text:
    Alice Shepeard, wife of and Willie SHEPEARD v. BAGGETT TRANSPORTATION CO. Lonnie JENKINS, Ind., and as Administrator of the Estate of his minor daughter, Lydia C. Jenkins v. BAGGETT TRANSPORTATION CO.
    No. 57349.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Alice Shepeard, wife of, and Willie Shepeard applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 322 So.2d 434.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment complained of.


source: Caselaw Access Project

license: Public Domain

text:
    Mrs. M. Victoria Brennan, widow of Arthur J. WEESER, Jr. v. PROVIDENT MUTUAL LIFE INSURANCE COMPANY.
    No. 57357.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Mrs. Martha Victoria Brennan applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 322 So.2d 230.

Writ refused. On the facts found by the Court of Appeal, the result is correct.


text:
    Dolores Narcisse, wife of Clarence LEWIS v. The INSURANCE COMPANY OF NORTH AMERICA.
    No. 57355.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: The Insurance Company of North America applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. 322 So.2d 429.

Writ denied. On the facts found, the result is correct.


text:
    Thomas D. JENKINS v. J. J. KREBS AND SONS, INC.
    No. 57354.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: J. J. Krebs & Sons, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Jefferson. 322 So.2d 426.

Writ denied. No error of law.


text:
    John G. DeFRANCIS, Jr. v. BOSSIER CITY.
    No. 57358.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: John G. DeFrancis, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bossier. 322 So.2d 333.

Writ denied. On the facts found by the Court of Appeal, there is no error of law in the judgment complained of.


text:
    Willene Peevy MOORHEAD v. STATE of Louisiana, Through DEPARTMENT OF HIGHWAYS.
    No. 57359.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: State of La., Department of Highways, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo.

Writ denied. On the facts found, no error of law.


text:
    STATE of Louisiana v. Lawrence T. WATTS.
    No. 57361.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Lawrence T. Watts, applying for remedial writs.

Writ denied. The application has no merit.


text:
    STATE of Louisiana v. Joseph PIERCE.
    No. 57362.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Joseph Pierce applying for writs of certiorari, prohibition and mandamus.

Writ denied. Minute entries clearly refute relator’s allegations.


text:
    STATE of Louisiana v. Huey P. FISHER.
    No. 57363.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Huey P. Fisher, applying for writs of certiorari, prohibition and mandamus.

Writ denied based on colloquy at time of plea of guilty.


text:
    Billie Ray HARRIS et ux. v. Dr. W. C. DUPREE, Jr., et al.
    No. 57364.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Billie Ray Harris, et ux. applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 322 So.2d 380.

Writ refused. No error of law.


text:
    STATE of Louisiana v. James Y. GALLOW.
    No. 57366.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: James Y. Gallow, applying for writ of certiorari and mandamus.

Writ denied. This is an interlocutory order. In the absence of a showing of palpable error or irreparable injury the Court will not interfere with the orderly proceeding in the trial court.


text:
    Clayton L. ETHERIDGE v. Arch V. DOUGHTY et al.
    No. 57375.
    Supreme Court of Louisiana.
    Jan. 30, 1976.
   In re: Clayton L. Etheridge applying for certiorari, prohibition and mandamus.

Application denied; there is no error in the judgment of the Court of Appeal.


text:
    Noah J. SCALLAN v. Ann S. LABORDE et al.
    No. 57463.
    Supreme Court of Louisiana.
    Feb. 2, 1976.
   In re: Noah J. Scallan, applying for supervisory writs of certiorari, prohibition and mandamus.

Writ denied. The showing made does not warrant interruption of the orderly proceeding in the trial court in the absence of irreparable injury, palpable error or great harm.


text:
    Edmund Bruce TOBIN v. Sundena Carr TOBIN.
    No. 57378.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re: Sundena Carr Tobm applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Cad-do. 323 So.2d 896.

Writ denied. On the facts found, the result is correct.


text:
    Edmund Bruce TOBIN et al. v. Sundena Carr TOBIN.
    No. 57421.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re: Helen Tobin applying for certio-rari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Caddo. 323 So.2d 896.

Writ denied. On the facts found, the result is correct. See Tobin v. Tobin, La. 325 So.2d 613, #57,378 an allied matter.


text:
    STATE of Louisiana ex rel. Wortham Joseph JONES, Jr. v. Elayn HUNT, Director, Louisiana Department of Corrections, et al.
    No. 57368.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re: Wortham Joseph Jones, Jr. applying for writ of habeas corpus.

Application denied; the transcripts of the proceedings in the district court on June 15, 1970, June 17, 1970, Oct. 20, 1972 filed here in #53666 established that petitioner is not entitled to the relief sought.


text:
    STATE of Louisiana ex rel. William DOYLE v. Hon. Daniel W. LeBLANC, Judge, Section IV, 19th Judicial District Court, Baton Rouge, Louisiana, et al.
    No. 57383.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re: William Doyle applying for writ of mandamus and remedial writs.

Writ denied. The trial judge has acted. Furthermore, venue in connection with this writ application is in Orleans rather than East Baton Rouge Parish. See Art. 352, C.Cr.Pr. For this reason dismissal of the writ is proper.


text:
    J. Daniel RIVETTE v. Regis MOREAU (Estate of Emily Mistric).
    No. 57376.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re: Regis Moreau applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of St. Landry, 322 So.2d 793; 322 So.2d 790.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    Clarence Louis CURTIS, Jr. v. Al AMISS et al.
    No. 57172.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re: Clarence Louis Curtis, Jr. applying for writs of certiorari, mandamus and prohibition.

Writ denied. On the showing made, the applicant is not entitled to the relief prayed for.


text:
    STATE of Louisiana ex rel. Charles TARRANCE v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57369.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re: Charles Tarrance applying for writs of habeas corpus and certiorari.

Writ denied. There is no error in the judgment of the trial court denying petitioner relief.

DIXON, J., is recused.


text:
    STATE of Louisiana ex rel. Charles A. HEALY v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57371.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re: Charles A. Healy, applying for writs of habeas corpus and other remedial writs.

Writ denied. The case is on appeal and the transcript will be sent to this Court when complete.


text:
    STATE of Louisiana ex rel. James D. SPRINKLE v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57372.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re: James D. Sprinkle applying for remedial writs and habeas corpus.

Writ refused. The ruling of trial judge is correct.


text:
    Charles Renard McCASKILL v. DEVINEY CONSTRUCTION COMPANY.
    No. 57374.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re: Deviney Construction Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Catahoula. 323 So.2d 178.

Writ denied. Under the facts found, there is no error of law.


text:
    John L. ARDOIN v. Leman SWINT et al.
    No. 57377.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re: John L. Ardoin applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Acadia. 323 So.2d 181.

Writ denied. On the facts found, the result is correct.


text:
    STATE of Louisiana ex rel. Norris J. FANGUY, Jr. v. Cyrus “Bobby” TARDO, Sheriff of Lafourche Parish, and Hon. Judge Bernard L. Knobloch, Div. “B”, 17th Judicial District Court.
    No. 57380.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re: Norris J. Fanguy, Jr. applying for writ of habeas corpus.

Writ denied. The showing made does not warrant the exercise of this Court’s supervisory jurisdiction.


text:
    STATE of Louisiana ex rel. Simon SMITH, Jr. v. C. Paul PHELPS, Warden, Louisiana State Penitentiary.
    No. 57382.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re: Simon Smith, Jr. applying for writs of habeas corpus.

Application denied; the matter complained of is one properly raised on appeal, not on habeas. The record on appeal shows the evidence of another offense was admitted without ob j ection on the trial.


text:
    Cleddie H. VICKERS v. PREFERRED RISK MUTUAL INSURANCE CO.
    No. 57397.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re: Qeddie H. Vickers, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Catahoula. 323 So.2d 153.

