text:
    Dorothy Hebert ARDOIN et al. v. HARTFORD ACCIDENT AND INDEMNITY CO. et al.
    No. 61008.
    Supreme Court of Louisiana.
    Dec. 5, 1977.
   In re: American Home Assurance Co. applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Lafayette. 350 So.2d 205.

Writ Denied In Part, Granted In Part. We find no error requiring review by this Court as to any assignment relating to the judgment in favor of the plaintiffs against the defendants cast; accordingly, writs are denied as to further review of this judgment, including its modification for limited remand by the Court of Appeal.

However, insofar as the applicants urge that erroneous rulings as to the “locality rule” prevented the defendants from securing a factual determination that the negligence of Dr. James Bozeman also contributed to the injury, we grant the writ to determine whether, for purposes of third-party demands, error was committed by the rulings complained of by Assignments 1, 2, 3 of Docket Nos. 60,992 and 61,008 and by Assignment 2 of Docket No. 61,011, which errors had the effect of depriving the defendants of evidence relevant to a determination of this doctor’s negligence and whether same was a contributory cause of decedent’s death.

The writs are denied as to all other assignments of error urged including the only assignments raised in # 60,993.

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


source: Caselaw Access Project

author: REDMANN, Judge. PER CURIAM.

license: Public Domain

text:
    MACK TRUCKS, INC. v. Harry M. EDGE, d/b/a Reliable Truck Service, et al.
    No. 8373.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Dec. 13, 1977.
    Writ Refused Jan. 30, 1978.
    Floyd J. Reed, Reed, Reed & D’Antonio, Metairie, for plaintiff-appellant.
    Richard G. Steiner, Gretna, for defendant-appellee.
    Before REDMANN, GULOTTA and STOULIG, JJ.
   REDMANN, Judge.

The uncontradicted testimony and a “release” signed by the agent of Mack Financial Corporation (a corporate relation of plaintiff) and by defendant shows that the two mortgaged trucks were returned to plaintiff (through the financial corporation’s agent) about two months prior to their judicial seizure by plaintiff. Also un-contradicted is defendant’s and another witness’s testimony that the financial corporation’s agent promised that defendant would be released from further liability upon returning the trucks. We would therefore find plaintiff estopped from collecting the balance due, for the reasons of Int. Harv. Cred. Corp. v. Am. Troubleshooters, Inc., La.App. 4 Cir. 1976, 338 So.2d 708.

Plaintiff further argues, however, that the Motor Vehicle Certificate of Title law, at La.R.S. 32:705, requires transfer of a vehicle only by assignment on the reverse of the certificate of title, and therefore defendant cannot have effected a giving of the trucks in payment of the debt. We tend to agree; but giving in payment is not the theory of Int. Harv., supra.

Affirmed.

ON APPLICATION FOR REHEARING

PER CURIAM.

On plaintiff’s request, for any reviewing court, we note that the printed document titled “RELEASE”, cited by us as showing the time that the trucks were returned to plaintiff, did not purport to release defendant’s liability.


author: STOULIG, Judge.

text:
    Charles COLEMAN v. Janice Marie White, wife of Charles COLEMAN.
    No. 8252 (Consolidated with Nos. 8251 and 8396).
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Nov. 10, 1977.

    Lanny R. Zatzkis, New Orleans, for plaintiff-appellant.
    James C. Witcher, II, New Orleans, for defendant-appellee.
    Before STOULIG, BOUTALL and SCHOTT, JJ.

       SCHOTT, J., is of the opinion the rehearing should be granted.

   STOULIG, Judge.

For the reasons assigned in the attached opinion La.App., 352 So.2d 710, we affirm the judgment dismissing plaintiff’s suit in the matter of Coleman v. White, wife of Charles Coleman. Appellant is to bear all costs of this appeal.

AFFIRMED.


author: STOULIG, Judge. SCHOTT, Judge,

text:
    Charles COLEMAN v. Janice Marie Coleman, separated wife of Charles COLEMAN, et al.
    No. 8396 (Consolidated with Nos. 8251 and 8252).
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 12, 1977.
    Rehearing Denied Nov. 10, 1977.

      Lanny R. Zatzkis, New Orleans, for plaintiff-appellant.
    James C. Witcher, II, New Orleans, for defendant-appellee Janice Marie Coleman.
    Emile W. Schneider, Tutor ad hoc, New Orleans, for defendant-appellee.
    ' Before STOULIG, BOUTALL and SCHOTT, JJ.
   STOULIG, Judge.

For the reasons assigned in the attached opinion, we affirm the judgment dismissing plaintiffs suit in the matter of Charles Coleman v. Janice Marie Coleman, separated wife of Charles Coleman, et a 1. Appellant is to bear all costs.

AFFIRMED.

Plaintiff, Charles Coleman, has appealed two judgments dismissing suits against his wife Janice Coleman — one in which he prayed for divorce on the ground of adultery, and a second in which he sought to disavow the paternity of a daughter born to Janice Coleman on October 7, 1975. Although these matters were tried separately, similar factual allegations made it expedient to consolidate these matters on appeal. We combine our reasons in this one opinion and render separate decrees in each case.

In the divorce trial, plaintiff testified he left the matrimonial domicile at his wife’s request in April 1974 and became judicially separated on July 18,1974 by a judgment of the Civil District Court for the Parish of Orleans. He testified he and his wife had no sexual relations after that date. Plaintiff further stated that one Percy Saul lived with his wife after the separation and that the defendant bore a child some 15 months after the judicial separation.

Two of defendant’s neighbors — Malvin Bell and Kathy Hill — testified Saul frequently stayed overnight at Mrs. Coleman’s apartment; however, they said he began these visitations in the summer of 1975. The baby was born in the fall of 1975. Bell assumed Saul stayed in the apartment overnight because he saw him enter in the late afternoon and leave early in the .morning. He also saw several cars driven by Saul parked in the vicinity of the defendant’s apartment overnight. Bell did not keep a constant surveillance on the Coleman apartment.

Saul admitted that several cars that he had permission to use were left overnight because he had loaned them to Mrs. Coleman for her use. Saul is employed by a retail automobile outlet.

Janice Coleman said her daughter was fathered by plaintiff, having been conceived in December 1974 when she cohabited with him. She explained this was the only occasion they had sexual intercourse after the judgment of separation and she denies cohabiting with any other man. Saul testified that he and Mrs. Coleman were friends but not lovers.

Although the trial judge concluded in the adultery proceedings that the “ * * * evidence leads one to be very suspicious * * he decided plaintiff failed to adduce sufficient proof to support a judgment of divorce. Proof of adultery may be established by indirect or circumstantial evidence; however the evidence must support a conclusion of an adulterous relationship to the exclusion of any other reasonable hypothesis. The mere fact that a man and woman spend time together alone does not necessarily mean they are engaged in illicit sex. Hermes v. Hermes, 287 So.2d 789 (La.1973), and Kendrick v. Kendrick, 232 La. 1104, 96 So.2d 12 (1957).

In this case the decision of the trial court rests on an evaluation of the credibility of the witnesses. Our review of the record discloses no manifest error in the result reached by the district court. Accordingly we affirm the judgment dismissing plaintiffs petition for divorce. See Withers v. Withers, 296 So.2d 466 (La.App. 2d Cir. 1974).

In the action en desaveu, again credibility of the witnesses is a crucial factor. Appellant contends the trial court dismissed his suit because it placed the burden of proof on Charles Coleman to establish the girl was not his child. He relies on the presumption against paternity set forth in C.C. art. 188 (as it read prior to the 1976 amendment which, being substantive, was applicable when this suit was filed in 1975):

“The legitimacy of the child born three hundred days after the separation from bed and board has been decreed, may be contested, unless it be proved that there had been cohabitation between the husband and wife since such decree, because it is always presumed that the parties have obeyed the sentence of separation.
“But in case of voluntary separation, cohabitation is always presumed, unless the contrary be proved.”

If the husband’s statement is accepted that he and his wife did not cohabit after the judgment of separation, the presumption that he is not the father must stand until disproved. Of course, the wife may negate the presumption by proving that she and her husband did in fact cohabit after judgment was rendered.

In this case Janice Coleman testified to one instance of sexual intercourse with her husband in December 1974. Although she was vague about the time the post-separation cohabitation took place, she repeated on several occasions it was in December 1974. The trial judge made the credibility call in her favor, thus she carried the burden of proving the element that destroys the C.C. art. 188 presumption. On the record before us, while we are not overly impressed with Mrs. Coleman’s testimony, we are equally confused by that of her husband.

Plaintiff suggests the child is the result of the adulterous relationship between his wife and Percy Saul. Yet his own witnesses testified they did not see Saul near Mrs. Coleman’s apartment until the summer of 1975 when her pregnancy was well advanced. Plaintiff argues the trial judge’s decision that Mrs. Coleman was the more credible of the two litigants is based on a misunderstanding of the testimony. In written reasons the trial judge discussed at length the improbability of Charles Coleman’s having no information about his wife’s pregnancy until several days after the baby was born. As appellant points out, plaintiff did not say in so many words he did not know of the pregnancy; he sim.ply stated he learned of the birth several days' after it occurred. When the testimony of all the plaintiff’s witnesses is read together, there is an inference that they say plaintiff was unaware of the impending birth of the child before she was delivered. And yet, even if the trial judge erred in evaluating this aspect of the testimony, the evidence is still not sufficient to permit plaintiff to disavow paternity of this child.

To rebut the presumption of legitimacy dictated by the public policy of this State the evidence must be clear, certain and conclusive. In the instant case the trial judge found as a matter of fact that there was cohabitation after the judgment of separation was rendered. This finding of fact satisfies the proof required to overcome the exception to C.C. art. 184, the presumption of paternity, expressed in C.C. art. 187 as qualified by the first paragraph of C.C. art. 188. Heable v. Heable, 248 So.2d 847 (La. App. 2d Cir, 1971).

Accordingly we affirm the judgment dismissing the appellant’s disavowal of paternity action.

SCHOTT, Judge,

dissenting.

I respectfully dissent from the judgment which affirms the dismissal of plaintiff’s petition to disavow paternity of the minor child.

Plaintiff obtained a judgment of separation from his wife on July 18, 1974, and this child was born on October 7,1975. Thus, he is entitled to invoke the presumption against paternity in the case of -the child born more than 300 days after the judgment of separation from bed and board. C.C. Arts. 187 and 188 (as they read prior to Act 430 of 1976).

