text:
    REILY BROTHERS, INCORPORATED v. DICON, INC., the Mitchell Corp., Singer Housing Company, and Travelers Indemnity Company.
    No. 11736.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.

      John N. Gallaspy, of Gallaspy & Paduda, Bogalusa, for plaintiff.
    France W. Watts, III, of Watts & Cassi-dy, Franklinton, for defendants.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge.

Dicon, Inc. and Travelers Indemnity Company appeal a judgment of the trial court in favor of Reily Brothers, Inc., which recognized a materialmen’s lien in the amount of $12,030.53, together with the cost of filing the lien and interest from date of judicial demand. The appeal is presently before us both on a motion to dismiss and on the merits.

ON THE MOTION TO DISMISS

On October 31, 1977, Reily Brothers, the appellee, filed a motion to dismiss, contending that the judgment herein was not final at the time the order of appeal was signed, and consequently, the appeal was premature and should be dismissed.

We find no merit in this contention.

The trial court rendered judgment in this suit on March 21, 1977 and notice of judgment was sent on March 22,1977. A timely application for a new trial was filed on behalf of Dicon and Travelers on March 28, 1977. A hearing on the motion for a new trial was held on May 9,1977, at which time the trial court denied the motion as reflected- in the Extract of Minutes. Dicon and Travelers filed an Order for Appeal and an Appeal Bond on May 27, 1977. On August 5,1977, the trial judge signed a formal written judgment denying their motion for a new trial.

The- delay for perfecting a suspensive appeal begins, in cases such as the present where a timely application for a new trial has been filed, from the date of the trial court’s refusal to grant the motion. LSA-C.C.P. article 2123.

The refusal to grant a new trial is an interlocutory order or judgment, and consequently there is no requirement for a signed written judgment. Simon v. Lumbermans Mutual Casualty Co., 138 So.2d 465 (La. App. 3rd Cir. 1962).

Therefore the delay for perfecting a suspensive appeal began when the motion for a new trial was denied in open court on May 9, 1977. See Caston v. Argonaut Ins. Co., 244 So.2d 320 (La. App. 1st Cir. 1970).

The appeal perfected on May 27, 1977 was therefore timely and was not premature.

Accordingly, the motion to dismiss is denied.

ON THE MERITS

The record indicates that on May 10, 1974, Dicon entered into a building contract, as general contractor, for the construction of a shopping center in Bogalusa. Travelers issued a performance bond to Di-con. The contract and bond were thereafter filed in accordance with LSA-R.S. 9:4801 et seq.

Plaintiff, Reily Brothers, is an electrical supply company in New Orleans and from October 1974 until January 1975, it furnished electrical fixtures and materials to Dicon for use in the construction of the shopping center. Some of these materials were furnished under written purchase orders, while others were supplied in response to verbal orders placed by Dicon’s project manager, R. L. Tucker. All the materials supplied by plaintiff were ordered and shipped from the respective factories directly to the construction site. Plaintiff received invoices and bills of lading from the various factories, paid these invoices, and in turn billed Dicon for the materials.

Bernard J. Slutsky, plaintiff’s contract department manager, testified that they did not have signed delivery receipts for the materials because they had been shipped directly from the manufacturers. However, he testified that the bills of lading were evidence that the materials had been shipped. He further testified that prior to trial he had conducted an inspection of the shopping center; and had observed and counted electrical fixtures conforming in quantity and description to those on the disputed invoices.

Robert Ramsey, Dicon’s president, testified that he refused to pay the invoices because Reily Brothers could not furnish signed delivery receipts for the disputed materials.

On April 10, 1975, plaintiff filed a lien in accordance with LSA-R.S. 9:4801 et seq. against the property in question.

The shopping center construction was accepted by the owners on June 22, 1975.

Reily Brothers instituted this suit on March 31,1976 against Dicon and its surety, Travelers. The owners of the property are not parties in this suit.

The trial court found that plaintiff, though it could not present signed delivery receipts, had amply proven by competent circumstantial evidence, especially the testimony of Slutsky, that the disputed materials had in fact been delivered to Dicon at the construction site.

Dicon and Travelers urge that the trial court erred in two respects: 1) in overruling their exceptions of no cause of action, no right of action and prescription; and 2) in holding that there was sufficient proof that the disputed materials were delivered to the construction site.

Dicon and Travelers contend in their peremptory exceptions that plaintiff’s failure to serve the sworn detailed statement of its claim on all the owners of the shopping center violates LSA-R.S. 9:4802. They argue that the lien is therefore invalid and that Reily Brothers cannot maintain this suit.

We are unable to find any case in which the validity vel non of a lien is determined based on whether or not a claimant has served his claim on one but not all the owners of the subject property. However, we need not reach this issue since the filing of the sworn statement of account on the owner is not a condition precedent to a right of action by the furnisher of materials against the contractor and surety. Shreveport Mutual Building Ass’n v. Whittington, 141 La. 41, 74 So. 591 (1917). Compare Haynesville Lumber Co. v. Casey, 165 La. 1065, 116 So. 559 (1928).

We find that there is no merit to appellants’ exceptions of no cause of action and no right of action. We also find that the exception of prescription is equally unfounded as the instant suit was instituted within a year of (both the filing of the lien on the property and) the acceptance of construction. Therefore the action was not prescribed. See, LSA-C.C. article 3544 and LSA-R.S. 9:4814.

On the issue of delivery, Dicon and Travelers rely heavily upon the decision in Jahncke Service, Inc. v. Foret, 139 So.2d 554 (La. App. 4th Cir. 1962) to support their contention that Reily Brothers cannot prevail absent the production of signed delivery tickets.

We do not find that Jahncke supports this contention. The Court in Jahncke stated at page 557:

“All that the furnisher of materials to be used under a contract for private construction is required to do, in order to collect from the contractor and his surety, is to show by competent proof that the material was delivered to the job site. . "

We find that plaintiff in the instant case has met this burden of proving delivery through the testimony of Slutsky, who testified regarding the various invoices and his personal inspection of the shopping center. We believe, as did the trial court, that this evidence, though circumstantial, amply proves that the disputed materials were supplied by Reily Brothers and delivered to Dicon at the construction site.

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

AFFIRMED.

PONDER, Judge,

dissenting in part and concurring in part.

I concur in part and dissent in part. The judgment granted the amount of the claim, the costs of filing the lien and interest and costs. It also enforced the lien and made it executory.

I find no difficulty with the refusal of the motion to dismiss and the finding that the materials had been delivered.

By exceptions of no right of action and no cause of action, Dicon and Travelers contend that plaintiff’s failure to serve a detailed statement of the claim on all the owners violates LSA-R.S. 9:4802 which precludes plaintiff’s maintaining this suit against the surety and contractor.

Service on one of the co-owners was disputed. Admittedly, service on the other co-owners was never made.

LSA-R.S. 9:4814 A. and B. states:

“A. Except as provided in Subsection C of this Section nothing in this Subpart shall be so construed as to deprive any claimant of his right of action against the surety signing and bond furnished in connection with any building contract or subcontract, or against the principal obligor thereunder, which right of action against such obligor and the said surety shall accrue at any time after maturity of the claim of the said claimant.
“B. Before any suit is instituted against the surety prior to the registry by the owner of his acceptance of the work, or of the notice of default, such claimant shall record his claim as provided in R.S. 9:4802, and shall serve a copy of the said claim, in the form and in the manner prescribed in R.S. 9:4802, on both the owner and the surety and provided that no suit shall be filed against the surety until thirty days after such service. Any action against the surety must be brought within one year from the registry of acceptance of the work or of notice of default of the contractor. When claimants shall not have preserved their privileges and shall afterwards bring a direct action against the surety, they shall have priority as between themselves after payment of all recorded claims against the balance for which the surety is liable in the order of the filing of their respective suits.
* * ‡ H

This article obviates any necessity of filing a lien against the property “. . .as a prerequisite to the recovery of a personal judgment against the contractor and his surety.” The only limitation is the requirement that the claim be a “lienable” one.

The requirement of Paragraph B, service of the claim on the owner and surety, is applicable only when suit is instituted prior to acceptance or notice of default. The present suit was instituted long after acceptance by the owner. Therefore, I see no merit to the exceptions.