Writ denied. No error of law.

DIXON and CALOGERO, JJ., are of the opinion the writ should be granted.


text:
    STATE of Louisiana ex rel. Coleman SMALL v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 57415.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re: Coleman Small, applying for writs of habeas corpus, certiorari, prohibition and mandamus.

Writ denied. On the basis of the evi-dentiary hearing of March 26, 1975, we find no factual merit to the applicant’s allegations.


text:
    STATE of Louisiana v. Russell BOWIE.
    No. 57472.
    Supreme Court of Louisiana.
    Feb. 3, 1976.
   In re: Russell Bowie, applying for remedial or supervisory writs of certiorari, prohibition and mandamus and for stay order.

Writ denied. This-Court will not interfere with the orderly proceedings in the trial court. Applicant has an adequate remedy by appeal in the event of conviction.


text:
    STATE of Louisiana v. Thomas E. ATKINSON.
    No. 57482.
    Supreme Court of Louisiana.
    Feb. 5, 1976.
   In re: Thomas E. Atkinson applying for writs of certiorari, prohibition, mandamus and for stay order.

Writ denied. Stay order denied; no abuse of discretion shown in granting short recess.

DIXON, J., is of the opinion the writ should be granted.


author: LEMMON, Judge.

text:
    Emil J. CANCIENNE, d/b/a C & W Construction Company v. Mrs. Blanche McGOVERN.
    No. 7152.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Donelon & Cannella, James L. Cannella, Metairie, for plaintiff-appellee.
    Emile L. Turner, Jr., Thomas M. Young, New Orleans, for defendant-appellant.

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

Plaintiff, a building contractor, filed this suit to recover the cost of repairing a residential building owned by defendant. After a trial on the merits the trial judge resolved conflicting versions of the occurrences and awarded plaintiff a portion of the amount demanded. Defendant has appealed.

The parties are in accord as to the initial events leading up to the dispute. Defendant’s home on Clearview Parkway in Jefferson Parish was in need of repair. When she and another lady decided to purchase a lot of ground jointly and build a double residence for their families, defendant contacted plaintiff (a longtime friend), who attempted to arrange a package deal for land acquisition and building construction. The overall plan included sale of the Clearview home.

Coincidently, plaintiff had just placed his family home on the market and had started building a new one on the adjoining lot. When the old home was sold faster than expected and plaintiff was unable to find suitable accommodations in the vicinity of the construction, he proposed to rent defendant’s home for approximately eight months (the estimated time required for completion of plaintiff’s new home) and then to purchase the Clearview residence as an investment. The parties verbally agreed on the two-step transaction, with an interim monthly rental price of $127.00, the amount of defendant’s mortgage installments, and a sale price of $20,000.00, the sale to take place when plaintiff completed his new home within a reasonable time.

In reliance on this agreement, defendant moved out and rented an apartment in August, 1972, and plaintiff’s family moved into the Clearview house. Plaintiff immediately undertook extensive repairs, working principally on weekends. He did not obtain defendant’s permission for or approval of this renovation, since he intended to buy the home; however, he testified that immediate repairs were necessary to make the home livable and also to place the home in condition to obtain the homestead financing required for his contemplated purchase of the property. Defendant on several visits observed the repairs in progress, but was not concerned because she considered the house sold for all practical purposes.

The parties disagreed as to the events occurring thereafter. Plaintiff testified: Defendant’s plans to build a double fell through, and she didn’t get along with the noisy neighbors in the apartment building. Defendant therefore proposed to move back into the Clearview house, which had been substantially repaired. He still wanted to buy the house, but since he had no written contract, he agreed to forego the contemplated purchase as long as he was reimbursed for the .repairs. Defendant stated she would borrow the money and pay him upon receipt of an itemized bill. He moved out in January, 1973 and into his .new house (which was barely livable and was not completed until April). He then calculated his labor and materials and presented a bill dated March 13, 1973. Upon consultation with defendant’s attorney, he eliminated the profit markup and reduced the bill to $3,000.00.

Defendant testified: She wasn’t happy with apartment life, but planned to stay until she could buy a new house with the proceeds of the sale of the Clearview house to plaintiff. In January plaintiff’s wife told her they could not afford to continue paying both her note on the Clear-view house and their note on the new house, and had decided to move in the new house although it was not completed. Plaintiff then moved out and ceased rent payments, and although she did not want to move back then (because of the necessity of changing schools during the term), she finally had to do so at the end of April because of the double burden of the apartment rent and the note on the Clearview house. She did agree to pay part of the repairs after a hysterical phone call from plaintiff’s wife about finances, but declined after seeking legal advice. In May a real estate agent approached her about selling the Clearview house, and the sale for $27,000.00 ultimately took place in July, 1973.

The trial court, noting the disagreement as to the reason for terminating the verbal lease-sale agreement, specifically found that defendant was no longer willing to sell for $20,000.00 and that defendant agreed to pay for the repairs made by plaintiff upon plaintiff’s agreeing to move out and to call off the sale.

While defendant’s version of the events was entirely plausible, we cannot say that the trial court’s resolution of the conflicting testimony was manifestly erroneous. Thus, under defendant’s agreement to pay for the repairs, as found by the trial judge, plaintiff is entitled to the reasonable value of his work. Furthermore, defendant undoubtedly benefited from the renovation work performed by plaintiff. Although defendant asserted that she would not have undertaken most. of the repairs and that the renovation did not suit her taste in any event, we emphasize that plaintiff performed the work in good faith in reliance on her promise to sell. That promise, although unenforceable for the purpose of compelling the sale of the property, formed a sufficient basis for plaintiff’s recovery of his reasonable expenses incurred in reliance on that promise, which was subsequently repudiated. The contract originally made by the parties did not contemplate this contingency, and under such circumstances courts should apply the moral maxim that no one ought to enrich himself at the expense of another. C.C. art. 1965. On this additional basis we conclude that plaintiff is entitled to the reasonable value of the work, notwithstanding defendant’s objections as to the necessity and the style of the renovation.

We are also unpersuaded by defendant’s argument that the renovation was of no benefit in obtaining a $27,000.00 sale price in July, because that purchaser was primarily interested in location and had to undertake extensive additional renovation in order to convert the house into a law office. Irrespective of the July sale, defendant’s property had been improved in value by plaintiff’s repairs as of January, the time that defendant took the house over again. While the enhancement in value (not shown by appraisal or other evidence) was not necessarily equal to the value of plaintiff’s work, we hold that the latter value was the proper measure of the award under the overall circumstances of this case.

Finally, we reject defendant’s contention that plaintiff performed the repairs as a mere lessee and at his own risk. First, the agreement admitted by the parties was not a simple contract of lease for a specific term (until completion of plaintiff’s house), at which time the lessee would have only the right to remove improvements. The agreement, rather, specified other obligations at the end of the lease, namely to buy and to sell. Second, the entire contract was repudiated before the end of the lease term, and the trial court specifically found that the repudiation occurred at defendant’s instance. We accordingly conclude that the codal articles . , ,. ,. , governing leases are not applicable under the facts and circumstances of this case.

As to the amount of the judgment, the trial court in oral reasons proposed to award $650.00 for repairing the central air conditioning unit, $638.40 for installing carpets in the bedrooms, $204.75 for replacement of the dishwasher, $85.00 for plumbing repairs, $178.92 for concrete to repair the walk and driveway, $55.41 for wallpaper for kitchen and hall, and $92.31 for carpentry materials, on the basis that each of these items was substantiated by an invoice. However, the judgment prepared by counsel listed $700.00 for the second item (which was the amount claimed for installing carpets and for cleaning and sealing the terrazzo floors), although the reasons specifically allowed only the carpet dealer’s invoice amount of $638.40 and specifically denied the balance of the claim for labor in cleaning and sealing the floors. The judgment also included $125.-00, the amount claimed for labor in breaking up and removing damaged portions of the walk and driveway, although the judge has specifically disallowed this claim in his oral reasons. Finally, a mathematical error of $11.00 in defendant’s favor was made in adding the three invoices for wallpaper. While we order the judgment amended to reflect these three differences, we find the award (as corrected) completely supported by the evidence.