The trial court in his reasons for judgment made the statement that' “the presumption of legitimacy is the strongest in our law. The plaintiff’s proof is grossly insufficient and far short of that required to preponderate.” .

Similarly, my colleagues in' discussing this case speak of the public policy of the state relative to the presumption of legitimacy.

Tannehill v. Tannehill, 261 La. 933, 261 So.2d 619 (1972) at p. 622 states that the presumption of paternity does not exist when the child is born more than 300 days after judgment of separation. Hence, I submit that the trial judge and my colleagues have erred in their approach to this case.

The* only evidence offered to establish cohabitation and resulting paternity was the statement by the defendant mother to the effect that in December, 1974, while plaintiff was in her home on a visit to the children, and at a time when the children had gone outside, she had intercourse with him. He denied that this occurred. If this uncorroborated- testimony is sufficient. to rebut the presumption established by the Code in plaintiff’s favor the presumption is meaningless.

I recognize that this case -is consolidated in this court with the appeal of the husband from a separate, suit against his wife for divorce based on adultery, and there may be some inconsistency in affirming the dismissal of his divorce action and at the same time reversing the dismissal of his action to disavow.

In the divorce action, plaintiff had the burden of proof, and I agree with my colleagues that the testimony and other evidence was insufficient for plaintiff to establish that his wife committed adultery so as to entitle him to a judgment as a matter of law. Surely the evidence was not sufficient for us to reverse the trial judge’s dismissal of his suit.

The trial of the divorce case was held on March 18,1976, and the trial of the disavow action was four days later in another division of the Civil District Court before another judge. Under the law and jurisprudence I cannot say that any error exists in the judgment dismissing the divorce suit, but I am compelled to dissent from affirming the judgment dismissing the disavowal action. The inconsistency here results from the statutory law and it is not for us to correct this problem but for the legislature.

I respectfully dissent.

      . The minor was represented in this action by a tutor ad litem.

      . Singley v. Singley, 140 So.2d 546 (La.App. 1st Cir. 1962), for a discussion of presumptions in actions en desaveu.


author: WATSON, Judge.

text:
    Harold H. STREAM, III, et al., Plaintiffs-Appellants, v. P. L. LeJEUNE, d/b/a LeJeune Roofing, Defendants-Appellees.
    No. 6153.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearings Denied Dec. 14, 1977.

      Camp, Carmouche, Palmer, Carwile & Barsh by Joseph A. Delafield, Lake Charles, for plaintiffs-appellants.
    Planchard, Thompson & James by A. J. Planchard, Sulphur, for defendants-appel-lees.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   WATSON, Judge.

Plaintiffs, Harold H. Stream, III and Vinton Community Hospital Foundation, have appealed from a trial court judgment dismissing their suit against Phillip Lee Le-Jeune, d/b/a LeJeune Roofing. Stream is the owner of the Vinton Hospital building and leases it to the plaintiff foundation. LeJeune agreed to re-roof the building for $6,000. Stream brought this suit when the replacement roof leaked and LeJeune refused further repairs. The Hospital joined Stream in the suit and both claim various items of damages. An exception of no cause of action was filed to the Hospital’s claim and referred to the merits.

The damages claimed by plaintiffs include: repair costs; inconvenience; return of the contract price; cost of replacement in excess of the contract price; repair of damage to the interior; attorney’s fees; and loss of use of certain rooms in the hospital.

It is undisputed that the roof commenced leaking shortly less than a year after its installation. Voluminous testimony was presented as to the cause of the problem. The trial court concluded that LeJeune had carried the burden of proving that the roof was not defective.

FACTS

Stream purchased the hospital building and decided to have the roof replaced because of some minor leaks. Virgil Junk, land manager for Stream’s family holdings, met with LeJeune and Carl B. Blake of Blake Building Materials at the hospital about October 5, 1974. There is a dispute about the dialogue at this meeting. Le-Jeune and Blake testified LeJeune told Junk the roof could not be guaranteed because of the building’s structural weakness. Junk said LeJeune did not say this until his roof failed. All agree that Junk engaged LeJeune to put a new roof on the hospital with Bird roofing material specified. Junk testified he contracted for a 20 year bonded roof. Blake supplied the Bird roofing used by LeJeune on the job.

After the job was completed, LeJeune presented Junk an invoice which stated:

“Tear off old roof. Clean yard, haul off all trash. Replace with 15 yr. bonded roof. Bird Roofing Material Hospital building & office Labor & Materials
Total $6,000.” (TR. 55)

When this was brought to Junk’s office by LeJeune, Junk noted on the invoice “This is a 20 year roof.” The notation was signed by LeJeune. LeJeune testified he did not tell Junk it was a 20 year roof but that he used 20 year material. A $6,000 check was issued by Stream to LeJeune dated November 5, 1974.

In October, 1975, less than a year after completion of the roofing, Ms. Theriot, former administrator of the hospital, called Junk to tell him the roof was leaking. Junk inspected the building and found water damage which recurred after every hard rain. LeJeune made one effort at repair but then declined further efforts unless Stream would pay the cost of materials. LeJeune testified that additional repairs could not be guaranteed, because the building needed structural work.

Other roofers did partial repairs, but the roof still leaked at the time of trial. Morgan Roofing Company submitted a bid to replace the roof for $7,012.00.

The most impressive evidence in the record as to the cause of the leaking roof is the testimony of Taylor Kaough, an architect. He testified that he found no structural defects in the building, bar joists or roof deck. He found the foundation and walls of the building to be in sound condition. He explained that the roof deck is a lightweight aggregate concrete, poured on a corrugated metal form. The lightweight concrete or zonolite deck has a different expansion and contraction coefficient from that of the roofing material. It is therefore necessary that the roofing material not be bonded solidly to the roof deck, as the two have to separately expand and contract with changes in temperature. Kaough’s opinion was that the hospital roofing had been solid mopped with tar and thereby bonded to the underlying deck, which prevented separate expansion and caused splitting and leaking in the roof membrane. According to Kaough, the Hospital roof does not meet 15-year specifications and cannot be satisfactorily repaired.

Expert roofer Ray Morgan observed the leaking problems but found no structural defects that would prevent the application of a 20-year bonded roof on the Hospital. According to this expert, LeJeune’s solid mopping was improper and caused the failure of the roof. Morgan also testified that LeJeune’s invoice indicated a bond had been furnished on the roof, since, if you follow manufacturer’s specifications but are not required to furnish a bond, you refer to the roof as bondable. Morgan said roofing materials used on the hospital did not meet the standards for a 15 or 20 year roof. Morgan testified that the leaks in this roof could not have occurred from anything other than expansion.

There is considerable other testimony in the record concerning the method by which the roof was applied. Some say it was spot mopped, some say it was strip mopped and others say it was solid mopped, but, despite the variance, it is without dispute that the roof split at various points, causing leaking and the only reasonable explanation is that presented by Kaough and Morgan.

The trial judge concluded that the claims of Stream and the Hospital against LeJeune should be dismissed because Le-Jeune had successfully carried the burden of proving that the roof installed by him was not defective. We do not find a reasonable evidentiary basis for this conclusion, which is manifestly erroneous. A leaking roof is defective. There was an attempt on the part of defendant to show that there was some cause for the leaks other than his work, a weakness in the roof deck or vibration of the air conditioning units. LeJeune even said that he advised Virgil Junk he could not guarantee his work because of structural weakness. This is not only denied by Junk, but is at variance with the written invoice, which states that the roof was a 15 year or 20 year roof. It is inconceivable that Junk would be so careless of the affairs of his employers as to contract the re-roofing of a building for $6,000 when the roofer declared prior to the agreement that he could not put on a roof which he would guarantee.

Plaintiffs have attempted to argue that this is a suit in redhibition, but there is no sale involved. LSA-C.C. art. 2545. The fact that it is not an action in redhibition also disposes of the claim for attorney’s fees.

This is a suit for failure by the builder of a roof to perform his work in a good workmanlike manner, free from defects in either materials or workmanship. Nichols Ford Company, Inc. v. Hughes, 292 So.2d 345 (La.App. 2 Cir. 1974); Neel v. O’Quinn, 313 So.2d 286 (La.App. 3 Cir. 1975) writ denied 319 So.2d 440 (La.).

The roof constructed by LeJeune was defective and he must bear the legal consequences.

STREAM’S CLAIM

Stream variously claims the price of a new roof, the return of the contract price for the defective roof, and the cost of temporary repairs. In the usual case involving defective construction, the builder is responsible only for the cost of repairs. See Nichols Ford Company, Inc. v. Hughes, supra. However, the evidence is that the Hospital roof 'cannot be satisfactorily repaired with anything less than the complete application of a new roof. To do justice between the parties we have concluded that LeJeune must repay to Stream the contract price of the defective roof. This approach was followed in the case of Emdon v. Olympia Roofing Co., 11 La.App. 614, 124 So. 615 (La.App.Orl.1929). We do not find an obligation for LeJeune to pay Stream the cost of a new roof, as estimated by Morgan, because Stream will be returned, following refund of the payment, to the same condition as prior to the contract. He is not entitled to an improved position. As to the temporary repairs, there is no showing that these were greater than Stream would have incurred with his old roof, which was leaking prior to the contract with LeJeune. We do not find that LeJeune is required to pay Stream for the temporary repairs.

HOSPITAL’S CLAIM

The hospital claims various items of damages from LeJeune. The damages asserted are too speculative to be awarded, even if there is a cause of action. The proof is not sufficient to support an award of damages.

Therefore, for the reasons assigned, it is ordered, adjudged and decreed that there be judgment in favor of Harold H. Stream, III, and against P. L. LeJeune, d/b/a Le-Jeune Roofing, in the amount of $6,000, together with legal interest from date of judicial demand until paid. All other demands of Stream are denied and the demands of the Vinton Community Hospital Foundation are dismissed. All costs, both at trial and on appeal, are taxed against P. L. LeJeune.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

      . The trial court did not make a factual finding on this point and we are not reversing on a credibility issue. Our review of the record finds that the evidence on this point, as discussed infra, preponderates against defendant.


author: FORET, Judge.

text:
    Ethel F. WASHINGTON et al., Plaintiffs-Appellees, v. LAKE CITY BEVERAGE, INC., et al., Defendants-Appellants.
    No. 6154.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Rehearing Denied Dec. 14, 1977.
    Writ Refused Feb. 10, 1978.