However, since service was not made on at least one-half of the ownership interest in the property, and since the co-owners were not even made parties to this lawsuit, I do not believe the lien should be recognized and made executory. Furthermore, defendants filed a lien release bond which had the effect of releasing the lien.

I therefore concur in the result affirming the Trial Court’s overruling the exceptions and dissent to the affirmance of enforcing the lien and making it executory.

      . LSA-R.S. 9:4802
      “ * * * Every person having a claim against the undertaker, general contractor, . shall serve upon the owner a sworn detailed statement of his claim .

      . Apex Sales Co. v. Abraham, 201 So.2d 184 (La. App. 4th Cir., 1967).

      . Arrow Construction Co., Inc. v. Am. Employees Ins. Co., 273 So.2d 582 (La. App. 1st Cir., 1973).

      . LSA-R.S. 9:4841
      “When any contractor shall have entered into a contract to perform private works under the laws of this state governing the letting and awarding of such contracts and in conformity with the requirements thereof, the contractor shall have the right to bond any claim or claims which may be filed or recorded against the said work by depositing with the clerk of court of the parish in which such claims are filed or recorded a bond with surety signed by any surety company authorized to do business in the state for an amount equal to the claim plus one-fourth. The bond shall be approved by the clerk of court conditioned that in the event the legality of such claim or claims is established by suit or otherwise, the bond shall remain in full force and effect to protect the interest of the claimant in the premises.”


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Alden Burr GORHAM, Jr. v. Margaret Jones GORHAM.
    No. 11713.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Robert B. Chopin and Jeanne M. Roques, Slidell, for plaintiff-appellant.
    Thomas S. Derveloy, Jr., Covington, for defendant-appellee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed from the denial of a change of custody of a minor child.

The issues are the burden to be borne by one seeking a change of custody; the claimed abuse of the court’s discretion and the constitutionality of the maternal preference rule.

We affirm.

The defendant was awarded custody of the minor children in a divorce granted in Florida. Only one child, now eight years old, is involved in these proceedings, the others having reached maturity.

Plaintiff first asserts that the “double burden”, should not have been imposed since the Florida decree was not a “considered” one.

It is true that the lower court spoke in terms of the custody having been set and the necessity to show a change for the better on the one part and for the worse on the other part. We held recently in McCarstle v. McCarstle (1st Cir. 1977) that the best interest of the child was the main consideration, and that a heavy burden was demanded of one who seeks to change custody, relying upon Monsour v. Monsour, La., 347 So.2d 203 (1977); Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972); and Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971).

The lower court examined the welfare of the child quite thoroughly despite the reference to the double burden and concluded that the child’s long term welfare was best served by continuing the custody in the mother even though temporarily his welfare might be best served by allowing the father temporary custody. This finding is entitled to great weight; it will not be disturbed in the absence of a clear showing of abuse. We find no abuse.

The plaintiff also contends that the lower court applied the maternal preference rule, and that this rule is unconstitutional. We find no evidence that the court applied the rule. At any rate, since the plaintiff failed to raise this issue at the trial, he cannot raise it on appeal. Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971) and Greer v. Greer, 346 So.2d 846 (La.App. 1st Cir. 1977), writs refused September 30, 1977.

The judgment is affirmed. The plaintiff is cast with all costs of this appeal.

JUDGMENT AFFIRMED.

      . .it is incumbent upon the party requesting the modification to prove that the conditions under which the children are living are detrimental to their interests and further that the applicant can and will provide a good home and better environment if given their custody.” Decker v. Landry, 227 La. 603, 80 So.2d 91, 92 (1955).


text:
    The AMERICAN ROAD INSURANCE COMPANY v. Frank MONTGOMERY and Bobbie Thomas Montgomery.
    No. 11733.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writ Refused March 17, 1978.
    Writs Refused March 27, 1978.

      Frank W. Middleton, III, Baton Rouge, of counsel for plaintiff-appellant The American Road Ins. Co.
    Michael W. McKay, Baton Rouge, of counsel for defendant-appellant Frank Montgomery and Bobbie Thomas Montgomery.
    William T. Kivett, William J. Doran, Jr., Baton Rouge, of counsel for defendant-appellant Louisiana Dept, of Highways.
    Andre C. Broussard, Baton Rouge, of counsel for defendant-appellee and third party plaintiff Shirley Callender.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

This case involves a number of claims for personal injuries and property damages resulting from an intersectional collision.

The issues are:

(1) Strict liability under LSA-C.C. Art. 2317 of the Highway Department.

(2) The amount of the award.

Mrs. Bobbie Thomas Montgomery was proceeding west on a state highway when she had to stop for a red light at the intersection with another state highway. She testified she proceeded only when the light changed to green, but the lower court found, and we agree, that because of a defect in the traffic light she was faced with both a green and a red light. Mrs. Shirley Callender was proceeding north on La. 19, faced with a green light. The cars collided. Mrs. Callender was injured and her car was totally destroyed. Mrs. Montgomery and four guest passengers sustained personal injuries. The American Road Insurance Company sought recovery of the amount paid Mrs. Callender from Mr. and Mrs. Montgomery and the Highway Department. Mr. and Mrs. Montgomery sought contribution from the Highway Department. They also sought recovery for property damage and the personal injuries of Mrs. Montgomery and their three children from Mrs. Callender and the Highway Department. Priscilla Ford Montgomery and Dave H. Mitchell, guest passengers along with the three Montgomery children in the Montgomery car, sought recovery for personal injuries from Mrs. Callender and the Highway Department. The Highway Department sought contribution from Mr. and Mrs. Montgomery. Mrs. Callender sought recovery for personal injuries from Mr. and Mrs. Montgomery and the Highway Department. The Highway Department sought indemnity or contribution from Mr. and Mrs. Montgomery and Mrs. Callender.

After trial the court awarded judgment to The American road Insurance Company and against Mr. and Mrs. Montgomery for the amount of its subrogation; judgment to Mrs. Callender and against Mr. and Mrs. Montgomery for $6,696.50. All other claims were dismissed. All parties appealed.

All parties except the Highway Department contend that it should be held liable. There is no evidence of notice, either actual or constructive, of the defective light. They contend, however, that the Highway Department should be held liable under LSA-C.C. Art. 2317 and Loescher v. Parr, La., 324 So.2d 441 (1975). In the most recent expression U.S.F.&G. Co. v. State, Department of Highways, La., 339 So.2d 780 (1976), the Supreme Court expressly stated it did not have to reach the question of strict liability under Art. 2317, since it found the Highway Department had received notice and was negligent. There was no notice in the instant case; we have to consider the question not answered by the Supreme Court. We decide that under the express language of Loescher v. Parr, supra, the article applies.

We quote from page 446 of that case: “When harm results from the conduct or defect of a person or thing which creates an unreasonable risk of harm to others, a person legally responsible under these code articles for the supervision, care, or guardianship of the person or thing may be held liable for the damage thus caused, despite the fact that no personal negligent act or inattention on the former’s part is proved. The liability arises from his legal relationship to the person or thing whose conduct or defect creates an unreasonable risk of injuries to others. The fault of the person thus liable is based upon his failure to prevent the person or thing for whom he is responsible from causing such unreasonable risk of injury to others. Thus, the person to whom society allots the supervision, care, or guardianship (custody) of the risk-creating person or thing bears the loss resulting from creation of the risk, rather than some innocent third person harmed as a consequence of his failure to prevent the risk. His fault rests upon his failure to prevent the risk-creating harm and upon his obligation to guard against the condition or activity (by the person or thing for which he is responsible) which creates the unreasonable risk of harm to others.”

Plaintiffs have proved that the Highway Department had control or custody or garde of the light, the light had a defect, and the defect was a cause of damage.

It is argued that this strict liability should not be applicable to a public agency, because benefit or enjoyment of the thing does not accrue to the state in the traditional manner. We cannot see any logical reason for that conclusion, which must be based, if found, on reasons of policy. It is argued, too, that the imposition of strict liability will be prohibitively expensive to the Highway Department. This argument is more properly addressed to the legislature than to us.

This holding, however, does not result in the liability of the Highway Department. The owner or custodian of the thing is absolved from liability if he proves that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. We have found no authority that this cause must be the sole one. A quotation from Loescher v. Parr, supra, indicates that it need be only a substantial factor.