Since plaintiff did not appeal, we need not consider those items disallowed by the trial judge.

For these reasons, the judgment of the trial court is amended to decrease the award to $1,915.79. As amended, the judgment is affirmed.

Amended and affirmed.

      . The parties agreed that the following repairs were performed: Making the central air conditioning unit operational (after .not operating for over a year) ; replacing the inoperative dishwasher; replacing broken glass in sliding glass door; constructing a sidewalk; repairing broken concrete in driveway; repairing sheet rock and painting or wallpapering most interior walls.; painting exterior doors; cleaning and sealing terrazzo floors and carpeting two bedrooms, bath and hall; and adding fill in rear yard ruts.

      . Defendant admitted that she agreed .to a low price of $20,000.00 because the house was in need of repair.

      . Defendant attempted to introduce evidence as to the cost of completing certain trim work, painting and wallpapering admittedly left incomplete when plaintiff moved. Plaintiff admittedly included the completed costs of these items in his bill, but that portion of the bill was disallowed by the trial judge. Therefore, defendant was not hurt by the exclusion of this evidence.


author: BOUTALL, Judge.

text:
    Mrs. Sara Sanford Green, w/o and James T. GREEN, Jr. v. SCHWEGMANN BROTHERS GIANT SUPERMARKETS, INC., and Fireman’s Fund Insurance Company.
    No. 7170.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.

      William S. Marshall, Jr., Dillon & Williams, C. T. Williams, Jr., New Orleans, for Schwegmann Brothers Giant Supermarkets, Inc., and others, defendants-appellants.
    Lambert J. Hassinger, New Orleans, for Mrs. Sara Sanford Green, w/o and James T. Green, Jr., plaintiffs-appellees.
    Before GULOTTA, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

Plaintiffs, Mrs. Sara Green and her husband James Green, sue in tort to recover damages and medical expenses for personal injuries received by Mrs. Green in defendant Schwegmann’s store. The trial court awarded plaintiffs $2,300.09 and defendants, Schwegmann Bros, and its insurer, have appealed.

The facts show that Mrs. Green was shopping in Schwegmann Brothers Airline store with her mother and one year old child. Mrs. Green and her mother were pushing shopping carts while the baby was seated in Mrs. Green’s cart. Intending to purchase some dog food, Mrs. Green turned onto the dog food aisle, selected three cans from a shelf display and proceeded down the aisle. A short distance from where she had selected her three cans there was a stack of dog food cases piled at least five feet high in the middle of the aisle. Mrs. Green’s mother passed this stack to the right and Mrs. Green followed. As she drew even with the stack it began to fall on her. Her mother heard the sound of the falling cases and reacted in time to rescue the baby from the cart. The falling cases struck Mrs. Green knocking her and her cart to the floor. She received injuries to her left hip and lower back. She also received a severe contusion of the lower abdomen.

Mrs. Green and her mother both testified that they were alone on the entire length of the 75 foot aisle, that neither of them struck the stacked cases with their cart or body and that they do not know with any certainty what caused the stacked cases to fall. They both stated that the stack was very high, approximately five and a half feet, and stacked in a disorderly fashion.

The plaintiffs base their case on the doctrine of Res Ipsa Loquitur, and alternatively on negligence of defendant. The trial court gave no written Reasons for Judgment. We do not feel that this case is a proper one for the application of Res Ipsa Loquitur. Instead, we believe plaintiffs have proven their case by a preponderance of the evidence.

While it is true that plaintiffs cannot explain exactly what caused the stack of boxes to fall, they have raised the reasonable inference that improper stacking by defendant’s employees was the cause. This inference creates a prima facie case which will prevail unless defendants can rebut it.

The two most recent Supreme Court cases in this area are Pilie v. National Food Stores of Louisiana, Inc., 245 La. 276, 158 So.2d 162 (S.Ct.1963) and Taylor v. CNA Insurance Group, 300 So.2d 479 (S.Ct.1974). In both these cases the Supreme Court found that the facts did not warrant the application of the doctrine of Res Ipsa Loquitur, and that the plaintiffs had failed to prove negligence by a preponderance of the evidence. However, in Taylor the court, in citing the case of Larkin v. State Farm Automobile Ins. Co., 233 La. 544, 97 So.2d 389 (S.Ct.1957) sets out the burden of proof necessary for plaintiff, in such cases as this, to recover. The plaintiff must show: (1) that she was in no way negligent herself (as was not the case in Taylor); (2) that there can be no inference of negligence on the part of persons other than plaintiff and defendant (as was not the case in Pilie) ; (3) there can be drawn a reasonable inference that the accident was caused through the negligence of defendant. Accordingly, we proceed to an examination of the evidence in this case.

The plaintiffs’ evidence is set out above. It satisfies the first two criteria of proof and establishes the reasonable inference of defendants’ negligence by the testimony that this high stack of boxes were in a disarrayed and uneven condition. This sets up the premise that the stack fell of its own accord due to improper handling by defendants’ employees.

Defendants attempt to place the cause of the accident upon plaintiff. A stockclerk, Orville Dill, testified that he was standing at the end of a cross aisle some five feet from the scene of the accident. He allegedly saw plaintiff strike the stack with her cart and knock it over on herself. At the trial the credibility of this witness was seriously contested and, we feel, correctly so. There are several incredible things in his testimony about the accident. However, his entire testimony is actually suspect. Mr. Dill testified that three days prior to the trial he had no knowledge or memory of this incident. He returned to the store and asked his former supervisor if he remembered anything. His supervisor told him that he remembered nothing himself but that he did remember Dill telling him about it three years before. The supervisor then proceeded to relate to Dill what he could remember of what Dill had told him three years earlier. This story was the basis of Dill’s testimony. This type of evidence is obviously highly untrustworthy, if not some convoluted form of rank hearsay. The chief security officer testified that Dill, who was the boy working in the aisle, was in the warehouse when he arrived.

The only other pertinent testimony offered by defendants was that of the store manager. The manager did not see the accident or even remember it, but he did testify as to the normal method .of stacking boxes in his store. His testimony was very sketchy, although he did state that all employees were told to stack the boxes in a stable manner. There was no testimony that he or anyone else checked to see if the boxes were stacked in a stable manner. He did state that occasionally boxes were stacked the wrong way in an aisle, thus hampering customers from passing. When this occurred, and he noticed it, he would tell the stockclerks to restack the boxes.

Plaintiff cites us to the case of Morais v. Schwegmann Bros. Giant Supermarket, 290 So.2d 357 (La.App. 4th Cir. 1974) as the law controlling this case. While we note that some of the legal principles in that case have been repudiated by this court (see Gonzales v. Winn-Dixie Louisiana, Inc., 309 So.2d 697 (La.App. 4th Cir.1975)), we fed the result reached in Mo-ráis is correct and supportive of the decision here.

We can find no manifest error in the ruling of the trial court and for that reason we affirm it at defendants’ cost.

Affirmed.

      . As noted above, the trial court gave no reasons for judgment. However, it is apparent that an evaluation of the direct testimony of plaintiffs as compared to the indirect testimony of the manager and the security officer, and the highly suspect testimony of the employee, Dill, ineluctably led the trial court to a conclusion that the facts were as plaintiffs stated. Based on these facts, a conclusion that the stack of boxes fell due to negligent and improper stacking is justified.


author: MORIAL, Judge.

text:
    AUDUBON INSURANCE COMPANY v. Marguerite S. Knoten, wife of/and Clarence KNOTEN.
    No. 7200.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.

