author: JONES, Judge.

text:
    Hunter HOWARD, Jr., Plaintiff-Appellant, v. TRI-STATE INSURANCE COMPANY, Defendant-Appellee.
    No. 13544.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1978.
    Leslie B. Bagley & Associates, by Leslie B. Bagley, Mansfield, for plaintiff-appellant.

      Brittain & Williams, by Jack O. Brittain, Natchitoches, for defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   JONES, Judge.

Plaintiff appeals a judgment denying him compensation benefits under the provisions of R.S. 23:1221(4)(e) and (o).

On March 16,1977 while at work plaintiff cut the back of his left hand with a chain saw. The laceration was 2Vz inches across, Vsth deep and required 6-8 sutures to repair. It only penetrated the subcutaneous tissues of plaintiff’s hand and did not cut any tendons. His treating physician, Dr. James L. Zum Brunnen, an orthopedic surgeon, stated because it was not a dirty, jagged wound as often occurs in chain-saw cuts, he repaired it in his office.

In Dr. Zum Brunnen’s absence plaintiff was released by an associate orthopedist to return to work on April 18 with a diagnosis of no residual disability. On May 25, following an examination of plaintiff, Dr. Zum Brunnen wrote a report wherein he opined that plaintiff had full flexion and extension of all of the fingers and that there was no evidence of adhesions of the extensor tendons in the injured region. The report stated there was an area of anesthesia distal to the transverse laceration on the dorsum of the hand and because of the anesthesia and mild residual discomfort, plaintiff had a 5% permanent physical impairment to the left hand. On July 15, Dr. Zum Brunnen wrote a supplemental report in response to defendant’s request and stated:

“The disability is not functional and in fact no way impairs his ability to perform his regular work or any other type work. If I was rating his ability to work then I would say he would have 100% ability to work and zero % disability or impairment.”

Relying on this report the insurer terminated compensation benefits.

The issue is has plaintiff sustained a loss of use or function of his hand because of the anesthesia across the back of his hand.

For plaintiff to have a claim within the provisions of R.S. 23:1221(4)(e) and (o) he need only establish that as a result of his compensable injury he sustained partial loss of the use or function of his hand. He is not required to establish disability to perform work. Babineaux v. Great American Insurance Company, 245 La. 718, 160 So.2d 591 (La.1964).

Every permanent physical abnormality resulting from a job-related injury does not constitute a loss of use or function within the contemplation of R.S. 23:1221(4)(a)-(p). In Fontenot v. Ramey Well Service, 191 So.2d 353 (La.App., 3d Cir. 1967, writ refused), plaintiff was denied compensation where he had numbness over a six inch wide area from his sternum around the right side of his chest to within two or three inches of his spine. The court there stated:

“The numbness which he experiences does not inconvenience or interfere with any activity which he may want to pursue. Its only effect being that he will be insensitive to pin pricks, burns or pain in the affected area.” Id. p. 357.

The court held this impairment not to be a loss of a physical function under the provisions of R.S. 23:1221(4)(p).

The loss of a testicle where there is a remaining testicle does not create a loss of function justifying compensation within (4)(p). Horn v. Venable & McDonald, 142 So. 615 (La.App., 2d Cir. 1932); Tuggle v. United States Fidelity & Guaranty Company, 228 So.2d 671 (La.App., 1st Cir. 1969).

In Ryan v. Aetna Casualty & Surety Company, 161 So.2d 286 (La.App., 2d Cir. 1964), plaintiff, who sustained burns leaving a scarred area over the back of both hands, was denied compensation under the provisions of R.S. 23:1221(4)(e) and (o). The skin on the back of plaintiff’s hands remained loose and pliable, unattached to tendons or ligaments. There was no loss of motion. The court found plaintiff’s evidence failed to establish sufficient sensitiveness around the scar area to be of disabling nature.

In his trial deposition, Dr. Zum Brunnen emphatically stated that in his opinion plaintiff sustained no functional loss to his hand because of the absence of feeling which extended from one to two inches distal from the 2lh inch transverse scar across the back of plaintiff’s hand. The doctor recognized that generally the loss of the sense of feeling is a loss of function but concluded that because “the sensory function on the back of the hand is of very little use in the hand”, the anesthesia on plaintiff’s hand did not create a loss of hand function. The doctor explained that when he assigned 5% physical impairment to plaintiff’s hand because of the sensory abnormality, he did not contemplate this assignment to be an expression of functional disability. The doctor testified the absence of feeling across a portion of the back of plaintiff’s hand would not adversely affect the use or function of the hand.

Plaintiff in a workmen’s compensation case bears the burden of proving by a preponderance of the evidence the essential elements of his claim, including loss of use or function of the injured member. Dunn v. Glen D. Lowe Company, 346 So.2d 1337 (La.App., 3rd Cir. 1977). There is no evidence to establish that a loss of feeling over a portion of the back of the hand affects the function or use of the hand.

Dr. Zum Brunnen was the only medical expert who testified in this case and his testimony supports the decision of the trial judge denying plaintiff’s claim.

We affirm the trial court judgment at appellant’s cost.

      . The pertinent portion of R.S. 23:1221 relied on by the plaintiff is as follows: “Compensation shall be paid under this Chapter in accordance with the following schedule of payments: * * * (4) In the following cases the compensation shall be as follows: * * * (e) For the loss of a hand, sixty-six and two-thirds per centum of wages during one hundred fifty weeks. * * * (o) In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such members as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.”

      . § 1221(4)(p): “In cases not falling within any of the provisions already made, * * * where the usefulness of a physical function is seriously permanently impaired, the court may allow such compensation as is reasonable and in proportion to the compensation hereinabove specifically provided in the cases of specific disability, not to exceed sixty-six and two-thirds per centum of wages during one hundred weeks.”


source: Caselaw Access Project

author: BOLIN, Judge.

license: Public Domain

text:
    Reggie Glenn SKAINS, Plaintiff-Appellant, v. I. H. TIDWELL, Defendant-Appellee.
    No. 13545.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1978.

      Baker, Culpepper & Brunson by Joseph A. Cusimano, Jr., Jonesboro, for plaintiff-appellant.
    Blackwell, Chambliss, Hobbs & Henry by James A. Hobbs and George C. Harrod, Jr., West Monroe, for defendant-appellee.
    Before BOLIN, PRICE and HALL, JJ.
   BOLIN, Judge.

This is a suit for damages arising out of a fist fight between plaintiff and defendant. The trial court found plaintiff landed the first blow and rejected his demands because he was the aggressor. Additionally, since the court determined defendant’s cursing plaintiff provoked the fight, it rejected defendant’s reconventional demand. Plaintiff appeals and defendant answers the appeal. We affirm the ruling on the principal demand, but reverse the ruling on the recon-ventional demand.

The issues are: (1) Does the evidence support the finding that plaintiff was the aggressor? (2) If so, should defendant nevertheless be denied recovery because his verbal abuse provoked physical retaliation?

In addition to the combatants, there were two eye-witnesses to this fight which took place in plaintiff’s pasture, namely, plaintiff’s foreman and defendant’s business partner. There was little dispute concerning the events leading up to and immediately preceding the fight. Plaintiff and defendant had been involved in land transactions; their relationship had been gradually deteriorating until the time of the incident in question.

Defendant confronted plaintiff about the latter’s failure to close a pasture gate, thereby risking the escape of defendant’s cattle. There was an abusive verbal exchange, defendant admitting he cursed plaintiff first. Plaintiff and his foreman testified defendant then landed a hard slap with the heel of his hand over plaintiff’s left eye.

Defendant’s companion and business partner, who was called as a witness by plaintiff, related that defendant had raised his open left hand to ward off plaintiff’s anticipated blows; that this hand may have touched the side of plaintiff’s head as the latter moved toward defendant. Defendant corroborated this version of the incident. Both parties testified plaintiff then administered a sound beating to defendant, who subsequently chased plaintiff with a pocket knife before he became calm and left the premises.

Plaintiff exhibited no external bruises or other signs of a beating after the fight; however, he entered the hospital some twelve days later suffering from a severe sinus infection which had spread to the orbital area around his left eye. Defendant received medical treatment for his injuries on the day of the fight and continued to experience some pain for a short period of time thereafter.

The trial court found plaintiff struck the first blow. Since there is sufficient evidence to support this factual finding, which was the basis for denying plaintiff’s recovery, we affirm that portion of the judgment dismissing plaintiff's main demand. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

In denying defendant recovery for his injuries, the trial court stated:

In view of the strained relations that existed between Skains and Tidwell, the latter should have assumed that by calling Skains a “lying S.O.B.” some kind of physical retaliation was extremely likely. Therefore, it is concluded that Skains was provoked by this verbal onslaught to commit the ensuing battery and that Tidwell cannot recover damages.

In reaching this conclusion, the trial court relied on Baughman v. Wells, 171 So.2d 759 (La.App. 2d Cir., 1965) and Gross v. Great Atlantic & Pacific Tea Co., 25 So.2d 837 (La.App.Orl., 1946).

We hold it was an error of law to find that defendant’s words, however provocative, excused plaintiff’s battery. Morneau v. American Oil Company, 272 So.2d 313 (La.1973); Richardson v. Zuntz, 26 La.Ann. 313 (1874). The Morneau case specifically overruled numerous contrary decisions of the courts of appeal, including the two cases relied on by the trial court.

Our law recognizes that the victim’s verbal provocation may be considered to mitigate damages. Morneau v. American Oil Company, supra. We find defendant’s abusive verbal attack on plaintiff’s veracity and lineage, in the context of the parties’ previous unpleasant encounters, was calculated to provoke plaintiff’s physical retaliation. The record contains no evidence of defendant’s medical expenses and, since the minimal injuries suffered by defendant may be mitigated, we find a nominal award of $100 would be just and adequate.

Insofar as it dismisses defendant’s recon-ventional demand, the trial court’s judgment is reversed, and there is judgment for I. H. Tidwell against Reggie Glenn Skains for $100 plus interest from date of judicial demand until paid. In all other respects, the judgment is affirmed; costs are to be divided equally between appellant and ap-pellee.


author: HALL, Judge.

text:
    Succession of Luther Ambrose DRAKE.
    No. 13546.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1978.