      Woodley & Fenet by Robert W. Fenet, Lake Charles, for defendants-appellants.
    Wilford D. Carter, Lake Charles, for plaintiffs-appellees.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   FORET, Judge.

This is a suit for damages for personal injuries brought by Mrs. Ethel F. Washington and her husband, Joseph Washington, for general and special damages. The plaintiffs filed an original and four (4) supplemental and amending petitions wherein Ethel F. Washington sought damages for pain and suffering, mental anguish, distress, etc., and Joseph Washington for property damage, medical expenses, future medical expenses, non-use of the wrecked motor vehicle, mental anguish, storage of the wrecked automobile', loss of his wife’s wages, traumatic depreciation to the wrecked auto, and rental of a vehicle.

The plaintiffs filed suit against Lake City Beverage, Inc., Allen Fontenot, and Travelers Insurance Company for damages arising out of an automobile accident' which occurred in the early afternoon of January 19, 1976, at the intersection of Enterprise Boulevard and Fourth Street in the City of Lake Charles, Louisiana.

After three (3) days of trial, the v jury returned the following verdicts:

VERDICT OF JURY ■
(1) Was Allen Fontenot negligent, and, if so, was such negligence a proximate cause of the accident?
ANSWER: / _
(Yes) (No)
(If answered no go no further. If answered yes go to question No. (2).)
(2) Was Ethel F. Washington, contributorily negligent and, if so, was such contributory negligence a proximate cause of the accident?
ANSWER: _ /
(Yes) (No)
(If answered yes, go no further. If answered no, go to questions No. (3) and (4).)
(3) What was the amount of damages, if any, that were sustained by Ethel F. Washington as a result of the accident?
ANSWER: $ ' $18.900
(4) What was the amount of damages, if any, that were sustained by Joseph Washington or head and master of the community as a result of this accident?
ANSWER: $ $7,000

From those verdicts, defendants appeal, asserting the following as manifest errors:

(1) The trial court erred in refusing to grant a new trial on the ground that plaintiffs’ counsel informed the jury during the’ closing argument of an attempt to compromise undertaken by one of the defendants;
(2) The trial court erred in refusing to grant a new trial on the ground that the jury behaved improperly in awarding damages in excess of those supportéd by the evidence, and in awarding plaintiff, Joseph 'Washington, damages for his inconvenience;
(3) The jury erred in awarding damages to plaintiff Joseph Washington for property damages after the trial court sustained defendants’ exception of no cause of action or no right of action as regards those particular damages;
(4) The jury, erred in awarding damages for automobile rental and the trial judge erred in his charges given to the jury as regards damages for rental of another motor vehicle;
(5) The trial court erred in failing to sustain defendants’ exception of no cause of action and no right of action as regards Joseph Washington’s claim for the loss of wages of his wife; ■ '
(6) The jury erred in awarding excessive special and general damages.

I.

MISCONDUCT OF PLAINTIFFS’ COUNSEL

The misconduct of an attorney during trial may constitute grounds for a new trial. That misconduct normally falls into one or more of the following classifications: (1)Actual misstatement of testimony; (2) Statements of fact not supported by the evidence; (3) Statements of matters not in evidence; (4) Intemperate and/or inflammable language; and (5) Improper aspersions on the character of witnesses, opposing counsel and/or the opposing party. Only where the conduct and/or language produces prejudicial effect which is deemed ineradicable despite judicial declarations to disregard same, will the granting of a new trial be justifiable. 66 C.J.S. New Trial §§ 33-37, pp. 122-132.

In this case, during closing argument, plaintiffs’ attorney made the following statement:

“Isn’t it logical that after he could not reach an agreement with Travelers Insurance to pay it, they offered to pay it for it now—they offered to pay for it, but—” (Tr„ pg. 656)

Counsel for defendants immediately objected thereto, and the trial judge instructed the jury as follows:

“Mr. Carter apparently made a slip of the tongue. He mentioned that Travelers Insurance Company had made an offer to repair the vehicle. That is an erroneous statement. That was not in evidence. That was not before you. You are instructed that you are not to consider the statement made by Mr. Carter as to that statement in any way. It is improper

The issue of negligence, although contested by the defendants, was not a serious issue in dispute. True, the statement of plaintiffs’ counsel was impermissible. However, it was not of such a prejudicial character so as not to be eradicated by the instruction of the trial judge.

II.

AFFIDAVIT OF JUROR

The second ground for a new trial and second specification of error submitted by defendants-appellants is based on an affidavit of James Humble, foreman of the jury which rendered the verdicts in this case. (Affidavit is found on page 158 of the transcript.)

In no case in Louisiana has the affidavit of a juror been used to impeach the verdict of a jury. In all of the judicial pronouncements of our courts upon the issue at hand, the use of juror affidavits to impeach a jury verdict has been denied. In the case of Renz v. Texas & Pacific Railway Co., 138 So.2d 114, 123-124 (La.App. 3 Cir. 1962), this Court provided authorities for that rule.

“The trial court correctly held inadmissible the affidavits or testimony of jurors to impeach their own verdict or to show on what grounds it was rendered. Long ago, under similar circumstances, our Supreme Court held: “The testimony was objected to and ruled out, on the ground that a juror cannot be heard as a witness to impeach the verdict of a jury of which he was a member. The ruling was manifestly correct, under repeated decisions of this court. State v. Bird, 38 La.Ann. [497] 499; State v. Chretien, 35 La.Ann. [1031] 1032; State v. Price, 37 La.Ann, [215] 218; State v. Millican, 15 La.Ann. 557; State v. Brette, 6 La.Ann. [652] 653; State v. Caldwell, 3 La.Ann. 435.” State v. Morris, 41 La.Ann. 785, 786, 6 So. 639.

See also: Godfrey v. Soniat, 33 La.Ann. 915; Duhon v. Landry, 15 La.Ann. 591; Jeter v. Heard, 12 La.Ann. 3; Cire v. Rightor, 11 La. 140; Campbell v. Miller, 1 Mart. (N.S.) 514; Klein v. Medical Building Realty Co., La.App. Orleans, 147 So. 122.

No Louisiana cases contrary thereto are cited by defendant-appellant, and none could be found. It therefore appears that, under the settled jurisprudence, the trial judge was correct in refusing to admit evidence showing that the jurors wished to impeach their verdict.

The holding of the Louisiana courts seems to be in accord with the jurisprudence of other states. In 53 Am.Jür. “Trial” Section 1105 (1945), the general rule, along with the reasons for the rule, are stated:

“While matters of impeachment extrinsic to the verdict may, according to the view of many courts, be shown by the testimony of jurors, it is a long-established and generally accepted doctrine, except where modified by statute, that testimony or affidavits of jurors impeaching a verdict rendered by them will not be received where the facts sought to be shown are such as inhere in the verdict.
“The rule is founded on public policy, and is for the purpose of preventing litigants or the public from invading the privacy of the jury room, either during the deliberations of the jury or afterwards. It is to prevent over-zealous litigants and a curious public from prying into deliberations which are intended to be, and should be, private, frank, and free discussions of the questions under consideration. Further, if after being discharged and mingling with the public, jurors are permitted to impeach verdicts which they have rendered, it would open the door for tampering with jurors and would place it in the power of a dissatisfied or corrupt juror to destroy a verdict to which he had deliberately given his assent under sanction of oath.
“Testimony of the jurors to impeach their own verdict is not excluded because it is irrelevant to the matter in issue, but because experience has shown that it is more likely to prevent them to promote the discovery of the truth. Hence, the affidavit of a juror cannot be admitted to show anything relating to what passed in the jury room during the investigation of the cause, or the effect of a colloquy between the court and a juror, or the arguments made to a juror by a fellow juryman. The rule that a verdict cannot be impeached by the testimony of a juror is generally adhered to where it is sought to impeach a verdict on grounds of misconduct on the part of the juror or his fellow jurors, despite apprehension expressed in many cases that such rule sometimes serves the cause of injustice. In some jurisdictions the rule has been changed by statute allowing affidavits of jurors for the purpose of impeachment of a verdict on the ground of misconduct of the jury. It seems, moreover, to be a recognized limitation in many jurisdictions that if the foundation can be laid by testimony aliunde that the jurors were guilty of such misconduct as to warrant setting aside the verdict, evidence of the jurors in corroboration and in amplification thereof may be heard” pp. 769-771.

This general rule is also stated in substantially the same manner in 89 C.J.S. Trial § 528 (1955).

Conceding the correctness of this general rule, the defendant-appellant nevertheless argues that affidavits and testimony of jurors are admissible to correct clerical errors and to show when through mistake the wording of the verdict filed does not reflect the actual intent of the jurors in reaching their verdict, or when the foreman incorrectly reported that a verdict was reached when in fact it was not. See 53 Am.Jur. “Trial”, Sections 1110, 1115; 89 C.J.S. Trial § 523. If such exception to the general rule is applicable in Louisiana, we think that nevertheless in the present instance the affidavits and testimony of the jurors, if accepted, would not amount to a correction of an improperly recorded verdict but to the substitution of an entirely different one; as previously stated, under the uniform Louisiana jurisprudence the testimony of the jurors is inadmissible to impeach in such manner their formal verdict.”

In Renz, defendant sought to introduce evidence that the jurors did not intend to make an award for the death of the husband because they believed him to be con-tributorily negligent. See also Dieudonne v. Guidry, 336 So.2d 990 (La.App. 3 Cir. 1976), writ denied, 339 So.2d 853 (La.). (Plaintiff attempted to use the affidavits of certain jurors to impeach the verdict; the foreman of the jury had visited the scene of the accident.); Klein v. Medical Building Realty Co., 147 So. 122 (Orl.Ct. of App. 1933). (Defendant sought to introduce the affidavits of jurors that the large awards made were based on the fact that defendant was insured.)

III.

MOTOR VEHICLE DAMAGE

During trial, after both plaintiffs and defendants had presented their cases, defendants filed an exception of no cause of action and no right of action as regards the claim by plaintiff, Joseph Washington, for damage done to his motor vehicle. At trial, defendants had elicited testimony from plaintiff, Joseph Washington, and Donald Perkins, a claims adjuster for General Adjustment Bureau, that Washington had received collision insurance benefits for his damaged vehicle from his collision insurer, and that Washington had, in addition to receiving checks from his collision insurer, executed an agreement by which Zurich American Insurance Company, the collision insurer was subrogated to the rights of its insured to seek property damage to the wrecked vehicle. This exception of defendants was sustained.

