings and that, “I have no hesitation in appropriate cases in totally disregarding what I consider to be the trivia in trying to arrive at the ultimate decision of what is in fact in the best interest and welfare of the children.”

The trial judge’s remarks reflect his feeling about the case and should be accorded great weight. Since he observed these witnesses through a rather lengthy trial, we find his remarks helpful in reaching our determination of the correctness of his decision. He stated that he was not going to change the custody of the children who came here on a temporary visit; that the mother has, by her voluntary act of remarriage, corrected and cured a primary defect in the environmental circumstances.

Further, we think it appropriate to observe that the children, whose custody had been awarded to the mother in 1973, have at all times lived with and been cared for by the mother, at least until circumstances forced her to send them to be with their father while she was undergoing surgery.

The father who is seeking a modification of custody has the burden of showing good reason therefor, even if the “maternal preference rule” is not applied. We conclude the record discloses no valid reason for changing custody of the children from the mother with whom they have lived for the major portion of their lives.

For the reasons assigned the judgment is affirmed at appellant’s cost.


author: MORIAL, Judge.

text:
    Theresa LoCicero SARPY v. Aaron Lester SARPY, her husband.
    No. 7124.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearings Denied Jan. 13, 1976.
    Writ Refused March 5, 1976.

      Frank J. D’Amico, New Orleans, for plaintiff-appellant.
    Gertler & Gertler, David Gertler, Richard J. Ganucheau, New Orleans, for defendant-appellee-appellant.
    Before STOULIG, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

This is an appeal from a judgment of the district court which denied permanent alimony and upheld a marriage contract.

On September 1, 1964 Aaron Lester Sar-py married Theresa LoCicero Dresel. It was the second marriage for both parties. Two children were subsequently born of this union. On May 16, 1974, Mrs. Sarpy filed a petition for divorce based upon adultery. She sought injunctive relief and a partition of the community. On July 4, 1974 defendant, A. Lester Sarpy, filed an answer in which he denied the adultery and alleged there was no community of ac-quets and gains existing between the parties due to a marriage contract entered into on August 31, 1964. This contract provided that there was to be no community of acquets and gains and the parties were to remain separate in property. On July 30, 1974, Mrs. Sarpy filed a supplemental and amending petition alleging that the marriage contract was null and void because it was not executed in accordance with the requirements of the Civil Code. She further alleged the contract was void because of fraud, deceit, ill practices, mistake of law and fact, and lack of consideration. On September 10, 1974 plaintiff filed a second supplemental and amending petition contending that the provisions of Louisiana law pertaining to marriage contracts were unconstitutional under the Seventh and Fourteenth Amendments to the United States Constitution. Defendant answered plaintiff’s supplemental and amending petitions alleging the marriage contract was valid and binding and that it nullified the provisions of the community property laws of Louisiana.

On October 24, 1974 a judgment of divorce was rendered in favor of plaintiff. (That judgment was not appealed and is not the subject of this suit.) Subsequently, in a judgment rendered November 19, 1974, this marriage contract was declared valid.

On November 25, 1974 plaintiff filed a motion to tax investigative fees and depositions as costs. On December 2, 1974 plaintiff filed a rule for permanent alimony and child support. In a judgment signed on March 3, 1975, the district court dismissed plaintiff’s rule for permanent alimony but ordered defendant to pay child support in the sum of $675.00 per month for each child. The court also denied plaintiff’s request for the taxing as costs of investigative fees and depositions.

Plaintiff appeals the judgments recognizing the marriage contract, dismissing the rule for permanent alimony, and denying the taxation of investigative fees and depositions as costs. Defendant appeals the judgment awarding child support. We affirm.

The trial court, after considering the totality of the evidence before it, ruled that the marriage contract was valid in all respects. In its “Reasons for Judgment-Findings of Fact” the court concluded:

“1. Mrs. Theresa LoCicero Sarpy was married and divorced from her first husband, Mr. Albert Dresel.
“2. She had a settlement of the community property of her first marriage.
“3. She knew the meaning of community property and separate property.
“4. Mr. Lester Sarpy was married and divorced from his first wife.
“5. He told Theresa LoCicero and others that he would never remarry without a marriage contract.
“6. Mrs. Theresa LoCicero before her marriage to Mr. Sarpy knew and understood the legal effect and result of a marriage contract.
“7. The marriage contract was signed before a Notary and two witnesses.
“8. Mr. Sarpy and Mrs. Theresa Lo-Cicero ‘lived together’ before their marriage.
OPINION
“The Court is of the opinion that the marriage contract was confected and signed in the manner outlined by the Notary, Mrs. Adele Lamb.
“Mrs. Theresa LoCicero agreed to the marriage contract because she well knew that without a marriage contract Mr. Sarpy would not marry her.
“No fraud was practiced by Mr. Sar-py. Mrs. Theresa LoCicero knew all about the consequences of a marriage contract and entered into the agreement of her own free will.
“No Constitutional question of any nature is involved in this case.”

Plaintiff has presented us with absolutely no showing that these conclusions are erroneous. The record indicates that all formalities specified in the Civil Code (LSA-R.C.C. 2325 et seq.) for marriage contracts were complied with and that Mrs. Sarpy was aware of and understood the effects of the contract when she signed it. Furthermore, all cases cited by counsel for plaintiff as authority for the invalidity of the contract are inapposite to the present situation. This was not a premarital contract setting post-marital alimony rights, but one which abrogated the existence of a community of acquets and gains. There is no public policy against such a contract and there is also no constitutional right to community property as evidenced by the fact that the vast majority of states do not use that system. Accordingly, we hold that the judgment of the trial court recognizing the existence of a valid marriage contract is fully supported by the record and is in all respects correct.

Plaintiff also alleges that the trial court erred in dismissing her rule for permanent alimony. The guidelines which a court is to employ in fixing alimony after divorce were recently reiterated in Frederic v. Frederic, La., 302 So.2d 903, 906 (1974), where the Supreme Court stated:

“ * * * Alimony awarded upon the authority of Article 160 is a gratuity in the nature of a pension. Hays v. Hays, 240 La. 708, 124 So.2d 917 (1961); Brown v. Harris, 225 La. 320, 72 So.2d 746 (1954).
“As used in Article 160 reference to ‘means for her maintenance’ refers primarily to food, shelter and clothing. Rabun v. Rabun, 232 La. 1004, 95 So.2d 635 (1957); Stabler v. Stabler, 226 La. 70, 75 So.2d 12 (1954).
“The test is not whether the wife has the means to support herself in the manner to which she is accustomed to live, but what will provide her with sufficient means for her maintenance, Vicknair v. Vicknair, 237 La. 1032, 112 So.2d 702 (1959), the wife' having the burden of establishing her necessitous circumstances. Malone v. Malone, 260 La. 759, 257 So.2d 397 (1970). The amount necessary for maintenance of a divorced wife is to be determined by the circumstances of each particular case. Brown v. Harris, 225 La. 320, 72 So.2d 746 (1954); Wilmot v. Wilmot, 223 La. 221, 65 So.2d 321 (1953).
“And in determining 'means for the wife’s maintenance, her income is not the sole consideration. All of her means must be regarded to determine their sufficiency for her maintenance. Smith v. Smith, 217 La. 646, 47 So.2d 32 (1950). * * *

The trial produced testimony to the effect that plaintiff owned $30,000.00 in United States Treasury hills, substantial interests in three pieces of property having a total appraised value of approximately $673,000.00, two long mink coats and one short one, one chinchilla cape, various jewelry, a 1972 Cadillac and furniture purchased for $6,000.00. Mrs. Sarpy also testified that at the time of trial she had $800.00 in her checking account and over $8,000.00 in a savings account.