      Horton & Jones by Donald G. Horton, Coushatta, for Roberta Burks Drake, Amb-rose Ray Drake and Mary Jane Drake Ca-ple, plaintiffs-in-rule-appellants.
    Bethard & Davis by James G. Bethard, Coushatta, for Richard P. Gibson, Administrator of the Succession of Luther Ambrose Drake, defendant-appellee.
    Before HALL, MARVIN and JONES, JJ.
   HALL, Judge.

The sole issue presented by the appellants in this appeal from a judgment rendered in the course of administration of a succession is the amount of a debt owed by the succession to a creditor of the decedent. The district court’s judgment recognized the amount of the debt owed R. P. Gibson, who is also administrator of the succession, as being $21,775.27, representing an original principal balance of $4,876.24 due on an old open account closed in 1964, plus service charges of 1 percent and IV2 percent per month charged since 1964, less payments of $1,000. Appellants, the widow and children of the decedent, contend that only the original balance less payments is due, and that the service charges were never agreed to by the decedent and were not authorized by law.

Coushatta Farm Implement Company, who assigned the account to Gibson, a partner in the firm, sold goods and services to decedent on open account until November 1964. At that time the account had a balance of $4,876.24 and was past due. The company closed the account and put decedent on a cash basis. Thereafter, the company sent decedent monthly invoices, adding each month a service charge of 1 percent of the principal balance plus accrued service charges until March 1974 when the service charge was increased to IV2 percent. The service charges amounted to more than $15,000 in April 1977 when Gibson filed a petition to open the succession, was appointed administrator, and made a claim as a creditor. Several payments totaling $1,000 were made on the account by decedent between 1964 and 1974. Invoices sent to decedent contained a printed statement that a service charge would be added to accounts not paid by the 25th day of the following month.

Appellee contends the service charges were authorized by LSA-R.S. 9:3509 (Act 313 of 1970; repealed by Act 454 of 1972) and LSA-R.S. 9:3523 (Act 454 of 1972; Louisiana Consumer Credit Law). Appellee, while admitting that decedent never expressly agreed to pay a service charge, further contends that the service charges were tacitly agreed to by decedent when he failed to object to the amounts of the statements which reflected the charges.

The statutes referred to, enacted in 1970 and 1972, authorize persons extending credit in connection with certain transactions including revolving open-end credit accounts to charge service fees of IV2 per month. Obviously, the statutes could not and did not authorize the charging of service charges prior to the enactment of the statutes. Further, the statutes apply to extensions of credit under active accounts after the effective dates of the acts and do not authorize the charging of service charges on past due, closed, stated accounts in existence prior to enactment of the statutes. The service charges on the 1964 stated account which the creditor seeks to collect in this case were not authorized by the 1970 and 1973 statutes.

Since LSA-R.S. 9:3509 and LSA-R.S. 9:3523 are not applicable to the debt involved in this case, the general law of the Civil Code concerning interest on debts must be applied. The amount of conventional interest cannot exceed 8 percent per annum and must be fixed in writing. LSA-C.C. Art. 2924. Interest upon interest cannot be recovered unless it is added to the principal, and by another contract made a new debt. LSA-C.C. Art. 1939; Monroe Grocery Co. v. T. L. & M. Davis, 165 La. 1027, 116 So. 546 (1928); Flower & King v. O’Bannon, 43 La.Ann. 1042, 10 So. 376 (1891); Southern Equipment & Tractor Company of Shreveport, Inc. v. McCullen, 319 So.2d 511 (La.App. 2d Cir. 1975).

There was no agreement in writing between decedent and Coushatta Farm Implement Company to pay a service charge or interest. The printed statement on the bottom of each invoice does not constitute a written agreement to pay interest. Pooler Building Materials, Inc. v. Hogan, 244 So.2d 62 (La.App. 1st Cir. 1971). Even if there were an agreement, the 1 percent and IV2 percent per month charges exceeded the maximum conventional rate, were usurious, and result in the forfeiture of the entire interest so contracted. LSA-R.S. 9:3501. Charging a service charge on prior accrued service charges amounts to charging interest on interest, prohibited by LSA-C.C. Art. 1939. Southern Equipment & Tractor Company of Shreveport, Inc. v. McCullen, supra.

Since there was no agreement to pay conventional interest, the creditor is entitled only to legal interest on the debt from the time it became due. LSA-C.C. Art. 1938. The account sued on cannot be characterized as an open account on which legal interest would be owed only from judicial demand, Paul M. Davison Petroleum Products, Inc. v. L. T. Brown Contractor, Inc., 356 So.2d 572 (La.App. 2d Cir. 1978), but is instead an account stated on which legal interest is owed from the date it becomes stated. The debt became an account stated, and due, in December 1964 when the creditor closed the account, made demand for payment, and rendered a statement for the balance due to which the decedent never raised objection. Monroe Grocery Co. v. T. L. & M. Davis, supra. Peterson Sales Company, Inc. v. C-Moore Glass, Inc., 296 So.2d 397 (La.App. 2d Cir. 1974); R. O. Roy & Company, Inc. v. Norman, 126 So.2d 845 (La.App. 2d Cir. 1961).

The legal rate of interest in 1964 when the debt became due was 5 percent per annum. This is the rate which the creditor is entitled to recover although the rate was subsequently changed to 7 percent by amendment to LSA-C.C. Art. 1938. LSA-C.C. Art. 1940. Diaz v. Breaux, 252 So.2d 697 (La.App. 1st Cir. 1971).

Considering the principal balance of $4,876.24, 5 percent legal interest from December 1, 1964, and crediting the payments totaling $1,000 to legal interest accrued on the date of the payments, the total principal and interest due as of April 31, 1978 is $7,147.36.

For the reasons assigned, the judgment of the district court as to the amount of the debt is amended; the amount of the debt owed by the succession to R. P. Gibson is recognized as being the sum of $7,147.36 as of April 31, 1978, including principal and accrued legal interest, with 5 percent legal interest on the principal amount of $4,876.24 from that date until paid. The succession proceeding is remanded to the district court for further proceedings in accordance with law. Costs of the appeal are assessed to R. P. Gibson, individually.

Amended and remanded.


text:
    Cecil B. PARKER, Plaintiff-Appellee, v. LOUISIANA FORESTRY COMMISSION and Houston General Insurance Company, Defendants-Third-Party Plaintiffs-Appellants, Rockwood Insurance Company, Defendant-Third-Party Defendant-Appellee.
    No. 13547.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1978.
    En Banc. Rehearing Denied June 6, 1978.

      Bodenheimer, Jones, Klotz & Simmons by G. M. Bodenheimer, Jr., Shreveport, for defendants-third party plaintiffs-appellants— Louisiana Forestry Commission and Houston Gen. Ins. Co.
    Garrett & Ryland by Donald M. Garrett, Alexandria, for defendant-third party defendant-appellee — Rockwood Ins. Co.
    Campbell, Campbell & Johnson by John T. Campbell, Minden, for plaintiff-appel-lee — Cecil B. Parker.
    Before BOLIN, PRICE and HALL, JJ.
   HALL, Judge.

Plaintiff suffered an on-the-job heart attack (myocardial infarction) in December 1975 when his employer, Louisiana Forestry Commission, was insured by defendant, Houston General Insurance Company. He was paid compensation by Houston General until he returned to work in August 1976. In November 1976 after a day at work he experienced a coronary insufficiency while at home in bed in the early hours of the morning, requiring his hospitalization. At that time his employer was insured by defendant-third-party defendant, Rockwood Insurance Company. Plaintiff later underwent by-pass surgery in Houston. He has not worked since the November 1976 incident and is totally and permanently disabled.

The trial court rendered judgment in favor of plaintiff against Houston General for total and permanent disability benefits, penalties and $5,000 attorney’s fees. The demands of plaintiff and Houston General against Rockwood were rejected. Houston General appealed.

Appellant specifies the trial court erred:

(1) In finding the sole cause of plaintiff’s disability was the December 1975 heart attack; and

(2) In assessing penalties and attorney’s fees, and, alternatively, in awarding excessive attorney’s fees.

Although Houston General does not entirely concede the point, the testimony of the treating physician and a doctor called by the defendant clearly established that plaintiff’s disability after November 1976 was a direct, foreseeable consequence of and directly attributable to his December 1975 heart attack, which caused permanent damage to plaintiff’s heart and from which he never fully recovered. Houston General, the insurer at the time of the heart attack, is liable for workmen’s compensation benefits.

The primary issue in the case is whether the coronary insufficiency experienced by plaintiff in November 1976 was a work-related accident and injury which also contributed to plaintiff’s disability, making Rockwood also liable for the payment of benefits. We hold it was not and affirm the trial court’s judgment.

Plaintiff returned to his work as a forest worker in August 1976. Although he worked every day, and over a period of time was able to resume climbing the 100 foot ladder of the fire tower, he did not perform the more strenuous duties of his job, being assisted in this respect by his co-workers.

On the day before plaintiff experienced the coronary insufficiency, he had done some fairly strenuous work, loading and unloading some firewood. He attended a football game that evening before going to bed about 11:00. About 3:00 in the morning he awakened with chest pains. Dr. McIntyre Bridges, the physician who treated plaintiff for his heart attack, diagnosed his condition as coronary insufficiency — an insufficient supply of oxygen to the heart— resulting from his preexisting condition and heart damage. Dr. Bridges testified he had no way of knowing whether the coronary insufficiency was related to plaintiff’s work activity that day. The essence of the doctor’s testimony was that the relationship was unlikely because it was his opinion that a coronary insufficiency caused by exertion, and its accompanying pain, will ordinarily manifest itself immediately or within two hours after the exertion.

Dr. Frank Dienst, testifying on behalf of the defendant, never examined plaintiff and expressed his opinion in answer to hypothetical questions. He was of the opinion a coronary insufficiency due to exertion might manifest itself any time within 24 hours after the exertion. He thought plaintiff’s coronary insufficiency was probably brought on by his work which aggravated his previous condition.

The trial court gave greater weight to the testimony of the well-qualified treating physician, who saw and treated plaintiff. Babin v. Highland Insurance Company, 290 So.2d 720 (La.App. 1st Cir. 1974). Defendant’s well-qualified witness never examined the plaintiff and the hypothetical questions posed to him did not coincide in all respects to the established facts. The medical evidence does not establish a causal connection between plaintiff’s work activities and the coronary insufficiency.

