author: FORET, Judge. CULPEPPER, Judge, DOMENGEAUX, Judge,

text:
    Robert L. ASHWORTH, Plaintiff-Appellant, v. ELTON PICKERING, INC., et al., Defendants-Appellees.
    No. 6559.
    Court of Appeal of Louisiana, Third Circuit.
    July 11, 1978.

      Baggett, McCall, Singleton & Ranier, Homer C. Singleton, Jr., Lake Charles, for plaintiff-appellant.
    Raggio, Farrar, Cappel & Chozen; Frederick L. Cappel, Lake Charles, for defendants-appellees.
    Before CULPEPPER, DOMENGEAUX, WATSON, FORET and CUTRER, JJ.
   FORET, Judge.

This is a workmen’s compensation suit involving the issues of whether the plaintiff, Robert L. Ashworth, has sustained a compensable injury and whether he has a permanent total disability as a result of the injury. Also at issue is whether the defendant, Rockwood Insurance Company, the compensation insurer of the plaintiff’s employer, Elton Pickering, Inc., discontinued compensation payments arbitrarily, capriciously, or without just cause, thereby entitling the plaintiff to penalties and attorney fees.

The plaintiff appeals from the judgment awarding him benefits for permanent partial, not total, disability, and denying him statutory penalties and attorney’s fees. The defendants have answered the appeal, seeking a reversal of the trial court’s conclusion that the plaintiff sustained a com-pensable injury and that the plaintiff is presently disabled.

The facts concerning the plaintiff’s employment, the accident and injury, are brief and not in dispute. On December 31, 1975, the plaintiff suffered dizziness, choking, shortness of breath, and pain in his chest and left arm while acting in the course and scope of his employment as a log cutter for Elton Pickering, Inc. Some of his difficulties were noticed by fellow employees. The following morning the plaintiff went to the West Calcasieu-Cameron Hospital where he was seen by Dr. C. M. Smith, who diagnosed the difficulty as congestive heart failure and began treatment as an out-patient for that condition. After retaining the plaintiff in the hospital for three days, Dr. Smith was of the opinion that the hard labor performed by the plaintiff on December 31, 1975, helped bring on the heart failure.

Subsequently, the plaintiff was examined by Dr. Buttross, cardiologist, who concluded the plaintiff suffered from coronary heart disease with angina pectoris resulting from coronary atherosclerosis. Dr. Buttross did not dispute Dr. Smith’s conclusion as to the plaintiff’s condition on or about December 31, 1975. He was of the opinion that further strenuous activity by the plaintiff would precipitate additional angina attacks.

Dr. Woodard examined the plaintiff on November 30 of 1976, and his diagnosis was artheriosclerotie heart disease. He agreed that strenuous physical exertion by the plaintiff would cause angina attacks.

Mr. Ashworth attempted to return to work as a log cutter after a period of treatment, but exertion produced chest pains, forcing him to quit. Since that occasion he has not returned to any gainful employment. The plaintiff is illiterate and has no other work experience.

The trial court found that the plaintiff sustained an'accident and injury within the meaning of the workmen’s compensation law on December 31, 1975, and that there was a legal causal connection between that accident and injury and his disability. The court primarily relied upon Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1968). After reviewing the record and the jurisprudence, we find no reversible error in the trial court holding on this issue.

The plaintiff contends on this appeal that he is permanently and totally disabled within the meaning of R.S. 23:1221, as amended by Act 583 of 1975. It is undisputed that the plaintiff has not returned to work since the termination of benefits by defendants on March 10,1977. The medical experts were in agreement that the plaintiff would be able to perform light work without pain or harm to his health. It is clear that he will never be able to do work requiring strenuous physical activity.

Prior to the amendment in 1975, R.S. 23:1221 was interpreted as meaning that a worker was deemed totally disabled if he was unable to do work of the same character as that which his training, education and experience qualified him to perform without unusual difficulty or danger. Lawless v. Steel Erectors, Inc., 254 La. 37, 222 So.2d 849 (1969).

The 1975 amendment, Act No. 583, to R.S. 23:1221 deleted the phrase “to do work of any reasonable character” and added “to engage in any gainful occupation for wages, whether or not the same or similar occupation as that in which the employee was customarily engaged when injured, and whether one for which the employee, at the time of the injury, was particularly fitted by reason of education, training, and experience.”

The 1975 Legislature also changed the definition of partial disability. Partial disability is now defined as disability to perform the duties in which the worker was customarily engaged when injured, or duties of the same or similar character for which the worker was fitted by education, training, and experience. Clearly, this definition substantially encompasses the jurisprudential definition of permanent total disability prior to 1975.

Included in the 1975 amendment by Act 583, was an increase in the disability benefits. Rather than limiting permanent total disability benefits to 65% of wages for the period of disability and not beyond 400 weeks, the new law raises it to 66%% of wages and deletes the 400-week limitation. Similarily, the partial disability benefits were raised to 66%%, and the former 300-week limitation was raised to 400 weeks for accidents occurring in the first year under the new law with successive annual increases the next two years up to 450 weeks for injuries occurring after September 1, 1977. As amended, however, 1221(3) provides that if an employee secures other employment subsequent to the injury, then the worker’s compensation would be computed on the basis of 66%% of the difference between wages earned at the time of injury and wages actually earned thereafter.

Clearly, the 1975 legislation had three primary purposes. First, it increased the compensation benefits for disabled workers. Second, it made the availability of benefits for total disability more restrictive. Third, it made relevant an analysis of the realistic effect on earning capacity.

There have been few judicial interpretations of the new law. Our brethren of the First Circuit Court of Appeal held in LeBlanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La.App. 1 Cir. 1977), that partial disability includes a situation where an employee is unable to resume his former employment only because it involves working conditions hazardous to his health or welfare. The court found support for its holding in our firmly established jurisprudence that the workmen’s compensation law is to be liberally construed to the end that its coverage will be extended to injured workmen to relieve them of the crushing economic burden of work-connected injuries by spreading such loss in the channels of commerce and industry. Also, it held that where the partially disabled worker actually earns income subsequent to the disabling injury, that amount must be deducted from the statutory compensation benefits. Thus, where the employee has subsequently earned wages equal to or greater than those earned at the time of injury, he is entitled to no compensation during the period such equal or greater wages are earned. It is clear that the court considered the economic and humanitarian purposes of the law in making its decision.

We first considered the effects of the 1975 amendment in Phillips v. Dresser Engineering Company, 351 So.2d 304 (La.App. 3 Cir. 1977). We upheld the trial court’s holding that the legislature had no intention of requiring an injured worker who has not fully recovered from the injury to find employment and work in substantial pain. Thus, we recognized the inherent intent of the legislature to exclude an injured worker from total disability compensation only when he may reasonably engage in any gainful occupation.

In Kilbourne v. Armstrong, 351 So.2d 802 (La.App. 1 Cir. 1977), the First Circuit Court of Appeal again addressed the 1975 amendment. There the employee lost the use of his right hand. He had no technical training and only a third grade education. The plaintiff’s counsel argued that because of these facts, there were very few jobs which the plaintiff was capable of performing. The court adopted the finding of the LeBlanc panel that the definition of partial disability was the disability to perform his usual or customary occupation, “but can engage in some other gainful employment for which he is fitted by education, training, or experience”. Considering the plaintiff’s admission that some jobs were available to him, our brethren, we think, correctly held that the plaintiff was only partially disabled. We agree with their interpretation of the new definition of partial disability. We find, however, that the facts of Kilbourne are distinguishable from the instant case.

In Cullivan v. Fish Engineering and Construction Company, Inc., 354 So.2d 597 (La.App. 3 Cir., 1977), we upheld the trial court’s holding that the plaintiff, who suffered from a back injury, was permanently and totally disabled. There was testimony by an expert that there were light jobs available in Louisiana which the plaintiff could perform. Another witness, a physician, said that he recommended a return to the plaintiff’s former occupation. The primary treating physician, however, indicated that the plaintiff was unable to perform the duties of those jobs, and the trial court gave more weight to his testimony which was buttressed by another physician’s testimony. We held there was sufficient evidence to establish that the plaintiff was unable “to engage in any gainful occupation for wages”. LSA-R.S. 23:1221(2).

Recently, we re-affirmed, our decision in Phillips, supra, that a worker is totally disabled if he is unable to pursue any gainful employment without experiencing substantial pain. Rachal v. Highlands Insurance Company, 355 So.2d 1355 (La.App. 3 Cir. 1978).

In the instant case, the testimony of the physician is that the plaintiff is able to return to light work. The trial court held that this is the only factor to be considered and thus the plaintiff had not established that he has a permanent total disability but that he had proven that he was partially disabled. The trial court committed reversible error in so holding.

It is undisputed that the plaintiff is illiterate and has no training or experience for the type of work which he is now physically able to perform. Given our agreement with the decision of the First Circuit as to the definition of partial disability, it is clear that he is unable “to engage in some other gainful employment for which he is suited by education, training, or experience”, by virtue of his lack of education, training, or experience. Yet it would be illogical to hold that the plaintiff is entitled to no compensation given our prima facie conclusion that he suffered a compensable injury.

The underlying principle in the decisions discussed above is that the workmen’s compensation law will be interpreted in a manner which takes into account the reasonableness of requiring the disabled worker to return to employment, and the realistic earning capacity of the disabled worker. This was the primary intent of the legislature. Thus, when an employee can only work in substantial pain or at substantial risk to his health, our courts have held the worker entitled to either total disability compensation, Phillips and Rachal, supra, or partial disability compensation, LeBlanc, supra. Where the evidence indicates that the disabled worker has a realistic earning capacity by engaging in some gainful occupation, although not his former occupation for which he is suited by education, training, or experience, then he will be considered only partially disabled, Kilbourne, supra. If the evidence indicates that the employee is unable to engage in any gainful occupation, then the worker is entitled to total disability compensation, Cullivan, supra.