Based upon this evidence, the trial court did not err in denying alimony. Mrs. Sar-py clearly has sufficient means for her maintenance after considering the totality of her means.

Defendant asserts that due to the fact R.C.C. Art. 160 obligates a wife to show she is free from fault in order to receive alimony, he should be allowed to present evidence to show his wife’s fault. He alleges specifically that the principles of Fulmer v. Fulmer, La., 301 So.2d 622 (1974) and Frederic v. Frederic, supra, are not applicable when there has been no separation proceeding and that the judgment of divorce is not determinative on the issue of fault. Due to the fact that we agree with the trial court’s finding that Mrs. Sarpy was not in necessitous circumstances and therefore not entitled to alimony, we need not decide at this time whether defendant’s contention has merit.

Plaintiff also contends that the trial court erred in dismissing her rule to tax investigative fees and depositions as costs. Plaintiff employed private detectives who followed her husband to Las Vegas and proved that he committed adultery while there. These detectives were deposed, but their depositions were never introduced as evidence at the trial. Clearly, this expense is not taxable as costs, Kommer v. Assenheimer, 174 So.2d 197 (La. App. 4 Cir., 1965). Additionally, at the trial, only one detective testified. He testified only as to the facts which he observed and not as an expert witness. In Griffin v. Yellow Cab Co. of Shreveport, 61 So.2d 225, 229 (La.App. 2 Cir. 1952), the court facing a similar issue ruled:

“We find no merit in the claim for payment of services to the photographer and the civil engineer. These services were rendered at the request and for the particular benefit of supporting plaintiff’s claim, and neither of these parties were called to give any scientific or professional testimony or to express any opinion based upon their specialized study or experience, under LSA-R.S. 13:3666. We think the charges for the services rendered were properly incurred and should be borne exclusively by plaintiff.”

We fully subscribe to this reasoning and accordingly uphold the judgment of the trial court dismissing the rule.

Finally, defendant avers that the trial court erred in fixing child support in the sum of $675.00 per month for each child. We find no merit to this contention due to the fact that counsel for defendant stipulated at the trial that Mr. Sarpy would be willing and able to pay any amount which the court assigned. Defendant is bound by this stipulation. In any event, children of divorced parents are entitled to be maintained in the standard of living commensurate with that of their father when the financial circumstances of the father permit. Phillips v. Phillips, 319 So.2d 566, 568 (La.App. 4 Cir. 1975). Here, plaintiff presented evidence concerning the needs of her children and the financial resources of her former husband which the trial judge utilized in calculating the child support award. The fixing of child support is within the sound discretion of the trial judge. Phillips v. Phillips, supra. We cannot say that the amount awarded constitutes an abuse of discretion.

The judgment of the district court is affirmed. Defendant is to pay all costs.

Affirmed.

PER CURIAM.

Each party is to pay his/her own costs.


author: STOULIG, Judge. REDMANN, Judge PER CURIAM.

text:
    Mrs. Mary Cavanaugh MORGAN et al. v. LIBERTY MUTUAL INSURANCE COMPANY et al.
    No. 7045.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    Concurring Opinion Nov. 14, 1975.
    On Denial of Rehearing and Amendment of Decree Dec. 19, 1975.

      Wiedemann & Fransen, Lawrence D. Wiedemann, New Orleans, for Mrs. Mary Cavanaugh Morgan, plaintiffs-appellees.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John V. Baus, New Orleans, and Timothy T. Roniger, for Liberty Mutual Ins. Co., and others, defendants-appellants.
    Bienvenu, Foster, Ryan & O’Bannon, Hugh M. Glenn, Jr., New Orleans, for Peter Kiewit Sons’ Co. and the Home Indemnity Co., intervenors-appellees.
    Before REDMANN, STOULIG and GULOTTA, JJ.
   STOULIG, Judge.

John Morgan, rendered paraplegic and mentally incompetent in an industrial accident, won a $2,481,000 jury verdict against defendants, Riley Stoker Corporation (Stoker), and its liability insurers, Liberty Mutual Insurance Company (Liberty Mutual) ($1 million, limits) and American Home Assurance Company (American) (the excess carrier). Defendants have appealed.

We affirm on liability and amend quantum to $1,427,365.72.

On October 4, 1973, while working as a pipefitter foreman for Peter Kiewit Sons’ Company (Kiewit) at a generator plant construction site at Kilona, Louisiana, John Morgan was critically injured when two corrugated metal sheets fell from a height of 160 feet, caromed off the building, struck the ground and fell on Morgan.

It is not disputed this accident occurred through the negligence of employees of defendant Stoker, who, like Kiewit, was one of many subcontractors working on this job.

Originally, William Baldwin, Sr., foreman of the Stoker crew engaged in moving the metal, told Alfred Giavotelia, his “rigger,” to move the sheets with the “tugger.” Giavotelia informed Baldwin that the tugger could not do the job safely and requested the use of a crane, which was denied, and Giavotelia then refused to rig the sheets of metal because it was too dangerous. Baldwin had no experience as a rigger and despite this fact he took another equally inexperienced employee to the top level of the building to do this job. These two inexperienced Stoker employees tried to rig the sheets of metal with a sling attached to the cable of the tugger to lower them 120 feet for use at a 40-foot level. Encountering difficulty when they tried to lift the long corrugated sheets over the surrounding 4-foot railing because the bridle on the tie was too long to permit the tugger to raise the load over this barrier, they manually lifted and pushed the sheets over the railing. As the load dangled in the air, it became apparent it was improperly rigged; but before the mistake could be remedied, the sheets slid from the sling and fell to the ground below, striking Morgan, who was engaged in reading a blueprint near the base of the structure.

Defendants contend Morgan was guilty of contributory negligence in violating a basic safety rule known to all experienced construction workers, i. e. never stand beneath a load of material being moved. They argue Morgan with many years of experience in the construction field voluntarily exposed himself to an industrial hazard of which he is or should have been aware and that his negligence in doing so is a contributing proximate cause of the injury he sustained. In this connection they rely on this language in Romano v. Bonstaff:

“The primary factor to be considered in determining whether a person was negligent is that person’s own experience in the field of work he was performing at the time he was injured. * * * ” 198 So.2d at SOI.

While acknowledging that the issue of contributory negligence is a question of fact for the jury, nevertheless the defendants in their brief contend “* * * (1) undisputed facts established contributory negligence; (2) the jury’s failure to return a verdict of contributory negligence was undoubtedly the result of the inadequate and erroneous charge on the subject by the trial court.”

We agree with defendants’ definition of contributory negligence and their comment as to the proper evaluation of the plea, which we quote from their brief:

“Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, which is that of a reasonable man under like circumstances. Smolinski v. Taulli, 276 So.2d 286 (La.App. [La.] 1973). Contributory negligence is also measured by the same standards as primary negligence. Stewart v. Gibson Products Co., 300 So.2d 870 (La.App.1974). * * *”

But these general statements of law, when applied to the facts before us, do not alter the defendants’ liability. If we inquire whether Morgan’s conduct was “that of a reasonable man under like circumstances,” we must answer in the affirmative. No need exists to discuss the sufficiency or correctness of the jury charge on this point of law, because there is insufficient evidence in the record to support the plea of contributory negligence.