Further, the medical evidence does not establish the coronary insufficiency experienced by plaintiff in November 1976 was an accident or injury which caused plaintiff’s disability. Rather, it was a symptom or manifestation or result or consequence of the original heart attack. According to the medical evidence, the coronary insufficiency did not itself damage plaintiff’s heart, but was a manifestation of plaintiff’s previously incurred damage. It was not a cause of plaintiff’s disability, but was the disability itself, caused by the December 1975 accident or injury.

Rockwood, the insurer in November 1976, is not liable for workmen’s compensation benefits.

The trial court correctly assessed penalties and attorney’s fees. Houston General refused to pay benefits and medical expenses after November 1976 on the basis that plaintiff’s disability was due to a new injury for which it was not responsible since it no longer provided insurance coverage to the employer. At the time Houston General refused payment, it had in its hands a report from Dr. Bridges clearly expressing his opinion that plaintiff’s disability was caused by or connected with the December 1975 heart attack. The evidence does not show that Houston General had any medical information to the contrary. The withholding of payment of benefits and medical expenses with no information contrary to that provided by the treating physician is arbitrary and capricious and renders the insurer liable for penalties and attorney’s fees. Williams v. Liberty Mutual Insurance Company, 327 So.2d 462 (La.App. 3d Cir. 1976); Scott v. Hartford Accident & Indemnity Company, 302 So.2d 641 (La.App. 3d Cir. 1974). The amount of $5,000 awarded as attorney’s fees was not excessive and was within the trial court’s discretion.

The judgment is affirmed at appellant’s costs.

Affirmed.


author: PRICE, Judge.

text:
    Frank J. HALL et al., Plaintiffs-Appellants, v. ARKANSAS-LOUISIANA GAS COMPANY, Defendant-Appellant.
    No. 13549.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1978.
    En Banc. Rehearing Denied June 6, 1978.

      Wiener, Weiss, Madison & Howell by James Fleet Howell, Shreveport, for plaintiffs-appellants Frank J. Hall, et al.
    Blanchard, Walker, O’Quin & Roberts by Robert Roberts, Jr., Marlin Risinger, Jr., W. Michael Adams, Shreveport, for defendant-appellant Arkansas-La. Gas Co.
    Before PRICE, MARVIN and JONES, JJ.
   PRICE, Judge.

Plaintiffs seek damages for an alleged breach of contract by defendant for failing to escalate the price of gas purchased from them in accord with a price adjustment provision contained in a long-term gas purchase contract.

Plaintiffs are either independent producers or owners of various mineral interests under numerous leases producing natural gas in the Sligo Gas Field of Bossier Parish. Defendant, Arkansas Louisiana Gas Company (Arkla) is a large integrated gas utility company, which engages in exploration, production, transmission, purchase, and sale of natural gas and its by-products. Arkla has for many years been a major purchaser of gas in the Sligo Field.

The gas purchase contract forming the basis for this litigation was executed in 1952 between Arkla and several independent producers pursuant to a lengthy renegotiation of an existing contract which had been in effect since 1937, and which would have expired in 1954. Although all of the multiple plaintiffs herein were not original parties to the 1952 contract, they have subsequently become parties subject to the agreement by amendment or by operation of law. The 1952 agreement obligated plaintiffs to sell all of the gas produced or owned by them in the Sligo Field to Arkla for a period of twenty-eight years and provided for a fixed schedule of prices per MCF to be paid for raw gas throughout the period of the contract. The agreement further contained a price adjustment provision referred to in the contract as a “Favored Nations Clause,” providing:

(D) If at any time during the term of this agreement Buyer should purchase from another party seller gas produced from the subject wells or any other well or wells located in the Sligo Gas Field at a higher price than is provided to be paid for gas delivered under this agreement, then in such event the price to be paid for gas thereafter delivered hereunder shall be increased by an amount equal to the difference between the price provisions hereof and the concurrently effective higher price provisions of such subsequent contract; provided that in determining whether a given price is in fact “higher” than the price provision of this contract, the inquiry shall not be limited to the actual prices stipulated but due consideration shall also be given to a comparison of all other pertinent provisions of the two contracts, such as point of delivery, basis of measurement, taxes, dehydration, and delivery pressures (provided that the number of years stated as the terms during which the two contracts shall respectively remain in force and ef-feet shall not be a factor to be considered for purposes of comparison under this paragraph) and the price to be thereafter payable in accordance with this paragraph for gas delivered hereunder shall be adjusted accordingly insofar as may be necessary to make allowances for any discrepancies as may exist between such comparable provisions of the two contracts. It is agreed that any such higher price for gas delivered hereunder shall be effective on the first day of Buyer’s accounting month (as elsewhere herein defined) next following the effective date of such subsequent contract, all subject, however, to any rules and regulations of the Office of Price Stabilization or any other regulatory body having jurisdiction.

In February 1961 Arkla acquired, as lessee, a fifteen percent interest in an oil and gas lease granted by the United States on approximately 2,400 acres of land owned by it in the Sligo Field. Arkla participated with its colessees in drilling for and producing gas in substantial amounts from this leased acreage. Arkla has taken its fifteen percent share of the gas produced into its own processing plant in the Sligo Field and disposed of it through its own distribution system including transmission through an interstate pipeline. The lease from the United States stipulated a royalty to be paid by the lessees of a percentage of the oil or gas production obtained or, at the option of the United States, a payment in money by the lessees of the fair market value attributed to its percentage of production. The government has continuously elected to be paid a “value royalty,” and in accord with the right reserved by it to have the Secretary of Interior establish the reasonable minimum value of gas for computation of royalty due, the price determined and ultimately acceded to by Arkla was and has continued to be in excess of that being paid plaintiffs under the 1952 contract.

Plaintiffs brought this action in October 1974 alleging that the payment of the higher price to the United States by Arkla beginning in 1961 activated the provisions of the Favored Nations clause of the 1952 contract and obligated Arkla to increase the purchase price paid plaintiffs commensurate with the price paid the government.

Plaintiffs seek compensatory damages and an accounting from Arkla alleging that it was in bad faith in intentionally concealing from them for fourteen years that a higher price was being paid for gas to the United States.

Arkla filed appropriate responsive pleadings questioning the jurisdiction of the state court alleging that the gas purchases in question have always been subject to the provisions of the Natural Gas Act, and solely within the jurisdiction of the Federal Power Commission (FPC), which has since been superseded by the Federal Energy Regulatory Commission (FERC). Arkla’s attempt to have the case removed to the Federal District Court on that basis was denied.

In answer to the original and several amended pleadings of plaintiffs, Arkla denied it had triggered the Favored Nations clause of the 1952 contract by payment of an amount for gas to the United States which exceeded that being paid plaintiffs since the payment to the United States was solely a “rental royalty” and not a purchase of gas from another “party seller” as required for activation of the price adjustment provision.

An exception of no cause of action was filed by Arkla against the claim of one of plaintiffs, W. E. Hall, Jr., on the basis that he executed an amendment to the contract dated May 25,1969, which deleted the benefit of the Favored Nations clause as to him. Hall through responsive pleadings contends the amendment by him was ineffective because it was executed in error as he had no knowledge at the time that Arkla had previously breached the contract by paying the higher price to the United States.

After a very lengthy trial on the merits , the district court sustained the exception of no cause of action as to the claims of W. E. Hall, Jr., and dismissed his demands. The court rendered judgment for all other plaintiffs as follows:

Frank J. Hall $135,413.44
Virgil J. Hall 36,930.88
Carlyle W. Urban, Trustee under Will of H. M. Harrell 202,954.56
John K. Harrell, Sr. 25,368.96
James E. Harrell 25,368.96
Elva L. Weiss 56,853.12
National American Bank, Executor under Will of Seymour Weiss 56,853.12
T. F. Philyaw 1,187.84
W. 0. Cochran 4,644.16
D. B. McConnell 42,301.76
James A. Noe, Jr. and C. T. Munholland, Testamentary Executors under Last Wills of Mr. & Mrs. James A. Noe 153,128.96
S. G. Myers 130,215.91
Asa Benton Allen 21,530.24
Elaine Allen 20,874.88

There are several issues on appeal which can be generally categorized as follows: (1) whether the Federal Energy Regulatory Commission has the sole and exclusive subject matter jurisdiction; (2) whether the Favored Nations clause was activated when defendant paid value royalty at a higher price to the United States than it paid for gas purchases to plaintiffs; (3) whether W. E. Hall, Jr., validly waived his interest in the Favored Nations clause when he signed an amended contract in 1969; and (4) whether the award of damages by the trial court was correct.

I. JURISDICTION

The threshold issue on appeal is whether the trial court had proper subject matter jurisdiction to entertain this suit. Defendant contends the trial court lacked the power and authority to determine the rate at which natural gas was or is sold in interstate commerce since the rate-making function is vested solely and exclusively in the FERC by the Natural Gas Act. Defendant further contends that the FERC has primary jurisdiction to determine the contractual issue of whether the Favored Nations clause of the 1952 contract was activated by its payment of value royalty to the United States. Neither of these contentions can be maintained. Defendant’s initial argument is in error because the relief sought is not that of a rate increase, but is instead a claim for damages arising under state contract law. Although the state court must adhere to the provisions of the Natural Gas Act and the pertinent regulations of the FERC in its determination of damages, it is a proper forum for adjudication of a state contract law dispute. Furthermore, the Natural Gas Act evinces no purpose to abrogate private rate contracts. United Gas Pipe Line Co. v. Mobile Gas Serv. Corp., 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373 (1956). The act' recognizes the rights of the parties to rates established by individual contract and does not alter ordinary contractual relationships where the controversy is one of ordinary contract law. Cities Service Gas Company v. Federal Power Commission, 10 Cir., 255 F.2d 860, cert. den. 358 U.S. 837, 79 S.Ct. 61, 3 L.Ed.2d 73 (1958); Skelly Oil Co. v. Federal Power Commission, 10 Cir., 532 F.2d 177 (1976); Phillips Petroleum Co. v. Federal Power Commission, 10 Cir., 349 F.2d 535 (1965). A claim founded on state contract law does not lose its character just because the Natural Gas Act is in some way involved. Pan American Petro. Corp. v. Superior Court of Del., 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961).