We conclude that the plaintiff is unable to engage in any gainful occupation. Unlike Kilbourne, the plaintiff has made no admission that there is work which he could perform. On the contrary, he has steadfastly contended that he is unable to engage in any gainful occupation. The testimony indicates that from a solely medical prospective the plaintiff could engage in some light jobs. The workmen’s compensation law, however, is not based solely on a medical prospective. To do so would return us to the evil which the 1975 Legislature intended to eliminate by bringing into focus the reasonable earning capacity of the worker subsequent to the injury. The plaintiff has no reasonable ability to engage in any gainful occupation, in his physical condition. This is consistent with the legislative intent to bring into focus the economic realities of the situation. We make our decision without considering the plaintiff’s education, training, or experience, but we note that the legislature was restrictive in the language it used in the 1975 amendment relating thereto. The amendment states:

“whether or not an occupation for which the employee, at the time of the injury was particularly fitted by reason of education, training, and experience.” (Emphasis ours.)

Clearly, the inference is that if the employee could become qualified for an occupation by a reasonable degree of further education, training, or experience, then the lack of the particular education, training, or experience which is required is irrelevant. Conversely, we believe that the legislature intended that where an employee would become fit for any gainful occupation only by an unreasonable degree of further education, training, or experience, the extreme lack of education, training, or experience would be relevant to our analysis. As noted, however, we find that in the instant case, the plaintiff has no reasonable ability to engage in any gainful occupation based on his physical condition, without regard to his illiteracy and lack of training or experience.

PENALTIES AND ATTORNEY’S FEES

The trial court denied plaintiff penalties and attorney’s fees which are authorized by LSA-R.S. 23:1201.2 where the employer arbitrarily, capriciously, or without just cause, fails to pay or discontinues payment of benefits.

The reason given by the trial court was that medical reports presented to the defendant insurer did not indicate that the plaintiff’s heart problems were job-related. Furthermore, the plaintiff’s written statement does not suggest that he had an “accident” while working for his employer, according to the trial court. We disagree, and find the trial court was manifestly erroneous.

The plaintiff’s signed statement of April 1, 1976, indicates that Dr. Smith advised him that his pains were due to a heart attack which he had suffered. He informed his employer of this, and the employer indicated that he would turn in an injury report.

The insurance claims adjuster received a medical report from Dr. B. M. Woodard dated December 15, 1976. Dr. Woodard’s report states the plaintiff gave the facts surrounding his accident on December 31, 1975, and that the physician who treated him the day following the “accident” later indicated that he had suffered a heart attack. Dr. Woodard’s report concludes that the pain experienced by the plaintiff at the time of his examination of the plaintiff was “obviously the result of an anginal-type pain”. There was no direct contradiction of the plaintiff’s statement that he suffered a heart attack on December 31, 1975.

Clearly, this information strongly suggests “an accident” had occurred, especially when considering the nature of the plaintiff’s work. Where the employee presents evidence of an accident and a following disability without any intervening cause, it is presumed that the accident caused the disability. Bertrand v. Coal Operators Casualty Co., supra.

Furthermore, the defendant-appellee states that the termination of benefits was based on Dr. Woodard’s opinion that the plaintiff could return to some type of gainful employment. We agree that this case presented a difficult issue of the degree of the plaintiff’s disability under the new law. The insurer, however, acted capriciously in completely terminating benefits since the evidence it had at the time clearly was insufficient to allow it to terminate benefits entirely. Had the insurer reduced the benefits consistent with the medical opinion that the plaintiff could return to light work, we might have reached a different conclusion. We feel that prior to stopping compensation payments under the facts of this case, it became incumbent upon the insurer to make a further investigation. Therefore, we find manifest error in the failure of the trial court to award penalties and attorney’s fees. We think that attorney’s fees in the amount of $4,000.00 should be awarded along with the statutory penalty of 12% of all past-due benefits until paid.

The trial court allowed plaintiff to recover payment of one medical bill in the amount of $152.50, and certain costs were assessed against the defendant. We affirm that part of the trial court decision.

For the above reasons, we hereby reverse that portion of the trial court judgment which failed to find that the plaintiff was permanently and totally disabled within the meaning of the compensation act, and do hereby order, adjudge and decree that plaintiff herein is entitled to workmen’s compensation benefits for permanent and total disability at the rate of 66%% of his wages for as long as the said disability shall continue. We further reverse the trial court judgment denying penalties and attorney fees, and we hereby award attorney fees in the amount of $4,000.00, plus the statutory penalty of 12% per annum on all past-due workmen’s compensation benefits, until paid.

In all other respects, we affirm the judgment of the trial court.

All costs of this appeal are assessed against the defendants.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

WATSON, J., concurs in the result, but would favor a remand for evidence on plaintiff’s employment capabilities and possibilities.

CULPEPPER and DOMENGEAUX, JJ., dissents in part and concurs in part and will assign written reasons.

CULPEPPER, Judge,

concurring in part and dissenting in part

I concur in the majority holding that, under the rule stated in Bertrand v. Coal Operators Casualty Company, 253 La. 1115, 221 So.2d 816 (1968), the work-related angina attack was a compensable accident. I also concur in he holing that plaintiff is entitled to penalties and attorney’s fees, since the insurer terminated all workmen’s compensation benefits at a time when all of the expert medical reports in its files showed that plaintiff was partially disabled. The insurer contends it acted reasonably in terminating benefits because there was a bona fide issue as to whether the angina attack constituted a compensable accident. However, the insurer is presumed to have known the holding in the Bertrand case, and, under that case, there was not a serious issue as to a compensable accident.

I dissent from the majority holding that under the 1975 Amendment to our Workmen’s Compensation Act the plaintiff is permanently and totally disabled. I agree with the trial judge that plaintiff is only partially disabled.

There is no dispute as to the facts. I agree with those stated in the majority opinion. I would add the unanimous expert medical opinion that plaintiff suffered no infarct or other heart damage as a result of this attack of angina. The EKGs were normal and plaintiff refused a stress test. On the basis of the history, the doctors agree that plaintiff had preexisting coronary arteriosclerosis, which, over a period of years, progressed until plaintiff had the angina attack at issue here while engaging in strenuous physical labor. As a result of that attack, the doctors now know that plaintiff has heart disease and should no longer engage in the strenuous physical labor required of a logger. However, all of the doctors state that plaintiff is physically able to perform light work not requiring strenuous physical activity. There is no testimony from the doctors that light work would cause plaintiff pain or be harmful to his health. For instance, Dr. Smith, the original treating physician, testified in his. deposition:

“Q Knowing what you know of Mr. Ashworth’s present physical condition would you be of the opinion that he could perform some type sedentary work, clerical work, operating a cash register?
MR. BAGGETT: You’re talking about from a physical standpoint as opposed to a training standpoint, educational standpoint.
MR. CAPPEL: From a physical standpoint.
Q From a physical standpoint, Doctor.
A Omitting his educational level?
Q Yes. Strictly .
A Could he do some very light work?
Q Yes, sir.
A Yes, sir, I believe he could.
Q He could clerk in a department store or a grocery store or do some type of desk job?
A Yes, sir.
Q Without danger to his health?
A Yes, sir, I believe so.”

Dr. Woodard stated in his report to the insurer dated December 15, 1976:

“However, since Dr. Frederick ruled out the possibility of any kidney disease, the pains he is now having, are obviously the result of an anginal type pain. Since this man refused the stress test, it is rather difficult to evaluate the heart condition as to whether he could return to his previous type work without any doubt. I do believe however, that it is possible for him to be productive in any type of work that does not require such exertion as logging possibly requires.”

Dr. Buttross stated in his report to the insurer of date, May 16, 1977:

“The patient failed to keep the appointment for the stress test and I have not seen this individual since 6/18/76.
“I do not think that coronary heart disease that this patient has was in any way caused by strenuous work activities. Certainly, significant physical activity can precipitate angina pectoris and in some cases if strenuous activity is continued in spite of the warning sign of angina pec-toris it could lead to a myocardial infarction. In this man’s situation, there was no history of any prolonged chest pain or any other finding to indicate a myocardial infarction.”

It is my view that the trial judge correctly applied to the above facts the 1975 Amendment to our Workmen’s Compensation Act. In his written reasons, the trial judge stated:

“Under R.S. 23:1221, as amended, an employee is totally disabled only when he is unable ‘to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience.’ (Emphasis added) There is no ambiguity in that language and this Court has to assume that the Legislature deliberately chose those words to express its intention as to what conditions and circumstances constitute total disability so as to entitle an injured employee to the increased weekly compensation benefits for the entire duration of the disability. It appears obvious that the language used by the Legislature was intended to overrule the jurisprudential definition of total disability. This must be true because there is no way that the language of the amendment can be squared with that jurisprudence. Therefore, this Court concludes that the legislative amendment redefining total disability means what is says.
“Plaintiff has not established that he has permanent total disability as now defined by the compensation law. He is not physically unable ‘to engage in any gainful occupation for wages.’ The doctors agree that he has the physical ability to return to light work. He may not have the education, training or experience for the type of work that he is now physically capable to perform, but that is of no moment under the amended statute.”

The majority holds the trial judge erred in failing to consider plaintiff’s “education, training and experience” at the time of injury, in deciding whether plaintiff is disabled “to engage in any gainful occupation for wages”. The majority says we must consider the employee’s education, training and experience at the time of injury, and, if it would require “an unreasonable degree of further education, training or experience” for plaintiff to be able to engage in any gainful occupation for wages, he is totally and permanently disabled.