When Morgan was injured, he was in an area where his duties required him to be. He and Charles Brouillette were checking a blueprint because of a discrepancy in specifications of the fabricated pipe which had been previously connected and attached to the system. Brouillette testified at no time before the accident did he hear the tugger or know it was being operated, otherwise, he emphasized, he would not have been standing there. He explained there is always background noise on a construction job of this magnitude and oftentimes it would not be possible to hear the tugger.

This observation is verified by the fact that a safety committee, on which all subcontractors were represented, established a rule that anyone operating machinery to move materials overhead should first warn all workmen in the area that loads would be lifted or lowered. The minutes of the safety committee meeting of May 15, 1973 (some five months before the accident), state in part:

“3) The following procedure shall be followed when cranes are working in an area where other activities are being conducted. The contractor operating the crane shall assign a man to warn all craftsmen in the area when a load is about to pass overhead. After being warned, it is the responsibility of those in the danger area to move to a safe spot until the load has passed. There will be no exceptions to this procedure and neither party can shift his portion of the responsibility to the other party.”

The safety committee obviously felt the noise of a crane lifting material overhead would not always be sufficient to warn workmen in the area, otherwise, there would have been no reason to adopt this rule. The Stoker crew should have been using a crane, the equipment this regulation was designed to affect. Instead they utilized the tugger, normally used for light loads. Considering the fact they were using inadequate equipment to lower the materials, it became more imperative for the Stoker crew to warn Morgan of its use.

Thus Morgan could reasonably assume the safety rule would be obeyed on the construction site and that he could safely stand near the boiler where his crew worked. Absent a warning to the contrary, Morgan should have reasonably been able to assume he was not endangered by objects being moved through the air. In addition, in view of the testimony of Brouillette, Morgan could not be expected to anticipate danger from the tugger because the basket, usually attached to it when in operation, rested on the ground several feet from him. This indicated the tugger was not being used. We therefore conclude Morgan was not negligent. Having failed to prove their affirmative defense of contributory negligence by a preponderance of the evidence, defendants cannot exculpate themselves from liability.

We next consider quantum. The award exceeds what we consider adequate damages by more than $1,000,000; therefore, a modification is warranted under the Gaspard line of jurisprudence interpreting the “much discretion” rule of C.C. art. 1934. We would also reach the same result if we take an alternate approach and decide the case on the record under C.C.P. art. 2164, because plaintiff’s counsel was permitted to unduly prejudice the jury by improper voir dire examination and/or inflammatory closing argument.

C.C.P. art. 1763 permits voir dire examination of jurors to ascertain their qualifications to serve. In this regard it is valid for counsel to determine whether a juror can act impartially or whether he should be disqualified because of some prejudice toward the litigants or the issues involved in the trial. But in the guise of determining whether any prospective juror had a reservation about awarding high damages, plaintiff’s counsel in voir dire examination repeatedly suggested the amount of the verdict to be reached. Over objection by defense counsel, he was permitted to ask if jurors had any reservations about awarding $4 million. In addition, counsel exceeded the bounds set in C. C.P. art. 1763 by including in voir dire examination what should have been reserved for argument.

The quoted excerpts illustrate the prejur dicial material permitted in the voir dire examination:

(Dealing with quantum . . . )
“Mr. Wiedemann:
Assuming, gentlemen, that all of the elements of damages sustained by Mr. Morgan justify an award of Four Million Dollars in this case, do any of you personally have any reservations about making an award of that consequence, assuming that is required to fully compensate Mr. Morgan for all of the effects of the accident ?”
(And . . . )
“MR. WIEDEMANN:
Gentlemen, you all have heard me describe, and Mr. Baus also, the severity of the injury sustained by Mr. Morgan in this case and the disabling nature of the injuries. And assuming that those injuries and the consequence of those injuries would justify an award in the vicinity of Four Million Dollars, would each of you be able to make an award of that consequence, assuming that the evidence justifies it?”
(And again . . . )
“MR. WIEDEMANN:
‡ >fS ‡ % ‡
Mr. Smith, assuming that the evidence in this case, when considered in light of the instructions that will be given to you by the court relative to the various elements of damages, would justify an award of Four Million Dollars, or thereabouts, would you have any personal conviction, or any mental reservation about awarding an award of that consequence, assuming that in your opinion the damages justify such an award from the evidence and the instructions of the court ?”
(Improper use of argument on voir dire • • •)
“MR. WIEDEMANN:
Are each of you prepared to fully compensate Mr. Morgan for all of the humiliation and indignities that he has been required to suffer and that he will be required to suffer for the remainder of his life as it existed at the time of the accident? And by ‘indignities’, gentlemen, I mean a man who is paralyzed from the chest down and has to urinate on himself and defecate on himself; are you prepared to fully compensate him for the humiliation and indignity that precipitates for the remainder of his lifetime ?”

There are two aspects of the closing argument we find inflammatory and highly prejudicial, namely, plaintiff’s counsel equating defendant Stoker’s negligencp with criminality and his statement that the jurors would be Morgan’s executioners if they did not bring back a high award. We quote:

“MR. WIEDEMANN:
I think the negligence of Riley Stoker was so gross and so culpable and it borders almost on criminality, they were on this job—
MR. BAUS :
Objection, if the Court please.
******
[MR. WIEDEMANN:]
Dr. Glass wanted to let him die later on because it would have been more humane, he thought, but he is not dead and he is here. And he is here, and he is to be here and we have got to take care of him and you have got to evaluate those damages. Maybe the Lord left him here to test my ability, to convince you all maybe he left him here to determine whether or not you have the necessary charity, or the necessary good conscious [sic] to take care of him, or whether you can turn your back on him and go home and live your life knowing that 'you pulled the plug. Maybe that is why he left him here, I don’t know, but he is here. He is here and he is helpless because Riley Stoker didn’t care, they didn’t care about safety. They ignored the premonitions, they ignored what they knew was going to happen, what they were told, and he is here * * *
(Emphasis supplied.)

On rebuttal, plaintiff’s attorney argues:

“MR. WIEDEMANN:
Gentlemen of the jury, I now have an opportunity to make a rebuttal argument to you and I will make it as brief as possible in the time limit that I can do justice to my client, at least. It appears, after five days we have at least come to the common understanding and apparently we are only talking about money, which I guess is some accomplishment after five days. But it never ceases to amaze me in practicing law for twenty years, what an insurance company will suggest that you do as citizens to an injured man and this, I believe, is probably the most injured that I have ever been involved in in twenty years, which I am referring to Mr. Morgan because I speak for him since he is unable to speak for himself.
******
“Now, they say there is no criminal act, I guess there is no criminal act, but they are asking you to commit a criminal act, they are asking you to execute this man * *
(Emphasis added.)

Because the Louisiana constitution requires appellate courts to review both facts and law, there has been little jurisprudence defining what constitutes proper argument to a civil jury. But in a recent case, Temple v. Liberty Mutual Insurance Company, the court pointed out that a fair trial can only be afforded all litigants if the juror is not subjected to prejudicial argument. The decision observed:

“ * * * \ye are of the view that a civil jury can properly perform its function of damages assessment when it weighs the facts of a case in the light of proper argument which allows the finder of fact the opportunity to reach its decisions dispassionately and with due regard for the rights of all concerned.” 316 So.2d at 794.