There was evidence that Zurich American Insurance Company, rather than Joseph Washington, was the proper party plaintiff to claim damages for the wrecked motor vehicle. The trial court’s ruling sustaining defendants’ exception of no right of action was supported by the evidence. We affirm. Canter v. Koehring Co., La., 283 So.2d 716 (1973).

IV.

RENTAL OF ANOTHER MOTOR VEHICLE

At trial, three expert repairmen witnesses^ — Joseph S. Petroski, J. B. Carter, and Ruby Dell — testified as to the wrecked condition of plaintiff, Joseph Washington’s vehicle. The former two witnesses were of the opinion that within five weeks after the accident, the vehicle was a total loss, and the cost of repair would have exceeded the value of the vehicle. Ruby Dell opined that the auto could have been repaired for a sum less than its market value.

In his charge to the jury, the trial judge made the following comments relative to damages for rental of another vehicle while the wrecked vehicle undergoes restoration:

“You are charged that three tests may be utilized in determining property damages; the first is the cost of restoration, and the second is difference in value of damaged property preceding and subsequent to the injury and the third is cost of replacement.
“You are also charged that the failure of an automobile owner, whose vehicle is damaged by a tort-feasor, to minimize damages by having repairs made promptly is not a complete bar to the recovery of rental price of a substitute vehicle; such failure affects only the amount recoverable; in determining reasonableness of time needed to make the repairs the uncontrollable delay of the repairmen in securing the parts necessary to complete the work should be considered.”

Generally, damages for loss of the use of a vehicle (or for the rental of another) are recoverable. However, that rule is subject to the following reservation. In those cases in which the wrecked vehicle is totally destroyed or its repair is not economically feasible, those damages are recoverable only for a reasonable time, that period in which the owner becomes aware of the situation and secures a replacement therefor. Hoffman v. All Star Ins. Corp., 288 So.2d 388. (La.App. 4 Cir. 1974), writ refused, 290 So.2d 909 (La.); Barry v. United States Fidelity & Guaranty Co., 236 So.2d 229 (La.App. 3 Cir. 1970).

We find no error in the charge given to the jury on this point, and we do not know what, if anything, the jury awarded for such damages. We find no manifest error.

V.

LOST WAGES

After all parties had presented their evidence, defendants filed an exception of no cause of action and no right of action as regards the claim of Joseph Washington for the lost wages of his wife; the trial judge ruled thereon, denying such exception, and cited the case of Gebbia v. City of New Orleans, 249 La. 409, 187 So.2d 423 (1966), as authority therefor.

As of the time of the rendition of Gebbia, where dispute existed as to whether the wages of the wife were her separate property or community property, either the husband or wife could sue to enforce the action to collect the lost wages of the wife. C.C.P. Art. 686.

“The husband is the proper plaintiff, during the existence of the marital community, to sue to enforce a right of the community.
“Where doubt exists whether the right sought to be enforced belongs to the marital community or to the separate estate of the wife, the husband and wife may sue in the alternative to enforce the right.”

However, in 1970, the Louisiana legislature put to rest the issue as to the proper party to collect the lost wages of the wife, by amending Article 686 to read as follows:

“The husband is the proper plaintiff, during the existence of the marital community to sue to enforce a right of the community.
“Where doubt exists whether the right sought to be enforced belongs to the marital community or to the separate estate of the wife, the husband and wife may sue in the alternative to enforce the right.
“The wife, however, is the proper party plaintiff to sue to enforce the right to recover wages, earnings, income, fees, stipends, proceeds and commissions due her as a result of her engaging in or pursuing any occupation, trade or profession involving her individual efforts, services, skills, arts, professional competence, vocational undertaking and personal endeavors, whether or not the same involves investments.” (Emphasis added.)

Thus the law applicable to this case is that the wife, rather than the husband, possessed the right to enforce an action to collect her lost wages. Accordingly, the trial judge erred, and we reverse that part •of the judgment denying defendants’ exception of no right of action on that issue.

VI.

EXCESSIVE DAMAGES

The sixth assignment of error is defendants’ assertion that the jury erred in awarding excessive special and general damages.

In this case, no special verdict accompanied by interrogatories, (by which the jury would specify the various items of damages) was presented to the jury. No jury instructions were given to allot damages as between the various items claimed. The jury returned a verdict by which Ethel P. Washington was awarded $18,900.00 and Joseph Washington was awarded $7,000.00. We have no permissible insight into how the jury arrived at these figures (having ruled out the propriety of the affidavit).

In the case of Wade v. McInnis-Peterson Chevrolet, Inc., 307 So.2d 798 (La.App. 1 Cir. 1975), the First Circuit Court of Appeal was also presented with a case in which neither special nor general verdicts accompanied by interrogatories were used by the jury. In this case, as in that case, the appellate court has absolutely no insight into the basis of the jury verdict. Accordingly, we will investigate the record so as to determine whether or not the jury committed manifest error.

In her petition, Ethel P. Washington prayed for judgment in the amount of $450,000.00 for physical pain and suffering, and $125,295.00 for mental anguish and distress. To support those claims, plaintiff relies on her own testimony and that of Drs. Edward C. Campbell and Charles A. Borne.

After the accident, plaintiff, Ethel Washington, was taken to the emergency room of St. Patrick’s Hospital in Lake Charles, where she was treated by Dr. Edward C. Campbell, an orthopaedic surgeon. After a short (ten to twenty minutes) examination, Dr. Campbell discharged his patient.

Later that same day, complaining of neck and back pain, Mrs. Washington again sought admittance into St. Patrick’s Hospital. There she remained hospitalized until February 2, 1976. During her brief stay, tranquilizers, muscle reláxants, physiotherapy, traction, and exercises were prescribed; x-rays of her right knee, right shoulder, cervical spine, and lumbar spine, all of which displayed negative results, were taken; Mrs. Washington was seen almost daily by Dr. Campbell.

Dr. Campbell thereafter examined Mrs. Washington on six different occasions (February 13, 27, March 18, April 15, May 18, June 17). Dr. Campbell believed that plaintiff could return to part-time employment on March 3, and to full-time employment on April 15. He was of the opinion that Mrs. Washington had suffered a sprain-type injury to her cervical spine and opined:

“I feel that she should recover or have recovered within six months of injury . . . I don’t feel that they’re [symptoms] disabling or that she has any permanent injury from the accident.”

Beginning on March 30,1976, Dr. Charles A. Borne, a neurosurgeon, examined Mrs. Washington. The results of his physical examinations of his patient were negative, although they revealed tenderness and pain complaints upon palpitation of the cervical regions. At that time, Dr. Borne believed that Mrs. Washington suffered a cervical strain to her neck.

Thereafter, Dr. Borne treated Mrs. Washington on numerous occasions. On May 10 and June 17, the patient had the same complaints, and medication (muscle relaxants) were prescribed therefor. On August 12, an electromyogram was conducted, the results of which were within normal limits. On August 23, September 2, and September 20, the patient still made the same complaints of pain.

On September 26, Mrs. Washington was admitted to Lake Charles Memorial Hospital, where she remained until September 29. While there, Mrs. Washington underwent an electroencephalogram (brain wave test), an echoencephalogram, brain scan, cerebral blood flow study, myelogram of the lumbar, dorsal, and cervical regions, bone scan, and a cardiogram, the results of all of which were normal.

In the latter part of October and the early part of November (Nov. 2), 1976, bruises to Mrs. Washington’s body and lumps in her axilla became apparent. On December 1, a biopsy of Mrs. Washington’s axillary masses was conducted. After Dr. Borne reviewed the results of that test, he concluded that neither the bruises nor the lumps were a result of the auto accident, and he opined:

“At this point I think we have done all that is possible, as far as establishing a diagnosis in this patient’s case of anything more than a cervical strain.”

He was further of the belief that a reasonable period of recovery was three (3) to eighteen (18) months after the injury.

On August 22, 1976, Dr. James Ambris-ter, an orthopaedic surgeon, examined Mrs. Washington. From his physical examination of the patient and from his review of the tests previously conducted upon his patient, Dr. Ambrister opined:

“The patient was seen approximately one year following an automobile accident with multiple areas of pain. The examination of these regions revealed no findings which would explain a basis for her symptoms. That is to be on the basis of trauma. The x-ray examinations of the painful regions were normal.”

He concluded that the patient’s complaints were not clinically significant and were not disabling.

Although there is evidence that plaintiff, Ethel Washington, suffered a strain to her cervical spine, we believe that the damages awarded to her are excessive. However, we have only the record before us. The trial judge and the jury were in a better position to witness the demeanor of those who testified before them. The award was within the perimeters of that which could have been granted. Therefore, we can but affirm the award to plaintiff, Ethel F. Washington. Coco v. Winston Industries, Inc., La., 341 So.2d 332 (1976).

Plaintiff, Joseph Washington, prayed for judgment in the amounts of $2,800.00 in property damage; $1,755.00 in medical expenses; $20,000.00 for future medical expenses; $2,000.00 for his non-use of his wrecked motor vehicle; $17,800.00 for mental anguish and distress; $400.00 for auto storage; $1,180.00 for loss of his wife’s wages; $1,500.00 for traumatic depreciation to his auto, and $700.00 for rental of another motor vehicle.

At trial, there was an evidentiary basis for the award to plaintiff Joseph Washington. It was stipulated as between counsel that the medical bills for the treatment of Ethel Washington totalled $4,649.15. (That item of damages is part of the community, for which Joseph Washington, as head and master thereof, can sue. LSA-C.C. Art. 2334). There was a possibility of future medical expenses. Plaintiff was entitled to an award for rental of another motor vehicle and for damages to his automobile (the deductible amount of the collision auto insurance policy). The jury award of $7,000.00 was not an abuse of the much discretion rule. Coco v. Winston Industries, Inc., supra.

For the foregoing reasons, we affirm the judgment of the trial court on all issues save and except the portion thereof which denies defendants’ exception of no right of action as to the husband’s right to sue for recovery of the wife’s wages.

All costs of this appeal are assessed against the defendants.

AFFIRMED IN PART and REVERSED IN PART.

WATSON, J., concurs in the result.


text:
    Terry RICHARDSON v. Clifford J. DARBY, Chris R. Valley and State Farm Fire and Casualty Company.
    No. 8458.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.