In my view, the majority has held the exact opposite of what the statute clearly says. The statute defines permanent, total disability as disability to engage in any gainful occupation for wages “whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training and experience.” The majority has, in effect, deleted from the statute the above underlined portion, and has, in effect, added to the statute a provision “that plaintiff is permanently and totally disabled only where the employee could become qualified for an occupation by a reasonable degree of further education, training or experience.” The majority holds that if “an unreasonable degree of further education, training, or experience” is required for the employee to engage in any gainful occupation for wages, then he is not permanently and totally disabled. In my view, the majority has, by judicial legislation, changed the statute completely.

On the other hand, the new statutory definition of partial disability fits the facts of the present case as a glove. The 1975 Amendment defines partial disability as follows:

“(3) For injury producing partial disability of the employee to perform the duties in which he was customarily engaged when injured or duties of the same or similar character, nature or description for which he was fitted by education, training and experience. . . . ”

Thus, the definition of partial disability, unlike the definition of permanent, total disability, provides that the education, training and experience of the employee at the time of injury is considered. In the present case, if we consider the fact that, at the time of injury, plaintiff had no work experience except logging, he is partially disabled, because he cannot perform the logging work he was doing at the time of the accident.

In the Comment, 1975 Amendments to the Louisiana Workmen’s Compensation Act, 36 La.L.Rev. 1018, the author explains the new definitions of total and of partial disability as follows:

“When the amended definitions of partial and total disability are read together, the concept envisioned seems to. be that if an injured worker can engage in any gainful employment, he will not be considered ‘totally disabled.’ However, if he is unable to return to the work in which he was customarily engaged at the time of the accident, or work of a similar nature, he will be considered partially disabled, and entitled to the difference between the wages he is actually earning at present, and those which he was earning at the time of the accident. The intent of these changes is to increase the use of partial disability benefits and restrict the availability of total disability benefits to those cases in which an injured workman is incapable of earning any wages.”

It is noteworthy that the author of the Law Review Comment finds no ambiguity or uncertainty in the definition of total disability or of partial disability. I agree. When a statute is clear and free of ambiguity, the courts should not disregard the letter of it, under the pretext of pursuing its spirit. LSA-C.C. Article 13.

Under the evidence in the present case, the plaintiff is able to engage in gainful employment for wages. All of the expert medical witnesses testified plaintiff is physically able to perform any kind of work which does not require strenuous physical activity. Although the evidence does not go into detail as to all of the kinds of jobs plaintiff can perform, there are many types of work which do not require strenuous physical activity. For instance, plaintiff could drive a truck, drive a farm tractor, work in a service station, operate many types of machines and mechanical equipment, work as a janitor or watchman, etc. Of course, plaintiff may require additional education or training to perform some of these types of work. However, this is contemplated by the new statutory definition of partial disability, which provides that benefits must be paid until, and even after, plaintiff is earning wages.

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

DOMENGEAUX, Judge,

concurring in part and dissenting in part.

I concur with the majority’s holding that the work related angina attack was a com-pensable accident, and also with the holding that plaintiff is entitled to penalties and attorney’s fees.

I dissent from the majority’s holding that plaintiff is permanently disabled for the reasons set forth in Judge Culpepper’s concurring and dissenting opinion. However, inasmuch as I was a member of the panel in Phillips v. Dresser Engineering Company, and authored the opinion in Rachal v. Highlands Insurance Company, both cited by the majority, I wish to add a few explanatory remarks.

Both Phillips and Rachal involved factual situations where the employees would suffer substantial pain if they engaged in gainful employment. In those two cases, we, in effect, held that substantial pain, in and of itself, will constitute total disability under the amended compensation statute.

In this case there is no indication that the employee is experiencing substantial pain. Although his heart condition does not permit employment in his former occupation, the medical evidence clearly indicates that he could safely engage in some gainful employment. This factual setting, as stated by Judge Culpepper, falls squarely within the compensation statute governing partial disability. Phillips and Rachal are clearly distinguishable on their facts from the case presently before the court.


source: Caselaw Access Project

author: REDMANN, Judge.

license: Public Domain

text:
    LAMBERT BROTHERS, INC. v. Charles W. ZIEGLER, III, et al.
    No. 9296.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 12, 1978.
    Rehearing Denied Sept. 12, 1978.
    Writ Refused Oct. 26, 1978.

      Casey, Babin & Casey, Henry G. Walker, Jr., New Orleans, for plaintiff-appellant.

      Sutterfield & Vickery, James R. Sutter-field, New Orleans, for defendant-appellee Ziegler Partnership.
    William J. Luscy, III, Melairie, for defendant-appellee Walter Bourgeois.
    Emile L. Turner,. Jr., New Orleans, for defendants-appellees Oxford Enterprises, Inc. and Lewis Clements.
    Before REDMANN,' LEMMON and BOUTALL, JJ.
   REDMANN, Judge.

Lambert Brothers, Inc., a furnisher of electrical materials for a building, appeals from the dismissal of general contractor Oxford Enterprises, Inc., surety Lewis Clements and owner Ziegler Limited Partnership (Charles W. Ziegler, III, Partner) from its suit for the price, with recognition of privilege, for the materials it furnished to subcontractor Walter Bourgeois.

The principal questions are, first, whether failure to serve the claim upon the owner by “registered” mail (plaintiff used certified) or personal service, La.R.S. 9:4802, defeats the privilege and, second, whether the general contractor’s (and other general contractors’) practice of making the materi-alman a co-payee on checks paying the subcontractor discharges the materialman’s claim as to the general contractor and surety. We answer no to each question and we therefore reverse.

The Privilege

The stricti or strictissimi juris rule of interpreting the law of privileges arises from La.C.C. 3185 (and its forebears), permitting privilege only where “expressly granted” by law. The reason for the strict limitation of privileges is evident in C.C. 3183: creditors take the proceeds of their debtor’s assets prorata “unless there exist among the creditors some lawful causes of preference.” Privilege allows the preferred creditor to be paid in full before unprivileged creditors, and thus defeats in part the law’s fundamental rule of equal, prorata treatment of creditors: privilege takes from the unprivileged creditors money that otherwise would be available for their payment. For that reason C.C. 3185 naturally provides that there can be no privilege unless the law expressly grants it.

But La.R.S. 9:4801A does expressly grant the privilege; thus the question is simply whether the materialman has sufficiently followed the procedure of R.S. 9:4802 so as to preserve the privilege which the law has expressly granted.

§ 4802 enables the owner to protect himself and his property from liability to claimants whose labor or material will have improved the property, by promptly recording in the mortgage records the contract for the improvement with a solvent surety’s bond for the payment of all claimants. (This much the owner here did; but it did not file a concursus proceeding, ten days after filing which it and its property would be discharged in the absence of objections to the bond; § 4805).

§ 4802 also provides that each claimant granted a privilege by § 4801 shall, within a specified time,

serve upon the owner a sworn detailed statement of his claim ... by registered mail or personal service and shall record a sworn statement showing the total amount of his claim .
The claim recorded as above set forth, shall preserve the privilege against the property for a period of one year from the date of its recordation and may be enforced by a civil action . . .. The effect of the recordation of the claim shall cease and the privilege preserved by this recordation shall preempt unless a notice of filing of suit ... is recorded within one year from the date of the recordation of the inscription of the said claim. . . . (Emphasis added.)

The statute simply does not purport to make preservation of the privilege depend upon service upon the owner. The emphasized words indicate, to the contrary, that it is the recordation which preserves the privilege. (Moreover, it is “recorded claims” which prompt a concursus, § 4804, and “recorded claimants” who must object to the bond, § 4805; no mention is made of claimants who recorded and served their claims.)

Serving the owner is, apparently, a prerequisite only to the owner’s personal liability. § 4806 provides that, if the bond is successfully objected to (but the contract was timely recorded), the owner is personally liable to claimants “who recorded and served their claims as provided in R.S. 9:4802 . . ..” (Emphasis added.)

We therefore hold that service upon the owner is not a prerequisite under R.S. 9:4802 to preservation of the materialman’s privilege; proper recordation of the claim suffices.

(The question whether the owner is personally liable under § 4806 is not presented. Plaintiff’s petition did not allege any objection to the bond, and its attempted introduction of testimony of the surety’s insolvency was therefore properly denied by the trial court.)

Materialman as Co-Payee

By agreement among contractor, subcontractor and supplier, the contractor’s checks paying the subcontractor were made payable to him and to the materialman.

The practice in respect to the progress payments was that the contractor required statements from the subcontractor by a certain date and the contractor would pay those statements within, say, a week or two. The subcontractor obtained from the materialman a statement giving the total of materials purchased for the job in question, and added to that total an amount for labor, etc., submitting the new total to the contractor. The contractor deducted a 10% retainage and drew the check to subcontractor and materialman jointly. The subcontractor delivered the check to the mate-rialman, which paid to itself the amount it had reported to the materialman as owed, and paid the balance to the subcontractor.

These arrangements kept the material-man’s account reasonably current at the time of each payment to the subcontractor. However, more charges for material were constantly added to the account. Thus, it would again build up and substantial amounts would again become due.

Presumably these arrangements would have sufficed for the full payment of the materialman, had they continued through completion of the contract. But some un-detailed problem caused the general contractor to terminate the subcontract and to make no more payments to the subcontractor. The result was that the materialman is owed $21,434.84.

The conclusion that the contractor and surety do not owe the materialman the $21,434.84 that the subcontractor owes on this building has two premises. First, it is argued that the general contractor has paid about $10,000.00 of that $21,000.00 because the general contractor made the material-man co-payee on every check it paid to the subcontractor; and that of the total of $55,-000.00 the materialman kept “only” $45,-000.00 (leaving the other $10,000.00 for the subcontractor’s labor, overhead, other mate-rialmen, etc.). Second, it is argued that other general contractors, paying this same subcontractor for material and labor on other buildings for other owners, similarly made plaintiff materialman a co-payee (in amounts not even shown), and that plaintiff again returned part of the subcontract payments to the subcontractor instead of keeping all payments and applying them to the debt for this building.