      Bienvenu, Foster, Ryan & O’Bannon, P. Albert Bienvenu, Jr., New Orleans, for plainti f f-appellant.
    Walter F. Gemeinhardt, Hollis C. Tag-gart, New Orleans, for defendants-appel-lees.
    Before GULOTTA, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

This is an appeal from a judgment dismissing a plaintiff-subrogee’s action for damages.

On November 25, 1971 an automobile accident between cars driven by Philip Morris and Mrs. Marguerite S. Knoten occurred at the intersection of Constance and Toledano Streets in the City of New Orleans. Damage to the Morris vehicle totaled $722.97 and pursuant to collision insurance coverage specifying $50.00 deductible, plaintiff, Audubon Insurance Co., paid its insured the sum of $672.97. Plaintiff, being subrogated to all the rights and causes of action of its insured, filed suit to recover the sum of $722.97 from defendants Marguerite S. Knoten, wife of/and Clarence Knoten. The trial court dismissed plaintiff’s claim without any written findings or reasons. Plaintiff appeals. We reverse.

At the time of the accident the Morris vehicle was proceeding in a westerly direction on the favored thoroughfare, Constance Street. Mrs. Knoten had been traveling on Toledano Street in a riverbound direction en route to her sist'er’s home when she stopped for a stop sign at the Constance Street intersection. She testified she looked up Constance Street, saw no cars approaching and proceeded slowly across the intersection. As she got to the middle of the intersection she heard a car skidding but stated she did not see the Morris vehicle until after it had hit her.

Philip Morris was out of state at the time of trial and did not testify. His wife who was a front seat passenger testified on behalf of plaintiff. She stated that their car was traveling at a speed of 20-25 mph and they were about four car lengths from the intersection when the other car pulled out and slowly started crossing. She testified her husband immediately applied his brakes but by that time the accident was unavoidable.

The courts of this state have consistently stated:

“A motorist who is confronted with a stop sign at an intersection is required to bring his vehicle to a complete stop before entering the crossing, to appraise traffic in the intersecting street and to make certain that the way is clear for him to make a safe passage across the intersection before he enters it. When the motorist stops his vehicle before proceeding to cross a right of way street, he has performed only half of the duty which the law imposes upon him. To stop and then proceed in the immediate path of oncoming vehicles constitutes negligence. * * * ”

Under this rule, Mrs. Knoten was required to wait at the stop sign until the Morris vehicle had passed. The fact that she did not see that vehicle did not excuse her from the exercise of her duty. A motorist is held to see .that which with due diligence he should have seen. Shephard v. Checker Cab Company, 230 So.2d 343 (La.App. 4 Cir. 1970).

We conclude that Mrs. Knoten was negligent in attempting to traverse the intersection directly in front of approaching traffic at a time when it was obviously unsafe for her to do so.

Defendants contend that even in the event the court finds Mrs. Knoten' negligent, plaintiff cannot recover because the driver of the insured vehicle was contribu-torily negligent. This allegation is based primarily on the contentions that plaintiff’s driver was operating the automobile at an excessive rate of speed and that he failed to maintain a proper lookout.

Contributory negligence being an affirmative defense, defendants must bear the burden of proof. A careful review of the record evidences no support for the conclusion that plaintiff’s vehicle was traveling at anything other than a reasonable and safe speed. With respect to the claim of failure to maintain a proper lookout, it is well established in the jurisprudence that a motorist on a favored street has a right to assume that any driver approaching the intersection on a less favored street will yield the right of way. The driver can indulge in this assumption until he sees or should see that the other car has not observed the law. Doucette v. Primeaux, 180 So.2d 866 (La.App. 3 Cir. 1965).

We believe defendants have failed to establish by a preponderance of the evidence that plaintiff’s driver acted in breach of any legal duty. Mrs. Morris testified that due to the great number of parked cars around the intersection she and her husband first observed the defendant vehicle when it was creeping out into the middle of the intersection. Morris immediately applied the brakes but by then it was too late. No evidence indicates the danger could or should have been observed at a time before the accident became inevitable. Defendants have accordingly not sustained their burden of proof.

Finally, it is undisputed that at the time of the accident Mrs. Knoten was on a community mission. Consequently, damages resulting from her negligence must be borne by the community. Vail v. Spampinato, 238 La. 259, 115 So.2d 343 (1959).

For the reasons assigned, the judgment of the court below is reversed and set aside, and there is judgment herein in favor of plaintiff, Audubon Insurance Co., and against defendants, Marguerite S. Knoten, wife of/and Clarence Knoten, jointly, severally and in solido in the full sum of $722.97 together with legal interest thereon from date of judicial demand until paid and for all costs.

Reversed and rendered.

      . McCauley v. LaFleur, 213 So.2d 176, 179 (La.App. 3 Cir. 1968) and cases cited therein.


text:
    Emile LOETZERICH v. TEXAS PACIFIC-MISSOURI PACIFIC TERMINAL RAILROAD OF NEW ORLEANS et al.
    No. 7156.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Rehearing Denied Feb. 10, 1976.
    Writ Refused March 23, 1976.

      Edward J. DeMartini, Kenner, for plaintiff-appellee.
    Phelps, Dunbar, Marks, Claverie & Sims, J. Barnwell Phelps, J. Kirby Barry,' New Orleans, for defendant-appellant.
    Porteous, Toledano, Hainkel & Johnson, Christopher E. Lawler, New Orleans, for intervenor.
    Before GULOTTA, BOUTALL and MORIAL, JJ.
   MORIAL, Judge.

On July 25, 1972, plaintiff, Emile Loetz-erich, was injured when a 1500 pound railroad boxcar door which he was attempting to open came off its tracks due to a missing roller. After trial by jury, the owner of the boxcar, St. Louis-San Francisco Railway Company, was found negligent and was cast in judgment for the total sum of $176,700.00.

Defendant appeals alleging that: (1) the trial court lacked jurisdiction; (2) plaintiff’s testimony lacked sufficient credibility in order to sustain his burden of proof; (3) plaintiff received in effect double recovery by virtue of a $5,600.00 award to the workmen’s compensation in-tervenor, United States Fidelity and Guaranty Company; (4) plaintiff was awarded excess past lost earnings and; (5) the trial court erred in admitting evidence as to an inflation factor. We affirm.

Defendant argues the vitality of the “mere solicitation of business” rule enunciated in Green v. Chicago, B., & Q.R. Co., 205 U.S. 530, 27 S.Ct. 595, 51 L.Ed. 916 (1907) as authority for its assertion that the trial court lacked jurisdiction. Although this case may not have been specifically overruled by the landmark decision of International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) (as defendant asserts) its effect was significantly erroded and it is clearly no longer the law. See Guillot v. Southern Pacific Company, 287 F.Supp. 65 (E.D.La.1968).

Defendant has solicited business in Louisiana since 1971 and maintains two offices within the state which employ five people. During the period October 1971 through September 1973 defendant furnished 1038 boxcars to Joseph Schlitz Brewing Company in Memphis, Tennessee for shipment of beer to plaintiff’s employer in New Orleans. Considering the extent of its Louisiana operations, defendant is subject to the jurisdiction of the courts of this state. LSA-R.S. 13:3201(d).

Defendant’s contention that plaintiff’s testimony is inconsistent with the testimony of his corroborating witness and other evidence is unsubstantiated by the record. We believe that for all intents and purposes plaintiff and his eyewitness, Oscar Gordon, were in full accord. The evidence established that the upper right roller of the boxcar door was missing and that this missing roller was the cause of the door falling. Any minor variation in testimony as to exactly how the injury occurred is of no moment for the evidence taken as a whole clearly preponderates in favor of the conclusion that plaintiff’s serious injury resulted from the falling door. We also find no significant inaccuracies in any other portion of plaintiff’s testimony which would enable us to disregard the great weight which must be accorded to the credibility findings of the jury.