Defendant’s contention that the FERC has primary administrative jurisdiction to decide this contract dispute is also in error. In recent years the doctrine of primary administrative jurisdiction has been refined to apply to claims involving the special competence and expertise of an administrative body. Montana-Dakota Util. Co. v. Northwestern Pub. S. Co., 341 U.S. 246, 71 S.Ct. 692, 95 L.Ed. 912 (1951); Best v. Humboldt Placer Mining Company, 371 U.S. 334, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963); United States v. Western Pacific Railroad Co., 352 U.S. 59, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956). State courts do have jurisdiction to determine matters of contract law not within the specific technical expertise of the FERC. Pan American Petro. Corp. v. Superior Court of Del., supra. The major issue in the case before us is one of construing the provisions of a contract and the intentions of the parties at the time of the execution of the contract. Such a determination does not require the specific technical expertise of the FERC. Although the FERC may have original jurisdiction in this case, it does not have exclusive original jurisdiction, but rather shares concurrent original jurisdiction with the state court.

II. ACTIVATION OF THE FAVORED NATIONS CLAUSE

Plaintiffs contend payments made to the United States by defendant in its dual capacity as lessee and pipe-line purchaser are tantamount to a “purchase from another party seller,” as this term was intended in the price adjustment clause of their 1952 gas sales contract with defendant. Defendant contends the payments were royalty or rent being paid in its position of lessee and not a purchase because the United States had no title to any gas produced under the lease, it having continuously elected to accept a value royalty on the gas produced.

We recognize that the theory of ownership and classification of lease royalty payments as rent as urged by defendant is in accord with the prevailing state law and federal decisions on this issue. See Shell Petroleum Corp. v. Calcasieu Real Estate & O. Co., 185 La. 751, 170 So. 785 (1936); Logan v. State Gravel Co., 158 La. 105, 103 So. 526 (1925); Board of Com’rs. of Caddo Levee Dist. v. Pure Oil Co., 167 La. 801, 120 So. 373 (1929); Melancon v. Texas Company, 230 La. 593, 89 So.2d 135 (1956). Mobil Oil Corporation v. Federal Power Commission, 149 U.S.App.D.C. 310, 463 F.2d 256 (1971), cert. den. 406 U.S. 976, 92 S.Ct. 2413, 32 L.Ed.2d 676 (1972).

We nevertheless find it inappropriate to accept the technical and restrictive interpretation on the term “purchase from another party seller” relied on by defendant under the circumstances shown in this instance.

The evidence shows that during the lengthy negotiations between defendant and the principal plaintiffs in 1952, defendant’s prime objective in renegotiating the preexisting contract was to commit the plaintiffs to a long-term contract. As an inducement for a twenty-eight-year-term the officials of the defendant corporation offered to include a Favored Nations clause. The request by plaintiffs to have the clause pivot on the highest market price being paid by anyone in the field was rejected by defendant.

The handwritten notations made at that time by the defendant’s attorney who prepared the final draft of the agreement show that his instructions from the official of defendant handling the negotiations were to prepare a price adjustment clause based on “highest price we pay for gas in the Sligo Field.” Thereafter, agreement on the subject clause was reached which tied it to the highest price being paid by defendant in the Sligo Field.

There is no evidence suggesting the description of the contracting parties as “Buyer” and “party sellers” was intended to have any restrictive legal meaning and the terms were apparently standard phrases contained in a Favored Nations clause of another contract used as a model by the attorney drafting the agreement. Indicative of the fact that little thought was given to these terms having any significant restrictive effect on the broad application of the clause is the absence of a definition of the words “Buyer” and “party seller” within the agreement. Although defendant strenuously urges that the terms “Buyer,” “seller,” and “purchase” as used in the Favored Nations clause has a restrictive legal meaning and limits the applicability of the clause to “sales” of gas, defendant’s actions subsequent to execution of the contract show a tendency on its part to use sales terminology in a very broad manner to also include royalty interests in the preparation of division orders and the payment of royalty to lessors from a bank account styled “Gas Purchase Account.”

The general rule of contract interpretation concerning a Favored Nations clause is that “in order to give effect to the intention of the parties, the Court must consider the circumstances surrounding the making of the contract, its subject, and the situation and relation of the parties at the time of its making; and the construction placed upon the contract by the parties to it as reflected by their words and acts is entitled to great, if not controlling influence in ascertaining the parties’ understanding of its terms.” [emphasis added] Louisiana-Nevada Transit Co. v. Woods, D.C., 393 F.Supp. 177 (1975).

The basic purpose of a price adjustment or Favored Nations clause is to protect a seller from discrimination by the pipe-line purchaser of gas under a long-term contract. Eastern Petroleum Company v. Kerr-McGee Corporation, 7 Cir., 447 F.2d 569 (1971); Louisiana-Nevada Transit Co. v. Woods, supra. As it is intended for the protection of the seller, the clause should be broadly construed to effectively carry out this purpose. Therefore, to exclude the substantial amounts paid to the government by defendant as having any bearing on the price being paid for gas by defendant in this field because of a technical semantic classification of the payment as being rent royalty would render the protection intended to be afforded plaintiffs by a price adjustment clause meaningless.

The factors affecting our decision on this issue are analogous to those presented in Eastern Petroleum Company v. Kerr-McGee Corporation, supra, in which the court found a payment of royalty to the state of Arizona under a lease of public lands to activate a Favored Nations clause in a contract providing that payment for gas “shall never be less than the price paid by Buyer to other sellers of helium-bearing gas from leases or lands in the same general area.” The defendant pipe-line purchaser in that case contended the payment of royalties to the state was not a “price” paid to another “seller” within the meaning of the contract as the gas was “owned” by the lessee at the time it was reduced to possession. The court found it unnecessary to decide whether the payment under the lease to the state was a purchase of gas or royalty as either classification was within the purpose and intent of the price adjustment clause of the contract before it. As we are unaware of any appellate decisions in this state concerning the interpretation of such unusual contractual provisions, we are constrained to follow the federal jurisprudence in resolving this question.

For the foregoing reasons, we conclude the trial court was correct in holding that the payment by defendant for gas produced under the lease from the United States was within the scope of the price adjustment clause of plaintiffs’ contract.

III. WAIVER OF FAVORED NATIONS CLAUSE BY W. E. HALL, JR.

On May 25,1969, W. E. Hall, Jr., one of the numerous plaintiffs herein, executed an amendment to the 1952 gas purchase contract wherein he deleted his interest in the Favored Nations clause. Defendant asserts plaintiff’s waiver as an affirmative defense against his claim for damages arising under the price adjustment clause. Plaintiff contends the waiver was ineffective because he executed the amendment under an error of fact induced by defendant’s misrepresentations and concealment of the true facts causing him to believe the price adjustment clause had not been activated. Plaintiff contends he would not have deleted the clause had he known of the higher prices being paid by Arkla to the government. However, plaintiff’s testimony reveals that in 1969 Hall had an interest in a well under contract to Texas Gas Producing Company with gas produced therefrom being sold to the latter. At that time the well had nearly depleted, and the pressures were dropping. In order to keep from having to cap the well, Hall contacted defendant who agreed to take over the well and use its pipe lines wherein the pressures would be lower, thus allowing the well to keep producing. In order to contract with defendant, plaintiff had to execute an amendment deleting the Favored Nations clause to comply with the FPC’s more recent regulations prohibiting the inclusion of such a clause in a gas purchase contract. By using defendant’s pipe lines, Hall was able to sell the gas without having to compress it. He testified that the main reason for executing the contract was to keep selling the gas without having to buy and operate a compressor to compress the gas.

The Louisiana civil code articles dealing with error of fact (C.C. Arts. 1820-1845) provide that a contract will not be considered invalid unless there was error as to the “principal cause,” or “motive,” for making the contract. C.C. Art. 1825. In this case the principal motive for W. E. Hall, Jr.,’s signing the contract was to continue selling gas without the expense and time of having to purchase and operate a compressor. Therefore, as correctly found by the trial court, there was no legal error of fact upon which this plaintiff can rely to vitiate the waiver.

IY. DAMAGES

' The first issue presented in determining the correctness of the award made to plaintiffs is the effect the “filed rate doctrine” of the Natural Gas Act has on the rights of plaintiffs to recover damages. Sections 4(c) and 4(d) of the act require a seller of natural gas to file a proposed rate increase with the FPC for its approval before such an increase can be effective. The only rate schedule ever filed by plaintiffs with the FPC in this instance was the original gas purchase contract in 1952. The FPC regulations, § 157.50(c), provide an exception to the foregoing rule in regard to a “small producer” as defined in the regulation, who has obtained a certificate from the commission exempting him from having to file a rate schedule as long as the increase in rate does not exceed the ceiling rate set by the commission. Several of the plaintiffs obtained certificates as small producers in October 1972, and the certificates issued to those parties were made effective to all plaintiffs in this action by tne order of the FPC.

The trial court found that the plaintiffs were precluded by the Natural Gas Act from recovering damages, which are measured by a standard related indirectly to a retroactive price increase, except for the period subsequent to the issuance of the small producer certificates in October 1972. This holding is in accord with the jurisprudence construing the effect of this statute. Interstate Natural Gas Co., Inc. v. Mississippi River Fuel Corporation, 220 La. 43, 55 So.2d 775 (1951); Ashland Oil & Refining Co. v. Federal Power Commission, 6 Cir., 421 F.2d 17 (1970); Socony Mobil Oil Co. v. Brooklyn Union Gas Co., 5 Cir., 299 F.2d 692 (1962).

Although plaintiffs claim quantum based on an amount commensurate with the difference between the price they received and that which they would have received had they been granted a price increase in 1962, they contend their suit is for damages and not for a retroactive price increase, and is therefore not affected by the Natural Gas Act.

Plaintiffs’ alternative theory of recovery is that they should recover for damages caused by the fraudulent concealment by defendant of the fact it was paying a higher price to the United States for gas which prevented them from timely filing for a change in rate schedule with the FPC.