We find that the negligence of Mrs. Montgomery was a cause in fact.

It is argued that Mrs. Montgomery is not at fault: her action was not the proximate cause of the injury; it was the duty of the Highway Department to protect her from exposure to the risk she encountered. We do not believe that the duty of the Highway Department to Mrs. Montgomery extended to guarding her against the consequences of her proceeding when faced with a yellow light, a red light or both a green and a red light. Furthermore, the fault of which the Highway Department was guilty is that imposed by C.C. Art. 2317, not negligence under C.C. Art. 2315 and 2316, with its questions of duty, breach and scope of protection.

Mr. and Mrs. Montgomery claim that the award of $6,000.00 in general damages is excessive. Shirley Callender suffered pain in her left jaw, left ribs, and both knees. There was swelling in the left mandible, two jagged lacerations near the left knee and one jagged laceration near the right knee. She was treated for the better part of 10 hours in the emergency room and then released. She returned the next day for removal of the drain tubes placed in her knees. She missed six weeks of work; she was confined to the bed for three. She still had trouble with her knees after her return to work mainly because she does stockroom work, lifting boxes and stocking shelves. There are scars on her knees that remain visible and embarrassing. Under these facts, we find that the award of $6,000.00 general damages did not constitute an abuse of the much discretion vested in the trier of fact. LSA-C.C. Article 1934(3).

The judgment appealed from is affirmed. The costs of this appeal are taxed equally among all appellants.

AFFIRMED.

      . LSA-C.C. Art. 2317
      “Art. 2317. We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.”

       “ * * * No showing is made that the fault of the victim or of any third person contributed to (i. e., was a substantial factor in) the fall of the tree.” p. 449.


author: BLANCHE, Judge.

text:
    Oradel MORRIS, wife of/and James Morris, v. The LOUISIANA COCA-COLA BOTTLING COMPANY, LTD., et al.
    No. 11688.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.

      Harold B. Carter, Jr., Sylvia Landry, New Orleans, for plaintiffs and appellants.
    James R. McClelland, Franklin, Laurence E. Best and Huntington B. Downer, Jr., Houma, Harry McCall, Jr., New Orleans, for defendant and appellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Mr. and Mrs. James Morris are appealing the granting of a motion for summary judgment dismissing Cannata’s Supermarket, Inc., as a defendant in their tort action for personal injury and damages arising from an explosion in their home of a soft drink bottle which was purchased from the vendor-defendant.

The record indicates that on December 14, 1974, plaintiffs purchased from Canna-ta’s Supermarket, Inc., among other items, two 48-ounce sized bottles of a soft drink labeled “Coca-Cola.” They loaded the groceries in a station wagon type vehicle and took them directly to their nearby residence, unloaded the groceries, and with no delay, Mrs. Morris placed the two soft drink bottles on the floor of their pantry. The contents of one of the bottles was consumed by plaintiffs’ son; and then on December 19, 1974, while Mrs. Morris was seeking an item from the pantry, the remaining bottle exploded, injuring her.

On May 4, 1977, Cannata filed a motion for summary judgment on the grounds that the pleadings, answers to interrogatories and deposition of Mrs. Morris, together with the affidavit of Mr. Jimmy Blakeman, the supermarket manager, showed no genuine issue as to material fact.

The material fact referred to is the negligence of Cannata’s officers and employees, and defendant contends that the documents referred to fail to point to any act or omission of negligence on their part. The trial judge completely agreed with defendant, stating in Written Reasons for Judgment that his review of the foregoing documents failed to reveal any evidence of “acts or omissions of negligence on the part of the officers and employees of Cannata’s Supermarket, Inc.”

On the other hand, the defendant points to the affidavit of Mr. Blakeman which stated that during December of 1974 the Coca-Cola products were delivered on Tuesdays and Fridays and that on Wednesdays the Coca-Cola vendor took orders for the product. Mr. Blakeman also stated that on both the delivery and order days the personnel of the Coca-Cola vendor handled the bottles and stocked the shelves. On all other days, employees of the supermarket handled the bottles and stocked the shelves as sales required.

In her deposition, Mrs. Morris testified that she and Mr. Morris purchased the soft drink on a Saturday, a day on which the bottle could have possibly been handled by the personnel of the supermarket.

Therefore, plaintiffs conclude that as to these days they should be given the opportunity to show that Cannata’s officers and employees could have failed to properly inspect the bottles or could have improperly handled or mishandled the bottles after they were delivered to the supermarket.

LSA-C.C.P. art. 966 provides that a summary judgment shall be granted if the pleadings and depositions together with the affidavits show there is no genuine issue as to material fact. It is well recognized in the jurisprudence that a party moving for summary judgment has the burden of demonstrating clearly the absence of any genuine issue of fact and any doubt is resolved against the movant. Further, it is not the function of the trial court in a motion for summary judgment to determine or even inquire into the merits of the issues raised, but rather it must limit itself to a determination of whether there is a genuine issue of fact. Mecom v. Mobil Oil Corporation, 299 So.2d 380 (La.App. 3rd Cir. 1974), appl. denied, La., 302 So.2d 308.

We view the lack of proper inspection and the handling and/or mishandling of the bottles as a triable issue of fact and believe that movant has not clearly demonstrated the absence of a genuine issue as to this fact.

Finally, it is to be noted that where failure of duty toward plaintiff is alleged, the reasonableness and prudence of such conduct is a factual matter which should be resolved on the merits of the case. See Odom v. Hooper, 273 So.2d 510 (La.1973).

Accordingly, the judgment of the trial court is reversed and set aside, and the case is remanded to the trial court for further proceedings consistent with the views expressed herein. The costs of this appeal are to be paid by appellee.

REVERSED AND REMANDED.


text:
    Janis T. ROUSSELL, v. LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION, DIVISION OF FAMILY SERVICES, NEW ORLEANS, Louisiana.
    No. 11690.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Bernard S. Dolbear, New Orleans, for appellant, Janis T. Roussell.
    H. M. Westholz, Jr., Dept, of Health and Human Resources, New Orleans, for appel-lee.

      Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Janis T. Roussell is appealing the granting of a Motion for Summary Disposition by the Louisiana Civil Service Commission which dismissed her appeal to the Commission. Appellant was separated from her position as a Welfare Visitor in the Louisiana Health and Human Resources Administration, Division of Family Services. The causes for her dismissal were particularized in a letter which she received on December 10,1976, following a meeting where she and other employees were verbally advised of their termination.

On December 13, 1976, appellant, along with “others,” signed a letter dated that day and received by the Department of Civil Service on December 15, 1976, which stated:

“We, the undersigned wish to appeal our removal from the Division of Family Services effective December 10, 1976.”

After the Motion for Summary Disposition of Appeal was filed, appellant sought to amend the appeal to comply with the deficiencies alleged in the motion, but the Commission found that the amendment was not filed in accordance with Civil Service Rule 13.12(a), and no issue is made of this ruling on appeal to this Court.

There are only two issues presented by this appeal. The first is whether the Commission correctly found that appellant’s letter did not substantially comply with Civil Service Rule 13.11(d), (e), (f) and (g). The second issue is whether Article 10 of the Louisiana Constitution of 1974 providing that the “burden of proof on appeal, as to the facts, shall be on the appointing authority” relieves appellant from complying with said rule.

Rule 13.11(d) provides that appellant’s notice of appeal must “[cjontain a clear and concise statement of the * * * basis of the appeal.” A mere statement that one desires to appeal the employee’s removal from State service does not meet the requirement of the rule. It does not deny the charges made in the dismissal, nor does it indicate whether or not discrimination is alleged to be a basis for appeal.

On the second issue, appellant argues that the constitutional and jurisprudential basis for the requirement that appellant state “the basis of the appeal” seems to have passed with the death of the old constitution since the appointing authority must come forward in the first instance to justify disciplinary action. The argument is without merit. Under the Louisiana Constitution of 1921, as well as the Constitution of 1974, all employees disciplined by removal from State service are guaranteed the right to appeal. Article 10, § 8, Louisiana Constitution of 1974; Article 14, § 15, Louisiana Constitution of 1921. Whether the employee or the appointing authority has the burden of proof relative to the issues on appeal is a question aside from the rule requiring the employee to specify the basis of the appeal. The question is whether the rule is in conflict with the constitutional provision or whether it is so unreasonable or arbitrary as to deprive appellant of due process or equal protection of the law.