Defendant claims that the jury’s award of $5,600.00 for past medical expenses to the workmen’s compensation insurer of plaintiff’s employer amounts to double recovery. After reviewing the record, we conclude this contention lacks merit. By consent of all parties, it was agreed as a matter of convenience that any award for past medical expenses would go directly to plaintiff’s employer’s compensation insurer (intervenor) as reimbursement. We do not find that the jury made any other award for medical expenses. There has been no double award.

The sum awarded by the jury for past lost earnings was also not erroneous. An expert actuarial witness for plaintiff testified plaintiff’s wages at the time of the accident were $10,121.00 per year. Utilizing this figure, he calculated that from the date of the accident, July 25, 1972, to the date of trial, March 8, 1975, plaintiff had lost $26,453.00. The record is not clear as to how long after the accident, if at all, plaintiff continued to receive wages from his employer. Plaintiff’s 1972 income tax return is not dispositive of this issue because there is testimony that past due vacation pay was included in the amount reported as income from wages on that tax return. The jury faced with this dilemma awarded $26,000.00. A loss of earnings claim need not be proved with mathematical certainty, but only by such proof which reasonably establishes the claim. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971). We believe plaintiff reasonably proved his claim and that the judgment is in conformity with the evidence.

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

For the aforestated reasons, the judgment of the district court is affirmed. Defendant is to pay all costs.

Affirmed.


text:
    Byron Patrick JORDAN v. Lula Mae Staples, wife of Byron Patrick JORDAN.
    No. 7154.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Rehearings Denied Feb. 10, 1976.
    Writ Refused March 19, 1976.
    Dudley D. Flanders, Flanders & Flanders, New Orleans, for Byron Patrick Jordan.
    Craig J. Cimo, Gretna, for Lula Mae Staples, wife of Byron Patrick Jordan.

      Before GULOTTA, BOUTALL and MORIAL, JJ.
   BOUTALL, Judge.

This is an appeal by Byron Patrick Jordan from an adverse judgment of alimony and child support in which the trial court dismissed his motion to reduce and granted his former wife’s motiqn to increase alimony and child support.

First it is necessary to outline the procedural posture of the case. In a previous suit, Mrs. Jordan had sued her husband for a separation from bed and board and in connection therewith was awarded a judgment based on abandonment, granting her custody of the three minor children, and fixing alimony. In subsequent alimony rules, on March 4, 1974, the court fixed alimony and child support for the wife and children at the rate of $750.00 per month and required the husband to continue in effect hospitalization and medical insurance policies he carried for their benefit.

The present suit, filed some five months after that judgment, is a petition by the husband for divorce upon the basis of two years separation. To this Mrs. Jordan reconvened alleging the prior judgment of separation and the lapse of a period of more than one year from rendition of that judgment. On trial on the merits, Mrs. Jordan was allowed to prove up her re-conventional demand, and it was agreed that the alimony fixed in the previous separation case be continued in the judgment of divorce. Subsequently, Mrs. Jordan filed a rule nisi for an increase in the amount of alimony and child support, and Mr. Jordan countered with a rule for a decrease. After trial of these rules the court on January 5, 1975 rendered the judgment appealed from. In that judgment the amount of alimony was raised from $750.-00 per month to $900.00 per month, the sum to be divided as follows:

$300.00 per month as alimony for Mrs. Jordan and $200.00 per month each as child support for the three minor children. In addition Mr. Jordan was ordered to pay major medical expenses of Mrs. Jordan (defined as hospital costs and doctors’ fees for surgery, or those costs incurred during hospital confinement), and further to keep in full force and effect the policy of hospitalization insurance insuring the minor children. The rule to decrease filed by Mr. Jordan was dismissed.

Appellant first complains to us that the increase in alimony for Mrs. Jordan should not have been granted because there has been no material change in circumstances since the previous award of alimony. We note that the last judgment of alimony was the consent judgment of September 26, 1974 and that the only change that has occurred from that time to the present rules is that Mr. Jordan has remarried, and his former wife has been eliminated from the hospitalization insurance policy. Because of this circumstance, caused by the coverage agreement afforded in the company policies available to Mr. Jordan, the trial judge properly changed the requirement in the prior judgment of affording hospitalization insurance to the requirement that Mr. Jordan pay for the hospitalization expenses of his former wife, which are shown to be necessary by the evidence in the record. The marital status change has no effect upon the children and the original policy remains in effect for them.

However, we believe it to be error to increase the sum of alimony and child support from $750.00 to $900.00. The record does not show any valid reason for granting this increase and exhibits no particular change in circumstance from the time of the consent judgment of September 26, 1974. We further note, although that judgment is not before us, that there was no change all the way back to the litigated judgment of March 4, 1974 upon which the September judgment was based.

We stated in the case of Gennaro v. Gennaro, 306 So.2d 756 (La.App. 4th Cir.1975), the following rule:

“[1] In alimony and child support matters the litigant requesting an adjustment in a prior award must prove a change in the financial condition of either one of the parties. McNeill v. McNeill, 223 So.2d 709 (La.App. 4 Cir. 1969); Vestal v. Vestal, 216 So.2d 386 (La.App. 3 Cir. 1968); Zara v. Zara, 204 So.2d 76 (La.App. 4 Cir. 1967). This rule also applies where the award in a ‘consent’ judgment is sought to be modified. Bernhardt v. Bernhardt, 283 So.2d 226 (La.1973).”

Under the facts contained in this record, we find no justification for increasing the award, and accordingly, we reduce the amount awarded to its original sum, that is $750.00 per month. However, we note that in the original judgment the judge did not separate the amounts awarded there, but now has divided those amounts between the former wife and children. We see nothing wrong with such a division and accordingly we simply reduce the separate amounts awarded in the proportionate amount of i/£ each to wit: For the wife $250.00, for the oldest child $167.00, and the other two children $166.50 each.

Proceeding now to the rule to reduce filed by the husband, it appears that he has suffered a reduction in income in the year 1974 compared to 1973, and the record indicates that this continued in 1975. However this change in income occurred prior to or during February 1974, and we see no change in his status since that time except that he has remarried, and that his present wife has a child. However, his testimony indicates that the expenses he testified to before the court did not contain any amount which may be due to the remarriage or be considered for the support of his new wife and child. Indeed, it appears that he has borrowed some money from her in order to keep up his present mode of life. We find the proof necessary to obtain a reduction lacking, and we affirm the dismissal of his rule to reduce by the trial judge.

For the reasons above assigned, it is ordered that the judgment appealed from is amended only to reduce the amount of alimony awarded from $900.00 per month to the sum of $750.00 per month as previously fixed, to be apportioned $250.00 per month for the support of Lula Mae Staples Jordan, $167.00 per month for Byron P. Jordan, Jr., and $166.50 per month each for Paul W. Jordan and Lorie A. Jordan. In all other respects, and as thus amended, the judgment is affirmed. The costs of this appeal shall be divided equally between appellant and appellee.

Amended and affirmed.

      . Additionally, the record raises some inference that Mr. Jordan, either through his new corporate acquisition, or through some business relationships with his father, may be able to manipulate his income to show a reduction. The proof necessary to support such a conclusion is quite inadequate.


author: BAILES, Judge Pro Tem.

text:
    ALLEN BROTHERS FEED COMPANY INC. v. T. C. SLAVEN.
    No. 10559.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.

      Jesse P. Lagarde, Amite, for appellant.
    Joseph H. Simpson, Amite, for appellee.
    Before SARTAIN, J., and BAILES and PICKETT, JJ. Pro Tem.
   BAILES, Judge Pro Tem.