Rather than remanding this case for a new trial, which would further delay compensating John Morgan for the serious injuries he suffered, we will assess damages based on the evidence before us. At the outset we reiterate the observation made in the case of York v. Sedotal, 281 So.2d 170, 172 (La.App. 4th Cir. 1973):

“ * * * As is usually encountered, the verdict merely sets forth the aggregate amount of the award. It does not detail either the nature of the damages recognized or the particular sums assessed. To ascertain the reasonableness of the total amount awarded, we must separately consider and evaluate the following compensable elements of damages allegedly sustained: (1) injuries, pain and suffering (past and future); (2) past and future medical expenses; (3) loss of income; and (4) loss of future earnings.”

We itemize our award of the elements of damage we have considered:

Loss of wages to date of trial $ 21,958.02
Loss of future wages 168,102.38
Medical expense (to reimburse compensation carrier) 100,000.00
Future medical 837,305.32
Pain, suffering and disability 300,000.00
$1,427,365.72

There is no dispute on the first and third items of damage.

PAIN, SUFFERING AND RESIDUAL DISABILITY

The residual disability John Morgan suffered as a result of this industrial accident is staggering; he has been transformed from an active outgoing father and husband to a brain damaged, bed-ridden invalid. He frequently displays hostility to his wife and children that, medical evidence indicates, stems from pain he often suffers and depression resulting from the realization that he will be an invalid for the rest of his life. Frequently his brain damaged condition prevents him from engaging in lucid conversations with his wife and children. Physically he is paralyzed from the chest down, and he is confined to bed, though at times he may be placed in a wheel chair. He is unable to control bodily elimination and must always be assisted by either the nurse attending him or a family member. He is unable to engage in sex relations with his wife. His daily maintenance requires medication pumped directly into the lungs by an intermittent positive pressure breathing machine through a permanent tracheotomy and suctioning of lung secretions through the throat opening. Nightly, warm, moist air is pumped through the tracheotomy to keep the airway open. Nurses turn him constantly to prevent development of bed sores and pneumonia.

For this, plaintiff argues, general damages should be very high — presumably in the million dollar category. Plaintiff claims John Morgan has “ * * * the worst injury case in the annals of Louisiana law.” Actually the injuries are markedly similar to those suffered by Steven Trahan in Trahan v. Girard Plumbing & Sprinkler Co., wherein we awarded $200,000 in general damages. Although Trahan was a younger man (in his late twenties) than John Morgan when he was injured, we are convinced from the evidence Morgan is experiencing more intense pain and suffering.

Considering the evidence before us that establishes, inter alia, John Morgan is expected to live 17.4 years in the unimproved condition we have described, we are of the opinion that the sum of $300,000 in general damages should be awarded for these injuries, pain and residual disability.

Plaintiff relies on Cacibauda v. Gaiennie, as authority for million dollar general damages, pointing out that this court affirmed an award of $58,726.93 for 15 days of pain and suffering. That decision is not authority for the proposition that severe injuries deserve inflationary general damages; it simply illustrates an application of the Gaspard rule. In affirming a high pain and suffering award we noted that the amount was higher than what we would have awarded, but did not constitute an abuse of the “great discretion” vested in the trial judge and/or jury. In that same case the jury awarded low damages to the surviving children for loss of love and affection they suffered when their father died. We pointed out that Gaspard prevented our raising what we considered inadequate compensation to the children just as it prevented our decreasing the pain and suffering award for the 15 days the injured workman survived the industrial accident.

LOSS OF FUTURE WAGES

We computed the $168,102.38 award from the earning and life expectancy data in evidence and disregarded as speculative the $187,000-plus figure suggested by one actuary and $240,200 by the other. We note at this point it would have been helpful to have expert actuarial testimony to make these projections on nonspeculative factors.

In computing this item of damage we want to furnish Morgan with a minimum $19,000 per annum for the remainder of his 9.2 years’ work life expectancy. In the last full year he worked (1972), he reported a $19,622.35 gross income from wages, which we have rounded off to $19,000. In awarding loss of future wages, our courts have the option of using the gross income, the net income, or any figure in between that was reported by the injured on his last tax return, representing his latest statement of his wages. In Edwards v. Sims , this court made the following observation :

“The fact that damages resulting from personal injuries are not subject to income taxation (26 U.S.C. § 104) is interrelated with the question of whether the previous earnings factor should be based on wages before or wages after taxes:5
[N]5. Some decisions have indicated gross wages should be considered. See, for example Menard v. Travelers Ins. Co., 240 So. 2d 390 (La.App. 3rd Cir. 1970), and Duplechin v. Pittsburg Plate Glass Co., 265 So.2d 787 (La.App.1972), citing Adams v. Allstate Ins. Co., 212 So.2d 204 (La.App. 4th Cir., 1968), cert. den. 252 La. 888, 214 So.2d 716. However, in the Adams case, the loss of wages was stipulated and not at issue; the court simply used the words ‘total gross pay loss was $424.’ 294 So.2d at 616-17.
Any consideration of damages for loss of wages (past or future) should be based on net income after taxes, since a plaintiff’s gross earnings before taxes are never truly available to him. * * * ”

Because tax liability varies with the individual and is altered with changing circumstances, in some cases it is more appropriate to project future lost earnings on a figure near the gross income. In Morgan’s case, it is obvious his future tax liability will not be comparable to the $3,000-plus figure he paid in 1972 because his circumstances have been radically altered. While the damages he is awarded are not taxable, the income derived from their investment is. In all probability his medical expenses will create a deduction sufficient to relieve him of any tax liability.

Considering these factors we use a $19,-000 per annum base. We accept an actuarial projection of inflation at 3.8 percent per year and use a 4.8 percent investment yield in making our computation. For each $1,000 present value dollars to be paid for 9.2 years (with inflation at 3.8 percent), $8,847.49 is needed. This contemplates paying the first $1,000 in ad-vanee and leaving a balance of $7,847.49 to invest at 4.8 percent. A lump sum of $168,102.38 is awarded to produce this yield.

The Supreme Court has admonished against the use of precise mathematical calculations based upon life expectancy to set the loss of future wages. However, our award makes allowance for the adjustments we deem necessary to adequately compensate for the loss of future wages.

Stated another way, the award of damages for loss of future wages projected over the period of disability or life expectancy is discounted or adjusted by a reasonable rate of return which could be realized from its conservative investment based upon prevailing market conditions at the time of its award. This adjustment is necessary because the prepayment of this particular anticipated damage for 9.2 years is made immediately upon the finality of judgment, whereas in fact the right to such wages would normally accrue or be payable in successive years in the future over a like period of time.

FUTURE MEDICAL EXPENSE

It is not disputed that John Morgan requires nursing service at home for 22 of the 24 hours each day. After his initial hospitalization at East Jefferson General Hospital for approximately six months, he was admitted to the Texas Institute for Rehabilitation and Research and was discharged in July 1973 when it was determined he could derive no further benefit. Since that time he has been at home and has received excellent nursing care (all the medical experts agreed). The cost averages $920 per week, but all litigants agree to a projection of $52,000 per year for nursing expense. There is no attempt to establish cost of future doctor or hospital expenses (and perhaps this is not susceptible of proof). With regard to the projected cost of lifetime nursing service, we again reject the actuaries’ figures as unrealistic because they are based on speculative assumptions.

In determining this award should be $837,305.32, we use the same approach as we did in computing loss of future wages. We think the record warrants our providing John Morgan with $52,000 per year for medical expenses for his 17.4 years’ life expectancy, If this sum is invested at 4.8 percent and allowance is made for a 3.8 percent per annum inflation factor, the principal and interest will provide $52,000 present value dollars each year for life.