      Meunier, Martin & Meunier, Marcel J. Meunier, Jr., New Orleans, for plaintiff-appellant.
    Lenfant & Villere, Howard W. Lenfant, New Orleans, for Chris R. Valley, defendants-appellees.
    Before STOULIG, BOUTALL and BEER, JJ.
   STOULIG, Judge.

Plaintiff, Terry Richardson, filed suit against Clifford J. Darby, owner-lessor; State Farm Fire and Casualty Company, his liability insurer; and Chris R. Valley, the rental and management agent who handled the property, for personal injuries she allegedly incurred because of a vice or defect in the premises. After entering into a compromise agreement with the owner and his insurer, plaintiff dismissed her suit against them. The claim against co-defendant Valley, grounded on allegations of his negligence, remained. Valley then pleaded exceptions of no right or cause of action which the trial court maintained and dismissed plaintiff’s suit.

We reverse. For the purposes of deciding an exception of no cause of action, the allegations of the petition must be accepted as true. C.C.P. art. 931.

In essence, plaintiff claims Valley’s negligence consisted of failure to take steps to correct a defect in the premises he knew existed and a failure to comply with the owner’s mandate to him as agent to inform the owner of defects and to see to their repair. Plaintiff states a cause of action under C.C. art. 2315.

In resisting reversal, appellee contends the compromise between the claimant-owner/insurer also released the real estate agent. Williams v. Marionneaux, 240 La. 713, 124 So.2d 919 (1960), cited in support of this proposition, is distinguishable in that the claimant therein released a vicariously liable employer by entering into a compromise with the employee-tortfeasor. In that case there was one cause of action based on the employee’s negligence and under the respondeat superior doctrine, the employer’s derivative liability is limited to the amount for which his employee might be cast. In the case before us, the petition states a cause of action against Valley based on his individual negligence. The lessor’s alleged liability was grounded on C.C. art. 2695, allegations of negligence independent of those of Valley, and under the doctrine of respondeat superior. In short the petition alleged Valley and Darby were co-tort-feasors.

“An agent’s liability for his own tor-tious acts is unaffected by the fact that he acted in his representative capacity or by the authority or direction of another * * *3 C.J.S. Agency sub. D. Torts § 379 at page 201.

The jurisprudence governing the liability of an agent for tortious acts committed against third persons in fulfilling the mandate of its principal is expressed in the cases of Ellender v. Sabel, 175 So.2d 714 (La.App. 1st Cir. 1965), and Sterling v. Jones, 249 So.2d 334 (La.App. 1st Cir. 1971). In Ellender the court stated:

“ * * * [T]he generally applied and accepted rule in Louisiana [is] that an agent is not ordinarily liable to third persons for his nonfeasance where the non-performed act was owed only to the principal. * * * ” 175 So.2d at 718.

The court in Sterling held:

“We interpret * * * Ellender, above, as establishing the rule that an agent may incur liability to third parties provided the agent is found to have owed the third party a duty and has breached such duty. * * * ” 249 So.2d at 337.

Plaintiff’s petition does set forth specific allegations of duties which she alleged the rental agent breached. Based upon these averments, which must be accepted as true for the purposes of this exception, plaintiff’s petition is not vulnerable to an exception of no cause of action.

For the reasons assigned, the judgment appealed from is reversed and this matter is remanded for further proceedings consistent with the views herein expressed. Ap-pellee is to pay the cost of this appeal.

REVERSED AND REMANDED.


author: SCHOTT, Judge. PER CURIAM.

text:
    Succession of Charles Albert DIXON.
    No. 8467.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Rehearing Denied Dec. 13, 1977.
    Anthony J. Russo, New Orleans, for plaintiff-appellee (Lois Mae Dixon).
    R. M. Denton, Metairie, for administra-trix-appellee (Joyce Dixon).
    Ronald P. Herman, Philip R. Johnson and Philip R. O’Neill, Metairie, for defendant-appellant (Mildred Spurlock).
    Before LEMMON, GULOTTA and SCHOTT, JJ.
   SCHOTT, Judge.

The administratrix of this succession filed a petition for partition by licitation of immovable property in which the succession allegedly owned a one-half interest and the appellant owned the other one-half interest. In response appellant filed exceptions of prematurity and no right of action. The trial court overruled these exceptions and ordered that “the partition by licitation be allowed.” From this judgment the present appeal was taken.

The judgment overruling exceptions is not a final judgment but is only interlocutory and appellant has not shown that it will cause irreparable injury. Consequently, it is not appealable. LSA-C.C.P. Art. 2083, State v. Placid Oil Co., 274 So.2d 402 (La.App. 1st Cir. 1972) affirmed in part, amended in part on other grounds, La., 300 So.2d 154. If this were the only aspect of the judgment we would be inclined to dismiss the appeal, but considering that the trial judge ordered that the partition be allowed, some further action on our part is warranted.

With the overruling of the exceptions filed by appellant it was in order for the trial judge to permit appellant to answer the petition, thereby joining issue. The merits of the partition suit were not before the trial judge, and consequently that portion of the judgment which ordered that the partition be allowed was not responsive to the pleadings.

We note that the petition for partition was followed with an order for appellant to show cause why the judgment should not be rendered as prayed for, and this might explain why the court ordered the partition in a summary fashion. Nonetheless, this is not a petition for public sale of succession property under C.C.P. Art. 3271, but rather a petition for partition between co-owners under Art. 4603, which prescribes that a partition proceeding is subject to the rules regulating ordinary proceedings. In order for the trial court to adjudicate the merits of the case it would be necessary for issue to be joined either by appellant’s answer or by the administratrix entering a preliminary default against appellant.

Accordingly, the judgment appealed from insofar as it orders that the partition be allowed is reversed and set aside, and the case is remanded to the district court for further proceedings. The costs of this appeal are assessed against the Succession, and all other costs are to await the outcome of the case.

REVERSED AND REMANDED.

PER CURIAM.

In her application for rehearing appellee states that we reversed the judgment of the trial court on the grounds of unauthorized use of summary proceedings and challenges our right to do so in view of the fact that appellants did not file a dilatory exception of unauthorized use of summary proceeding and thereby waived that objection pursuant to LSA-C.C.P. Art. 926. We did not reverse on that ground but rather on the ground that the judgment, to the extent that it ordered that the partition by Imitation be allowed, was not responsive to the pleadings at that time.

To further elucidate on the status of the pleadings, when this rule was tried appel-lee’s original petition did not encompass a summary proceeding in the first instance. The prayer of her petition was that appellant be cited and served, that there be judgment in her favor after due proceedings. She further prayed that the property be partitioned by licitation, that the sale of the property be conducted at public auction and that a notary of the parish be appointed to affect the partition. The record shows that the matter was submitted on argument of counsel, but there is no record of any evidence being taken or any stipulations of fact. Art. 4605 contemplates a trial at which evidence is adduced on the basis of which the court makes the determination as to whether or not plaintiff is entitled to a partition of the property.

Furthermore, the order attached to the petition for partition setting the rule for trial on August 31, was later continued to September 17, on which date exceptions were filed. The exceptions only were fixed for trial on October 8, and the judgment appealed from was rendered after the October 8 trial of the exceptions. Indeed, the judgment itself referred to an October 8 hearing on the exceptions, which was the only matter set for trial on that date.

We adhere to our original opinion and the rehearing is denied.

REHEARING DENIED.


author: BEER, Judge.

text:
    Perry Lee FISHER, M.D. v. LOUISIANA STATE BOARD OF MEDICAL EXAMINERS et al.
    No. 8776.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Rehearing Denied Dec. 13, 1977.
    Writ Refused Jan. 20, 1978.
    Edwards, Stefanski & Barousse, Homer Ed Barousse, Jr., Crowley, for plaintiff-appellant.
    Adams & Reese, Robert J. Conrad, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, STOULIG and BEER, JJ.
   BEER, Judge.

Perry Lee Fisher appeals a decision of the Louisiana State Board of Medical Examiners (hereafter, “Board”), affirmed by the Civil District Court for the Parish of Orleans, which revoked his license to practice.

On May 1, 1976, at a specially called meeting, the Board considered information provided by the Drug Enforcement Agency of the United States Department of Justice and, under authority of La.R.S. 49:961, suspended appellant’s license, concurrently initiating adequate but unsuccessful efforts to advise him that a revocation hearing had been set. On August 20, 1976, the Board convened a hearing at which Fisher was not present and revoked his license upon finding that he had prescribed and dispensed habit-forming, legally controlled drugs in other than a legal or legitimate manner, a violation of La.R.S. 37:1285(6).

Notice of revocation was eventually received by Fisher, who, thereupon, through counsel, sought and was granted a rehearing. On December 9, 1976, the Board convened a rehearing of the original charge of violation of La.R.S. 37:1285(6). It also considered an additional charge that Fisher had violated La.R.S. 37:1285(11) by making and submitting fraudulent claims against the Louisiana Division of Family Services. Following that hearing, at which appellant was present and represented by counsel, the Board made findings of fact and conclusions of law:

“FINDINGS OF FACT
1.
Dr. Perry Lee Fisher, M.D. did, in fact, sell and issue prescriptions for 25 Dilau-did (2mg) tablets and 25 Preludin (75mg) Endurets to a person known to him as John Brooks on or about March 14, 1975, at his office at'461 Sandoz Street in Opel-ousas, Louisiana without reasonable medical justification therefor and received in payment the sum of Fifty and No/100 ($50.00) Dollars for said prescriptions.
2.
Dilaudid is a drug of choice of drug addicts and has a high street resale value. The sale of the above prescriptions was made by Dr. Fisher to a drug user who was acting in cooperation with the Drug Enforcement Agency of the United States Department of Justice.
3.
The Drug Enforcement Agency was acting upon intelligence information previously received from the East Baton Rouge Parish Sheriffs Office, the Baton Rouge Police Department, and the Louisiana State Police that such prescriptions were being obtained at request from Dr. Fisher’s office.
4.
Dr. Perry Lee Fisher, M.D. was also charged by indictment in the United States District Court for the Middle District of Louisiana in criminal proceedings # 76-23 with violations of 18 U.S.C. 1341 and 18 U.S.C. 2 for ‘devising and intending to devise a scheme and artifice to defraud and for obtaining money and property by means of false and fraudulent pretenses and representations from the Louisiana Division of Family Services, a branch of the State of Louisiana Health and Human Resources Administration’ which was administering the Medicaid program as provided for by the Social Security Act.
5.
According to said indictment, it was part of the scheme that false and fraudulent claim forms were intentionally prepared and submitted to the Louisiana Division of Family Services in order to induce payment to Dr. Perry Lee Fisher, M.D. for services not actually rendered to patients.
6.
Dr. Perry Lee Fisher, M.D. pled guilty to one count of said indictment and therefore stands convicted of a crime.
7.
The crime for which he stands convicted arose out of and from his practice of medicine in the State of Louisiana and, because of the nature thereof, has a direct and proximate relationship to his qualifications for continued practice.
CONCLUSIONS OF LAW
Based upon the foregoing Findings of Fact, the Board concludes, as a matter of law, that:
1.
Perry Lee Fisher, M.D. was prescribing and dispensing habit-forming or other legally controlled substances in other than a legal or legitimate manner and therefore just cause exists for action against his license as provided for by LSA-R.S. 37:1285(6).
2.
Perry Lee Fisher, M.D. was making and submitting false and deceptive claims to a governmental authority for the purpose of obtaining monetary compensation for services rendered and therefore just cause exists for action against his license as provided for by LSA-R.S. 37:1285(11).
3.
Perry Lee Fisher, M.D. has been convicted of a crime and therefore, just cause exists for action against his license as provided for by LSA-R.S. 37:1285(1).”