This appeal presents for our review the fact findings of the trial court that defendant made and executed a certain promissory note owned by plaintiff and that the defendant was indebted unto plaintiff on open account.

The plaintiff alleges it is the holder in due course of a promissory note dated February 28, 1973, made by defendant in the amount of $7262.05. Additionally, plaintiff alleges defendant is indebted unto it on open account in the sum of $2525.41. Allegedly, both the note and the open account were past due at the time the suit was filed on January 9, 1974.

In his original answer, defendant, a dairy farmer, admitted his name, age and domicile but otherwise pleaded a general denial of all other allegations of fact of plaintiff’s petition. Subsequently, by supplemental and amended answer defendant denied that he signed the promissory note and that if he did sign the said note, his signature was obtained through fraud and deceit. In further answering to the amount due on open account defendant alleged that:

“* * * in the course of years, plaintiff has failed to deliver unto respondent fertilizer and feed which were ordered and as a result respondent’s milk production decreased, thereby causing respondent a loss of income in excess of the amount sued for.
“* * * that as a result of plaintiff fraudulently furnishing him trash in his feed, and for which said trash respondent was charged although he did not order the trash mixed with his feed, respondent has suffered economic loss which would more than offset the amount for which plaintiff sues.
“Further answering respondent shows that plaintiff is attempting to collect for fertilizer and/or seed which was given respondent by the then manager of Allen Bros, to offset plaintiff's failure to provide respondent with feed and fertilizer on a prior order and respondent pleads an offset on said amount.”

During the trial, the parties stipulated that the original amount of the promissory note should have been $426.25 less than its face amount because interest in this amount had been previously charged to the account which represented the consideration for the note and that the open account was actually $82.06 less than the amount sued for because that amount was included as interest therein. It was further stipulated that the sum of $1100.00 had been paid subsequent thereto. The judgment of the trial court conformed to the stipulated amounts.

The plaintiff, through the testimony of plaintiff’s manager and a clerk, proved to the satisfaction of the trial judge that the defendant had signed the note and that he had received the merchandise, feed and fertilizer charged to his open account.

The defendant, while under cross-examination by plaintiff’s counsel, thirteen times either denied that he signed the note or that the signature on the note was his; even so, he equivocated by stating that if he signed the note he was not aware of such signing.

In this appeal, defendant assigned three specifications of error of the trial judge. These are: 1. In finding that any sum was owed by defendant on the open account; 2. That the note was signed by defendant; 3. That the note was properly filled out at the time it was presented to the defendant for his signature. All of the assigned errors involve resolutions of fact made by the trial judge.

Our perusal of the record demonstrates to us that there are ample facts to support the findings of the trial judge and the judgment rendered thereon.

The defendant admitted on cross-examination that he had bought dairy feed from the plaintiff, and further admitted that he had been paying plaintiff from $100.00 to $200.00 per month on his account during 1973. He produced no records to support his denial of any indebtedness to plaintiff.

There was not one scintilla of evidence to support defendant’s allegations of fraud and deceit practiced on him by plaintiff, nor is there any proof whatever that the plaintiff put trash in the feed prepared and delivered to him in accordance with his dairy feed formula.

Aside from finding no manifest error in the determination of the trial judge, our own evaluation of the testimony and consideration of the entire record convinces us that the judgment appealed must be affirmed.

For the foregoing reasons, the judgment of the trial court is affirmed at appellant’s cost.

Affirmed.


author: COVINGTON, Judge:

text:
    Harry GUILLOT v. Edward ALLEMAN.
    No. 10598.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Edward Alleman, in pro. per.
    Robert L. Menuet, Napoleonville, for ap-pellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This appeal was fixed for argument and all attorneys of record and the appellant in proper person were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, ex proprio motu, considers said appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

Appeal dismissed.


text:
    Henry SMITH v. Curtis W. JOHNSON.
    No. 10532.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Lawrence Guillory and Charles N. Wooten, Lafayette, for appellant.
    Charles J. Hanemann, Jr., and Claude P. Boudreaux, Houma, for appellee.
    Before SARTAIN, J., and BAILES and PICKETT, JJ. Pro Tem.
   BAILES, Judge Pro Tem.

This is an appeal in a garnishment proceeding from'a judgment rendered against a garnishee. Cast in judgment in the amount of $2,024.69 plus judicial interest and all costs was Basco, Inc. (hereafter, Basco) the employer of one Curtis W. Johnson. This judgment was rendered pursuant to a hearing in the district court on motions by the judgment-creditor to traverse certain answers by Basco to garnishment interrogatories and to have a prior garnishment made executory against Basco. The events leading to that judgment are a matter of record herein.

On October 30, 1969, the plaintiff obtained judgment by default against the defendant. On June 20, 1974, the plaintiff filed a garnishment petition and interrogatories against the appellant. The employer’s answer, filed July 3, 1974, indicated that, as of July 1, Johnson was employed on a commission basis only; prior to that time, he had been a salaried employee earning $1,000 per month.

After the answer was filed, a hearing was had to determine the non-exempt portion of the judgment-debtor’s wages and judgment was subsequently rendered on September 6, 1974, ordering Basco to remit to the Sheriff of Terrebonne Parish the maximum weekly deductible amount, as provided by LSA-R.S. 13:3881.

On February 4, 1975, the plaintiff filed a rule seeking more complete answers to the previously filed interrogatories, it appearing to the moving party that certain information to which it was entitled by LSA-R.S. 13:3926 had not been supplied by Bas-co. To that rule, the garnishee filed peremptory exceptions.

Subsequent to a hearing thereon, those exceptions were dismissed and supplemental answers ordered. Those judgments, rendered March 10, 1975, have not been appealed and the answers required of Bas-co were, thereafter, filed.

Based upon those answers, which related that Johnson was employed as a part-time purchasing agent without a guaranteed salary upon which a wage could be determined, but which also supplied a ledger sheet showing that some $12,158.75 had been paid by Basco to Johnson since the garnishment had been filed, without deduction, the plaintiff filed a rule to make the judgment executory against Basco and to traverse the answers and amended answers to the interrogatories.

That matter was heard on April 17, 1975, and the trial judge thereafter rendered thorough and lengthy written reasons for judgment in which he concluded that Basco should be cast for the entirety of the plaintiff’s judgment. We affirm.

At that hearing, only the testimony of the garnishee’s accountant, Linward J. Broussard, was taken. It was there established that since January of 1974, Johnson had received in excess of $19,000.00 in payments of varying amounts and descriptions from Basco, but that no amounts had been withheld in payment of the garnishment judgment. In explanation of that fact, Broussard related that Johnson’s employment was two-fold. First, he was a purchasing agent of oilfield equipment for Basco under an arrangement in which he obtains its authorization to procure a piece of equipment for a certain price and, if he is able to thereafter purchase it for less than the authorized price, he retains the difference as commission. Secondly, he was a commissioned salesman for Basco; however, at the time of the hearing, he had made no sales and had not earned a commission.

More than forty disbursements had been made to Johnson from January 9, 1974, through February 19, 1975. These were explained to be either payments for expenses incurred by him, advances against those expenses, or payments to him for the cost of equipment only and that any income that Johnson had realized from any of those disbursements was not known to Basco.

The trial judge found the testimony presented to be unworthy of belief and characterized it as “the biggest subterfuge I’ve ever seen in all my life.” He concluded that the payments listed as expenses were unrealisticly high, that the equipment payments and advances on expenses were not satisfactorily explained by credible testimony, that Basco’s answers to the interrogatories were inconsistent, and that their description of the employment relationship was inaccurate. Since no federal or state deductions were withheld, the entirety of the funds paid were declared to be net earnings. As those payments were clearly sufficient to have satisfied the plaintiff’s claim had they been deducted by Basco subsequent to the garnishment having been filed, judgment was rendered against the garnishee for the total amount owed. the claimant. We find no error in that judgment.