For the reasons assigned the judgment appealed from is affirmed insofar as it casts Riley Stoker and Liberty Mutual Insurance Company in judgment for $1,000,000 and is amended to reduce the award to plaintiff against Riley Stoker and American Home Assurance Company from $1,481,000 to $427,365.72 and is further amended so that out of said sum interve-nors Peter Kiewit Sons’ Company and Home Indemnity Company are awarded the sum of $3,965 in weekly compensation benefits and $100,000 in medical expenses paid to plaintiff on behalf of and/or for the account of John Morgan.

Defendant Liberty Mutual Insurance Company is to pay the cost of this appeal.

Amended and affirmed.

REDMANN, Judge

(concurring).

The judgment in this case should: first, award the past medical expense and lost earnings; second, award perhaps $25,000 to $50,000 general damages (rather than $300,000) ; third, declare the alimony-like obligation of defendant insurers to provide, during the incompetent Morgan’s lifetime, future medical expense (whatever its reasonable cost) and earnings-equivalent; and fourth, under the special circumstances of this case, overtly award reasonable attorney’s fees.

I therefore concur in the reduction of the judgment appealed from, although I would, in effect, reduce it more as to general damages and probably (because Morgan will not likely last an average life expectancy) as to future lost earnings and medical expense.

General Damages

Even $300,000 is excessive for pain, suffering and disability because both (a) Morgan has little pain and suffering or even awareness of his dire condition and (b) Morgan is incapable of enjoying money, either to spend or to save or to give away.

Perhaps both points can be dismissed as a factual disagreement: on the facts found by the majority, the result may be correct. But the factual disagreement is not absolute : Morgan is admittedly incompetent, mentally and physically. At least point (b) deserves discussion.

The theory of money-to-repair fits precisely in items of pecuniary damages: the price of repairing the car or of the medical services, or the amount of the lost wages, is money and money can in fact repair those items of damage. But money cannot repair pain, or loss of limb, or anguish: those items cannot be repaired or restored at all, and the tortfeasor’s obligation “to repair” must be theorized as “to make reparation” or amends. The unreversible displeasure of pain and suffering can be alleviated or overcome by the pleasure of things money can bring: the price of a new television may make amends for modest pain, a new automobile for greater pain, a new house or the security of substantial money in the bank for yet greater pain.

This theory of money-as-reparation, however, requires for its validity a victim who can benefit from the reparation. A dead victim cannot be consoled; the dead are incapable of enjoying money’s pleasure as a surrogate for life. If the permanent state of a victim is such that he cannot appreciate having money nor enjoy the things it can buy, then money cannot constitute a reparation, cannot make amends, for the nonpecuniary damage he has suffered.

“Though it is irrelevant what a plaintiff does with the damages awarded to him it should not be irrelevant that he is not capable of doing anything with them. It is surely not the policy of the law to give a windfall to the next-of-kin where insurance spreads the load of damages and thus increases the general cost of services to the community.” Note, 1962, 25 Modern L.Rev. 479, 481.

The ultimate question is whether the obligation to pay general damages is reparation or punishment. In Louisiana, C.C. 2315 answers that the obligation is .“to repair.”

Future Medical Expense

The grave problem with lump-sum future medical expense in this case is that it may run out before the victim’s life does. Thus the lump-sum judgment does not enforce the tortfeasor’s obligation “to repair.” Yet our deficiency in clairvoyance does not insure harm only to the victim: his life, unfortunately and regrettably, may well run out long before the lump-sum does, leaving a windfall to his heirs far beyond the tortfeasor’s obligation. The vagaries of inflation or recession may also unpredictably alter the lump-sum’s com-mensurateness with the obligation.

In the similar case of Oliver v. Ashman, 1961, 3 All E.R. 323, Lord Justice Willmer noted the difficulty and suggested “in exceptional cases ... a provisional award, with power to adjust it hereafter in the light of th'e circumstances as they in fact develop.”

Our experience in workmen’s compensation medical benefits shows that continuing and adjustable payments can be ordered by the courts and, typically, managed by the litigants without the necessity of recourse to the available judicial review of the reasonableness of later expenses.

If future medical expenses are to be so compensated, future earnings loss can also more exactly be compensated by awaiting the future.

This is an exceptional case. It merits an exceptional decree.

Attorney’s Fees

This exceptional case also requires that we allow attorney’s fees (perhaps remanding for their fixing after a hearing). In the ordinary case, the general damages may suffice to pay the attorney, or the victim’s own earnings (or damages for loss of earnings) may. Here, the great bulk of the total award (lump-sum or not) is for medical expenses indispensable to life. It is true in every case that the tort causes the hiring of the lawyer, and nevertheless the rule is that the lawyer’s fees are not recoverable: but here we cannot rationalize that result, and we cannot furtively ignore that 'rule by awarding large general damages. Research has not disclosed a Louisiana case of this exceptional character in which the question of attorney’s fees has been discussed. We should afford the “adequate remedy” that La.Const. art. 1 § 22 commands.

Before REDMANN, STOULIG and GULOTTA, JJ.

PER CURIAM.

The applications for rehearing filed by Mrs. Mary Cavanaugh Morgan; by Riley Stoker Corporation; by Liberty Mutual Insurance Company; and by American Home Insurance Company are refused.

The application of Peter Kiewit Sons’ Company and Home Indemnity Company, intervenors, points out the original decree failed to fully reimburse them for medical expenses and workmen’s compensation benefits they paid plaintiff under the Workmen’s Compensation Act. While this appeal was pending intervenors continued to honor their obligation by paying for plaintiff’s medical expenses and his compensation benefits. The amounts stipulated at the trial as being due are no longer accurate. In order that there would be a basis in the record to support a judgment for the amount actually due, plaintiff and intervenors have filed a joint stipulation setting forth the correct amounts.

Accordingly, with respect to the intervenors, our original decree is recalled and it is now ordered there be judgment in favor of Peter Kiewit Sons’ Company and Home Indemnity Company for the $125,000 in medical expenses advanced and for $7,475 in compensation benefits paid to date. It is further ordered intervenors shall be reimbursed for whatever future weekly compensation benefits are paid until this judgment is satisfied. Intervenors are to be paid by preference out of any judgment rendered in plaintiff’s favor.

Rehearings refused; original decree amended and reinstated, as amended.

      . Appearing through his wife and curatrix, Mary O. Morgan.

      . Originally, plaintiff sued the corporate officers and employees of several firms involved in the construction project, but later voluntarily dismissed them as defendants.

      . Each sheet measured 2y2 feet by 20 feet and weighed 150 pounds.

      . The “tugger” or “chugger” (named for the noise made by the compressed air passing through its cylinders when in operation) is positioned on the ground and is connected to a boom or ginpole on the top of the structure by cables run through a series of shields and blocks. It is designed to vertically lift light loads, such as water, hoses, welding equipment, etc., that are placed in a basket usually attached to the end of the cable.

      . A crane had been used to hoist the metal to the top level of the building.

      . 198 So.2d 499 (La.App.4th Oir. 1967).

      . C.C.P. art. 1005; New Amsterdam, Casualty Company v. Culotta, 230 So.2d 339 (La.App. 4th Cir. 1970).

      . Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963).

      . “The court shall permit the parties or their attorneys to conduct the examination of a prospective juror and may itself conduct an examination, which shall be limited to ascertaining the qualifications of the juror.”