Thereupon, the Board affirmed its previously suspended revocation of Fisher’s license. Subsequently affirmed by the Civil District Court for the Parish of Orleans, the revocation is here challenged by appellant’s contentions that the Board committed error when it permitted the introduction of “multilevel hearsay evidence without other substantial supporting evidence.” Specifically, appellant alleges error in the Board’s apparent consideration of a transcript of the August 20, 1976 proceedings at which appellant was neither present nor represented, as well as the introduction and apparent consideration of a report of the Drug Enforcement Agency signed by a special agent who was not present at the hearing. The report shows Fisher to be a regular source of illicit prescriptions for Preludin and Dilaudid.

The admission of the transcript of the August 20th proceeding is of little evi-dentiary consequence in light of the fact that Fisher was present and represented by counsel at the rehearing. Since the identical evidence with respect to violation of LSA-R.S. 37:1285(6) was presented at each hearing, he was not materially prejudiced by the admission of the earlier transcript even though its admission served no useful purpose.

The Drug Enforcement Agency report consisted, essentially, of reports made to the D.E.A. by the East Baton Rouge Parish Sheriff’s Office, the Baton Rouge Police Department, and the Louisiana State Police Narcotics Division. They were, in turn, based upon informants’ statements to those agencies concerning Fisher’s alleged illicit activities. The D.E.A. report also contained a description of an incident in which special agents met with one of the informants and formulated plans for a controlled purchase of evidence from Fisher. The agents and the informant went to Opelousas where the informant, under surveillance, obtained prescriptions from Fisher for Preludin and Dilaudid without a cursory medical examination. Special Agent Bremer appeared at the revocation hearing and verified his participation and the essential facts of this incident.

Hearsay evidence is admissible in administrative proceedings. The Louisiana Administrative Procedure Act (La.R.S. 49:956) permits admission of any evidence which possesses “probative value commonly accepted by reasonably prudent men in the conduct of their affairs,” subject to objections of irrelevancy, immateriality, incompetency, or repetitiousness. Concerned with this aspect of administrative law procedure, Professor Kenneth Davis has observed:

“(T)he reliability of hearsay ranges from the least to the most reliable. The reliability of non-hearsay also ranges from the least to the most reliable. Therefore the guide should be a judgment about the reliability of particular evidence in a particular circumstance, not the technical hearsay rule with all its complex exceptions.” Kenneth Davis, “Hearsay in Administrative Hearings,” 32 Geo.Wash.L. Rev. 689 (1964).

In the instant case, the hearsay evidence was reliable and supports, along with other acceptable evidence, the finding of a violation of La.R.S. 37:1285(6).

There exists a strong presumption of validity and propriety in administrative actions such as that with which we are here concerned. See, Ross v. Stewart, 227 U.S. 530, 535, 33 S.Ct. 345, 348, 57 L.Ed. 626 (1926); Maryland National Capitol Park and Planning Commission v. Lynn, 168 U.S. App.D.C. 407, 514 F.2d 829 (1975); Plantation Anhydrous Ammonia Corp. v. Anhydrous Ammonia Commission, 234 La. 869, 882, 101 So.2d 699, 703 (1958). Also note our observations in Gertler v. City of New Orleans, 346 So.2d 228 (La.App. 4th Cir. 1977), writ refused, 349 So.2d 885 (La., 1977).

Furthermore, La.R.S. 37-1285 gives the Board discretion to revoke for any of various enumerated grounds. Thus, even if the Board’s fact findings were successfully attacked, appellant’s uncontested admission of guilt with respect to the submitting of false claims to a governmental agency constituted sufficient grounds for revocation under La.R.S. 37:1285(1) and (11).

The trial court’s determination that the Board’s order was within its statutory authority and based upon findings of violations of the Medical Practice Act is supported by the record and is, accordingly, affirmed at appellant’s cost.

AFFIRMED.


author: BEER, Judge. PER CURIAM.

text:
    Shirley GIBSON v. NEW ORLEANS PUBLIC SCHOOL BOARD.
    No. 8829.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 10, 1977.
    Rehearings Denied Dec. 13, 1977.

      Polack, Rosenberg, Rittenberg & Endom, Lawrence W. Koltun, New Orleans, for defendant-appellant.
    Cameron C. Gamble, New Orleans, for plaintiff-appellee.
    Before LEMMON, STOULIG and BEER, JJ.
   BEER, Judge.

Shirley Gibson, age 34, had been recently employed by the school board to do custodian type work when she allegedly slipped and fell in the course of mopping the floor at Colton High School; this compensation suit resulted.

The trial court found that she had suffered a back sprain causing physical disability which persisted until the time of her discharge by her treating physician. Furthermore, the trial judge concluded that Gibson’s “adjustment reaction of adulthood with features of paranoia” (the descriptive diagnosis of the only psychiatrist who testified) resulted from the same slip and fall incident. This condition, the judge observed, was a “major factor in the mental demise” of Gibson. He cited Sanderson v. Employers Liability Assurance Corporation, 181 So.2d 869 (La.App. 4th Cir. 1966), and Laborde v. Martin, 316 So.2d 437 (La.App. 3rd Cir. 1975), (which we find totally inop-posite) in support of his conclusion that in spite of her discharge by her own physician, Gibson was disabled as a result of an emotional and mental condition and thus entitled to judgment in the amount of $65.00 per week for 500 weeks plus interest, etc.

Appellant, Orleans Parish School Board, contends that the trial court erred in holding that the minor trauma which plaintiff sustained on July 2, 1975 caused plaintiff’s alleged “adjustment reaction of adulthood with features of paranoia;” in holding that plaintiff’s “adjustment reaction of adulthood with features of paranoia” disables her; alternatively, in ruling that plaintiff’s “adjustment reaction of adulthood with features of paranoia” permanently disables her; alternatively, in holding that the injury which plaintiff sustained on July 2, 1975 disabled her through May 15, 1976; and, alternatively, in establishing the rate of disability benefits at $65.00 per week.

Immediately following the alleged slip and fall, Gibson was examined by Dr. Arthur Axelrod, a general surgeon, who performed a straight leg raising test, a neurological examination, and other examinations and found no signs of any external trauma. He diagnosed a contusion to the left lumbar area. Subsequent reexaminations by Dr. Axelrod and also by Dr. Richard Faust produced no objective findings. She was discharged as able to return to work within two weeks following the incident.

Gibson’s attorney then recommended that she consult Dr. Vernon Kroll, who found no signs of external injuries at his initial examination or at any time during the course of his consultations with Gibson which lasted from July 30,1975 through May 15,1976. He did find voluntary limitation in forward bending movement and in the straight leg raising test, and, on that basis, diagnosed back strain and instituted physical therapy treatments which continued until he discharged her on May 15, 1976. During this time, Gibson complained about her knee, so Dr. Ray Haddad, an orthopedist to whom Dr. Kroll referred Gibson, examined her and found nothing wrong with her knee. In October 1975, Gibson contends that she began “talking funny and I’d get a choking like I’m going to pass out.” She testified that she was treated at Charity Hospital for this emotional disturbance and was then referred to the New Orleans Mental Health Center, where she was evaluated by Dr. Roger Anastasio, staff psychiatrist, in December, 1975. He found that she was experiencing “adjustment reaction of adulthood with features of paranoia.” This psychiatrist testified at the trial that Gibson could not function properly in an employment situation because of her difficulty in dealing with authority figures. He further testified that although she had been doing well in March of 1976, her condition deteriorated in the last couple of months before trial and, though it was his conclusion that she would probably “recover,” she ■ was, nevertheless, disabled now. He felt that Gibson’s condition was neither a neurosis nor a psychosis, but an anxiety reaction which could have been triggered by any number of events. He could not say with any certainty that the slip and fall caused her condition.

On cross-examination, this psychiatrist admitted no knowledge of Gibson’s numerous stress causing problems with her employer (which predated her alleged slip and fall) or the fact that she had exhibited job adjustment problems unrelated in any way to the alleged slip and fall. Theodore Hawkins, Gibson’s supervisor during the short time she had been employed by the school board, testified of prior instances in which Gibson had refused to follow orders and indicated that she clearly was a problem employee before the alleged slip and fall. He related an incident in which she had been denied use of a particular elevator whereupon, as a direct result, she sent an alarm over the school public address system that she had just fallen down the stairs and broken her leg — a totally untrue statement. A letter dated April 23,1975 (several weeks prior to her alleged slip and fall) from the director of Custodial Services of the school board had warned Gibson that her employment record was not good — a general prerequisite to discharge for cause.