In Sutton v. Dept. of Public Safety, etc., 340 So.2d 1092 (La.App. 1st Cir. 1976), in holding that the Commission rule requiring the written notice of appeal be filed within thirty days after receipt of written notice of the action appealed from, the Court did not deny due process, stating:

“The Commission is a quasi-judicial body. When the Commission’s rules are reasonable, and do not violate basic constitutional rights, they must be recognized and enforced by the courts. See Heinberg v. Department of Employment Security, 256 So.2d 747 (La.App. 1 Cir. 1971), writ ref. 260 La. 1135, 258 So.2d 381 (1972).” (340 So.2d at 1093, 1094)

Appellant has failed to carry the burden of proof as to these issues.

Civil Service rules are clothed with the force of law, Article 10, § 10(a)(4), Louisiana Constitution of 1974; and we find appellant has failed to comply therewith.

Accordingly, the decision of the Civil Service Commission is affirmed. All costs are to be paid by appellant.

AFFIRMED.

      . The “others” referred to were fellow employees of appellant, and they also appealed their dismissals in Appeal Nos. 1586, 1587, 1588, 1589, 1592 and 1593 on the docket of the Civil Service Commission. Appellant’s appeal was numbered 1594. The Commission consolidated the foregoing appeals in a single hearing before the Commission on May 3, 1977, limited solely to a consideration of the Motion for Summary Disposition. The others have also appealed to this Court, and their appeals are lodged in No. 11,678 on the docket of this Court.

      . Civil Service Rule 13.12(a)(1) states:
      “(a) No appeal shall be effective unless a written notice complying with the requirements of Rule 13.11 is received in the office of the Director in the Department of State Civil Service at Baton Rouge, Louisiana.
      “1. Within thirty (30) calendar days after the date on which appellant received written notice of the action on which the appeal is based when written notice before or after the action is required by these Rules * *


author: BLANCHE', Judge.

text:
    Ms. Eddie P. THEARD et al. v. LOUISIANA HEALTH AND HUMAN RESOURCES ADMINISTRATION, DIVISION OF FAMILY SERVICES, NEW ORLEANS, Louisiana.
    No. 11678.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writ Granted March 27, 1978.
    Robert Glass, Martzell & Montero, New Orleans, for appellants.
    H. M. Westholz, Jr., Dept, of Health and Human Resources, New Orleans, for appel-lee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE', Judge.

This case involving the six appellants grew out of their separation from service from the Louisiana Health and Human Resources Administration, Division of Family Services, who is the appointing authority and the appellee herein.

The law and the facts in the instant case are indistinguishable from those presented in Roussell v. Louisiana Health and Human Resources Administration, Division of Family Services, New Orleans, Louisiana, 354 So.2d 661 (La.App. 1st Cir. 1977), a decision which this Court is handing down today. We adopt the Roussell opinion in the instant case.

Accordingly, the decision of the Louisiana Civil Service Commission is affirmed herein, and all costs are to be paid by appellants.

AFFIRMED.


text:
    Leona SANDERS as administratrix of the Estate of her minor son Darryl Sanders v. STATE FARM INSURANCE COMPANIES et al.
    No. 11708.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writ Refused March 27, 1978.

      Walter C. Dumas, Baton Rouge, of counsel for plaintiff-appellant Leona Sanders as administratrix of the estate of her minor son Darryl Sanders.
    Anthony J. Clesi, Baton Rouge, of counsel for defendant-appellee State Farm Ins. Companies et al.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Leona Sanders, as administratrix of the estate of her minor son, Darryl Sanders, is appealing the finding of the trial court of a lack of negligence by the defendant and the court’s dismissal of her suit. Plaintiff’s claim arises out of an automobile accident which occurred on August 17, 1974, on Dal-rymple Drive in Baton Rouge when an automobile driven by Allan T. Simpson struck her son while he was a pedestrian in the outer lane of the northbound, two-lane street.

The appellant’s sole specification of error in her brief is that the “Lower Court erred in not finding defendant-appellee, Allan T. Simpson, negligent and in dismissing plaintiff’s suit.”

In holding that the defendant was not negligent, the trial court, in its written reasons, said:

“ * * * The Court is satisfied that the cause of this accident was the negligence of Darryl Sanders in attempting to cross a roadway when it was not safe to do so; in failing to observe the nature of the situation; and failure to yield the right-of-way to the oncoming traffic.” (Record, p. 53)

The trial judge also commented on Darryl Sanders’ capacity for negligence, stating:

“Darryl Sanders was 12 years old at the time of the incident; and at the trial, impressed the Court as a very bright individual; therefore, in the opinion of this Court, the Doctrine of Contributory Negligence is applicable to him; p. 48) (Record,

We have carefully studied the entire record, which included not only the transcript of testimony but the deposition of Darryl Sanders and Riley Hills, his companion at the time of the accident. We are compelled to agree with the trial court’s finding of these facts:

“The deposition of Darryl Sanders, when contrasted with his testimony at trial, strongly indicates that, either the boy did not know exactly where he was, or he was not where he said he was when hit. In the opinion of this Court, he could not have been standing with one foot on the median, as he indicated he was, when hit. To have this kind of accident, the defendant would almost have to deliberately aim for the boy. The skid marks preclude any such supposition, as they were on the opposite side of the street from the median. Accordingly to Allan Simpson, defendant, Sam Euggino, the investigating police officer and Riley Hills, plaintiff’s companion, he was not on the curb, but was most probably darting across the street in front of traffic.
“Testimony of Allan Simpson is consistent with the reconstruction proposed by the investigating police officer, as well as the version told by Riley Hills. When Mr. Simpson was approximately forty feet away, Darryl Sanders stepped down from the median dividing the north from the southbound lanes, and darted across, toward the east side, into the path of the automobile. Defendant immediately turned his car to the right, to the outside, applied his brakes, leaving some twenty feet of skid marks in the outer lane and attempted to avoid hitting Darryl. * * ” (Record, pp. 50, 51)

Nothing we can find in the record reflects negligence on the part of the defendant driver, Allan Simpson. The accident was occasioned when Darryl Sanders suddenly and without warning left a place of safety on the median of the roadway and darted in front of the oncoming Simpson automobile, thus creating a sudden emergency and causing an accident which the defendant driver was powerless to avoid.

Having found no error in the trial court’s well-reasoned conclusions as explained in the written reasons, we, therefore, affirm the judgment for the defendant-appellee, with costs cast to the plaintiff-appellant.

AFFIRMED.

      . Contributory negligence is a defendant’s device which exculpates him from his own negligence. Last clear chance is a plaintiffs device that exculpates him from his negligence. However, the trial judge found no negligence on the part of defendant, and the doctrine of contributory negligence is inapplicable.


author: COVINGTON, Judge.

text:
    Russell Wayne EFFERSON, Individually, etc. v. Steven H. LAURIE et al.
    No. 11681.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writ Refused March 17, 1978.

      Daniel R. Atkinson, Baton Rouge, of counsel, for plaintiff-appellant Russell W. Efferson, Indv., etc.
    Richard B. Nevils, Baton Rouge, of counsel, for defendant-appellee Steven H. Laurie, et al.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment dismissing the claims of the plaintiff, Russell Wayne Efferson, individually and as administrator of the estate of his minor child, Angelique Nicole Efferson, five years old, for injuries to said child allegedly sustained when, while crossing the street, she was struck by a vehicle driven by the defendant, Steven H. Laurie. Laurie’s insurer, American Indemnity Insurance Company, was also named as a defendant in the suit.

The plaintiff alleged that Laurie was negligent in driving his automobile at an excessive rate of speed in a residential area where he should have known that small children were likely to be playing. As a result of the accident, the child allegedly sustained serious bodily injuries. After trial, the court dismissed the plaintiff’s suit at his costs. We affirm.