The error of each of these arguments is non-recognition of the necessity that labor, too, be paid out of progress payments to a subcontractor.

The trial judge reasoned that plaintiff, after having made the arrangements to be co-payee to protect itself, forsook those arrangements by retaining only part of the check proceeds and therefore cannot again collect those payments. This reasoning gives improper effect to those arrangements. A simple agreement to make the materialman co-payee on progress payments does not constitute an agreement that the materialman is to retain 100% of those payments. Every contractor, every subcontractor and every materialman knows that progress payments pay labor as well as material (presumably in different proportions in different subcontracts). It would be pointless for the contractor to agree that progress payments should go entirely to a materialman: such an agreement might protect against materialmen’s liens, but it would not protect against laborers’ liens and, to the contrary, would make it more probable that laborers’ liens would be filed. The reasonable person would neither demand nor agree that the material-man be paid more than he is owed at the time of a progress payment while the subcontractor gets nothing from that payment for his laborers or for himself. The trial judge’s interpretation of the contract must therefore be rejected. See C.C.1945 (3 and 4), 1950, 1953 and 1956.

Similarly we reject the trial judge’s further reasoning that other payments to plaintiff and this subcontractor jointly by other general contractors, on other building contracts for other owners, obliged plaintiff to withhold 100% and (to the extent they exceeded amounts due for materials on those buildings?) to pay itself what it was owed on this building. Each of those other payments was also for its entire subcontract, including labor. In theory, the mate-rialman is not entitled to 100% of progress payments to a subcontractor because those payments include payment for labor. In practice, the materialman would cause havoc on the job the first time he appropriated the whole payment, leaving the laborers without pay, and he would destroy his own business because he would never again sell material to that subcontractor or (with those arrangements) to any other who learned of his behavior.

The building contract law is explicit in granting a privilege against the owner’s property and in requiring of the contractor a bond (with surety) conditioned on payment of all laborers, materialmen, etc. The contractor and the surety are therefore liable and the property is subject to the privilege.

Other Matters

Contractor and surety question proof of delivery of materials. The materi-alman introduced receipts for every delivery. All were signed by the subcontractor personally or by his employees (or, in one case, by an employee of the general contractor). The subcontractor’s testimony goes beyond the necessary proof of delivery to proof that the materials were incorporated in the building. The proof was adequate.

Contractor and surety argue that the bond recites they are bound to the mortgagee and the title insurer, rather than to building privilege claimants. But the bond is conditioned upon payment of claimants, was attached to and recorded with the contract in compliance with R.S. 9:4802, was expressly “given in accordance with” § 4802, and therefore obliges contractor and surety to pay protected claimants; R.S. 9:4803; Bickham v. Womack, 1935, 181 La. 837, 160 So. 431.

Plaintiff is not entitled to its attorney’s fee for preparing the privilege affidavit; George Kellett & Sons v. Schwartz Ind., La.App.Orl.1959, 107 So.2d 815.

Finally, plaintiff’s claim under R.S. 9:3902 for 10% attorney’s fees against the surety is denied for lack of “written amicable demand on the . . . surety”. A letter addressed to the corporate contractor, to the attention of the person who as an individual and not as a corporate officer is surety, does not constitute a demand upon that individual surety.

Decree

The judgment is reversed insofar as appealed, and there is judgment for plaintiff for $21,434.84, with interest from judicial demand and all costs against Oxford Enterprises, Inc. and Lewis Clements (in solido with Walter Bourgeois); and plaintiff’s privilege in that amount is recognized and maintained against 13500 Chef Menteur Highway, Lots 1, 2 and 3 of Square F-3, New Orleans East Tract, Third District, City of New Orleans, owned by Ziegler Limited Partnership, Charles W. Ziegler, III, Partner.

REVERSED.

      . Every . . furnisher of material . who . . . furnishes material for the . . improvement of immovable property . . . has a privilege for the payment in principal and interest of the materials upon the land and improvements on which . . . the materials . . . [have been] furnished.

      . An amendment by Acts 1977 No. 65 allows “certified mail” but our facts pre-date that amendment.

      . This amount includes $2,536.68 for materials bought between September 11 and 30, 1974, prior to the last payment, October 1, but presumably subsequent to the materialman’s statement to the subcontractor in September.


author: STOULIG, Judge.

text:
    Mr. and Mrs. Raymond M. RONQUILL, Jr., Woodland West Civic Improvement Association, Inc., and Ronald T. Carter v. HARVEY COUNTRY CLUB ESTATES, INC., et al.
    No. 9312.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 1978.
    Rehearing Denied Sept. 12, 1978.
    Writ Refused Oct. 26, 1978.

      Mirarme & Mirarme, Ira J. Middleberg, New Orleans, for plaintiffs-appellants.
    Giles J. Duplechin, New Orleans, for Woodland West Country Club, Inc., and J.I.D., Inc., defendants-appellees.
    Harry Lee, Parish Atty., Ferdinand M. Lob, Asst. Parish Atty., Gretna, for Parish of Jefferson, defendant-appellee.
    Before GULOTTA, STOULIG and BEER, JJ.
   STOULIG, Judge.

Plaintiffs, Mr. and Mrs. Raymond Ronq-uill, Jr.; Ronald T. Carter; and Woodland West Civic Improvement Association, Inc., filed suit to enjoin Woodland West Country Club, Inc. (Woodland), and J.I.D., Inc., from discontinuing operation of a private golf and country club partially located in Woodland West Subdivision so that the property can be subdivided for residential development. The suit of the individual plaintiffs against Woodland and J.I.D., Inc., was dismissed on an exception of no cause of action while that of the civic association, who owns no property in the subdivision, was dismissed on an exception of no right of action.

On June 15, 1967, Woodland bought the disputed tract subject to this restriction:

“The said property hereinabove described shall be used for the sole purpose of a private golf course and golf club for a period of not less than ten (10) years from the date of this act of sale.”

Defendant Woodland met this condition by operating the club through November 1977.

The individual plaintiffs whose properties abut the golf course challenge Woodland’s right to change the character of the land. Primarily they assert that a survey of the subdivision by S. K. Landry, C. E., dated November 6, 1963 and amended June 30, 1964, depicts the golf' course, and because the individual plaintiffs and many other owners in the subdivision acquired under descriptions that referred to the recorded survey, defendant has expressly or tacitly dedicated the land as a golf course and is estopped from changing its character.

The Ronquills bought in 1965; Carter, in 1972. At the time both acquired there was recorded in the public records of Jefferson Parish on March 12,1964 an Act of Re-Subdivision dated February 27, 1964, which recited, among other things, that the “* * * dedication includes only that area which comprises the abovemention [sic] streets, and does not include any golf courses etc.”

Under R.S. 9:2722, the plaintiffs may not now expand their titles to impose by implication a servitude in their favor where the public records clearly negated the golf course was in fact dedicated at the time of their purchases. Land privately owned will not be treated as impliedly dedicated when a recorded act of dedication manifests no intent to so dedicate. See O’Quinn v. Burks, 231 So.2d 660 (La.App.2d Cir. 1970).

From the documentary evidence, it is apparent there is no contractual servitude established in favor of plaintiffs. Nor has the golf course been dedicated for the common use of the subdivision. Therefore the individual plaintiffs have no cause of action because even if all the allegations in their petition and supplemental petition are proven, Woodland owes no servitude.

As to J.I.D., Inc., the pleadings and documents fail to establish any ownership in the Woodland realty or any contractual agreement from which an obligation to grant the alleged servitudes might flow.

The Civic Association — an association of property owners in Woodland West Subdivision but itself owning no property or any realty right in the subdivision — lacks the capacity or interest to join in this suit and was properly dismissed.

For the reasons assigned, the judgment appealed from is affirmed at appellants’ cost.

AFFIRMED.

      . Joined as defendants were Harvey Country Club Estates, Inc., the plaintiffs’ author-ancestor in title, developer of Woodland West Subdivision. The merits of the claim against Harvey Country Club Estates, Inc., has not been litigated and therefore is not before us. The individual members of the Jefferson Parish Council and its president were also cited but were dismissed from the suit on plaintiffs’ verbal agreement. The appellants’ brief does not indicate a claim against the council members, but because they were not formally dismissed from the proceeding, a brief was filed on their behalf out of an abundance of caution. The judgment did not consider the Parish officials’ positions in this litigation obviously because plaintiffs verbally committed themselves to dismissing the suit.


text:
    Neuville J. RICHARD, Jr. v. SINGER LUMBER COMPANY, INC., et al.
    No. 9315 Consolidated with No. 9314.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 1978.
    Rehearing Denied Sept. 12, 1978.
    Schafer & Schafer, Timothy G. Schafer, New Orleans, for plaintiff-appellant.
    Young, McMahon & Levert* Robert Young, New Orleans, for defendants-appel-lees.
    Before GULOTTA, STOULIG and BEER, JJ.
   STOULIG, Judge.

Plaintiff, Neuville J. Richard, Jr., has appealed a judgment dismissing his damage suit for injuries allegedly resulting from a fall when a defectively designed ladder collapsed under him. Named defendants are Singer Lumber Company, Inc., doing business as Singer Lumber Mart, the vendor; and Croft Metal Products, Inc., the manufacturer, and its liability insurer, Prestige Casualty Company.

The issue before us is whether plaintiff proved by a preponderance of the evidence that the ladder collapsed during normal use because of improper design.

The facts are not disputed. On January 30, 1974, Grayco Signs, plaintiff’s employer, purchased through one of its agents a 6-foot aluminum household ladder from Singer primarily for the purpose of assisting the workers to climb from the ground to the elevated bed of its work truck. On March 5, 1974, plaintiff, during the course of his employment with Grayco, climbed to the fourth rung of the ladder, turned to his right and reached out approximately 1 foot above shoulder level to tighten a bolt. He placed a socketed rachet wrench over the ¥i-inch bolt and began to pull downward to tighten it. While he was in the process of doing so, the ladder began to wobble and plaintiff fell.