The above incidents and their chronological significance in the causation of Gibson’s alleged disability were called to the attention of Dr. Anastasio, who had based his diagnosis on the “stress” resulting from Gibson’s slip and fall:

“EXAMINATION BY MR. KOLTUN:
A. I had to go on the history (she gave), yes.
Q. Now, stress could have come in several forms, could it not?
A. Yes.
* * * Si! * *
Q. Stress could also be in the form of a letter from her employer threatening to fire her if she did not improve?
A. Yes.
Q. Constant arguing with her supervisor or assistant supervisor, would be described as stress and disability responses to stress?
A. It would show difficulty in getting along with authority figures.
Q. Well, in forms of work, that would disable her from working?
A. It would certainly be a factor. Yes, if she doesn’t get along.
* * * * . 5k #
Q. Or for example, a disability response would be whereby Mrs. Gibson had been told to stay away from an elevator and not use an elevator by her supervisor, she goes ahead and calls on an intercom and states I broke my leg, and stating this at all points, calling on the intercom summons people in her employment situation, and then treats that as a joke with a smile on her face, would that not be correct?
A. It would be and I believe an appropriate response. Whether or not it would be a disability, I imagine it would be up to her employer.
Q. It would be a sign of her inability to deal with people in authority, would it not?
A. It would show.
* ¡‡: * ¡k ¡ts *
Q. Doctor, as you recall I took your deposition on November 15th, 1976. Now, I’d like for you to turn to Page 33, Line 19 and I will read. — ‘Or if she calls up and states I broke my leg and the supervisor comes up, and once up — now that you are here you can operate the elevator.’ That’s not the sign of disability, that you are talking about?
A. It’s a sign of her inability to deal with people in authority.
Q. Can you consider this disability?
A. Yes, my opinion if it was my employer doing that, I would consider that employer not to be hired, unable enough to work for me.
¡k * * sjc ¡}s
Q. Now, it’s your opinion that plaintiff is disabled from doing any work or working with supervision?
A. Essentially any work because of the fact that any work she could do requires some type of supervision.”

At the time of trial, Dr. Anastasio stated that Gibson’s inability to get along with authority figures constituted a disability from performing her job. He had seen her in May and August, but his reports from those interviews did not suggest she was disabled. It was not until October (just prior to trial) that, without again seeing Gibson, he rendered a report indicating that she was “disabled.” He admitted his understanding that such a report was a requisite for her recovery in the workmen’s compensation trial about to commence.

It is the well established jurisprudence of the state that plaintiff in a workmen’s compensation case may recover for disability resulting from a mental condition. Victoriana v. Orleans Parish School Board (La.App. 4th Cir. 1977); Melerine v. Ford Motor Corporation, 239 So.2d 406 (La.App. 4th Cir. 1970). However, in such cases, the court must proceed with utmost caution, particularly where there is an absence of objective symptoms. Victoriana v. Orleans Parish School Board, supra; Sanderson v. Employers Liability Assurance Corporation, supra. It is the responsibility of the trial judge to evaluate all the testimony, both lay and medical, and the duty of the trial judge to reject testimony which is lacking in credibility. Jennings v. Halliburton Company, 346 So.2d 268 (La.App. 4th Cir. 1977). Furthermore, where it has been demonstrated that the psychiatrist has relied entirely on an incomplete or inaccurate history, his conclusion as to the cause of the alleged condition may be completely disregarded. Jennings, supra; Smith v. Wiley Wood Construction Co., 247 So.2d 904 (La. App. 4th Cir. 1971); Melerine, supra. The applicability of this rule in the case at bar is further warranted by the inconclusiveness of the psychiatrist’s testimony.

While we also disagree strongly with the trial court’s findings of physical disability beyond the initial two-week period and believe that he was in error in reaching such a conclusion, we are not able, in this respect, to categorize that error as manifest, demanding reversal. By considering the record in a context most favorable to Gibson (in view of the trial court’s judgment), we do find minimal support for the contention that Gibson could not fully perform all of the duties of her job — as a result of the alleged slip and fall — until she was certified as able to return to work by Dr. Kroll in April of 1976.

In this connection, we must also address the erroneous ruling of the trial court that Gibson is entitled to have her disability payments based on a six day work week. This ruling was incorrectly grounded on La.R.S. 23:1021(11) (1950), as it existed pri- or to its amendment in 1968. It read:

“(11) ‘Wages’ means the daily rate of pay at which the service rendered by the injured employee is recompensed under the contract of hiring in force at the time of the injury.”

Jurisprudence interpreting this statute required the use of a six day work week in calculating the weekly wage of an employee who worked five days per week for forty hours each week. See, e. g., McPhearson v. Hunt Lumber Co., 158 So.2d 430 (La.App. 3rd Cir. 1968).

By Acts 1968, Ex.Sess. No. 25, Sec. 1, this section of the act, now codified as La.R.S. 23:1021(7), was amended to read:

“(7) ‘Wages’ means average weekly wage at time of the accident. The average weekly wage shall be determined as follows: (a) If the employee is paid on an hourly basis, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury or forty hours, whichever is greater . . . .”

It is this amended statute which should have been applied by the trial court. Sixty-five percent of plaintiff’s average weekly wage of $2.10 per hour for forty hours is $54.60 per week.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans is amended and recast, and it is now ordered, adjudged and decreed that there be judgment herein in favor of Shirley Gibson and against Orleans Parish School Board, awarding said Shirley Gibson compensation payments at the rate of $54.60 per week from July 16, 1975 to May 15, 1976, with legal interest on each past-due installment from its due date until paid, subject to a credit of $130.00. It is further ordered, adjudged and decreed that there be judgment herein against Orleans Parish School Board and in favor of Shirley Gibson for those specific and particularized medical expenses incurred and paid by said Shirley Gibson as a result of her examination and treatment by Dr. Vernon Kroll and Dr. Ray Haddad. It is further ordered, adjudged and decreed that the expert fees of Drs. Axelrod, Kroll and Faust be taxed as costs and that costs in the trial court proceeding shall be borne by Orleans Parish School Board. Each party is to bear their own costs of appeal.

As amended and recast, the judgment is affirmed.

AMENDED, RECAST AND, AS AMENDED, AFFIRMED.

ON APPLICATIONS FOR REHEARING

PER CURIAM.

Though we deny both applications for rehearing, we correct our original opinion to provide that the Orleans Parish School Board shall be cast only for those costs which are not exempted by the application of La.R.S. 13:4521. The board, nevertheless, must bear its own expert witness fees. (Specifically, plaintiff must pay her experts and the school board must pay its experts.)

APPLICATIONS FOR REHEARING DENIED.


author: HOOD, Judge.

text:
    Von Elton CHAMPION, Plaintiff-Appellant, v. FARM BUREAU INSURANCE COMPANY, Defendant-Appellee.
    No. 6143.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 17, 1977.
    Rehearing Denied Dec. 14, 1977.
    Writ Refused Feb. 10, 1978.

      Kelly & Ware by Donald G. Kelly, Natch-itoches, for plaintiff-appellant.
    Plauché, Smith, Hebert & Nieset by A. Lane Plauché, Lake Charles, for defendant-appellee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   HOOD, Judge.

Von Elton Champion seeks to recover from Louisiana Farm Bureau Mutual Insurance Company (Farm Bureau) that part of a money judgment rendered against him which is in excess of the limits provided in a liability policy issued by defendant, plus damages and attorney’s fees. Judgment was rendered by the trial court in favor of defendant. Plaintiff appealed. We affirm.

The issues presented are: (1) Did defendant breach its duty or contractual obligation to plaintiff by failing to settle a tort action then pending against Champion by paying to the claimant the maximum limits provided in the liability policy which defendant had issued to plaintiff? (2) Did defendant breach its contractual obligation to Champion by failing to defend him in the above tort action?

This suit is a sequel to the case of Walker v. Champion, 274 So.2d 840 (La.App. 3 Cir. 1973), which was later reversed by the Supreme Court. See Walker v. Champion, 288 So.2d 44 (La.1974).

In 1972, Terry Wayne Davis sustained injuries which resulted in the loss of an eye. A suit for damages was instituted in Davis’ behalf by his natural tutrix, Mrs. Dimple Hardee Walker, against Barry DeBlieux, Champion and the latter’s insurer, Farm Bureau. Davis was emancipated by marriage while the suit was pending. On September 15, 1972, the trial court rendered judgment in favor of Davis and against all defendants, in solido, for the sum of $100,-000.00, but limiting the liability of Farm Bureau to the policy limits of $50,000.00, plus $500.00 in medical expenses, or a total of $50,500.00. The defendants appealed.

The appeal was argued before this court on January 29, 1973. We rendered judgment on March 12,1973, amending the trial court judgment by reducing the award from $100,000.00 to the sum of $35,000.00. Davis applied for a rehearing which we denied on April 1, 1973. (See 274 So.2d 840).

On April 6, 1973, Davis gave Notice of Intention to apply to the Supreme Court for Writs, and he in fact filed his application for a Writ of Review on April 25, 1973. The writ was granted on May 29, and the case was argued before the Supreme Court on November 1, 1973. The Supreme Court, by judgment rendered on December 3,1973, reversed the judgment of the Third Circuit Court of Appeal and reinstated the judgment of the district court. Defendants’ application for a rehearing was denied a few weeks later.

Shortly after the Supreme Court judgment became final, defendant Farm Bureau paid the sum of $59,443.33 to Davis, as the full amount owed by Farm Bureau under its policy and under the judgment rendered against it, with interest and costs. Davis thereupon executed a receipt and release, relieving Farm Bureau from any further obligation under the judgment, but reserving his rights against the other defendants, DeBlieux and Champion.

Champion then made demand on Farm Bureau for the amount of the excess judgment which was rendered against him, and for attorney’s fees and damages. Defendant rejected that demand, and the instant suit was filed by Champion on May 22, 1974. In the instant suit judgment was rendered by the trial court in favor of defendant, and Champion appealed. It is that appeal which is before us now.

Plaintiff alleges, as the basis for its principal demand, that on April 13, 1973, Davis offered to settle his entire claim against Champion and Farm Bureau for the policy limits, plus interest and costs, but that the offer was refused by Farm Bureau, the latter offering to pay no more than the amount of the Court of Appeal judgment. Champion contends that Farm Bureau breached its obligation under the policy, and that it was negligent, arbitrary and capricious in its failure and refusal to settle the claim within the policy limits. He claims that as a result of the insurer’s negligence, plaintiff has suffered substantial damages. He prays for judgment against Farm Bureau for the aggregate sum of $211,081.81.

The evidence shows that the only opportunity which Farm Bureau had to settle Davis’ claim for the policy limits of $50,-500.00, was in response to an offer made by or in behalf of Davis on April 13, 1973. On that date, counsel for Davis wrote to Champion’s attorney, as follows:

“My clients will, at this time, accept the policy limits of the insurer of Mr. Champion, Louisiana Farm Bureau Mutual Insurance Company, with interest on sums payable under the policy, and for payment of cost.”