Appellant essentially contends that the trial court erred in not finding Laurie negligent. The trial judge, in his written reasons for judgment, stated:

“. . . [T]his court finds that defendant was proceeding between 25 and 30 miles per hour, within the posted speed limit; that he was obeying all the applicable rules of the road; that suddenly and without warning, Angelique darted from behind a parked station wagon which was the end car in a row of three and within two to three feet of the street, coming from defendant’s right to his left at a time when it was impossible to avoid striking the child.”

After a careful review of the record and a study of the applicable law, we are of the opinion that the trial judge in his written reasons for judgment has accurately stated the facts and the legal conclusions to be drawn therefrom. We find no manifest error. The facts found by the trial court are reasonably supported by the credible evidence in the record. See Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The applicable law is to the effect that a motorist who sees or should see children near the roadway must exercise a high degree of care in view of the propensity of young children to do the unexpected, dart into the street or to take sudden and perilous action, heedless of their own safety and well being. On the other hand, a motorist is not an insurer of the safety of children playing near the street. If the motorist is proceeding at a lawful and reasonable speed and obeying all of the rules of the road, he will not be held liable where a child suddenly darts or runs into his path from a concealed position in such a manner that the motorist is unable to avoid striking the child. Campo v. Vampran, 183 So.2d 57 (La.App. 1 Cir. 1966), writ refused, 249 La. 64, 184 So.2d 735 (1966); Maus v. Schouest, 342 So.2d 715 (La.App. 4 Cir. 1977), writ denied, 343 So.2d 1075 (La.1977). Of course, each case must be decided on its own peculiar facts. Since few cases are identical factually, no one case is absolutely controlling of another case. See, Zuber v. Lafourche Parish School Board, 347 So.2d 1302 (La.App. 1 Cir. 1977).

We find that the judgment of the trial court is correct and, accordingly, for the foregoing reasons, it is affirmed at the appellant’s costs.

AFFIRMED.


text:
    Glenn J. DANOS v. Nelvin FORET, Jr., et al.
    No. 11694.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writ Refused March 31, 1978.

      Prank E. Lamothe, III, New Orleans, M. T. Melvin, Larose, for plaintiff and appel-lee.
    Robert L. Danner, Jr., New Orleans, Herbert O’Niell, Thibodaux, for defendants and appellants.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

The plaintiff, Glenn J. Danos, instituted this action to recover damages for the alleged tortious acts of the defendants, Nel-vin Foret, Jr., and the State of Louisiana, through Department of Education, resulting in injuries to his abdomen and left hand.

The plaintiff Danos, who was attending South Louisiana State Trade School as a student in the welding course, had approached his instructor, Nelvin Foret, Jr., to ask about a vertical weld. Defendant Foret was cutting the top off a freon cylinder on a lathe, so Danos stood nearby waiting for Foret to complete his task. At this moment the cylinder exploded, with the top portion thereof striking the plaintiff, causing the alleged injuries.

The trial court rendered judgment in favor of plaintiff and against the defendants, in solido, for the sum of $33,743.41. The motion for new trial was denied. The State only has appealed suspensively. Defendant Foret did not appeal, so the judgment is final as to him.

The State assigns as errors that the trial court erred in not finding the plaintiff con-tributorily negligent and that the trial court abused its discretion in awarding excessive general damages to the plaintiff.

The basis for the State’s contention of contributory negligence is that the plaintiff, with full knowledge of the danger therein, chose to stand in an area in close proximity to the lathe on which his instructor was cutting the freon cylinder, which area was marked “danger.”

The appellant relies upon the case of Gantt v. Brown, 191 So.2d 793 (La.App. 2 Cir. 1966), writ refused, 250 La. 19, 193 So.2d 529 (1967), to support its contention of contributory negligence. In Gantt a highway department employee, who was familiar with the operation of a certain grader machine, positioned himself in the rear of the machine in a stooped position in such a manner that his presence was not observable to the operator. The Court held that he was guilty of contributory negligence. We find that Gantt, because of its peculiar facts, is not controlling here.

In the instant case, the trial court determined that defendant Foret observed the plaintiff and that Danos had not knowingly placed himself in a position of danger. It is now settled that a determination made by the trier of fact is not to be reversed on appeal if there is credible evidence in the record reasonably supporting the factual findings. This rule was recently reaffirmed in Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976), where the standards announced in Canter v. Koehring Company, 283 So.2d 716 (La.1973), were restated to the effect that even if another interpretation or conclusion to be drawn from the facts is equally reasonable as that found by the trial judge, the intermediate appellate court is not to substitute its own version of the facts for that of the trier of fact.

The findings of fact made by the trial judge in determining the issue of contributory negligence in the instant case is supported by credible evidence contained in the record. This evidence has been reviewed by us and, under the particular facts and circumstances presented herein, we find that the trial judge committed no manifest error.

The appellant also raises the issue of an excessive award to the plaintiff. The trial court awarded him the sum of $33,743.41. The record supports the trial judge’s finding that the plaintiff’s most serious injury was to his left hand, which required extensive surgery and skin grafting. Dr. Richard M. Landry, an orthopedic surgeon, treated Danos for his hand injuries. The doctor described the nature of the injuries to the hand as “obviously badly injured, there was poor circulation to the thumb and index finger, there was an obvious compound fracture of the thumb.” Dr. Landry felt that “the disability that he sustained would be represented fairly by fifty (50%) percent permanent partial physical impairment of the thumb. This would convert to an impairment of twenty-five (25%) percent of the hand.” Dr. Mack A. Thomas, a general surgeon, also treated the plaintiff. In addition to the hand injury, he described the other injuries to Danos as contusions to the chest and mid-abdominal area. Dr. Thomas described the treatment given Da-nos, including the skin grafting, and substantially corroborated the testimony of Dr. Landry. We find the award within the minimum-maximum range of the “much discretion” granted triers of fact by our laws. LSA-C.C. art. 1934(3). Our holding is consistent with the case of Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974), and the other cases cited by the appellant.

As the Court said in Anderson, supra, at page 352:

“The trier of fact is granted much discretion in the award of general damages, i. e., those which may not be fixed with any degree of pecuniary exactitude but which, instead, involve mental or physical pain or suffering, inconvenience, the loss of gratification of intellectual or physical enjoyment, or other losses of life or lifestyle which cannot really be measured definitively in terms of money.”

Using the cited cases and other reported cases which we considered related to this issue merely as an aid, in light of the Supreme Court’s admonition in Coco v. Winston Industries, 341 So.2d 332 (La.1976), not to place too much emphasis on “other reported cases”, we feel that in the final analysis the appropriateness of the award in each case turns on its own peculiar facts. Based on the facts in this case, any decrease in the award of general damages granted would simply be a substitution of our opinion for that of the trial judge. We find no manifest error in the award in view of the injuries shown to have been suffered by the plaintiff and the much discretion allowed the trial judge in compensating such injuries.

Accordingly, we affirm the judgment of the trial court. Costs are taxed against the appellant, State of Louisiana, to the extent permitted by law.

AFFIRMED.

      . Although this is the name under which this defendant was sued, and all pleadings in the record used that appellation, on direct examination he stated that his true name is Delvin J. Foret.


text:
    TRI-SOUTH MORTGAGE INVESTORS v. Charlton P. ROZANDS, Sheriff and Tax Collector for the Parish of Terrebonne.
    No. 11695.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.

      Donald A. Meyer, New Orleans, Darryl J. Carimi, Gretna, E. Bradford Holbrook, New Orleans, for plaintiff and appellant.
    Elton Darsey, Houma, for defendant and appellee.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

This is an appeal by New Communities, Inc. and J.E.F. Developers from a judgment of the District Court in favor of Tri-South Mortgage Investors (Tri-South) against Charlton P. Rozands, Sheriff and Ex-Officio Tax Collector for the Parish of Terrebonne, New Communities, Inc. and J.E.F. Developers ordering the Sheriff to proceed with the Sheriff’s Sale of immovable property which he had seized pursuant to an order of exec-utory process and writ of seizure and sale issued in said proceeding for executory process brought by Tri-South against New Communities, Inc., under Docket No. 46-922 of said District Court.

When Tri-South sought to proceed with its executory process, New Communities, Inc. and J.E.F. Developers filed a petition for preliminary injunction to prevent the Sheriff’s sale of New Communities, Inc.’s property. After a trial on the merits, the District Court rendered judgment denying injunctive relief to New Communities, Inc. and J.E.F. Developers, which appealed de-volutively and suspensively to this Court, 349 So.2d 1321 (Docket No. 11,440).