      . LSA-Const.1921, Art. 7, § 29; LSA-Const. 1974, Art. 5, § 10(B).

      . 316 So.2d 783 (La.App. 1st Cir. 1976).

      . 299 So.2d 835 (La.App. 4th Cir. 1974).

      . 305 So.2d 572 (La.App. 4th Cir. 1974).

      . 294 So.2d 611 (La.App. 4th Cir. 1974).

      . McFarland v. Illinois Central Railroad Company, 241 La. 15, 127 So.2d 183 (1961); York v. Sedotal, 281 So.2d 170 (La.App. 4th Cir. 1973).

      . The cited Note reviews Wise v. Kaye, 1962, 1 All E.R. 257. Compare Helms v. United States, D.C., 1964, 231 F.Supp. 961, 964: “In regard to amount of damages awarded to Plaintiff for pain and suffering, it must be given consideration that though it is unquestionable that [plaintiff’s incompetent] undergoes terrific pain, the fact is that he is neither now nor will he ever be, a rational, thinking individual. His lack of comprehension, though not total, does considerably diminish the mental suffering to which he is subjected. To suffer, and be truly and rationally cognizant of that suffering, is inestimably worse, and so the Court in its award of damages must take into account the true situation, and for that reason have awarded only $10,000.00 in damages.” See also Comment, Nonpecuniary Damages for Comatose Tort Victims, 1973, 61 Georgetown L.J. 1547; Note [on Oliver v. Ashman, 1961, 3 All E.R. 323], 1962, 25 Modern L.Rev. 108; Note [on Wise], 1962 Camb.L.J. 153; Nygh, “Is it Cheaper to Kill than'to Maim?” 1962, 3 Australian Lawyer 33 ; Munkman, “Personal Injuries to a Living Plaintiff” (reviewing H. West & Son, Ltd. v. Shephard, 1963, 2 All E.R. 625), 1963, 113 Law J. 542.


author: GLADNEY, Judge.

text:
    PHARR BROS., INC., Plaintiff-Appellant, v. TODAY, INC., Defendant-Appellee.
    No. 12769.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.
    Hal V. Lyons, Shreveport, for plaintiff-appellant, Pharr Bros., Inc.
    Burnett Harrison, Sutton and Walker by James A. Burnett, Shreveport, for defendant-appellee, Today, Inc.
    Wilkinson, Carmody & Peatross by Charles B. Peatross, Shreveport, for defendant-appellee, Lakewood Villa Apartments, Inc.
    Before PRICE, GLADNEY and MARVIN, JJ.
   GLADNEY, Judge.

Pharr Bros., Inc. initially sued and sought judgment against Today, Inc. in the sum of $1,951.25 bearing legal interest thereon from date of judicial demand. By supplemental and amended petition plaintiff enlarged its pleadings to name Lakewood Villa Apartments, Inc. as a co-defendant and prayed for judgment against both defendants with recognition of a recorded labor lien affecting real estate owned by Lakewood Villa Apartments, Inc. Each of the defendants joined issue by filing answers generally denying all allegations of the original and amended petitions. Following trial judgment was rendered rejecting plaintiff’s demands. The latter perfected a devolutive appeal.

The evidence adduced upon the trial indicates a complete absence of proof of the action against Today, Inc. and it appears from appellant’s brief this claim has been abandoned.

Before this court counsel for Pharr Bros., Inc. charges error by the trial court in not awarding a personal judgment against Lakewood Villa Apartments, Inc. with recognition of its labor lien against the latter’s property.

The uncontradicted testimony of David and Ted Pharr and some of their employees evidenced the validity of the indebtedness claimed and that all of the work was performed on Lakewood Villa’s property between July 9 and July 14, 1974. This evidence adequately supports appellant’s right to a personal judgment.

Appellant’s effort to obtain judicial recognition of the labor lien must fail. The contract for the work performed was verbal and the lien affidavit was not filed within sixty days of the last performance of labor on. the job. The evidence is conclusive to the effect that the work was performed from July 9 through July 14, 1974. The affidavit designed to secure the privilege upon the land of property of Lakewood Villa Apartments, Inc. was not recorded in the mortgage records until January 5, 1975. Therefore, the lien was not timely filed “. . . within sixty days after the date of the last delivery of all materials upon the said property or the last performa.nce of labor upon the same . . .” as required by LSA-R.S. 9:4812 to perfect.

The judgment from which plaintiff appealed is affirmed in all respects except for its failure to decree in favor of Pharr Bros., Inc. a personal judgment against Lakewood Villa Apartments, Inc.

Therefore, it is ordered there be judgment in favor of Pharr Bros., Inc. and against Lakewood Villa Apartments, Inc. in the full sum of $1,951.25, together with legal interest thereon from date of judicial demand, costs to be assessed against Lakewood Villa Apartments, Inc.

Affirmed in part, reversed in part and rendered.


author: BOUTALL, Judge.

text:
    Clayton Earl COTE v. KRAUSS COMPANY, INC.
    No. 7276.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1975.
    Rehearing Denied Jan. 13, 1976.
    Robert F. Fleming, Jr., New Orleans, for Clayton Earl Cote, plaintiff-appellant.

      Robert E. Kerrigan, Jr., Deutsch, Kerri-gan & Stiles, New Orleans, for Krauss Co., Inc., defendant-appellee.
    Before LEMMON, BOUTALL and BEER, JJ.
   BOUTALL, Judge.

In this tort action Clayton E. Cote seeks damages for an alleged false arrest. The incident occurred in defendant Krauss Co., Inc.’s store. The trial court found in favor of defendant and dismissed plaintiff’s suit. Plaintiff has appealed and we affirm.

The testimony shows a clear conflict as to how the incident occurred. Plaintiff testified that he was in Krauss’ store as a patron, and was looking at books when a security guard approached him and accused him of peeping into a stall in the men’s room. He said that the guard flashed a badge, grabbed him by the arm and attempted to take him to the security office. Plaintiff then became very indignant and insisted upon seeing the manager. The guard took him to the office where he was questioned for over an hour.

Plaintiff’s witness (a co-worker who happened to be independently in the store) stated that he was near the book display and saw plaintiff being led away by the arm.

The testimony of defendant’s store manager and guard differs. The guard testified that he saw plaintiff peeking at him in the stall. He shortly thereafter found plaintiff at the book rack and approached him intending to warn him against such habits. After being warned plaintiff became indignant and demanded to see the manager. The manager testified that plaintiff was in his office for only 20 minutes and the entire time was spent trying to calm him down. At no time was plaintiff put under arrest or told he could not leave the store.

The trial judge obviously decided this case on the basis of the credibility of the witnesses. Our duty in such a case is to leave that judgment undisturbed absent manifest error on the part of the trial court. Canter v. Koehring Co., 283 So.2d 716 (S.Ct.1973); Herzog v. Badilla, 317 So.2d 213 (La.App. 4th Cir. 1975); May v. Finest Foods, Inc., 303 So.2d 192 (La.App. 4th Cir. 1974).

The evidence discloses two witnesses proclaiming that an arrest was made and two witnesses denying it. There is no other useful evidence. We can find no error in the decision of the lower court.

For the above reasons the .judgment of the trial court is affirmed. Plaintiff-appellant is to pay all costs.

Affirmed.


author: MARVIN, Judge.

text:
    STATE of Louisiana In the Interest of Rusty Wayne PRESTRIDGE and Dusty Elaine Prestridge.
    No. 12753.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 10, 1975.