At the time plaintiff was attempting to secure a display sign-to the bed of his employer’s truck, especially fitted for the hauling and erecting of heavy overhead signs. The bed of the truck is 24 feet long, 8 to 9 feet wide and 4 feet high. Positioned in the center is a crane that is used for raising and lowering signs. At the time of this accident, Grayco’s crew had just changed a sign and plaintiff was in the process of securing the recently lowered sign to the bed of the truck when the accident occurred.

No one actually witnessed the fall. One co-worker standing on the ground covered his head when he heard scuffling noises because he was afraid something would fall on it. Plaintiff himself did not view the ladder at the time it began to wobble because he was tightening the bolt. The ladder was placed several inches from the truck with its sides parallel thereto.

The expert testimony was either inconclusive or unimpressive. Dr. Dale Carver, chairman of the Department of Engineering Sciences at Louisiana State University, gave the opinion that the ladder could have been better braced, but he conceded that this accident could have occurred independent of any design deficiencies. He agreed that a. man on a 200-pound grade ladder (the type at issue here) creating a lateral force by turning to the right and pushing against it by applying pressure to a wrench, could create the instability that would cause a ladder to wobble. Dr. Carver explained the bended legs of the ladder were not a result of inferior material. Rather, he stated, the bending could have been caused by the weight of plaintiff falling on top of the ladder on his way to the ground.

Courtney C. Busch, qualified by plaintiff as an expert in the field of metallurgical and mechanical engineering, testified the ladder met the standards set by the American National Standards Institute; however it lacked stability due to improper design. He conceded there is no national standard by which one can gauge stability, and based his opinion on the criteria he himself established.

Frank Gray, owner of Grayco and experienced in the sign business for 20 years, testified that generally industrial ladders were used to erect signs and the work plaintiff was undertaking when he fell is usually -done while standing on the bed of the truck.

Based on this evidence we affirm the judgment of the trial court. To recover in a products liability suit, the plaintiff must prove he was without fault and his injury resulted from a defect in the design or manufacture of the product. Weber v. Fidelity & Casualty Insurance Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971), and cited cases.

In this case the record indicates plaintiff used a lightweight residential ladder in a way and for a purpose for which it was not intended. According to his own expert the lateral force exerted by plaintiff leaning to his right and the additional pressure on the ladder by tightening a bolt may have caused the ladder to wobble. It was plaintiff’s reaction to the wobble that ultimately caused his fall. Because the record fully supports the hypothesis upon which the trial court based its judgment we find no basis for reversal.

For the reasons assigned, the judgment appealed from is affirmed, all costs to be borne by appellant.

AFFIRMED.

      . This case was consolidated with Aetna Insurance Company v. Singer Lumber Company, Inc., et al., La.App., 361 So.2d 957, No. 172-372 of the docket of the 24th Judicial District Court for the Parish of Jefferson. On appeal this consolidated case bears No. 9314.

      . In his judgment the trial judge stated: “ * * * plaintiffs in both cases have failed to establish by a preponderance of the evidence that the product involved was unreasonably dangerous to normal use or that it was inherently defective; and further that no duty was owed plaintiff by defendant, Singer Lumber Mart, which was violated in any manner *


text:
    AETNA INSURANCE COMPANY v. SINGER LUMBER COMPANY, INC., et al.
    No. 9314 Consolidated with No. 9315.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 1978.
    Rehearing Denied Sept. 12, 1978.
    Schafer & Schafer, Timothy G. Schafer, New Orleans, for plaintiff-appellant.
    Young, McMahon & Levert, Robert Young, New Orleans, for defendants-appel-lees.
    Before GULOTTA, STOULIG and BEER, JJ.
   STOULIG, Judge.

Plaintiff, Aetna Insurance Company, has appealed a judgment dismissing its suit against Singer Lumber Company, Inc., doing business as Singer Lumber Mart; and Croft Metal Products, Inc., and its liability insurer, Prestige Casualty Company, in which it claims indemnification for past and future workmen’s compensation benefits it has paid and must pay in the future to one Neuville J. Richard, Jr.

For the reasons assigned in Neuville J. Richard, Jr. v. Singer Lumber Company, Inc., et al., rendered this day, La.App., 361 So.2d 955 (1978), which was consolidated for trial and has been appealed as a companion case, the judgment appealed from is affirmed.

AFFIRMED.


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

text:
    Diane Delaney AINSWORTH and Robert A. Ainsworth, III v. Joan Elyse TREADWAY, Volkswagen Insurance Company, Charles Cox, Mrs. Mildred S. Cox, Aetna Casualty & Surety Company, Hanover Insurance Company, Gaines P. Wilson & Son, Inc., Liberty Mutual Insurance Company, A. C. Aukerman Company and the Department of Highways of the State of Louisiana. VOLKSWAGEN INSURANCE COMPANY and Joan Elyse Treadway v. Charles COX, Mrs. Mildred S. Cox, Aetna Casualty & Surety Company, Hanover Insurance Company, Gaines P. Wilson & Son, Inc., Liberty Mutual Insurance Company, A. C. Aukerman Company and the Department of Highways of the State of Louisiana.
    Nos. 9324, 9325.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 1978.
    Rehearing Denied Sept. 12, 1978.
    Writ Refused Oct. 26, 1978.

      Meunier, Martin & Meunier, Richard J. Meunier, Jr., Marcel J. Meunier, Jr., New Orleans, for plaintiffs-appellants, Diane Delaney Ainsworth and Robert A. Ains-worth, III.
    O’Keefe, O’Keefe & Berrigan, Peggy M. Vicknair, New Orleans, for defendants-ap-pellees, Joan Elyse Treadway and Volkswagen Ins. Co.
    J. Michael Cumberland, New Orleans, for defendant-appellee, Joan Elyse Treadway individually.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John. J. Weigel, G. Bruce Kuehne, New Orleans, for defendants-appellees, Gaines P. Wilson & Son, Inc. and Liberty Mut. Ins. Co.

      Philip K. Jones, Marshall W. Wroten, Robert J. Jones, Doran & Kivett, Baton Rouge, for defendant-appellee, The Department of Highways of State of La.
    Before GULOTTA, STOULIG and BEER, JJ.
   GULOTTA, Judge.

Plaintiff appeals from the dismissal of her suit for damages sustained in an automobile accident. We affirm.

Diane Ainsworth, a guest passenger, was injured when the car in which she was riding was rearended as it came to a stop for a barricade placed in the left lane of I — 10 East by the highway contractor who was performing construction work on the median at the site. The left lane had been closed to traffic by means of a “taper”, a barricade of alternating barrels and lights set up to channel traffic into the center and right lanes.

Suit was directed against the State Department of Highways, the highway contractor, the host driver and the driver of the rearending vehicle and their respective insurers. Prior to trial, plaintiff settled her claim against the driver of the rearending vehicle for the sum of $125,000.00 but proceeded against the other defendants. The trial judge, adopting the commissioner’s findings, concluded “the only cause in fact of this accident was the gross negligence” of the driver of the rearending vehicle.

According to plaintiff, the trial court’s conclusion exonerating the host driver and the Department of Highways and its contractor is contradictory. It is plaintiff’s contention that either the host driver or the Department of Highways and its contractor are negligent. Plaintiff claims the Department of Highways and the contractor knew that an inordinate number of other accidents and “near misses” had occurred at the site of the lane closure and that confronted with this situation, they were negligent in failing to place more adequate markings to alert motorists properly of the hazard occasioned by the lane barricade. If, on the other hand, adequate warnings were posted, plaintiff claims, the host driver was negligent in making a sudden emergency stop on a well-marked highway indicating the impending closure of the left lane. We do not agree.

DEFENDANT OF HIGHWAYS AND THE CONTRACTOR

The well settled duty of the Department of Highways is to see that roads are reasonably safe for drivers exercising ordinary care and to warn motorists of hazardous conditions. Vervik v. State, Department of Highways, 302 So.2d 895 (La.1974); Barr v. State, Louisiana Department of Highways, 355 So.2d 52 (La.App. 2d Cir. 1978). In this connection, in our case, the Department’s agreement with the highway contractor for the construction of the median barrier provides that the contractor is to erect and maintain signs and barriers in accordance with Department standards. The trial court concluded the Department and the Department’s contractor had adequately warned the traveling public of the existence of the hazard. The record supports this conclusion.

At the scene of the accident, I — 10 East is a three-lane highway running from Jefferson Parish to New Orleans. It passes beneath a railroad bridge then curves, on an incline, to the left. At the time of the collision at approximately 10:15 p. m. on May 14, 1973, the left lane taper closure commenced approximately 300-400' on the southeast side (closer to downtown New Orleans) of the bridge and 1,500' before the Metairie Road overpass.

According to the testimony of employees of the Department and the highway contractor, “Speed Limit 45” signs were posted on both sides of the highway at a point in excess of one half mile before the beginning of the lane taper. Approximately one half mile from the commencement of the taper “Left Lane Closed V2 Mile” signs were placed on both sides of the eastbound highway. Other warning signs indicating 1,500', 1,000' and 500' distances to left lane closure were placed on the highway. Blinking amber lights were located next to the 1,500' and 1,000' signs. The taper closing the left lane consisted of nine 55-gallon drums with reflective tape and 11 continuously-burning amber lights spaced alternately at distances of approximately 33' over a total length of 606'. According to accepted and recognized standards for highway construction, the minimum length for such a taper is 540'. Permanent overhead highway mercury vapor lights illuminated the barricade area. Day and night inspections were made to insure that the taper was properly aligned and that the lights were burning.