In due course, the matter was argupd before this Court; and, subsequently, the District Court’s judgment was reversed and the executory process was dismissed on July 11, 1977, on the basis of a procedural finding that Tri-South did not meet the definition of a “Real Estate Investment Trust,” as established by the appropriate Louisiana statutes.

Subsequently, on July 20,1977, LSA-R.S. 12:492 was amended by adding a new subsection, designated as LSA-R.S. 12:492(F), which authorized and defined real estate investment trusts, and provided that a real estate investment trust which loses its federal tax status as such may retain its rights and duties as a real estate trust. The act was declared, legislatively, to be retrospec-' tive as well as prospective.

Thereafter, the Supreme Court of Louisiana granted a writ of certiorari, and, on September 30, 1977, summarily, in chambers, decreed:

“Judgment of court of appeal reversed. Ruling of trial judge is correct. See La. R.S. 12:491, et seq. as amended by Act 526 of 1977. Case remanded to court of appeal for further proceedings.”

In the meantime, Tri-South had sought to get the sheriff to proceed with the judicial sale, but he declined to re-advertise and sell the property until Tri-South brought a mandamus proceeding to determine what action the sheriff should take, since New Communities, Inc. and J.E.F. Developers had appealed suspensively.

This mandamus suit was then brought, first against the sheriff only, then, joining in the appellants by supplemental petition. A hearing on the writ of mandamus was held, and by judgment on April 25, 1977, the writ was issued and the rule was made absolute, ordering the sheriff to proceed with the sale.

It is from this judgment that New Communities, Inc. and J.E.F. Developers have suspensively appealed now. The sheriff has not appealed; he has indicated in his brief that he is only awaiting final action of the courts to carry out the proper orders.

The appellants have filed an exception of no right of action, based on this Court’s original holding that Tri-South had no right to petition for executory process because it had not complied with the legal requirements to be recognized as a real estate investment trust. The State Supreme Court having reversed our earlier holding, as set out above, we are unable to sustain the appellants’ exception and it is, accordingly, overruled.

The initial suspensive appeal was taken by the appellants from a judgment dissolving a temporary restraining order and dismissing their petition for injunction. The effect of the dissolution of the restraining order and denial of injunctive relief was to authorize the sheriff to proceed with the •sale pursuant to the writ of seizure and sale.

The appellants contend that when the District Court granted them a suspen-sive appeal from the judgment denying them injunctive relief, the appeal suspended the executory process order and, also, suspended the sheriff’s authority to go forward with the judicial sale.

This contention has been decided adversely to the appellants in the cases of Utah-Louisiana Investment Company v. Internationa] Development, Inc., 262 So.2d 553 (La. App. 1 Cir. 1972), writ denied 262 La. 601, 263 So.2d 905 (1972), and Hibernia National Bank of New Orleans v. Mary, 167 So.2d 200 (La.App. 4 Cir. 1964), writ denied, 246 La. 876, 167 So.2d 826 (1964).

These cases point out that a defendant under executory process may suspen-sively appeal the order directing the issuance of the writ of seizure and sale, and he may seek injunctive relief to arrest the seizure and sale. LSA-C.C.P. art. 2642. If the defendant chooses to appeal suspensively the order for executory process, all further executory proceedings are stayed pending the appeal. On the other hand, if the defendant chooses to seek injunctive relief only, a suspensive appeal from a judgment denying injunctive relief, even with a stay order, does not suspend the executory proceedings. Under LSA-C.C.P. art. 3612, only the injunctive proceedings can be stayed during the pendency of the suspensive appeal; if no injunction is granted, there is nothing in the executory proceeding to suspend.

As the Court, in Hibernia National Bank of New Orleans v. Mary, supra, at 203, remarked:

“To interpret the stay order, as evidently intended by the respondent judge, to apply to the proceeding of executory process would allow to be done indirectly that which there is no authority to do directly, namely, to operate as a suspensive appeal from executory process, after the right to such appeal has passed, and then for a nominal bond. Such interpretation would seriously impair and to a large extent nullify the operation of the laws relating to executory process. This obviously is not the intent of Article 3612. To allow the stay order to stop the executory process amounts to a nullification of the court’s judgment denying injunction. It grants the precise relief the court intended to deny. It is a contradiction on its face. If indeed such was the court's intent, it should have granted the injunction.”

For the reasons hereinabove assigned, the judgment of the district court is affirmed at the appellants’ costs.

AFFIRMED.

      . “An Act to amend and reenact subsection B of Section 491 of Title 12 of the Louisiana Revised Statutes of 1950 and to amend Section 492 of said Title 12 by adding thereto a new Subsection, to be designated as R.S. 12:492(F), to define real estate investment trust and to provide that a real estate investment trust which loses its federal tax status as such may retain its rights and duties as a real estate investment trust under state law, to provide that this Act is to apply retroactively and retrospectively as well as prospectively, to allow a period of six months from its effective date for the judicial assertion of rights that might be affected thereby, and to provide otherwise with respect thereto.

        “Be it enacted by the Legislature of Louisiana:

      “Section 1. Subsection B of Section 491 of Title 12 of the Louisiana Revised Statutes of 1950 is hereby amended and reenacted and Subsection F of Section 492 of said Title 12 is hereby enacted to read as follows:
      “491. Real estate investment trusts authorized and defined
      * * * * * *
      “B. A real estate investment trust is a trust created at law by an instrument under which property is held and managed by trustees for the benefit and profit of such persons as may be or may become the holders of transferable certificates evidencing beneficial interests in the trust estate, which has elected to qualify for taxation as a real estate investment trust under Part II, Subchapter M of the Internal Revenue Code of 1954, as amended.
      “492. Qualification and restrictions
      * * * * * *
      “F. Any real estate investment trust which has once elected to be taxed under Part II, Subchapter M of the Internal Revenue Code of 1954, as amended, shall not thereafter lose the rights and duties granted under this Section, notwithstanding the fact that such trust no longer qualifies for taxation under Part II, Sub-chapter M of the Internal Revenue Code of 1954, as amended, provided that such trust continues to be managed by trustees for the benefit and profit of at least one hundred holders of transferable certificates evidencing beneficial interests in the trust estate.
      “Section 2. The terms and provisions of this Act shall be applied retroactively and retrospectively as well as prospectively, but any person whose rights would be affected thereby shall have a period of six months from the effective date of this Act to assert such rights judicially.
      “Section 3. If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items, or applications of this Act which can be given effect without the invalid provisions, items, or applications, and to this end the provisions of this Act are hereby declared severa-ble.
      “Section 4. All laws or parts of law in conflict herewith are hereby repealed.”


author: CHIASSON, Judge.

text:
    JUBAN PROPERTIES, INC. v. Robert G. CLAITOR.
    No. 11698.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.
    Writ Refused March 27, 1978.

      Drew McKinnis, Baton Rouge, of counsel for plaintiff-appellant Juban Properties, Inc.
    R. Boatner Howell, Jr., Baton Rouge, of counsel for defendant-appellee Robert G. Claitor.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Plaintiff, Juban Properties, Inc., filed suit seeking a declaratory judgment affirming its right to construct a fence along the eastern boundary line of its property located in the City of Baton Rouge. From an adverse judgment plaintiff has filed this appeal.

Defendant, Robert G. Claitor, is the owner of Lot # 8, East Richland Estates, which is contiguous to and east of plaintiff’s property. Additionally, Mr. Claitor is the owner of a tract of land which is located west of plaintiff’s property and separated therefrom by property belonging to the Kroger Company.

On August 21,1970, plaintiff, Mr. Robert G. Claitor, and the Kroger Company entered into an agreement (Reciprocal Agreement) for the joint use of their adjacent properties as a shopping center. At the time the Reciprocal Agreement was executed, Mr. Claitor did not own the tract of land east of plaintiff’s property. The Reciprocal Agreement is in reference to and involves only Parcel # 1, belonging to Mr. Claitor; Parcel # 2, belonging to the Kroger Company; and Parcel # 3, belonging to plaintiff.