Basco argues here that the appellee did not timely traverse the answers to the garnishment interrogatories which were served on the appellee in July, 1974. Additionally, they also contend that the appel-lee’s motion for more complete answers was improper and that their original answers were sufficient.

While those contentions may have had, merit, they are not properly before the court at this time. Those issues were before the trial court, and decided by it, at the hearing on February 28, 1975. Judgments were rendered thereon on March 10, 1975, and Basco timely complied with those orders, without appeal. Further, in appellant’s pleading styled “PETITION AND ORDER FOR APPEAL,” and in their appeal bond, they specifically state that they are appealing the judgment of April 24, 1975. That judgment dealt only with the evidentiary hearing on April 17 and did not pertain to the prior hearing in which the procedural irregularities now complained of were acted upon.

Finally, the appellant contends that the plaintiff failed to meet its burden of proof in establishing that the funds paid to the judgment-debtor was income. The evidence does not support such a conclusion. The trial court had before it proof that Basco had paid in excess of $19,000.00 to an employee over a period of sixteen months. During the latter half of that period, they had been under the order of that court to make deductions according to law from the employee’s income but had made no deductions whatsoever. Their only defense was to disclaim knowledge of any part of those payments actually being income. The court heard that testimony and its well considered reasons for judgment reflect an absolute disbelief of it. We find no manifest error in that judgment. See Southern Scrap Mat. Co. v. Commercial Scrap Mat. Corp., La.App., 144 So.2d 425 (4th Cir. 1962.)

Accordingly, for the foregoing reasons, the judgment appealed is affirmed. Appellant is cast for all court cost.

Affirmed.


author: SARTAIN, Judge.

text:
    Jim PETERSON, Plaintiff-Appellant, v. The STATE of Louisiana, Through the LOUISIANA STATE PENITENTIARY and the Department of Corrections, Defendants-Appellees.
    No. 10530.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.

      Byron Magbee, Baton Rouge, for plaintiff-appellant.
    William Maynor, Baton Rouge, for defendants-appellees.
    Before SARTAIN, BAILES and PICKETT, JJ.
   SARTAIN, Judge.

Plaintiff, an inmate at Louisiana State Penitentiary, Angola, Louisiana, was injured on June 8, 1971, when he was attempting to dislodge an obstruction in a sewer line on the grounds of the penitentiary. He charges that the State of Louisiana, through the Department of Corrections, is negligent in (1) failing to provide plaintiff with a safe place to work; (2) failing to provide him with safe and proper tools; and (3) failing to maintain a proper sewer system. The State denied negligence and, alternatively, pled contributory negligence on the part of the plaintiff.

Plaintiff appeals from the judgment rejecting his demands. We affirm.

We are not favored with either oral or written reasons for judgment. Accordingly, we are not informed as to whether the trial judge’s decision is based on plaintiff’s failure to prove negligence on the part of the defendants or defendants’ plea of contributory negligence on the part of the plaintiff. However, for reasons hereinafter stated, we are satisfied that the result reached by the trial judge is correct.

On the date of the incident giving rise to this litigation plaintiff was a member of a crew under the supervision of Robert D. Hair, a maintenance supervisor with the Department of Corrections at Angola. The obstruction in the sewer line was to be removed by the use of a manually operated “roto-rooter” type device. This device consists of an auger, a series of steel rods (referred to by the witnesses as “sticks”), and a “T” handle. The rods measure approximately three and one-half feet in length and are very flexible. The auger is attached to the end of the first rod and is inserted into the sewer line. Additional rods are added so that the auger can be pushed through the sewer line to the point of the obstruction. When the desired length is obtained the “T” handle is then secured to the end of the last rod. By twisting the handle the auger is screwed into the obstruction. The rod-line is then pulled back, hopefully bringing the obstruction with it. Generally, one person can successfully pull the rod-line out of the sewer line. On some occasions, however, it requires the strength of two or more persons to pull the rod-line out. If the obstruction is particularly obstinate the rod-line may have to be removed with the aid of a vehicle or tractor.

The sewer line in the instant case is approximately two feet from the bottom of an eight foot manhole. Plaintiff got into the manhole and commenced assembling the auger, rods and “T” handle. When the auger had reached the obstruction, plaintiff attached the “T” handle and commenced twisting the handle so as to screw the auger into the obstruction. He readily admits that at this juncture Mr. Hair told him not to twist the rod-line too much as it would create excessive tension in the said rod-line. Nevertheless, plaintiff gave the rod-line several more turns and then endeavored to pull the obstruction out. He found that he could not do so alone. He states that he was in the process of handing the “T” handle up to one of his coworkers who was standing outside the manhole so that this co-worker could assist him in pulling the rod-line out of the sewer pipe. He claims that as he was handing the “T” handle end of the rod-line up to his co-worker the handle slipped from his grasp and as a result of the tension in the rod-line the “T” handle unwound rapidly, striking him on the hand and head, causing him the injuries for which he seeks damages.

Mr. Hair testified that he warned the plaintiff about twisting the rod-line excessively. It is this witness’s testimony that the “T” handle slipped from plaintiff’s grasp as the plaintiff was in a crouching position in the manhole and before plaintiff attempted to hand the handle up to the assisting inmate.

We do not find that this conflict in the testimony, i. e., plaintiff’s position at the time he lost control over the “T” handle, makes any difference in the outcome of this case. The evidence is uncontroverted that plaintiff is very knowledgeable in the use of this device as he used the same to clear sewer lines at the penitentiary on almost a daily basis. In addition to this experience, plaintiff has followed the plumbing trade since 1952. By plaintiff’s own admission it is readily conceded that it was improper and dangerous to apply too much tension to the rod-line by twisting because of the possibility of being injured if the rod-line was permitted to unwind without restraint.

We do not find that the device used in the instant case is in itself inherently dangerous. Plaintiff, as stated above, was most adept in following the procedure attempted here and in the use of this equipment. We are compelled to hold that possessed of this knowledge plaintiff was negligent in twisting the rod-line excessively in the first instance and in permitting the “T” handle to escape his grasp in the second instance. Had he followed the instructions of his supervisor, Mr. Hair, or had he exercised that degree of caution which he professes should have been exercised, this accident would not have occurred.

Having found the plaintiff guilty of negligence it is not necessary that we discuss his charges of negligence against the defendants as outlined above.

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

Affirmed.


author: ELLIS, Judge:

text:
    Millard J. PHILLIPS v. HARTFORD ACCIDENT & INDEMNITY CO.
    No. 10552.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.

      R. C. Edwins, Baton Rouge, for appellant.
    Tom H. Matheny, Hammond, for ap-pellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

This suit, which is consolidated for trial with Phillips v. Hartford Accident & Indemnity Company, La.App., 325 So.2d 642, is for amounts allegedly due under two automobile insurance policies issued to Millard J. Phillips by Hartford Accident & Indemnity Company. Mr. Phillips is plaintiff and Hartford is defendant in each suit. Prior to trial, Mr. Phillips died, and W. Ray Sylvest, Administrator of his succession, was substituted as party plaintiff in both cases.

Policy No. 43 GF 640659 covered a 1963 Oldsmobile 98 driven primarily by Mr. Phillips during a policy period from April 26, 1963, until April 26, 1964.

Policy No. 43 GF 640608 covered a 1963 Oldsmobile 88 driven primarily by Mrs. Willie Mae Phillips, plaintiff’s wife, during a policy period from January 23, 1963, until January 23, 1964.

Mrs. Phillips was involved in two automobile accidents in which she suffered various injuries. The first of these took place on April 6, 1963, while she was driving her car, the Oldsmobile 88. The second took place on December 13, 1963, while she was a guest passenger in her husband’s car, the Oldsmobile 98.