      James R. Phillips, Bossier, for defendant-appellant.
    Harvey P. Delaune, Asst. Dist. Atty., Bossier City, for plaintiff-appellee.
    Bernard Boddie, Bossier City, for Minor Children.
    Before PRICE, MARVIN, and GLAD-NEY, J J.
   MARVIN, Judge.

A City Court sitting as a Juvenile Court on the petition of the State, declared one- and-a-half year-old twins to be neglected children under R.S. 14:403, and awarded custody to the State Division of Family Services. The mother appeals from this judgment. We reverse.

R.S. 14:403 contemplates that the State shall conduct an investigation into cases of child abuse or neglect and furnish a written report of the investigation to the District Attorney who is charged with implementation of and prosecution under, the statute. The statute is commendable in its purpose and legislative intent.

The petition was filed March 17, 1975, accompanied by an affidavit that statements in an “attached letter of March 13, 1975” were true and correct. The petition and the affidavit itself contained mostly conclusions. An ex parte or instanter order issued on March 17, awarding custody of the children to the State. About one month later, the State amended its petition in an attempt to supply specific but un-sworn acts of neglect and the names of persons who had allegedly observed these alleged acts.

Thirty-one separate entries of alleged neglect over a period of two and one-half years were contained on the unsworn attachment to the supplemental petition. A copy of the letter of March 13, 1975, referred to in the original petition was sent to the Juvenile Judge. The testimony, and the absence of testimony, at the hearing held May 7, 1975, reveals most of the content of the March 13 letter and the un-sworn attachment to the supplemental petition to have been hearsay and otherwise inadmissible, except to a relatively slight degree.

While we are certain that the Juvenile Judge did his utmost to avoid consideration of March 13 letter and the unsworn attachment, it is nonetheless error, however regrettable, for such information to have been received by the trier of fact. See cases entitled State in the Interest of: Simmons, 299 So.2d 906, (La.App. 3d Cir. 1974); and Elliott, 206 So.2d 802, (La. App. 2d Cir. 1968), and R.S. 13:1579.1, as amended by Act 714 of 1972.

Elliott, was a proceeding under the juvenile provisions of Title 13 of the Revised Statutes, wherein the custody of children was given to the State on the grounds of neglect. There, we said:

“[5,6] A mother has the paramount right to the custody of her children and she should not be deprived of this right without the most solid and substantial reasons . . . * * *
“[7] A mother is entitled to the custody of her minor children unless it is shown by legal and competent evidence that she is morally, mentally, or otherwise unfit or incapable of caring for them, or that, for some other reason, it would be detrimental to the children’s health, safety, or welfare. A mother’s love for her children cannot ordinarily be compensated, in considering their welfare, by the greater means or ability of others to provide for them.” 206 So.2d 805.

Hearsay testimony, including a report of a child welfare worker of the State, was received as evidence in Elliott by the trial judge. We held this to have been error.

“We therefore conclude that the State’s hearsay and opinion evidence as well as the case worker’s ex-parte report are inadmissible and should have been excluded from the record.” 206 So.2d 805.

After Elliott, the legislature amended R. S. 13:1579.1 by Act 714 of 1972 so as to remove all doubt as to the reception of hearsay and opinion evidence into juvenile proceedings.

In Simmons, a report of a juvenile probation officer “and otherwise inadmissible evidence” were allowed in the record by the trial court. The Third Circuit said:

“[4, 5] The report, containing hearsay, opinion, and otherwise inadmissible evidence is in the record. Absent any contrary indication we must conclude that whatever is in the record was considered by the juvenile judge. Since the report contains inadmissible and prejudicial evidence, the proceeding is stricken with nullity and the commitment must be set aside.
“[6] While we are certain that the juvenile judge did his utmost to avoid consideration of the information in this report . . . we think it is error for such a report to be received by the trier of fact . . .” 299 So.2d 908-909
Footnote omitted.

We note that the lower court in its initial order, signed when the petition was filed, ordered the written report of the State’s investigation to be filed with the court. The statute requires that the report be furnished to the District Attorney. Hearsay and inadmissible opinion evidence, of course, may furnish leads to the District Attorney’s Office to acquire legally admissible evidence for prosecutions under the statute, but this type investigative material should not be furnished to the trier of fact so as to taint proceedings under the statute.

Reversed at appellee’s cost.


author: PRICE, Judge.

text:
    James Thomas KELLY, Plaintiff-Appellant, v. Charleen Tobatho Parker KELLY, Defendant-Appellee.
    No. 12793.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 11, 1975.

      Edmund M. Thomas, Shreveport, for plaintiff-appellant.
    Love, Rigby, Dehan & Love by Samuel P. Love, Jr., Shreveport, for defendant-ap-pellee.
    Before PRICE, MARVIN and GLAD-NEY, JJ.
   PRICE, Judge.

Plaintiff-appellant, James Thomas Kelly, neither appeared nor filed a brief in this matter prior to the time the case was called for oral argument. Pursuant to Rule 7, Section 5(b), Uniform Rules, Courts of Appeal, this appeal is considered abandoned, and is hereby dismissed at Appellant’s cost.

Appeal dismissed.


text:
    MARYLAND CASUALTY COMPANY et al., Plaintiffs-Appellees, v. The DeVILBISS COMPANY et al., Defendants-Appellants.
    No. 12768.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 9, 1975.

      Lunn, Irion, Switzer, Johnson & Salley, by Richard H. Switzer, Shreveport, for defendants-appellants.
    Cook, Clark, Egan, Yancey & King, by Sidney B. Galloway, Shreveport, for plaintiffs-appellees.
    Before PRICE, HALL and HEARD, JJ.
   HEARD, Judge.

Plaintiffs, Southwest Industrial Contractors, Inc., and Maryland Casualty Company, sued defendants, DeVilbiss Company and Glen Falls Insurance Company of New York, to recover the cost of repairing a crane and a large burner manufactured by DeVilbiss, which were damaged as a result of the alleged negligence of DeVilbiss. Specifically, plaintiffs allege that De-Vilbiss was negligent in attaching one of four lifting lugs to the burner with inch bolts rather than % inch bolts. The smaller bolts allegedly sheared in half while the burner was being lifted by a crane during the installation of the burner, causing it to fall to the floor, damaging both the burner and the crane lifting it.

Defendants answered that DeVilbiss was not negligent or, alternatively, if it were negligent, that Southwest Industrial Contractors (Southwest) was contributorily negligent in lifting the burner with four-foot cables rather than eight-foot cables. Defendants allege the use of shorter cables resulted in more stress being put on each bolt and that this was the cause of the accident. The trial court found for plaintiffs and defendants have appealed. We affirm.

Plaintiff, Southwest, was a subcontractor engaged in the installation of equipment during the construction of a large General Electric plant near Shreveport. A portion of the equipment consisted of twelve burners, each weighing about 5000 pounds, which were to be installed on a mezzanine floor about eighteen or twenty feet above the ground floor of the plant. The installation necessitated affixing cables to four lifting lug plates attached by DeVilbiss to the four corners of the burner for lifting purposes, and then raising the burner by means of a large crane and placing it on the mezzanine floor.

Three burners had been raised and placed on the mezzanine floor without incident. The fourth burner was in the process of being raised when the bolts securing one of the lifting lugs to the burner sheared in half, causing each of the other bolts to break due to the overload and sending the burner crashing to the floor. Both the burner and the crane lifting it were damaged by the fall.