Neither of these positions is tenable. The action for damages to be successful necessarily assumes a price increase would have been granted by the FPC. That such approval would have been granted by the commission is highly speculative and cannot serve as a basis for an award of damages. See Interstate Natural Gas Co. v. Southern Cal. Gas Co., D.C., 102 F.Supp. 685 (1952).

The trial court did not make a finding that defendant was guilty of fraudulent concealment, and we find the evidence is insufficient to support such an allegation.

The evidence shows that in the fall of 1961 several of the officials of defendant were concerned that the royalty price negotiated with the United States might have the effect of activating the price adjustment clause of plaintiffs’ contract. The question was submitted to defendant’s attorneys who advised that payment of royalty would not have this legal effect. Defendant did not make any disclosure to plaintiffs at that time or subsequently which would have allowed plaintiffs the opportunity to seek a determination before an appropriate tribunal. In early 1974 when inquiries were made by plaintiffs, the officials of Arkla were uncooperative and evasive in answer to questions concerning the possible purchase of gas from the United States. Although this failure to inform and later evasiveness on the part of defendant was not commendable, it nevertheless does not prove fraudulent concealment. A party alleging fraud has the burden of establishing it by more than a mere preponderance of the evidence. The conclusive proof required must be by clear and convincing legal evidence. Placid Oil Co. v. Taylor, 345 So.2d 254 (La.App. 3rd Cir. 1977); Capital Bank & Trust Co. v. Core, 343 So.2d 284 (La.App. 1st Cir. 1977); and Jackson v. Fontenot Building Inc., 314 So.2d 516 (La.App. 1st Cir. 1975). For these reasons plaintiffs cannot be awarded damages bearing any relationship to an increase in gas prices for the period prior to October 1972.

Defendant primarily complains on appeal of the admissibility and probative value of the plaintiffs’ evidence to sustain any award of damages. The evidence relied on by plaintiffs to prove their damages for breach of contract was the testimony of Frank J. Hall, a plaintiff having substantial gas holdings in Sligo that are subject to the contract. The evidence shows Hall to be a knowledgeable oil and gas operator with many years of experience in the exploration for, production, and sale of natural gas. Hall gathered all of the pertinent data necessary to calculate the damages to which plaintiffs claim they are entitled for the entire period from September 1961 through December 1975. Based on the data obtained, Hall, with the assistance of his accountant who is also a plaintiff in this suit, prepared schedules to reflect a comparison in the price being paid by Arkla to plaintiffs with that being paid to the United States for each year during this fourteen-year period. Under the instructions and supervision of Hall, the accountant further prepared summaries which related the differential in the price of gas to the volumes sold by plaintiffs to defendant for the period. Built into these summaries are the adjusting factors which Hall considered necessary to render the prices comparable. The summaries were further extended to calculate and show the accrual of the legal rate of interest on the sums claimed during the period.

Defendant attacks the admissibility of the above described evidence contending that the schedules and summaries were made from information that has not been offered in evidence. There is a well recognized rule that summaries of voluminous material or documents may be introduced in evidence provided the opposing party has equal access to the material from which the summaries were prepared. Wigmore, “Evidence,” (1972) Vol. IV., § 1230, at page 535, Northern Pac. Ry. Co. v. Keyes, C.C.N.D., 91 F. 47 (1898); Sam Macri & Sons, Inc. v. U. S. A., 9 Cir., 313 F.2d 119 (1963); Midcontinent Broadcasting Company v. North Central Airlines, Inc., 8 Cir., 471 F.2d 357 (1973). In the instant case defendant was in the superior position and had full access to all data on which Hall relied. A substantial part of the information gathered by Hall was from records of defendant’s accounting department which were inspected under discovery procedure. Hall utilized division orders prepared by defendant to determine percentages of ownership in each drilling unit over the period in question. To establish production quantities of raw gas and liquid hydrocarbons, he relied partially on records in his own office and on information obtained from the State Department of Conservation. Defendant had equal access to all such data. Although there are others' who would have better qualifications because of specialized training to make such an analysis, Hall has exhibited a sufficient familiarity with the underlying principles of gas pricing and methods of accounting to allow the admissibility into evidence of his testimony and the summaries prepared under his supervision for whatever weight they may have.

Defendant also attacks the weight to be given the calculations made by Hall and his accountant as it contends they are self-serving. While this evidence is to some extent self-serving, this reason alone is not sufficient to reject it in the absence of any rebuttal evidence showing that the evidence as a whole was unreliable and not prepared with any degree of objectivity.

Defendant questions the acceptance of the summaries also on the basis that Hall has calculated plaintiffs’ damages by a determination of the difference between gas prices paid to the United States and the plaintiffs and by assuming the plaintiffs’ contract was revised to provide for processing of raw gas at defendant’s plant and payment of the entire value of extracted liquids to them and assuming that all condensate was processed by defendant free of charge and the proceeds paid to them. Defendant contends these adjustments made by Hall are improper and give plaintiffs advantages which were never intended by the “pertinent factors” adjustments provided in the Favored Nations clause of the contract. The comparability provisions of the Favored Nations clause of this agreement provides:

provided that in determining whether a given price is in fact “higher” than the price provisions of this contract, the inquiry shall not be limited to the actual prices stipulated but due consideration shall also be given to a comparison of all other pertinent provisions of the two contracts, such as point of delivery, basis of measurement, taxes, dehydration, and delivery pressures (provided that the number of years stated as the terms during which the two contracts shall respectively remain in force and effect shall not be a factor to be considered for purposes of comparison under this paragraph) and the price to be thereafter payable in accordance, with this paragraph for gas delivered hereunder shall be adjusted accordingly insofar as may be necessary to make allowances for any discrepancies as may exist between such comparable provisions of the two contracts.

A literal reading of this provision requires the interpretation that all pertinent factors necessary to properly equate the price of gas shall be given consideration and those specified are illustrative only. The only factor to be excluded is the length of the contract term. We find the adjustments made by Hall in the summaries were within the purview of this provision.

Plaintiffs also calculated two other items of compensatory damages claimed by all or some of the plaintiffs. The first relates to losses occurring because of income tax advantages which would have inured to all plaintiffs under depletion allowances had they received the increases in price during the years they were due rather than in a lump amount under a court award. The second refers to losses to several of the plaintiffs who contend they would have drilled an additional well in the field had they been advised timely by defendant of the facts which would have enabled them to have obtained a price increase in 1961. Both the damages for loss of the depletion allowance and the loss arising from the lack of knowledge concerning the increased gas prices are consequential damages which cannot be recoverable for the breach of an obligation to pay money. La.C.C. Art. 1935.

Defendant next complains that the method of the trial court in arriving at the award of damages was erroneous. The trial court accepted the summaries prepared by Hall as competent evidence on which to award damages, but was confronted with the problem that the summaries were prepared for the total period from September 1961 through December 1975. In order to limit plaintiffs’ award for the period of October 1972 through December 1975, the court reduced the total damages reflected by Hall’s summary by a percentage of sixty-eight percent.

Defendant contends this method is erroneous as it gives no consideration to the differences in the actual volumes of gas produced and sold in the period for which damages are allowed and assumes that they have remained constant over the entire period since 1961. Further, defendant shows Hall’s summary contains a calculation of interest for the entire period of fourteen years, and therefore, the method used by the court allows recovery of interest on sums not recoverable. Defendant also illustrates that the procedure followed by the court does not compensate each plaintiff equally for the volume of gas sold by him during the allowable period.

We recognize that during the presentation of evidence on damages, the trial court suggested to the parties on several occasions the possibility of an appointment of an expert to assist the court in this very complex matter. As this suggestion was not pursued, the court had no means at hand to accurately reduce the summaries in evidence to the period for which plaintiffs were entitled to damages, and therefore, resorted to the percentage of allocation utilized. Plaintiffs are only entitled to damages representing a difference between the price paid by the defendant to the United States and the price paid to them, after applying the adjustments for pertinent factors, for the period from October 1, 1972, through December 31,1975. They are additionally entitled to interest at the legal rate of seven percent on the increased amount owed to them as it accrued each month during this period. La.C.C. Arts. 1938 and 2553(3).

We must agree that the method used by the trial court does not achieve this result. These calculations cannot correctly and accurately be made by this court from the record before us. Under La.C.C.P. Art. 2164 this court may render any judgment which is just, legal, and proper, including the power to remand for a new trial in the interest of justice. See Guilott v. Guilott, 326 So.2d 551 (La.App. 3rd Cir. 1976).

While we are reluctant to protract this litigation, we find it necessary to remand the case in the interest of justice to both parties for the limited purpose of a recalculation of the damages and the interest to be allowed each plaintiff in accord with the views expressed herein.

The district court may in its discretion appoint an expert in the field of oil and gas accounting to perform the necessary calculations based insofar as possible on the evidence already in the record in this matter. The court may take whatever additional evidence that is found necessary to calculate damages in accord with these views.

For the foregoing reasons, the judgment is set aside, and the case is remanded for a new trial restricted to the assessment of damages. Costs of this appeal are assessed equally to plaintiffs and defendant. Assessment of all other costs shall await final determination of this cause.

      . The pleadings and testimony consume twenty-six volumes containing 4,987 pages. There are additionally over 360 exhibits offered by plaintiff and over 80 offered by defendant.


text:
    Robert Bruce HARRISON, Plaintiff-Appellee, v. Peggy Mattison HARRISON, Defendant-Appellant.
    No. 13551.
    Court of Appeal of Louisiana, Second Circuit.
    May 1, 1978.

      James D. Sparks, Jr., Monroe, for defendant-appellant, Peggy Mattison Harrison.
    Guerriero & Placke, by Joe D. Guerriero, Monroe, for plaintiff-appellee, Robert Bruce Harrison.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Defendant-mother appeals a judgment granting custody of their four-year-old son to plaintiff-father.

Custody was granted the mother, with recognition of the father’s visitation privileges when the separation was ordered in 1974 and when the divorce was ordered in December, 1975.