The supplier of the warning lights testified that on the morning following the accident all of the lights in the taper were functioning with the exception of four (struck by Treadway’s car). Other witnesses working on the scene testified that the first 150-200' of the taper were intact but that several lights and barrels, after that point, were broken and misaligned. Though the drivers of the vehicles involved did not remember any advance warning signs, the trial court simply rejected their statements and accepted the more convincing testimony of the men involved in the construction project. We cannot say the credibility determinations of the trial judge are erroneous.

We reject further plaintiff’s claim that an inordinate number of accidents at the scene of the taper required the placing of more adequate warning devices. Support for this contention is simply lacking in proof. Though plaintiff introduced the testimony of a person who was involved in an accident in the same area, the circumstances of that accident were not related in any way to the inadequacy of the construction warning system but rather resulted from traffic congestion. Testimony of an ambulance driver who related another accident earlier on the evening in question, which according to him disrupted the taper, was properly rejected on credibility grounds. Plaintiff’s reliance on the testimony of employees of the Department and contractor who observed accidents and near accidents in the course of their workday is equally unpersuasive when viewed in light of the high volume of traffic in the area. Even plaintiff’s traffic control and safety expert testified that the warning sign system was “adequate” and that the taper was located in a “logical” place. This expert also conceded that it is impossible to eliminate the element of human frailties of the driving public.

The evidence considered, we conclude the trial judge properly determined that the Department and the contractor had not breached their duties to establish and maintain a safety system to warn the passing motorists adequately of the hazard occasioned by the median construction project.

HOST DRIVER

We are not here concerned with the negligence of the rearending driver. The crucial issue is whether the host driver was negligent (in stopping on an interstate highway and in failing to merge into the center or right traffic lane) and, if negligent, whether that driver is responsible to plaintiff in damages.

Joan Treadway, the host driver of the 1967 Volkswagen in which plaintiff was seated in the rear as a passenger, testified that as she rounded the curb in the left lane of 1-10 East and went under the railroad bridge, she suddenly came upon a barricade blocking her lane “about half of a city block” ahead of her. Treadway stated she had not seen any traffic signs, signals or warnings of any kind of the left lane closure. Upon first observing the barricade, she applied her brakes and, without skidding, held the car steady; flashed her emergency lights; and came to a stop or slightly rolling stop a short distance in front of the barricade. She stated after “about one second to feel relief” she was struck in the rear by the vehicle driven by Charles Cox. Her testimony was corroborated by plaintiff.

Cox testified that he had been following the Treadway vehicle in the left lane and was not aware of any construction warning signs or conscious of Treadway’s brake lights. He estimated that he had been traveling at a speed of 45-55 miles per hour and, though he thinks he applied his brakes, stated that he had not slowed down appreciably when he struck the car.

Under the doctrine of duty-risk as set forth in landmark Louisiana Supreme Court eases, a determination of negligence involves a two-step process. First, it must be determined whether defendant’s conduct was a cause in fact of the harm suffered by plaintiff, i. e., whether defendant’s conduct was a substantial factor in bringing about the collision. Second, if defendant’s conduct was a cause in fact of the accident, whether this act was a breach of the duty imposed to protect the plaintiff against the particular risk involved.

Applying the doctrine, it is clear that Treadway’s stopping of her vehicle in the left lane short of the barricade was a cause in fact of the rearend accident. By her own testimony it is obvious she failed to timely observe the series of signs warning her of the left lane closure. Had she timely done so, presumably she could have merged into the center lane without coming to a-stop.

A more difficult question, however, is whether Treadway breached a duty designed to protect her guest passengers against a rearend collision. Clearly, the primary purpose of the left lane closure signs is to prevent a motorist from driving into the construction area where a collision with construction machinery or excavation might result in a serious damage to the motorist as well as to construction workers during working hours. It is the risk of this type of accident that is contemplated by LSA-R.S. 32:237(A).

Not so clear, however, is whether the duty to observe left lane closure signs is designed to guard agairist the risk of rear-end collision from vehicles driven by other individuals who have also failed to heed the signs. Under the circumstances of this case, we think not. Although the host driver did not observe the advance warning signs, she was alert enough to see the construction barricade ahead, bring her car to a controlled stop without striking the barricade, and flash her emergency lights before the rearend impact. The gross intervening negligence of Cox, the rearending driver, who. failed to heed the signs, absolves Treadway from liability. Presumably, a careful following driver, aware of the warning signs, would have either brought his vehicle to a controlled stop or merged into the center or right lane, thereby not striking the stopped automobile.

Our case, we think, is closely akin to Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972). In Laird, a truck driver had stopped his vehicle and was partially obstructing a highway while he conversed with members of a work crew. The truck was rearended. This obstructing truck driver’s conduct was in violation of LSA-R.S. 32:141(A) and a cause in fact of the rearend collision. Applying a duty-risk approach, the Louisiana Supreme Court held that the risk of the rearend collision did not fall within the ambit of the statutory duty not to obstruct the highway under the facts in that case. The Laird court indicated that Laird’s stopped vehicle did not totally obstruct the lane of traffic; that the following truck driver could have safely passed Laird’s vehicle; that Laird had his brake lights on while stopped; that there were road signs warning of the highway construction work in the area; and that one of the members of the work crew had attempted to draw the approaching truck driver’s attention to the Laird vehicle. In Laird, the obstructing truck driver was exonerated from liability. The facts in our case are analogous to those in Laird. Under the circumstances, we cannot conclude the trial judge erred in dismissing plaintiff’s suit against Treadway. The judgment is affirmed.

AFFIRMED.

STOULIG, J., dissents in part.

STOULIG, Judge,

dissenting in part.

I respectfully dissent from that part of the majority opinion that absolves Joan Treadway, the host driver, of liability.

Joan Treadway was driving her automobile on the Pontchartrain Expressway, a major thoroughfare reserved for fast moving non-stop traffic. Before approaching the accident site, had she exercised reasonable care, she could have merged into the unblocked traffic lane as the alternating 11 amber lights and nine 55-gallon reflective taped barrels indicated she should. Her failure to observe the posted warning signs and to maneuver her vehicle to an open lane resulted in her unexpectedly being confronted with an emergency of her own making. She responded by stopping. The following driver, also negligent in failing to observe the indications to change lanes, was confronted not only with the barricade but also the stopped automobile. At this point in time the following driver could do nothing to avoid hitting the Treadway car, stopped only for one second before impact. Thus, the doctrine of last clear chance cannot be applied to absolve Ms. Treadway of negligence. I conclude the negligence of both drivers were contributing proximate causes of the accident.

The majority result is reached via “cause-in-fact/duty-risk” criteria. Unquestionably Ms. Treadway’s actions created a situation, without which this accident would not have occurred. As Laird v. Travelers Insurance Company, 263 La. 199, 267 So.2d 714 (1972), might state it, her stopping on an expressway was a “basic ingredient” of this collision. The majority concedes she breached her duty to observe the warnings and respond appropriately; however, it concludes that R.S. 32:237(A) was not enacted to obviate the type of risk to which the injured guest and the following driver were exposed in this case.

It is with this restricted construction of the duty-risk scope of R.S. 32:237(A) that I disagree. Motorists on an expressway expect traffic to move at an accelerated pace non-stop; therefore, markers and barrels designed to channel vehicles from a blocked lane to an open one are placed there to insure a continuous flow of traffic. Nonstop movement is a primary reason for the construction of expressways. Thus, if I project the purpose of the statute at issue as it would apply to interstates and expressways, I can only conclude one of the risks it is designed to eliminate is sudden stop emergency situations. Stated another way, I conclude the risk to which plaintiff and the following driver were exposed by Ms. Treadway’s actions is within the ambit of protection to motorists this statute is designed to afford.

I am of the opinion that the Laird case is distinguishable. In proximate cause language, the truck driver’s liability is fixed by the last clear chance doctrine. Although the stopped motorist was negligent in parking partially in the moving lane of a highway, contrary to statute, it was the failure of the moving motorist to observe and avoid striking the stopped vehicle, when he had ample time and opportunity to do so, that was the sole proximate cause of the accident. In duty-risk language, the extent of protection afforded by the prohibition of parking on state highways did not include the Laird situation.

Therefore, I would reverse the judgment of the trial court and impose liability on the host driver.

ON APPLICATION FOR REHEARING

PER CURIAM.

In application for rehearing, plaintiff correctly points out that no direct evidence was introduced to support the majority’s conclusion that four broken lights in the taper had been struck by the Treadway vehicle. This conclusion in the majority opinion was based not upon direct but circumstantial evidence in the record which indicates that the point of collision of the vehicles occurred in the area of disturbance in the taper. While there is merit to plaintiff’s observation, the effect does not change the result reached by the majority.

Likewise, plaintiff properly corrects an inaccuracy in the following language of the majority opinion regarding an accident occurring prior to the Treadway collision:

“Though plaintiff introduced the testimony of a person who was involved in an accident in the same area, the circumstances of that accident were not related in any way to the inadequacy of the warning system but rather resulted from traffic congestion. Testimony of an ambulance driver who related another accident earlier in the evening in question, which according to him disrupted the taper, was properly rejected on credibility grounds.”

As pointed out by plaintiff, the use of the word “another” in the above language implies that two different accidents occurred before the Treadway collision. In truth and in fact, only one prior accident occurred.

We point out further that the majority opinion seems to indicate the trial judge rejected the testimony of the ambulance driver that this accident had occurred. That the accident took place is undisputed. The meaning intended to be conveyed by the majority, however, was that the trial court properly did not place great weight on the driver’s testimony regarding his description of the outbound I — 10 taper. Though this inaccuracy likewise has no effect on the final disposition of the case, we feel that the loose and ambiguous phrasing of the majority opinion requires that an attempt be.made at clarification.

Accordingly, the petition for rehearing is denied.

PETITION DENIED.