Southwest called on DeVilbiss to repair the damage occasioned by its alleged negligence, which request was refused by De-Vilbiss. Southwest repaired all the damage at a total cost of $15,290.35. Southwest’s insurer paid Southwest $10,093.78 under its policy and was subrogated to that extent to Southwest’s rights against De-Vilbiss.

Plaintiffs filed suit against DeVilbiss and its insurer in January of 1971. Plaintiffs’ witnesses explained that eight foot cables could not have been used because there was not enough clearance to use eight-foot cables and still be able to lift the burner high enough to place it on the mezzanine floor. The eight-foot cables had to be doubled (resulting in four-foot cables) before the burner could be lifted into place. Plaintiff’s supervisor in charge of the lifting testified that four-foot cables had been used to lift the other three burners into place without any trouble and that the defendant’s representative was aware of that fact and made no objection to it.

Defendant’s representative at the plant site testified he advised that eight-foot cables be used to lift the burners and that eight-foot cables were in fact used to lift the first three burners. The trial court apparently resolved this conflict in testimony in favor of plaintiffs.

After the accident the general supervisor for Southwest collected several pieces of broken bolts scattered around the burner. These bolts were delivered to an expert metallurgist who performed certain stress tests and analysis of the broken bolts and testified at trial as to his findings. The expert examined seven pieces of broken bolts, five of which were % inch bolts and two of which were %o inch bolts. All were painted the same color green as the burner. The expert’s testimony concerned the strength of % inch and inch bolts and the stress that would be put on a bolt using eight foot cables and four foot cables. His opinion was that a inch bolt would shear in half if the burner were lifted with a four-foot cable but that a % inch bolt would not shear if a four-foot cable were used. He also testified that even if an eight-foot cable were used, that a 5/ie inch bolt “may have failed under several loading cycles.”

On the basis of this evidence the trial court found for the plaintiffs. Defendants appealed and argued that the trial court erred in finding the defendants negligent and also erred in not finding Southwest contributorily negligent by its failure to use eight-foot cables.

Before reaching the merits of the appeal, we must consider a preliminary matter involving the decision of the trial court to exclude the after-trial deposition of D. E. Zabel, manager of research and engineering for DeVilbiss. The trial court excluded the deposition on plaintiffs’ motion because the witnesses had been placed “under the rule” at the beginning of the trial and Zabel had reviewed the testimony of plaintiffs’ expert metallurgist before making his deposition. Plaintiffs contended this violated the trial court’s sequestration of the witnesses and the trial court’s allegedly express order that Zabel not be allowed to review the testimony of any of the witnesses. When the trial court refused to admit the deposition in evidence, defendants filed the deposition in a sealed envelope as an offer of proof.

Code of Civil Procedure Article 1631 provides in part:

“On its own motion the court may, and on request of a party the court shall, order that the witnesses, other than parties, be excluded from the courtroom or from a place where they can see or hear the proceedings, and refrain from discussing the facts of the case with anyone other than counsel in the case. In the interest of justice, the court may exempt any witness from its order.”

The “Comments” to the article indicate that a corporation’s representative is not to be excluded even if he is a witness in the suit. Experts are not to be excluded since they do not testify as to facts of the case but only give their opinion based upon hypothetical facts.

Since Zabel can come under either of the exceptions to witnesses who may be sequestered, he did not violate the order of the trial judge sequestering the witnesses when he reviewed the testimony of plaintiffs’ expert witness. We find the lower court erred in excluding the deposition of Zabel. However, the trial court’s refusal to consider the deposition does not alter the ultimate result. We have carefully reviewed the testimony in the deposition and conclude that the judgment of the lower court in favor of plaintiffs is correct.

The evidence shows almost beyond doubt that inch bolts were used to secure a lifting lug to the burner. DeVilbiss admits the lifting lugs were designed to be attached with % inch bolts and if 5/io inch bolts were used, it was a mistake made by its employees. The testimony of the expert shows that if % inch bolts had been used the bolts would not have sheared and there would have been no accident. The failure of DeVilbiss to use % inch bolts to secure the lifting lug to the burner was negligence.

The issue of Southwest’s alleged contributory negligence presents a more difficult question. DeVilbiss alleged that Southwest’s use of four foot cables to lift the burner rather than eight foot cables was contributory negligence. Defendant’s representative testified that he told Southwest’s employees to use eight foot cables and that eight foot cables were actually used to lift the first three burners. Southwest’s supervisor testified that four foot cables were used to lift all the burners and that defendant’s representative was aware of that fact. The trial judge gave no reasons for his judgment, but in order to render judgment for plaintiffs he must have resolved the conflict in testimony in favor of Southwest. From our review of the evidence, particularly the photographs filed in the record and the testimony of the expert, we find that the trial court did not err in absolving Southwest of any negligence contributing to the accident.

Having found that DeVilbiss negligently used inch bolts rather than the required % inch bolts to attach the lifting lug to the burner, and having found that Southwest was not contributorily negligent in lifting the burner with four foot cables, we affirm the judgment of the trial court. Defendants, DeVilbiss Company and Glen Falls Insurance Company of New York, are cast with all costs of these proceedings, including the cost of this appeal.


text:
    Inez JACKSON v. ED’S CAB COMPANY et al.
    No. 7517.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 17, 1975.
    Reed, Reed & Reed, Floyd J. Reed, New’ Orleans, for plaintiff-appellant.

      Pitard, Pitard & Porobil, Robert Pitard, Christovich & Kearney, Robert E. Payton, Hammett, Leake & Hammett, Craig R. Nelson, New Orleans, for defendants-ap-pellees.
    Before STOULIG, SCHOTT and MORIAL, JJ.
   MORIAL, Judge.

This case is before us on defendants’ motion to dismiss the appeal.

Plaintiff filed this suit in which she prayed for judgment against the defendants individually and insólido in the full sum of $52,500.00 together with interest and for all costs. In accordance with a jury verdict the district court entered judgment in favor of the plaintiff on November 12, 1974 in the amount of $3,500.00 plus interest and costs. On January 29, 1975 plaintiff was granted a devolutive appeal. Thereafter, on February 21, 1975, counsel for plaintiff addressed to defendants’ counsel a letter in which was enclosed a statement of the amount due according to the judgment of November 12, 1974. This letter further stated:

“Since our client has filed a devolutive appeal we would appreciate your conferring with your clients to assure that no payment is tendered so as to prejudice her rights under the appeal.”

On March 24, 1975 defendants paid plaintiff the sum of $4,735.00 to satisfy the judgment for which plaintiff gave her receipt which provided in part that she was “ * * * reserving all rights under the appeal * *

Defendants contend in their motion to dismiss that since the plaintiff acquiesced in payment of the quantum award all she can appeal from now is the judgment already in her favor from which she has no right of appeal. As authority defendants cite LSA-C.C.P. Article 2085, which provides :

“An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.”

The judgment appealed was not rendered against the plaintiff-appellant; it was rendered in her favor. Further, upon acceptance of payment of the judgment, plaintiff specifically reserved her rights under her appeal. It thus becomes apparent that plaintiff did not intend to acquiesce in the judgment rendered in her favor. It is settled that one in whose favor a judgment is rendered may accept the full amount thereof from the party cast, or even cause execution to issue on the judgment without forfeiting his right to appeal because of acquiescence.

Motion to dismiss denied.

      . Glasper v. Wright Root Beer Co., 216 So.2d 586 (La.App. 1 Cir. 1968) and cases cited therein.