In November, 1974, after the separation judgment, defendant and her son moved from her parents’ home to a one bedroom apartment of a girl friend who was separated in fact from her husband. During the three months defendant lived in this West Monroe apartment she became intimately acquainted with her first paramour, a college student. This young man stayed at the apartment with defendant, her son, and her roommate. Defendant’s roommate testified that defendant had sexual relations with the student in the bedroom where the young child was sleeping. Defendant denies the child was ever in the room but she did not deny her illicit relationship. The roommate testified that defendant and this same man were in the bedroom together at a Christmas party. Defendant explains she was ill and the young man merely came in to comfort her and “hold her hand”.

In February 1975 defendant and her son returned to live with her parents where they stayed until January, 1976. Defendant was employed during this time by a local retail store and then by a Monroe law firm.

In February 1976 defendant moved with her son to Baton Rouge where they shared an apartment with two other girls before obtaining an apartment of her own. Defendant worked for four different employers during her nine month stay in Baton Rouge: a law firm for two months, an insurance company for one month, a gas station as a bookkeeper for three months, and a retail store for two months.

In the summer of 1976 the son spent an extended five week vacation with his paternal grandparents and his father. During the child’s absence defendant allowed a second paramour to move into her apartment where they too, engaged in sexual relations. When the child’s return was imminent defendant caused her paramour to move into his own apartment. After the son’s return from his summer vacation, defendant and her paramour frequently saw each other and smoked marijuana but not in the child’s presence. Defendant admitted the young child would some times momentarily awake from his sleep while the pot-smoking was going on and would be exposed to the activity to that limited extent.

Defendant returned to Monroe in November, 1976 to live with her parents. She secured employment with Northeast Louisiana University where she worked for six months. At the time of trial she was employed as a Kelly girl.

In Monroe defendant continued to use marijuana occasionally (once a week) outside the child’s presence. After she and her third paramour, now her husband, became “officially engaged” in February, 1977, she discontinued using marijuana because he disapproved. Defendant and her third paramour met in early 1977. They decided to have a trial run of living together prior to actual marriage. They wanted to assure each other that the marriage would work and that the paramour and the child could adjust to one another. They rented a two bedroom house in West Monroe where they lived with the young boy. Defendant admitted periodical sexual relations with her paramour but denied any activity in the child’s presence.

Defendant and her husband testified they married on Saturday, May 21, five days after defendant was served with the father’s change of custody papers on the preceding Monday. The rule served on defendant on Monday, May 16th is not in the record. The judgment appealed from was rendered on a custody rule filed June 6th and served on defendant June 10. Defendant and her new husband admitted that the service of the first rule and the financial burden involved in litigating the custody change prompted them to marry a few months before they had intended.

Plaintiff, a second lieutenant in the United States Army, remarried in December, 1976. He resides with his wife in a nice mobile home near Ft. Polk, where he is stationed. They have no children of their own and his present wife is unemployed. Before his second marriage plaintiff was stationed at several army posts in Kentucky, Georgia and Maryland. Plaintiff has always supported his son financially and has displayed sincere love and affection for his child. He and his parents have exercised the visitation rights awarded him in the prior judgments. Since plaintiff and his wife moved to Ft. Polk, the frequency of his son’s visits has increased.

The trial judge stated he considered the testimony of all witnesses, weighed their credibility, and determined it was in the best interests of the child at this time to be placed with the father. However, the trial judge failed to further articulate his reasons for the judgment.

The issue is does the mother’s prior conduct reflect a deficit in her basic moral character and therefore an inability to properly raise a young child.

The record does not show whether the initial custody award to the mother was a considered decree, made in a contested posture, or whether it was a consent decree. Regardless of whether the decree was considered or consent, where the child has been living with his mother for almost three years, the father has a heavy burden of proving that the child’s continued custody with the mother would be detrimental to the child’s welfare and best interest in order to justify a change in custody. Bankston v. Bankston, 355 So.2d 58 (La.App., 2d Cir. 1978).

There is no significant evidence to establish the mother failed to meet the physical needs of her son. The evidence proves the mother has provided her son with food, clothing, and shelter, and she is loving and attentive to the child. The child has developed a normal personality while living with his mother. The relationship between the child and his stepfather is satisfactory.

The evidence establishes the father will provide his son with food, clothing, and a nice home; that he has always shared a close relationship with his son and that his new wife and child adjust well to each other. There is no evidence indicating the father or stepmother is guilty of any immoral conduct.

To deprive the mother of custody the lower court must necessarily have found the child’s ethical and moral needs were not being met by the mother.

One indiscretion or escapade with the same paramour does not render unfit the parent who has been judicially granted custody of the child. Tuggle v. Tuggle, 235 So.2d 166 (La.App., 2d Cir. 1970) and Monsour v. Monsour, 347 So.2d 203 (La.1977). If, under the totality of circumstances, the mother has pursued a notorious course of conduct that reveals an utter disregard for the moral principles held by society, then the mother may be held to be unfit to retain custody. Monsour, supra.

The law is well established that the award of custody is to always be made with the best interests of the child receiving prime consideration. Custody cannot be removed from one parent as a form of punishment for prior misconduct of the custodial parent. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971). However, past misconduct forms an important consideration in determining the present suitability of a parent seeking to retain custody of a child. Borras v. Falgoust, 285 So.2d 583 (La.App., 4th Cir. 1973).

The record establishes since defendant’s separation she has moved in and out of her parents’ home on three occasions and has lived in at least four other places, all on less than a permanent basis. The record does not establish the places where the child has lived were less than desirable or unwholesome. While her numerous changes of employment and places of residence do not in themselves necessarily reflect an inability to care for the child, they do tend to establish some instability in the mother.

The plaintiff has engaged in a pattern of sexual activities with three separate paramours. One of these affairs occurred when she was only judicially separated from her husband. The evidence tends to establish that she engaged in sex with her first paramour on at least one occasion while the child was in the bedroom and that the child lived in the home with her and the third paramour three months prior to their marriage. The mother smoked marijuana according to her own admissions for approximately one year under circumstances where the child could have been exposed to the activities. She stopped only a few months prior to institution of this litigation.

The trial court must necessarily have concluded: (a) defendant had engaged in a pattern of promiscuous conduct which could not be characterized as one indiscretion of escapade; (b) her past activities and conduct established her total lack of moral responsibility and acceptance of the fundamental mores of our society; and (c) the defendant could not in the future provide moral guidance and character training essential to the best interests and welfare of her son as he grows and develops. The record supports the lower court’s finding that continuing custody with the mother would be detrimental to the child and that it is in the child’s best interests that he should be placed in the custody of his father.

The trial court’s much discretion in determining custody must be given great weight by an appellate court. This discretion will not be disturbed on appeal in the absence of a clear showing of abuse. Monsour v. Monsour, supra.

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


author: SAMUEL, Judge.

text:
    Emily H. TODD v. Julian CRAWFORD and David Myers.
    No. 8420.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 13, 1978.
    Chaffe, McCall, Phillips, Toler & Sarpy, Peter Frank Liberto and Corinne Morrison Hopkins, New Orleans, for plaintiff-appel-lee.
    Albert B. Koorie and Nestor F. Mills, New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON and BEER, JJ.
   SAMUEL, Judge.

This is an appeal by Julian Crawford from a judgment in favor of plaintiff in the sum of $1,200 for forced eviction and personal injuries. Plaintiff, Emily Todd, rented an apartment from Crawford on a verbal month-to-month lease. Because the property was being renovated, the first month’s rent was free, the second month’s rent was one-half the full monthly rental price, and the rent for the third month was to be the full sum of $165.

Plaintiff and a man with whom she was living had received permission from Crawford and his manager, David Myers, to remove paint and plaster from a brick fireplace in the living room, but during the tenancy a dispute arose about the fireplace and the fact that the renovation was not completed by the third month, thus preventing plaintiff from having full enjoyment of the property. Her rent was paid up until November 26, according to the rent receipts, but on November 21 plaintiff was notified her tenancy was being terminated on the 26th. She therefore found a new apartment and started to remove her belongings.

Most of her property had been removed by the morning of the 26th, but some boxes of clothing and food still remained. She intended to return for these as her time was not up until 5 p. m. Assuming she had left during the early afternoon of the 26th, defendants entered the apartment. They concluded plaintiff had stolen their light bulbs and they changed the lock on the front door so she could not return and either steal or damage the property.

Apparently as a result of the bickering during the three months of plaintiff’s tenancy, during which time the renovation was going on and she was unable to enjoy the full use of the leased premises, plaintiff removed the light bulbs from all of the fixtures and put them in the kitchen sink. This was not discovered by the defendants until after they had replaced all the light bulbs they had thought stolen.

At about 2 p. m. on November 26 plaintiff returned to collect the rest of her belongings and found the lock ,had been changed on the door. She banged on the door and shouted in a loud voice “Who changed the lock on this Goddamn door?”

Plaintiff’s version of what happened thereafter is that David Myers answered the door, and she asked Mr. Crawford if she could remove her remaining property. He would not permit her to do so and went into a rage about her stealing his light bulbs. Crawford and Myers were blocking her entry and access to her belongings. At this point she put her left hand on Myers shoulder, motioned him toward the door asking him to leave. Crawford then hit her in the face three times with his right fist, once in the nose, once on the cheek and once in an eye. She was stunned and frightened and told him to get out of the apartment because she was going to call the police. Defendants left the premises, plaintiff called the police, and then called her parents in Dallas. When the police came they told the defendants to permit her to remove her property from the premises. At that point a Mrs. Christie, a friend of plaintiff’s mother, who had been contacted by the mother from Dallas, arrived to help her.

Mrs. Christie stated when she got to plaintiff’s apartment the girl had been crying, her face was red, she was distraught and plaintiff stated “he hit me”. The witness helped plaintiff get her things out of the apartment, put them in her car and helped her to move them to the new location. She testified plaintiff was afraid, and she was afraid for her. In fact, the witness arrived with two dogs, a Doberman Pincer and Pointer, in her automobile.