These suits are for medical payments and total disability indemnity payments under the two policies, together with penalties and interest. After trial on the merits, by depositions, judgment was rendered dismissing both suits at plaintiff’s cost, and he has appealed.

Both policies contain the following pertinent provisions relative to medical payments :

“Coverage B — Medical Payments: to pay all reasonable expenses incurred within one year from the date of accident for necessary medical, surgical, X-ray and dental services, including prosthetic devices, and necessary ambulance, hospital, professional nursing and funeral services:
“Division 1. To or for the named insured and each relative who sustains bodily injury, sickness or disease, including death resulting therefrom, hereinafter called ‘bodily injury’, caused by the accident.
“(a) while occupying the owned automobile,
“(b) while occupying a non-owned automobile, but only if such person has, or reasonably believes he has, the permission of the owner to use the automobile and the use is within the scope of such permission, or
“(c) through being struck by an automobile or by a trailer of any type; :}< j}i >fi iji
“5. Other Insurance. If there is other automobile medical payments insurance against a loss covered by Section II of this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible automobile medical payments insurance; * * * * *"

The policies provide for a $2-,000.00 limit of liability under the foregoing provisions and it is admitted that Hartford paid $2,000.00 for each accident.

Plaintiff contends, however, that the policies should be “stacked” so that $2,000.00 should be paid under each policy for each accident. The contention is based on language in various cases relating to stacking of uninsured motorist coverages, when more than one policy affords protection. See Graham v. American Casualty Co. of Reading Pa., 261 La. 85, 259 So.2d 22 (1972); Deane v. McGee, 261 La. 686, 260 So.2d 669 (1972). Those cases refused to give effect to clauses providing that, if more than one policy affording uninsured motorist protection was available, total recovery thereunder would be limited to the highest limit of liability provided by any of the policies. It was found that this limitation contravened the provisions of R.S. 22:1406.

There is no such statutory provision relating to medical payments, and no other reason is advanced for disregarding the limits placed on the payments by the terms of the policies. The courts of this state have already decided the point adversely to plaintiffs contention. See Crenwelge v. State Farm Mutual Automobile Ins. Co., 277 So.2d 155 (La.App. 3 Cir. 1973). We find plaintiff’s contention to be without merit.

Policy No. 43 GF 640608, covering the Oldsmobile 88, contains an endorsement providing a $50.00 weekly indemnity for an unlimited period if either Mr. or Mrs. Phillips becomes totally disabled as the result of an automobile accident. The endorsement contains the following declarations and limitation:

“The named insured declares, with respect to each person designated in the Schedule as an insured under Coverage III or Coverage IV,
“(1) that such person is engaged in a remunerative occupation;
“(2) that the sum of the weekly indemnity afforded by this insurance and by all personal accident insurance carried by such person is not more than two-thirds of his average weekly earnings during the past twelve months.”
“Ill — Total Disability — Unlimited Period. To pay weekly indemnity at the rate stated in the schedule for the period of continuous total disability of the insured which shall result directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while in or upon, or while entering into or alighting from, or through being struck by, an automobile, provided
“(1) such disability shall commence within twenty days after the date of the accident, and
“(2) any disability during the period of fifty-two weeks from its commencement shall be deemed total disability only if it shall continuously prevent the insured from performing every duty pertaining to his occupation, and
“(3) any disability after said fifty-two weeks shall be deemed total disability only if it shall continuously prevent the insured from engaging in any occupation or employment for wage or profit.”

The factual question presented herein is whether Mrs. Phillips is, as a result of the accident of December 13, 1963, suffering from total disability “which should result directly and independently of all other causes from bodily injury caused by the said accident.”

In Moore v. Prudential Insurance Company of America, 278 So.2d 481 (La.1973), in interpreting a similar policy provision, the court said:

"1. As a general rule, it has been stated that if there is a pre-existing disorder or illness at the time an injury is received, recovery may still be had if the injury is severe enough to have caused considerable damage and if the disease was not the proximate cause or principal cause of the disability. 1A Appleman, Insurance Law and Practice, § 403 (rev.ed. 1941).
“2. In Thibodeaux v. Pacific Mutual Life Insurance Co., 237 La. 722, 112 So.2d 423 (1959), where the injury was found to be caused by accidental means and this occurrence awakened a pre-ex-isting congenital condition or infirmity, recovery was granted. There we approved this statement of the law:
“We think that, if the accident is' a proximate cause of the death (or disability) and sets in motion or starts a latent or dormant disease, and such disease merely contributes to the death (or dismemberment) after being so precipitated by the accident, it (the disease) is not a proximate cause of the death (or dismemberment) nor a contributing cause within the meaning of the terms of the policy.”

It is claimed by plaintiff that Mrs. Phillips is totally disabled because of throm-bophlebitis in both legs and because of psychoneurosis.

Mrs. Phillips has a long and involved medical history, involving a number of surgical procedures, and several fractures resulting from falls, in addition to the injuries suffered in her two automobile accidents. She has a history of emotional difficulties going back to 1957, and she attempted suicide in August, 1962.

Dr. William K. Gauthier, who has been Mrs. Phillips’ treating physician since the December 13 accident, testified that she was totally disabled from the thrombophle-bitis and the psychoneurosis, and that the disability stems from that accident.

Dr. Hyman R. Soboloff, an orthopedist, and Dr. Dennis Rosenberg, a thoracic and cardiovascular surgeon, examined Mrs. Phillips in May and July, 1964, respectively. During this period, she was said by Dr. Gauthier to be disabled from throm-bophlebitis. Neither Dr. Soboloff nor Dr. Rosenberg were able to find any objective signs of that condition, other than Mrs. Phillips’ complaints.

In early August, 1964, Mrs. Phillips spent five days in Tylertown Hospital. Dr. Jewell J. Pittman, who treated her for thigh and shoulder pain, noted no signs of thrombophlebitis and Mrs. Phillips had no complaint relative to her legs.

We further note that Mrs. Phillips often gave inconsistent histories to the many doctors who saw her after the December 13 accident. She was characterized by two of these doctors as a person who exaggerated her complaints.

Dr. Carolyn Kitchin, a psychiatrist, saw Mrs. Phillips in late 1964 and early 1965 on five occasions, and treated her with an anti-depressant drug. She was of the opinion that Mrs. Phillips was disabled as a result of her mental condition, which she attributed to menopause and reaction to Mrs. Phillips’ son remarrying and moving out of her home. She felt that the April 6 and December 13 accidents had a substantial impact on Mrs. Phillips’ condition, and that the latter accident may have been the “last straw”. Dr. Kitchin was not aware, however, of Mrs. Phillips’ history of emotional difficulties, including the suicide attempt.

Dr. T. A. Watters, a psychoanalyst, saw Mrs. Phillips on one occasion. He attributed her emotional problems to five elements, of which her various accidents formed only one.

Considering all of the foregoing, as well as the testimony of several other doctors who saw Mrs. Phillips for various reasons, and considering the language of the Moore case, supra, we are of the opinion that the district judge was not manifestly erroneous in concluding that plaintiff failed to carry the burden of proof imposed by the law if there is to be recovery of benefits for total disability under the policy written by defendant.

The judgment appealed from is therefore affirmed, at plaintiff’s cost.

Affirmed.


author: ELLIS, Judge.

text:
    Millard J. PHILLIPS v. HARTFORD ACCIDENT & INDEMNITY CO.
    No. 10553.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    R. C. Edwins, Baton Rouge, for appellant.
    Tom H. Matheny, Hammond, for appel-lee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge.

This is a companion suit to Phillips v. Hartford Accident & Indemnity Co., 325 So.2d 638 (La.App. 1 Cir. 1976), and which involves the identical issues therein decided.

For reasons therein stated, the judgment appealed from in this case is affirmed, at plaintiff’s cost.

Affirmed.