      . Employees testifying with regard to the signs and/or taper included: John Laporte (inspector for the Department of Highways); Darrel Le-doux (project engineer for the Department); David Mize (safety engineer for the contractor, Gaines P. Wilson & Son, Inc.); John Calhoun (vice president for the contractor); and Robert Bullock (road foreman for the contractor). Their testimony was corroborated by a daily-maintained “sign diary” prepared at an unsus-picious time.

      . Laporte testified that three lights and three barrels were out of alignment. Ledoux stated that “several” lights and barrels within the first half of the taper near the middle were in disarray. Mize testified that 200' at the beginning of the taper were unaffected but that three or four lights and three or four barrels were out of alignment. Bullock stated that four to five barrels and lights were disturbed at a point 150' from the commencement of the taper.

      . Laporte, Ledoux and Mize.

      . The daily traffic count at the scene (I — 10 East and West) was estimated at 86,200 vehicles. Over the 21-day period the left lanes of I-10 East and West were closed, about 1,600,000 vehicles would have passed the construction area.

      . Dixie Drive It Yourself System New Orleans Co. v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962); Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).

      . LSA-R.S. 32:237(A) provides:
      § 237. Barricades, signs and signals; prohibition against tampering with and violating instructions; exceptions
      “A. No one shall in any way tamper with, move, damage, or destroy any barricade, signs or signals placed upon any highway by the department or by any contractor or subcontractor doing highway construction or repair work under or by authority of the department, nor shall any person disobey the instructions, signals, warnings, or marking of any warning signs, signals, or barricades so placed upon any highway under construction or being repaired nor shall any person drive around or through any barricade or fences placed upon any closed highway by the department or any contractor or subcontractor doing highway construction or repair work under or by authority of the department, unless at the time otherwise directed by a police officer.”

      . LSA-R.S. 32:141(A) provides:
      § 141. Stopping, standing or parking outside business or residence districts.
      “A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.”

      . The majority opinion states in part: “Clearly, the primary purpose of the left lane closure signs is to prevent a motorist from driving into the construction area where a collision with construction machinery or excavation might result in serious damage to the motorist as well as to construction workers during working hours. It is the risk of this type of accident that is contemplated by LSA-R.S. 32:237(A).”

      . The majority opinion states: “The supplier of the warning lights testified that on the morning following the accident all the lights in the taper were functioning with the exception of four (struck by Treadway’s car)."

      . Based on the testimony of John Montecino, an investigating police officer, the point of impact of the vehicles can be calculated at a distance of 1,350 feet from the Metairie Road overpass. Darryl Ledoux, Project Engineer for the State Department of Highway’s, testified that the taper began at the distance of 1,500 feet from the overpa'ss. Based on this testimony, the point of collision would have been 150 feet into the taper.
      As noted in footnote 2 in the majority opinion, David Mize, the contractor’s safety engineer, stated that on the morning after the Treadway accident 200 feet at the commencement of the taper were unaffected but that three or four lights and three or four barrels were in disarray thereafter. Robert Bullock, the contractor’s road foreman, testified that four to five barrels and lights were disturbed at a point 150 feet from the beginning of the taper. As previously stated, the supplier of the warning lights testified that four lights were not functioning on the morning following the accident.

      . The Commissioner’s observations, apparently adopted by the trial judge are as follows:
      “Mr. John Whitney Jr., an ambulance driver, was called by Plaintiff and testified that he was quite familiar with the scene of the accident and with roadway and traffic conditions. Mr. Whitney stated that the barrels were yellow when in fact they were black. He stated that there was no left lane closure on the outbound lanes of traffic and had stopped his ambulance in the median section on the outbound lane. All witnesses testifying on this matter contradicted Mr. Whitney and stated that the left lane for outbound traffic was closed by barricades.”


text:
    George A. AIAVOLASITI v. Edward C. KURTZ, Foster Judlin, Oliver Meyer, Louis Brothers and Frank Kruse. Lawrence J. AIAVOLASITI v. VERSAILLES GARDENS LAND DEVELOPMENT COMPANY, Edward C. Kurtz, Oliver J. Meyer, Foster Judlin, Louis L. Brothers, Dr. Frank A. Kruse. Lawrence J. AIAVOLASITI v. VERSAILLES GARDENS LAND DEVELOPMENT COMPANY, Louis L. Brothers, Foster Judlin, Oliver J. Meyer, Edward C. Kurtz, Dr. Frank A. Kruse.
    Nos. 9332-9334.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 1978.
    Rehearings Denied Sept. 12, 1978.
    Writs Granted Oct. 26, 1978.

      Reuter & Reuter, Arthur C. Reuter, New Orleans, for George A. Aiavolasiti and Lawrence J. Aiavolasiti, plaintiffs-appellants.
    Wiedemann & Fransen, John A. Stassi, II, New Orleans, for Foster G. Judlin, defendant-appellee and defendant-appellant.
    Henry L. Klein and Gary J. Rouse, New Orleans, for Dr. Frank Kruse, defendant-appellee.
    Before GULOTTA, STOULIG and BEER, JJ.
   STOULIG, Judge.

The appeals in these three consolidated cases concern the extent of liability of various signatories to several promissory notes, originally executed to raise operating funds for a land development corporation.

Plaintiff, Lawrence Aiavolasiti, and the five individual defendants, Edward Kurtz; Foster Judlin; Oliver Meyer; Louis Brothers and Frank Kruse, organized Versailles Gardens Land Development Company (Versailles), in 1970. Shortly thereafter the purchase of a large tract of land for development was financed by a loan from the Whitney National Bank in New Orleans (Whitney), evidenced by several promissory notes.

On December 30, 1970, Versailles executed a promissory note in the sum of $574,-000 payable on demand to the order of Whitney National Bank with 9% interest per annum and 10% attorney fees. The obligation was secured by the pledge of a collateral mortgage note executed by Versailles on December 30, 1970 for $600,000, payable on demand to the order of bearer with 10% per annum interest and 10% attorney fees and paraphed Ne Varietur for identification with an act of collateral mortgage of the same date. In connection with these transactions the individual shareholders of Versailles, Oliver Meyer; Edward Kurtz; Foster Judlin; Louis Brothers and Lawrence Aiavolasiti, executed continuing guaranty agreements with Whitney in which each assumed solidary liability with Versailles in the event there was a default on any note up to a total of $600,000. The promissory notes, collateral mortgage and continuing guaranty were acquired by Lawrence Aiavolasiti from Whitney. Proceeding No. 9334 of our docket is a suit for the unpaid principal, interest and attorney fees on these obligations.

On January 22, 1974, plaintiff, Lawrence Aiavolasiti, and the five individual defendants executed as comakers a promissory note in the sum of $50,755.84 payable to the order of International City Bank & Trust Company (ICB) 30 days after date with 10% interest per annum and 25% attorney fees. These funds were used to purchase a $50,-000 ICB certificate of deposit pledged in connection with the 1970 Whitney loan. This obligation was purchased by George A. Aiavolasiti, son of Lawrence J. Aiavolasiti, and forms the basis of the claim in our Proceeding No. 9332.

The third note, executed by Versailles on April 23,1973 in the sum of $19,000 payable on demand to the order of Whitney with 9% interest and 10% attorney fees and endorsed by Lawrence Aiavolasiti and the five individual defendants, was to cover the interest arrearage on the 1970 Whitney obligation. This note was endorsed over to Lawrence Aiavolasiti and is the subject of the litigation in our Proceeding No. 9333.

Versailles, plagued by financial crises since 1973, could obtain no further loan extensions by 1975 and, to avoid suit, Lawrence Aiavolasiti acquired the Whitney notes and furnished the funds to his son George to purchase the ICB note. In Proceeding No. 9332, George Aiavolasiti is the nominal plaintiff who sues as a holder in due course. The three notes were purchased by plaintiffs after maturity.

In Proceeding No. 9334 Lawrence Aiavo-lasiti filed suit against Versailles as maker and the five individual defendants as solida-ry guarantors on the December 30, 1970 notes. A default judgment was entered against Versailles and Edward Kurtz. Then plaintiff executed on the collateral mortgage securing the note, caused the land to be sold under a writ of fieri facias and realized the sum of $100,000, which was applied against the outstanding indebtedness of $268,867.93, plus 10% interest and 10% attorney fees. Judgment was then rendered against Kurtz, Meyer, Judlin and Brothers for a virile share of one-sixth interest each of the total indebtedness.

Plaintiff, Lawrence Aiavolasiti, appealed asserting that the individual endorsers are bound solidarily because he acquired the note for valuable consideration and sues as a holder in due course. Plaintiff as a co-surety or coguarantor could not improve his indemnification claim quoad his co-obligors by paying out the note because R.S. 7:119 provides in part:

“A negotiable instrument is discharged:
(1) By payment in due course by or on behalf of the,principal debtor;
******
(5) When the principal debtor becomes the holder of the instrument at or after maturity in his own right.”

Quartana v. Jenks, 355 So.2d 607 (La.App. 4th Cir. 1978), holds that a coen-dorser of a promissory note extinguishes the note when he acquires it. There is no form of acquisition he can use that would confer on him a holder in due course status entitled to claim from each signatory on the note the full amount of the indebtedness even though the instrument stipulates soli-dary liability. As a codebtor who has paid the full amount of the obligation Aiavolasiti has the right to demand contribution from his codebtors for their virile share. C.C. art. 2104 provides:

“If one of the codebtors in solido pays the whole debt, he can claim from the others no more than the part and portion of each.
“If one of them be insolvent, the loss occasioned by his insolvency must be equally shared amongst all the other solvent codebtors and him who has made the payment.”

Appellant Aiavolasiti challenges the right of any of his codebtors to raise any defenses because, he asserts, the pleadings deny their signatures on the instrument. We disagree but do not pass on this contention because we view this suit as one in contribution rather than a suit by a holder in due course on a viable promissory note. Under R.S. 7:119 the note was discharged and is now simply evidence of payment of the common debt in a suit for contribution.