Defendants’ version of the incident is they were unhappy with the way plaintiff and her co-tenant were working on the chimney, and asked them to leave. On the afternoon of November 26, they entered the apartment about 2 o’clock as the truck Which had removed plaintiff’s furnishings had been gone for four hours and they concluded the move was completed. They were concerned about the light bulbs and they changed the lock on the door. There were some cardboard boxes and an old broken fan still remaining in the apartment, but they assumed the contents of these boxes had been abandoned. While they were putting up the last light bulb in the kitchen, they heard a knock on the door and plaintiff’s loud voice. Crawford stated he answered the door and plaintiff called him a fat ass, coming at him in the head, neck and throat. He tried to ward off the blows and was backing up. He denied hitting her at any time. He further denied that David Myers, the other defendant, had ever struck plaintiff. He is 6 feet tall, weighs 150 pounds and wears glasses. (Plaintiff is 5 feet, 4 inches tall.) David Myers subsequently was dismissed as a party defendant.

A Mrs. Joyce R. Wautlet testified that on the morning of November 26, she called Julian Crawford, a friend of her mother, to complain of a leak in her water line. She stopped by to see him that afternoon parking directly across the street from the apartment house. As she was getting out of the car, she could see plaintiff at the front door and heard her yell “Who changed the locks?” At this point Julian Crawford came out and said “Someone was taking the light bulbs” and the young lady said “You fat ass”. Crawford went backward, the door opened, plaintiff was yelling and screaming and swinging her arms at them. The witness thought this was a bad time to talk to him, so she got back in her ear and left.

In this court appellant contends: (1) plaintiff did not carry the burden of proof necessary to prove damages for injuries sustained by the alleged attack; and (2) the court overlooked the testimony of the independent witness, Mrs. Wautlet.

We do not agree with either contention. Plaintiff had until 5 o’clock on the afternoon of November 26 to move and had not completely moved all of her belongings from the apartment prior to that time. She was prevented from doing so by the defendant Crawford and/or his associate David Myers. Nor do we believe the trial judge overlooked the testimony of Mrs. Wautlet. And there is sufficient evidence in the record to support the trial judge’s acceptance of plaintiff’s testimony. We cannot say that the damages of $1,200 for forced eviction and personal injuries is excessive.

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

AFFIRMED.


author: LEMMON, Judge. GULOTTA, Judge, SCHOTT, Judge, GARSAUD, Judge,

text:
    Johnnie JOHNSON v. John P. OWEN and New Orleans Public Service, Inc. (Consolidated with No. 8502, Rebecca Davis, Widow of Frank Schief, Jr., Rose Mary Schief, Wife of Henry Fox, Eva Lee Schief, Wife of Clarence Lee, Jr., and Wallace Calvin Schief vs. John P. Owen and New Orleans Public Service, Inc., and No. 8503, Jeanette Johnson, Wife of and Warren Johnson vs. New Orleans Public Service, Inc. and John B. Owens, and No. 8504, Donna Scipio, Wife of/and Lester Nicholas vs. New Orleans Public Service, Inc., and John B. Owen, and No. 8505, Pedro Chamorra, et al. vs. New Orleans Public Service, et al., and No. 8506, Patricia Sanders and Edna Leon vs. New Orleans Public Service, Inc., Gerald Blackwell, John P. Owen, ABC Insurance Company and XYZ Insurance Company, and No. 8507, Ms. Debra Alexander vs. New Orleans Public Service, Inc. & John B. Owens).
    No. 8501.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 13, 1978.

      Charles R. Maloney, New Orleans, for plaintiff-appellee.
    Floyd F. Greene, New Orleans, for defendant-appellant.
    Before REDMANN, LEMMON, GULOT-TA, SCHOTT and GARSAUD, JJ.
   LEMMON, Judge.

Defendant has appealed from judgments in seven consolidated cases which found its bus driver liable in an intersectional collision. The appeals primarily question whether the bus driver had time to avoid the accident after he saw or should have seen the automobile violate his right of way.

The accident occurred on a clear, dry afternoon at the intersection of Elysian Fields Avenue and North Prieur Street. At that point Elysian Fields was a large north-south divided thoroughfare. On each side of a 63-foot wide neutral ground were three lanes for travel, each approximately 12 feet in width, and a narrower parking lane. Prieur was an undivided two-lane street, 30 feet in width. Stop signs controlled traffic entering the intersection from Prieur.

Prior to the collision the bus, which had all seats filled and about 20 passengers standing, had been traveling north on Elysian Fields. The bus had made a service stop at the intersection one block before Prieur and was not scheduled to stop at Prieur Street.

The driver testified: He started from the service stop and had traveled about one-fourth of the block, at which point he had attained a speed of 10 to 15 miles per hour and was accelerating. Across the neutral ground to his left he noticed a green Cadillac crossing the southbound lanes of Elysian Fields, but observed nothing unusual about the car’s movements or the driver’s actions. When the bus was about three-fourths down the block, he saw the Cadillac stop at the edge of the neutral ground. He directed his attention away from the Cadillac, assuming it would remain stopped, and he first became aware of the imminence of a collision when he noticed a green flash or blur from the left, at which time he was about IV2 to 6 feet away from the Cadillac. He jammed on his brakes when he was about five feet from the car and his brakes caught, but did not stop the bus so as to avoid a collision. A “few seconds” elapsed between the time he applied the brakes and the time of impact, in which the left front of the bus struck the right side of the car, between the front fender and the front door. After the accident he did not find any. skid marks made by the bus, but did notice some tire marks made by the Cadillac.

The driver of the Cadillac, a non-resident who was served under the long arm statute but who made no appearance, told the investigating officer after the accident that he did not see the bus prior to the collision.

The investigating officer found five feet of light tire marks just behind the front wheels of the bus, which he identified as the kind he often found just before the tires got hot enough to start leaving skid marks. The officer also found tire marks left by the Cadillac, which began in an eastbound direction and then went perpendicular in a northbound direction. He characterized the northbound marks, five feet in length, as scuff marks made by the Cadillac being pushed northward by the bus after the collision.

Several passengers testified that the bus had been traveling at a constant speed of about 25 miles per hour when they saw a green flash come across the front of the bus, followed by the impact. One passenger, Patricia Morris, testified that when several passengers uttered exclamations, she looked up immediately and caught a glimpse of the top of the car, adding, when asked if the bus driver applied his brakes simultaneously with her sighting the car, that “I don’t know if we (she and the driver) both saw the same thing at the same time but somewhere close about that time he did hit the brake”. Answering a question as to how much time elapsed “between the time the bus driver hit the brakes and the impact of the collision”, she estimated it “couldn't have been more than a few seconds”.

This overall testimony strongly suggests that the bus driver and the passengers saw the Cadillac unexpectedly enter the path of the bus at about the same time. Furthermore, the tire marks constituted mute evidence that the bus driver saw the Cadillac in sufficient time to react and at least begin braking, although he incorrectly stated that he had not sensed the imminence of danger until he was a few feet away from the Cadillac.

Imposition of liability depends upon a determination of the duty of each driver and an application of that duty to the facts of this case. The driver of the Cadillac had the duty to yield the right of way, and although he stopped at the edge of the neutral ground, he did not wait in the stopped position until he could cross the intersection safely. He was therefore negligent, and his substandard behavior was a legal cause of the accident.

The bus driver, on the other hand, had the right of way, and when he saw the Cadillac stopped at the edge of the neutral ground, he had the right to assume that the Cadillac would remain stopped in obedience to the traffic device controlling the intersection. Of course, once the Cadillac demonstrated that it was not going to remain stopped, a duty devolved upon the bus driver to discover the movement of the Cadillac and to take reasonable steps in response thereto. The determinative question as to his liability is whether he had sufficient time, after the duty arose to discover the Cadillac’s movement, to take reasonable action which could have avoided the accident.

The description of the Cadillac by all witnesses as a green flash or blur compels the conclusion that the car moved out quickly from its stopped position in the neutral ground. If the bus driver had reacted the very instant the Cadillac started up, he theoretically may have been able to avoid the accident. Yet the bus driver, who is held to the highest degree of care, was required to exercise overall observation and could not concentrate solely on the stopped vehicle which all motorists should have been able to assume would remain stopped. Furthermore, even a bus driver had no duty to react the very instant the stopped car moved forward — it may have been starting so as to cross behind the bus or it may have been turning left into another lane. And, of course, a bus driver also has a duty to avoid unnecessary sudden and violent braking.

If the bus driver in this case is allowed a reasonable interval of time to apprehend the danger that a motorist will disregard his right of way, there is simply no evidence that he had sufficient time thereafter to avoid the accident. Indeed, the physical facts indicate that he did not. The trial judge erred in placing too great a duty on a right of way motorist, even if that motorist was driving a transit bus.

For these reasons, the judgment of the trial court is reversed, and it is now ordered that the suit be dismissed at plaintiff’s cost.

REVERSED AND RENDERED

GULOTTA, J., concurs and assigns reasons.

SCHOTT, J., dissents and assigns reasons.

GARSAUD, J., dissents for the reasons assigned by SCHOTT, J.

GULOTTA, Judge,

concurring.

I concur with the result.

Implicit in the trial court’s imposition of liability on the part of the bus driver is a factual finding that the automobile did not stop at the neutral ground and indicated no intention to stop. The evidence does not support such a conclusion.

SCHOTT, Judge,

dissenting.

At the point where this collision occurred Elysian Fields consisted of northbound and southbound roadways divided by a neutral ground measuring 62 feet 8 inches wide. The northbound side of Elysian Fields was 44 feet 5 inches wide, and consisted of three lanes to accommodate moving traffic and a parking lane on the east side. The southbound side of Elysian Fields Avenue was 43 feet 7 inches wide. North Prieur Street was 30 feet wide. There was a stop sign facing west at Prieur Street and thus affording traffic on Elysian Fields the clear right of way. Prior to the collision the bus was traveling north on Elysian Fields and the automobile was proceeding east on North Prieur, crossing Elysian Fields before, and at the time of impact the bus was in the third traffic lane from the neutral ground, which lane was 24 feet 2 inches from the neutral ground. The impact was between the left front of the bus and the right front side of the automobile.

In Wise v. Prescott, 244 La. 157, 151 So.2d 356 (1963) the Supreme Court restated the legal principles applicable to a case such as this:

“The mere showing of injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes the burden on the carrier of convincingly overcoming such case ... “A public carrier of passengers while not an insurer is required to exercise the highest degree of vigilance, care and precaution for the safety of those it undertakes to transport and is liable for the slightest negligence. . The carrier must do all that human sagacity and foresight can do under the circumstances, in view of the character and mode of conveyance adopted, to prevent injury to passengers, the carrier being held liable for the slightest negligence with reference to the exercise of such care. . . .” (citations omitted)

Thus, in our review of this case we must decide whether the trial court committed error in concluding that NOPSI failed to carry its burden of proof that it was without any negligence. For NOPSI to prevail it must establish that its driver exercised the highest degree of care.