The above offer was made after the Third Circuit Court of Appeal had reduced the award of damages to $35,000.00, and before the Supreme Court reinstated the trial court award of $100,000.00. The offer was communicated to defendant’s attorney, but Farm Bureau refused to pay more than the amount awarded by the Court of Appeal. Davis’ offer to settle for policy limits thus was rejected.

Two offers to settle were made by Davis prior to the time the case was tried in the district court, but both of those offers were for more than the policy limits. One such offer was made on July 18, 1972, when Davis indicated that he would accept $75,-000.00 as a compromise settlement. The other was made on August 25, 1972, when he offered to accept $85,000.00 in settlement of his claim. Champion testified, however, that in both instances he was unable or unwilling to pay the excess over the policy limits. The case thus could not have been settled even if Farm Bureau had been willing to pay its policy limits.

The record contains some letters from counsel for Farm Bureau to counsel for Champion, in which the former expressed the view several times before the case was eventually concluded that Davis’ claim had a judgment value of about $15,000.00 to $20,000.00, and that a fair settlement figure of the claim would not exceed $20,000.00. As far as we have been able to determine, Champion did not disagree with that view at any time before judgment was rendered by the court of appeal.

Champion contends here that on or shortly after April 13, 1973, Farm Bureau breached its duty to him, and was negligent, arbitrary and capricious, in refusing to pay its policy limits of $50,500.00 to settle Davis’ claim, even though there was outstanding at that time a final judgment of the Court of Appeal decreeing that Farm Bureau was liable only for $35,000.00.

A liability insurer is not required to settle a claim against its insured within the policy limits, under penalty of absolute liability for any excess judgment which may be rendered against the insured. The insurer, however, may be liable to its insured for the excess of the policy limits for which the insured is cast, where the insurer’s failure to accept an offer of compromise within policy limits is not in good faith, or is arbitrary or capricious under the circumstances. Younger v. Lumbermens Mutual Casualty Company, 174 So.2d 672 (La.App. 3 Cir. 1965); Cousins v. State Farm Mutual Automobile Insurance Co., 294 So.2d 272 (La.App. 1 Cir. 1974).

A determination as to what constitutes a breach of contract, negligence or bad faith, depends on the facts and circumstances of each case, and a number of factors may be considered by the court in making that determination. Roberie v. Southern Farm Bureau Casualty Insurance Company, 250 La. 105,194 So.2d 713 (1967).

In the instant suit, the trial judge found that Farm Bureau was not arbitrary, capricious or in bad faith in failing to settle Davis’ claim under the April 13,1973, offer, and that that insurer thus is not liable to Champion for the amount of the excess judgment. The judge said:

“This Court has studied the jurisprudence concerning quantum of eye injury cases prior to the Terry Wayne Davis case and finds that Farm Bureau was not arbitrary, capricious nor in bad faith in failing to settle Von Elton Champion’s (Davis’) claim for the policy limits.”

We agree with the conclusions which were reached by the trial court.

When the judgment rendered in the Davis case was before us for review, we concluded that the award made by the trial judge was excessive and that the judge had abused his discretion in making that award. Numerous cases were cited by plaintiff and defendant to support their arguments as to quantum, but we found no jurisprudence which we felt could support such an award at that time. We thus reduced the award to a sum which we thought was more nearly in line with awards made in other cases for similar injuries. The Supreme Court found that we erred in reducing the award.

The issue presented in the instant suit, however, is not whether we erred in reducing the award of the trial court, but whether Farm Bureau was in bad faith, or was arbitrary or capricious, in relying on the judgment which we rendered, and thus in refusing to pay more than the full amount of that judgment in settlement of Davis’ claim.

We pointed out in Younger v. Lumbermens Mutual Casualty Company, supra, that the liability of an insurer for refusing to accept an offer of settlement is not predicated upon its failure to predict the correct outcome of the action it is defending, but rather whether it unreasonably exposes its insured to a judgment in excess of the policy limits, and whether the proposed settlements are rejected conscientiously in terms of deliberate judgment evaluation rather than for inadequate or no reason. (174 So.2d 672, 677).

We concede that in the earlier suit filed in behalf of Davis, Walker v. Champion, supra, the defendant insurer exposed Champion to an excess judgment when it refused to settle the case by paying Davis $15,-500.00 more than we had formally decreed that it owed. We find, however, that under the circumstances existing then Farm Bureau was reasonable and was justified in refusing to accept the offer made by Davis, and in exposing its insured to that liability. The settlement offer thus was rejected conscientiously, in terms of a deliberate judgment evaluation, and for good reason.

Our conclusion is that Farm Bureau was not in bad faith, and that it was not arbitrary or capricious, in refusing to accept the offer of settlement made by or in behalf of Davis on April 13, 1973. We believe that defendant had the right to rely on the Court of Appeal judgment which at least purported to fix the extent of the liability of Farm Bureau, and thus to reject the settlement offer without incurring liability, even though that judgment later was held to be erroneous by the Supreme Court.

We find no error in the judgment of the district court which rejects plaintiff’s demands for the amount by which the trial court judgment exceeds the policy limits, as well as his demands for damages.

Plaintiff contends also that Farm Bureau breached its duty and its contractual obligation to defend its insured, Champion, in this case. He seeks to recover the sum of $3,750.00, representing the cost which he incurred in retaining counsel to defend him in this case.

Generally, the liability insurer’s duty to defend a suit brought against its insured is determined by the allegations of the injured plaintiff’s petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Thus, if, assuming all the allegations of the petition to be true, there would be both (1) coverage under the policy, and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. The allegations of the petition are liberally interpreted in determining whether they set forth grounds which bring the claims within the scope of the insurer’s duty to defend the suit brought against its insured. Benoit v. Fuselier, 195 So.2d 679 (La.App. 3 Cir. 1967); American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (1969).

If the allegations of the petition are sufficient to impose a duty upon the insurer to defend the insured, and the insurer fails or refuses to do so, then its refusal to provide that defense renders it liable for the expenses which the insured is compelled to incur in defending the action, including reasonable attorney’s fees. Clemmons v. Zurich General Accident and Liability Insurance Company, 230 So.2d 887 (La. App. 1 Cir. 1969).

In the original suit, Walker v. Champion, supra, we think the allegations in the plaintiff’s petition were sufficient to require Farm Bureau to defend its insured, Champion. The issue presented here is whether the insurer provided an adequate defense for Champion in that suit.

On May 26, 1972, shortly after that suit was filed, the State Claims Manager of Farm Bureau wrote to Champion advising that the company had retained an attorney in Natchitoches to represent it, and that that attorney would also represent Champion in defending the suit, but that Champion had the right to retain an attorney of his own choice to represent him personally, if he saw fit to do so.

Prior to the filing of the earlier suit in behalf of Davis, Champion had engaged another attorney, also of Natchitoches, to represent him in connection with another related matter. Immediately after the Davis suit was filed, counsel for Farm Bureau informed the attorney who previously had been retained by Champion that he would defend Champion in the Davis suit. Farm Bureau’s attorney, in fact, prepared a joint answer to be filed by that insurer and Champion, and he submitted that answer to the attorney who had been retained by Champion. Counsel for Champion refused to join in that answer, however, and instead he filed a separate answer in behalf of Champion. The same attorney also filed an answer in behalf of DeBlieux, another defendant. Throughout the litigation, Champion and DeBlieux were represented by that attorney.

The policy which Farm Bureau issued to Champion provides that coverage is excluded for bodily injury “which is either expected or intended from the., standpoint of the insured.” In the joint answer prepared by counsel for Farm Bureau, there was pleaded an alternative defense of lack of coverage, the defendants alleging that there would be no coverage if it should be determined that Champion either expected or intended bodily harm to Davis as a result of his acts. It was because of that alternative defense relating to coverage that Champion refused to join in the answer, and chose instead to be represented by his personal attorney.

The record of the earlier suit instituted in behalf of Davis, and the testimony and many documents presented in the instant suit, show that despite the fact that Champion retained separate counsel in the first suit, the attorney for Farm Bureau nevertheless joined and worked with the insured’s personal attorney in actively defending Champion, both as to liability and as to quantum, throughout the course of the litigation. The record contains a mass of correspondence between the attorneys for Farm Bureau and Champion showing that they conferred frequently about the case. They sometimes jointly planned the manner in which the defense was to be presented and they cooperated with each other in defending Champion in every step of the case. The evidence indicates that counsel for Farm Bureau kept Champion’s personal attorney informed of all communication between the former and all other parties in the suit, and that they particularly discussed with each other all offers of settlement. The record convinces us that Farm Bureau’s attorney was ready and willing at all times to provide the entire defense for Champion, if the latter had consented for him to do so.

It is true, as argued by plaintiff, that Farm Bureau pleaded an alternate defense of no coverage in its answer, and that it asserted that alternate defense in the first suit. We know of nothing done by the insurer, however, which in any way prejudiced Champion’s defense on the merits, or prevented Farm Bureau or the attorney provided by it from providing Champion with an adequate defense.

We conclude that Farm Bureau provided its insured, Champion, with a full and adequate defense in the suit which was instituted by or in behalf of Davis.

It was not inconsistent when the earlier suit was filed and tried for an insurer to assert in a suit both the defense of non-coverage and the defense of non-liability of the insured. Fontenot v. State Farm Mutual Insurance Company, 119 So.2d 588 (La.App. 1 Cir. 1960); Breitenbach v. Green, 186 So.2d 712 (La.App. 4 Cir. 1966).

All that is required of the insurer to satisfy its obligation to defend is to provide the insured with an adequate defense on the merits. The insured may retain his own counsel if he so chooses. The mere fact that he engages separate counsel to represent him, however, does not of itself prove that the insurer failed to fulfill its contractual duty. If the insurer provides the insured with an adequate defense, then the latter is not entitled to recover the costs which he may incur by engaging separate counsel.

Since Farm Bureau provided its insured with an adequate defense on the merits, Champion is not entitled to recover the costs incurred by him in engaging separate counsel. There is no error in that part of the judgment of the trial court, therefore, which rejects plaintiff’s demands for attorney’s fees.

For the reasons assigned, the judgment appealed from is affirmed. The costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.