Appellant Aiavolasiti next contends Dr. Frank Kruse should have been cast in judgment for a virile share on the December 30, 1970 notes. The evidence fails to establish Dr. Kruse was a co-obligor on these instruments in that he did not execute the continuing guaranty agreement which the other individual defendants signed nor did he sign the notes in any capacity.

Finally Aiavolasiti contends the trial court erred in failing to award the attorney fees specified in the note. Once the note was extinguished, the ancillary contingent collection fee stipulations contained therein also expired.

Appellant Foster Judlin resists Aia-volasiti’s claim for contribution on the ground that the mortgaged asset of Versailles was seized at the instance of plaintiff and sold without appraisement. In essence he claims that while appraisers were appointed, they were not qualified but were deputy sheriffs who have no knowledge of real estate values and who accepted the figures suggested by Lawrence Aiavolasiti and therefore, in effect, there was no appraisal. Judlin submits that R.S. 13:4106 extinguishes a creditor’s claim for a deficiency judgmént if the property seized is sold without appraisal. This appellant was cited as a defendant in the suit prior to the seizure and was aware of the sale under fieri facias. If he wished to question the procedure, it was incumbent on him to challenge the process before the sale was made rather than sit back and save his attack only if he was not pleased with the result.

In Proceeding No. 9333, Lawrence Aiavo-lasiti filed suit on the April 23,1973 demand note for $19,000 payable to Whitney and obtained judgment against Versailles, Kurtz, Meyer, Judlin, Kruse and Brothers for a virile share from each of one-sixth of the debt of $21,283.69 with 9V2% interest and 10% attorney fees.

Appellant Lawrence Aiavolasiti urges the same arguments for solidary liability of each codebtor as he did in Proceeding No. 9334. We hold that these contentions are without merit.

Finally, in Proceeding No. 9332 the nominal plaintiff George Aiavolasiti filed suit on the promissory note dated January 22, 1974 for $50,755.84 payable to the order of ICB and was awarded judgment against the makers, Kurtz; Judlin; Meyer; Brothers and Kruse, for a virile share of one-sixth each of the debt of $51,644.06 with 10% interest and 25% attorney fees. The trial judge did not accord George Aiavolasi-ti the status of a holder in due course because he concluded the evidence establishes that Lawrence Aiavolasiti furnished the money for his son to acquire the note and also arranged for its purchase to avoid a lawsuit. Under this factual conclusion, the trial judge properly limited the plaintiff to virile share recovery from the codebtors. Because the note was extinguished by payment the trial court erred in awarding interest and attorney fees.

Appellants Foster Judlin and Frank A. Kruse in their answer to the appeal point out the notes were extinguished when the Aiavolasitis bought them from the banks and therefore the trial court erred in awarding note interest and attorney fees. The judgment as it affects Judlin and Kruse, the only defendants to appeal or answer the appeal, must be modified to delete the note interest and fee awards.

Defendants further point out the virile shares were fixed at one-sixth each because the trial court erred in not including the corporation. We agree and amend the judgment accordingly insofar as it affects the defendants who have appealed.

For the reasons assigned the judgments appealed from are amended and affirmed in these respects:

In Proceeding No. 9334 the judgment appealed from is amended as to Foster Judlin and Frank Kruse to delete the note interest and in its place award legal interest from judicial demand on the virile share owed by each.

In Proceeding No. 9333, the judgment as it affects Foster Judlin and Frank Kruse is amended to cast each for a one-seventh interest of the indebtedness of $21,283.69 plus legal interest from judicial demand until paid and to delete that part of the judgment casting them for note interest and attorney fees.

In Proceeding No. 9332, it is ordered that the judgment appealed from be amended as to Foster Judlin and Frank Kruse to delete the note interest and attorney fees and in its place award legal interest from judicial demand on the virile share owned by each.

Appellant Lawrence Aiavolasiti is to pay all costs of these appeals.

AMENDED AND AFFIRMED.


author: PER CURIAM.

text:
    T. W. GANUS v. Russell L. CUOCO and the Board of Levee Commissioners of the Orleans Levee District.
    No. 9551.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 26, 1978.
    Rehearing Denied Sept. 12, 1978.
    D. A. McGovern, III, New Orleans, for defendant-appellant.
    Reuter & Reuter, Arthur C. Reuter, New Orleans, for plaintiff-appellee.
    Before SAMUEL, LEMMON and BEER, JJ.
   PER CURIAM.

This matter was originally before us in Ganus v. Cuoco et al., 351 So.2d 224.

Subsequent to the denial of an application for rehearing in this court and the denial of application for writs in the Supreme Court of Louisiana, the matter was remanded to the Civil District Court for the Parish of Orleans. Honorable Oliver P. Carriere set the matter down for a contradictory proceeding prior to framing an injunction in accordance with the mandate set forth in our original opinion. Thus, the matter came on for adjudication following a contradictory proceeding before Judge Car-riere on January 27, 1978. On that date, the court issued a preliminary injunction which forms the basis for this appeal by Russell L. Cuoco.

Our review of the entire record and, particularly, the specific wording of the preliminary injunction issued by Judge Carriere causes us to conclude that the judgment of the Civil District Court for the Parish of Orleans is neither manifestly in error nor an abuse of the trial court’s wide discretion.

Accordingly, the judgment is affirmed, at appellant’s cost.

AFFIRMED.


author: CUTRER, Judge.

text:
    Guinn O. HINES and Donna W. Hines, Plaintiffs-Appellants, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al., Defendants-Appellees.
    No. 6465.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 4, 1978.
    Swanwick & Rivers, Larry W. Rivers, Kramer & Davis, James D. Davis, Alexandria, for plaintiffs-appellants.
    Provosty & Sadler, LeDoux R. Provosty, Jr., Alexandria, Grisbaum & Kleppner, George L. Gibbs, Metairie, for defendants-appellees.
    Before GUIDRY, FORET and CUTRER, JJ.
   CUTRER, Judge.

Plaintiffs, Guinn 0. Hines and Donna W. Hines, instituted this suit against Dr. Joseph R. Costa, Dr. A. N. Evans, and the insurer of these physicians, St. Paul Fire & Marine Insurance Company, for the wrongful death of their child, Twyla Hines. The defendant physicians are medical doctors specializing in pediatrics in Alexandria, Louisiana. Plaintiffs’ petition alleged that certain negligent acts or omissions of the defendant physicians resulted in the death of their daughter. At the conclusion of a jury trial, a verdict was returned in favor of the defendants. Plaintiffs appeal from the trial court judgment dismissing their suit.

The first and foremost assignment of error complained of was that the trial judge erred by refusing to allow plaintiffs’ expert witness, a pediatrician from the New Orleans area, to testify as to the proper standard of practice among pediatricians and whether the defendant doctors breached the standard in this case.

During plaintiffs’ case-in-chief, a Dr. George Sterne was called to testify. Among other qualifications, Dr. Sterne was a board certified specialist in pediatrics and a Professor of Medicine at Tulane Medical School in New Orleans. During questions regarding his qualifications, Dr. Sterne stated that he had never practiced medicine in the Alexandria community. He also admitted that except for a period of time when he was in the military service, he had never practiced outside of New Orleans. The trial judge accepted Dr. Sterne as an expert in the medical field but ruled that it had not been shown that he was familiar with the standard of care of pediatricians in the Alexandria locality. Consequently, the trial judge repeatedly sustained defendants’ objections to plaintiffs’ questions concerning standards of practice or reasonable standards that would ordinarily be exercised by pediatricians.

The Louisiana Supreme Court in the very recent case of Ardoin v. Hartford Accident & Indemnity Company et al., 360 So.2d 1331 (La.1978), was faced with the question of whether the “locality rule” applies to malpractice actions against medical specialists. The Supreme Court in interpreting Act 807 of 1975 which became LSA-R.S. 9:2794 held that a medical specialist is required to exercise the degree of care and possess the degree of knowledge or skill ordinarily exercised and possessed by physicians within his medical specialty. The Supreme Court stated that the plaintiff seeking to prove that a medical specialist failed to adhere to these standards of care or skill is not limited to expert medical testimony by witnesses practicing or familiar with the standards of care and skill within the defendant-specialist’s community or locality. The Ardoin decision stated that testimony of qualified experts, regardless of whether practicing within or familiar with the defendant doctor’s locality, is admissible to prove the degree of care ordinarily exercised and the degree of skill or knowledge ordinarily possessed by physicians within the involved medical specialty. However, the court pointed out that evidence of the local facilities and resources available, as well as evidence of other pertinent local conditions, is also admissible and should be considered by the trier of fact in its determination of this question. The Supreme Court concluded by holding that the provisions of LSA-R.S. 9:2794 should be given retroactive effect.

In the present case, the effect of the trial judge’s rulings was to prohibit plaintiffs’ expert from testifying to the degree of skill, care and knowledge ordinarily exercised or possessed by physicians specializing in pediatrics. In light of the Supreme Court’s pronouncements in Ardoin, we feel justice would be best served by remanding this action to the trial court for a new trial.

As mentioned previously, the Ardoin decision is most recent. The trial judge in refusing to allow plaintiffs’ expert to answer certain questions was relying on established jurisprudence dating back to the landmark case of Meyer v. St. Paul-Mercury Indemnity Company of St. Paul, Minn., et al, 225 La. 618, 73 So.2d 781 (La.1954), which established the “locality rule” in medical malpractice cases. The Ardoin decision, rendered by the Supreme Court after the present case was tried, specifically overruled Meyer insofar as Meyer was in conflict with the views expressed in Ardoin.

For the above reasons, the judgment of the trial court is reversed and set aside. This case is remanded to the trial court for a new trial in accordance with the views expressed herein. Costs of this appeal are assessed to defendants-appellees.

REVERSED AND REMANDED.