At the trial Blackwell, NOPSI’s driver, testified: After making a stop the block before North Prieur Street he pulled out into the lakebound moving lane of traffic. When he was about a half block from North Prieur Street he saw the Owen automobile stopped on North Prieur Street on the other side of Elysian Fields. As he moved forward accelerating speed, he saw the Owen automobile cross over the southbound side of Elysian Fields, enter the neutral ground and come to a stop before entering the northbound side of Elysian Fields from the neutral ground. Blackwell first realized that a collision was imminent when Owen’s car entered his lane of traffic and was five feet ahead of him. At that time Blackwell was traveling 15 miles per hour and immediately applied his brakes. Describing the movement of Owen’s automobile, Blackwell said “it shot out” from the neutral ground and attained a speed of 15 to 20 miles an hour by the time of impact. At a deposition taken some six months before trial, Blackwell said nothing about Owen stopping in the neutral ground at any time and said he did not realize a collision was imminent until the automobile was one and a half feet away from him.

The police officer who was NOPSI’s witness testified that he estimated the speed of the Owen automobile to be ten miles per hour and that of the bus to be fifteen miles per hour before the impact. He found that the bus had left five feet of skid marks behind its front wheels and after impact the bus traveled about five or six feet pushing the automobile forward.

Some of the passengers testified that pri- or to the collision they saw coming from the neutral ground a green flash or blur followed quickly by the sudden stop of the bus and the collision. One passenger testified that she heard a stir of excitement among the pedestrians as though they saw something, she looked up and saw the blur which was immediately followed by application of the brakes and the impact.

If one accepts Blackwell’s testimony at the trial that he saw Owen come to a stop in the neutral ground, the question becomes whether or not Blackwell had some duty to see Owen leaving the neutral ground and approaching his path before that point when Owen entered his lane just one and a half to five feet in front of him. Owen traversed 24 feet from his stopped position before Blackwell saw him again even though Blackwell had a clear and unobstructed vision of Owen’s path.

It is axiomatic that any driver who fails to see what is obvious to him is derelict in his duty. On the other hand, when Blackwell saw Owen come to a stop he was entitled to presume that he would remain stopped until the bus passed. But the fact remains that Owen did not remain stopped and from the moment he started to move Blackwell should have seen that the two vehicles were on a collision course. Since Blackwell insisted that he never attained a speed in excess of fifteen miles per hour it is reasonable to infer that he was negligent in failing to stop before the two vehicles were five feet if not one and a half feet apart.

This conclusion is bolstered by the testimony of those passengers who testified that they saw a blur or a flash approaching from the left of the bus before Blackwell did and particularly by the testimony of Mrs. Patricia Morris that she was seated in the rear and on the right side of the bus when she heard other passengers “say something like they could see the car coming,” whereupon she raised her head and saw the top of the car just prior to impact. She answered yes to this question:

“I take it there were other people on the bus who, like you, saw the car before the accident because they reacted with oh’s and ah’s before the collision?”

From this testimony it seems that an interval of time passed when Owen started to move from the neutral ground and the passengers became sufficiently alarmed to cause Mrs. Morris to look up. Again, we come back to the question of why didn’t Blackwell anticipate trouble before Owen was in his path five feet in front of him.

When Blackwell was recalled to the witness stand after Mrs. Morris testified he denied that he heard any indication among the passengers that a collision was imminent. Asked to explain why the conflict between her testimony and his he stated that he had more than one thing to contend with while operating his bus.

This discussion of the evidence was preceded by the statement of the law which places a high degree of care on a public carrier. It is clear that this was an extremely close case to call, but our role as a reviewing appellate court is quite different than the role of the trial court. We must decide if the evidence before the trial court furnished a reasonable factual basis for his conclusion, in effect, that Blackwell’s conduct did not measure up to the extremely high degree of care placed upon him, and that this accident could have been avoided had Blackwell exercised the slightest degree of care. Canter v. Koehring, 283 So.2d 716 (1973). Under this standard I have concluded that the judgment on liability should be affirmed even though I might have decided the case differently had I been the trial judge.

GARSAUD, Judge,

dissenting.

I dissent for the reasons assigned by Judge Schott.

      . If the coefficient of friction of the street surface is assumed to be 0.75, then the maximum velocity the car could have attained in 30 feet (across two and a half lanes) was 38 feet per second (26 miles per hour). [The formula is V2 = 2 (32.2) D u]. Lacy, Scientific Automobile Accident Reconstruction, Ch. 6, p. 581 (1968). And if the car did move from the stopped position at maximum speed, the time elapsed between start up and impact was 1.57 seconds. (The formula is T = V 32.2 u). Lacy, supra, Ch. 1, p. 1139.
      Yet a vehicle traveling at 15 miles per hour, with brakes at maximum efficiency, takes 0.91 seconds, plus a reaction time of 0.75 seconds, to brake to a stop on a surface with a 0.75 coefficient of friction. And a vehicle traveling faster takes even longer.


author: GAUDIN, Judge. STOULIG, Judge,

text:
    BIO-MEDICAL LABORATORIES, INC. v. Robert HARVEY, Dr. Frank M. Chalaire, Medco Management Corporation, Individually and d/b/a Claiborne Medical Center.
    No. 8877.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1978.
    Rehearing Denied June 14, 1978.

      Neville M. Landry and Antonio E. Papale, Jr., New Orleans, for plaintiff-appellant.
    Dale C. P. Cannizzaro and Robert T. De-Prancesch, New Orleans, for defendant-appellee.
    Before STOULIG, BEER and GAUDIN, JJ.
   GAUDIN, Judge.

This is a suit on an open account filed by Bio-Medical Laboratories, Inc., against various named defendants.

In support of its claim, Bio-Medical Laboratories produced its credit manager, who testified that the balance due was $8,787.90.

During cross examination of this witness, defendants produced a $250 check, drawn by defendant Medco Management Corporation and payable to Bio-Medical Laboratories. On the front side of the check are the typewritten words “In Pull.”

Over objection, defendants introduced the check and contend that it was tendered as payment in full of the account.

In addition, defendants introduced, also over objection, an undated copy of a letter supposedly sent to Bio-Medical Laboratories’ auditor in which the $250 check is referred to as “full settlement of the matter.”

Plaintiff denied receipt of the document. The author of the letter was not called as a witness, and there was no testimony or evidence showing that the letter had in reality been mailed.

Following trial, a judgment was rendered against the plaintiff, dismissing the suit because “. . . the debt was paid in full.”

Bio-Medical Laboratories bases its appeal on the procedural fact that in none of the answers filed by the defendants was the defense of full or partial compromise or extinguishment of the debt raised.

We agree with the correctness of plaintiff’s position. Code of Civil Procedure Article 1005 reads:

“The answer shall set forth affirmatively arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, division, duress, error or mistake, estoppel, extinguishment of the obligation in any manner, failure of consideration, fraud, illegality, injury by fellow servant, transaction or compromise, and any other matter constituting an affirmative defense. If a party has mistakenly designated an affirmative defense as an incidental demand, or an incidental demand as an affirmative defense, and if justice so requires, the court, on such terms as it may prescribe, shall treat the pleading as if there had been a proper designation.” LSA-C.C.P. Art. 1005.

The various answers, generally, denied the petition’s allegations; and none of them was concerned with an affirmative defense of debt reduction or extinguishment. The trial judge should not have considered either the $250 check or the carbon copy of the undated letter.

Accordingly, the judgment appealed from is reversed, and judgment is hereby rendered in favor of Bio-Medical Laboratories, Inc., and against Robert Harvey, Dr. Frank M. Chalaire, Medco Management Corporation, individually and doing business as the Claiborne Medical Center, in the full sum of EIGHT THOUSAND SEVEN HUNDRED EIGHTY-SEVEN AND 90/100 ($8,787.90) DOLLARS plus legal interest from date of judicial demand until paid, and all costs of this proceeding.

REVERSED.

STOULIG, J., concurs with written reasons.

STOULIG, Judge,

concurring.

I respectfully concur.

The affirmative defense of accord and satisfaction, while not specially pleaded as required by C.C.P. art. 1005, was nonetheless before the court because testimony was admitted — to which no objection was raised — that would set forth this special defense. Failure to object to evidence that would establish an affirmative defense enlarges the pleadings. Webster v. Rushing, 316 So.2d 111 (La.1975), and Red Barn Chemicals, Inc. v. Lassalle, 350 So.2d 1315 (La.App.3d Cir. 1977). C.C.P. art. 1154.

A photostatic copy of a check allegedly tendered to plaintiff as payment in full was introduced in evidence without objection and an undated and unsigned letter that allegedly accompanied the document was also read into the record without objection. The letter explained the enclosed check was payment in full. Both the check and the letter were discussed at length before plaintiff’s counsel objected, and his complaint did not concern introduction of evidence to establish an unpleaded affirmative defense. Rather it challenged the competency of the evidence.

The best evidence rule, simply stated, is the requirement that one carrying the burden produce the best proof that the nature of the thing will afford. McCormack Evidence, 2nd Edition, page 559. In this case the original document (the check tendered and negotiated) is not the best evidence; photostatic copies of the bank’s records on which the check was drawn would be. The trial court pointed this out during the course of the trial, noting that the “in full” notation on the face of the check could have been added after the cheek was negotiated. However, the bank records of this transaction would establish whether this verbiage was on the check at the time plaintiff deposited it. The bank records were never produced or filed although the attorney for plaintiff indicated they would be.

The fact of whether the letter was or was not written is a matter of credibility. Since the letter is merely corroborative in nature, it lacks probative value because the bank photostat of the check was never produced.

Therefore, while defendant succeeded in enlarging the pleadings with unobjected to testimony, it nonetheless failed to carry the burden of proving its special defense because the secondary evidence tendered was insufficient without an explanation why the best evidence was not presented at the trial.