The agreement provided that Claitor was to construct and maintain an unobstructed twenty foot driveway along the western line of the property adjacent to Acadian Thruway. All three were required to pave and maintain an unobstructed and continuous driveway across the rear of the properties for service vehicles, and plaintiff was required to construct and maintain a driveway along the easterly fifteen feet of his property. We note the omission of the word “unobstructed” in the clause pertaining to the driveway plaintiff was to construct and are persuaded that this was advisably done and not a mere error of omission. Further, each party was to pave and maintain at his own expense his remainder of the Common Area between the store fronts and Perkins Road for drives and parking in accordance with a unified parking lot layout. And, each party granted to all of the other parties a non-exclusive easement in the entire Common Area of Parcels #1, #2, and # 3 for use by pedestrians and vehicular traffic and the parking of automobiles by the business invitees, customers and employees of each, its tenants, successors or assigns.

With the subsequent acquisition of the Second Claitor Estate which tract had a narrow front footage of approximately seventy-five feet, Mr. Claitor developed the entire length of that tract from the rear to Perkins Road with a building facing the Common Area of the adjacent shopping center for lease to various businesses so as to take advantage of the parking facilities of the shopping center and the fifteen foot service drive to the rear constructed and maintained by plaintiff under the Reciprocal Agreement.

In denying plaintiff’s declaratory judgment the trial court held that under the terms of the Reciprocal Agreement requiring plaintiff to maintain a driveway along the entire easterly fifteen feet of his property, erection of a fence would impair this obligation because no longer would the entire easterly fifteen feet be burdened with the servitude and part of the eastern fifteen feet would be taken up by the fence and impair and interfere with vehicular traffic using the driveway.

Plaintiff contends that the trial court erred in ruling that construction of a fence along its boundary violated the provisions of the Reciprocal Agreement between the property owners, particularly where it was shown that plaintiff exceeded his contractual obligation by constructing a twenty foot driveway rather than a fifteen foot driveway.

Civil Code Article 743 provides:

“Servitudes are established by all acts by which property can be transferred, and as they are not susceptible of real delivery, the use which the owner of the estate to whom the servitude is granted, makes of this right, supplies the place of delivery.”

It is clear that the “Reciprocal Agreement” entered into between the plaintiff, Mr. Claitor and the Kroger Company established servitudes of passage by convention along the' perimeters of the shopping center for the common use of not only the parties, but also their customers, employees, invi-tées, etc. It is likewise clear that the “Reciprocal Agreement” did not contemplate inclusion of the Second Claitor Estate bordering on plaintiff’s property for obvious reasons. In the first place, Mr. Claitor didn’t acquire the second tract until after the Reciprocal Agreement was entered into. Secondly, the agreement itself refers only to Parcels # 1, # 2 and # 3 and makes no mention of Mr. Claitor’s second tract, therefore the parties obviously did not intend for it to be included within the agreement. Finally, Mr. Claitor himself could not have considered his second tract to have been included in the agreement because his development on that tract did not even attempt to comply with the provisions and restrictions of the agreement.

Consequently, the servitude of passage being in the nature of a predial servitude, any impairment to such passage over plaintiff’s fifteen foot service drive due to construction of a fence would necessarily have to impair rights created only in favor of the First Claitor Estate (Parcel # 1), and the Kroger Company Property (Parcel # 2), these being the only other properties subject to the agreement. La.C.C. Art. 646, et seq., and Art. 709.

Civil Code Article 722 further provides that when a servitude of passage is the result of a contract, its extent and the mode of using it is regulated by the contract.

As long as the driveway is maintained and clear passage is provided for the benefit of Parcels # 1 and # 2, there is nothing in the agreement to prevent plaintiff from constructing a fence on the eastern boundary of his property. The existence of a fence would occupy no more than a few inches, and considering the fact that most of the driveway, although not all, is twenty feet in width, plaintiff has actually exceeded the requirements for his obligation under the agreement. Thus, for most of the length of the driveway, the fifteen foot width would remain clear and unaffected. The remaining section would be affected by the existence of the fence but would not obstruct or impair the free passage of traffic. Consequently, the construction of a fence by the plaintiff along his eastern border line would not violate the terms of the “Reciprocal Agreement.”

Further support for our conclusion is found in Civil Code Article 662 which provides that “Every proprietor has a right to make an inclosure around his lands,” and Article 753 which provides:

“Servitudes which tend to affect the free use of property, in case of doubt as to their extent or the manner of using them, are always interpreted in favor of the owner of the property to be affected.”

In view of the law and the provisions of the Reciprocal Agreement, the judgment of the trial court denying plaintiff’s declaratory judgment was in error. Accordingly, we reverse and render judgment in favor of plaintiff and against defendant declaring that the construction of a fence along the eastern boundary of plaintiff’s property would not violate the Reciprocal Agreement.

All costs are taxed against defendant.

REVERSED AND RENDERED.


author: CHIASSON, Judge. COVINGTON, Judge,

text:
    Helen FAIRCHILD and Russell Fairchild v. C. Verne BRIAN et al.
    No. 11522.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1977.
    Rehearing Denied Feb. 13, 1978.

      Bert K. Robinson, W. P. Wray, Jr., Baton Rouge, of counsel for plaintiffs-appellants Helen and Russell Fairchild.
    Donald T. W. Phelps, Baton Rouge, of counsel for defendants-appellees Stanocola Employees Medical and Hospital Association & St. Paul Fire and Marine Ins. Co.
    Victor L. Roy, III, Baton Rouge, of counsel for defendant-appellee C. Verne Brian.
    Frank M. Coates, Jr., Baton Rouge, of counsel for defendant-appellee Stanocola Employees Medical and Hospital Association.
    Before LANDRY, BLANCHE, COVING-TON, CHIASSON and EDWARDS, JJ.
   CHIASSON, Judge.

Helen and Russell Fairchild, husband and wife, instituted this action to recover damages for the alleged tortious acts of defendants, Stanocola Employees Medical and Hospital Association and C. Verne Brian, an optometrist in the Stanocola Clinic, resulting in the loss of vision in Mrs. Fairchild’s right eye. The defendants’ insurer, St. Paul Fire and Marine Insurance Company, was joined as a party defendant.

The trial court dismissed the plaintiffs’ suit, concluding that the plaintiffs had failed to prove by a preponderance of the evidence that defendants’ negligence was a proximate cause of her damages. The plaintiffs have appealed this adverse decision. We reverse.

We adopt the following findings of facts by the trial court:

“Stanocola is an association which provides medical services to its dues-paying members. Plaintiffs have been members and have paid dues for approximately 32 years.
“In December of 1973, while Mrs. Fair-child was baking Christmas cookies, she realized that she had difficulty seeing out of her right eye. .
“She telephoned Stanocola and spoke to one of the women at the appointment desk. Plaintiff informed the woman that she was having trouble with her eye and desired to make an appointment to see the eye doctor. She was told that she could have an appointment with ‘Dr. Verne Brian’ on January 8,1974. At the time she made the appointment there was no discussion or questions relative to ‘Dr. Brian’ being an optometrist.
“On January 8, 1974, Mrs. Fairchild entered Stanocola, paid a $2.00 registration fee and was given a receipt indicating that she was to see ‘a specialist.’ Her vision was initially tested by Mrs. Clau-dell Talley, a registered nurse. Mrs. Talley checked Mrs. Fairchild’s visual acuity which she recorded on her chart to be 20/60 in the right eye without glasses and 20/40 with glasses; left eye without glasses 20/60 and 20/25 with glasses. “ ‘Dr. Brian’ then examined Mrs. Fair-child, administering local anesthetic drops in the cul-de-sac of each eye, and utilizing the ophthalmoscope, phoropter, retino-scope and tonometer. He noted on the chart that the intraocular pressure in each eye was within normal limits. He did, however, find a breakdown in the structure of the lens of the right eye, or an opacity of the lens which he noted on the chart as ‘Lens changes O.D.’ He saw nothing wrong with the retina of the right eye at this time. “Brian diagnosed Mrs. Fairchild’s problem to be an early senile cataract. He told plaintiff that she had a cataract. Mrs. Fairchild questioned the diagnosis, however, upon reexamination, ‘Dr. Brian’ again confirmed her problem to be a cataract.
“Mrs. Fairchild also complained that her eye was sensitive to sunlight so ‘Dr. Brian’ suggested that she purchase dark glasses to remedy this problem. Brian then told Mrs. Fairchild that if her condition worsened, the cataract could be removed surgically. Mrs. Fairchild testified that Brian did not advise her to restrict her activities.
“Subsequent to the examination, Mrs. Fairchild purchased the dark glasses and went about her business.
“Brian testified that he had no independent recollection of examining plaintiff except for his notations on her chart. He deduced, from the chart, that he had placed local anesthetic drops in each eye, which he had been authorized to do by Dr. Hebert. He confirmed having examined her with the ophthalmoscope, pho-ropter, retinoscope and tonometer.
“He further testified that he did not examine plaintiff’s eyes with a slit lamp microscope because, to do so, required a dilating of the eyes which he was prohibited, by law, from doing.
“Brian candidly admitted that her eyes probably should have been dilated, however, the frequency of lens changes in the older members of Stanocola made this impractical. He further testified that, theoretically, any condition diagnosed as cataract should be referred to Dr. Hebert. However, practicality dictated an understanding between Brian and Hebert that patients would not be referred until their visual acuity dropped to 20/50 or 20/60. “Between January 8, 1974, and March 19, 1974, the date of her next visit to Stano-cola, the blurring in Mrs. Fairchild’s right eye increased. While watching television one evening, she suddenly realized that she could not see out of her right eye. She telephoned Stanocola and asked to see Dr. Hebert, an ophthalmologist. She was given an appointment for March 19, 1974.
“She again paid the $2.00-registration fee to see the specialist, this time, Dr. Thomas Hebert. The doctor examined her eyes and told her that she did not have a cataract, but rather ‘deep trouble.’ After he had completed the examination, Dr. Hebert informed Mrs. Fairchild that she had a detached retina which required immediate surgery. Mr. Fairchild was sent home with specific instructions not to drive, bend, stoop or lift anything over three or four pounds.
“Dr. Hebert testified that he examined Mrs. Fairchild on March 19, 1974. Prior to examination, he authorized Mrs. Talley to dilate plaintiff’s eyes and Brian to administer a local anesthetic. Like Brian, Hebert had no independent recollection of the examination.
“Upon examination of the right eye he discovered a retinal detachment on the temporal (right) side involving the macu-la and fixed folds. The folds indicate that the detachment occurred long enough ago to allow the retina to scar.
“Dr. Hebert further testified that time did not permit him to see every patient at Stanocola with early senile cataracts. If he did, he stated that he would see virtually every patient at Stanocola. The doctor testified that he would have had Verne Brian refer Mrs. Fairchild to him, considering her degree of visual acuity, within three to six months.
“Dr. Hebert referred plaintiff to Drs. Walter Cockerham and Ralph Nix in New Orleans for surgery. Dr. Cockerham, an ophthalmologist, reattached plaintiff’s retina, utilizing the scleral-buckling procedure. In addition to the detached retina, the doctor treated plaintiff for von Hippel-Lindau disease, a progressive congenital tumor beneath the retina. The incidence of this condition is rare. Dr. Cockerham attacked the tumor by freezing and burning it. The tumor subsequently caused another detachment requiring a second surgery. In the second surgical procedure the tumor was successfully contained.
“Dr. Cockerham testified that there still exists some residual detachment and that he doubted that plaintiff would ever regain normal vision in the right eye. .
“The evidence further revealed that Sta-nocola hired its first optometrist, C. Verne Brian, for the primary purpose of doing eye refractions. Brian’s employ in the capacity of optometrist was not officially publicized and, thus, the members of the Association were not familiar with the man or his title.
“Brian’s name was posted on a directory under ‘Eye Department.’ The directory was located behind the central admissions desk. The directory listing said:
‘EYE DEPARTMENT
Dr. T. Hebert
Dr. C. V. Brian’
“Mr. Tom Cooper, Stanocola’s Business Administrator, testified that a sign saying ‘Dr. C. V. Brian’ was also placed on the door in the waiting room of the eye department. The personnel at Stanocola all referred to Brian as ‘Dr. Brian.’
“The evidence further preponderates that members of Stanocola were not informed that ‘Dr. Brian’ was an optometrist rather than a medical doctor or ophthalmologist. Neither were there any signs or notices distinguishing Brian’s title from Dr. Hebert’s (e. g., ‘O.D.’, ‘Opt.’, or ‘D.O. S.’).
“The general procedure at Stanocola apparently calls for the ladies at the appointment desk to screen the various patients according to their symptoms. After hearing the symptoms or complaints, the receptionists determined whether the patient was to be referred to Dr. Hebert or Brian. The ladies possessed no formal medical training, nor were they given any written guidelines, so as to know which patients to refer to which person. The women did not inform the members of the difference in title, unless specifically asked.

Dr. Lamar Lambert, the Medical Director of Stanocola, testified that if Brian “found a medical condition, which a cataract is a medical condition, he was to refer it to Dr. Thomas Hebert.” Dr. Lambert further testified that Brian was to classify the different types of cataracts and was to make the decision as to when the patient was to be referred to Dr. Hebert.

We further adopt the following holdings of the trial court:

“The evidence clearly preponderates that Verne Brian was in direct violation of R.S. 37:1061(5) and (15). The Court believes that defendant, Brian, knew or should have known that his name was being improperly displayed to the patients at Stanocola. As far as this Court is concerned, the members of Stanocola, or at least two of them, Helen and Russell Fairchild, were deceived by this flagrant impropriety which raises the possibility of a violation of R.S. 37:1061(9). “Stanocola Employees Medical and Hospital Association used the title ‘Doctor’ for Verne Brian, held him out to its members as a ‘Doctor’ and placed his name on the directory behind the appointment desk as ‘Dr. C. V. Brian’, just below ‘Dr. T. Hebert.’ Stanocola further bestowed the title of ‘Specialist’ on Dr. Brian. This inexcusable charade, acquiesced in by Brian, placed Stanocola in no less a culpable posture. The Fairchilds, as well as all other members of the Association, had the right to know the correct title of Verne Brian, and Stanocola and Brian had the duty to divulge this information. Albeit, disciplines other than those holding M.D. degrees are entitled by law and custom to be called ‘doctors’, nevertheless, the title should not be used under circumstances violative of the law, and in such a manner as to deceive or take advantage of others.
“The Court further finds that Verne Brian, under the direction and with the permission of Stanocola personnel, practiced medicine at Stanocola without a license. “Defendants appear to be more interested in engaging in a tactical battle of
semantics. However, the inescapable conclusion is that Verne Brian, with the active assistance of Stanocola, diagnosed and treated cataracts or diseases of the eye. Brian also ‘treated’ or relieved (see R.S. 37:1261) by (1) prescribing dark glasses; (2) directing plaintiff to return home and engage in normal activities; (3) instructing plaintiff to return for routine examination for the cataract; (4) deciding not to refer plaintiff to Dr. Hebert; and (5) advising plaintiff that the condition was progressive and might require surgery.
“The Court does not doubt that Verne Brian, D.O.S., is an expert in his field. However, his expertise in the field of optometry bears no relevancy whatsoever to the practice of medicine. The law has been calculating in drawing a jurisdictional line between the areas of optometry and ophthalmology. Verne Brian and Stanocola have illegally traversed this line.
“Testimony elicited from Drs. Hebert and Oliver as to the necessity of the referral system is, as far as this Court is concerned, without merit. The impracticality and inconvenience of seeing patients with eye disease are miniscule when compared to the risks of losing one’s eyesight. “Defendant suggests that the educational background of Brian and the testimony of Drs. Hebert, Cockerham, Oliver and William Risinger, regarding the competency of Brian and the reasonableness of his actions, must be considered. The Court disagrees when such conduct falls in direct violation of the law.
“The Court is also aware of the general rule that the standard of care against which the conduct of a professional accused of malpractice is that degree of skill and care ordinarily employed under similar circumstances by other members of his profession in good standing in the same community where he practices, and to use reasonable care and diligence, along with his best judgment in the application of his skill to a given case. Meyer v. St. Paul Mercury Indemnity Company, 225 La. 618, 73 So.2d 781 (1954).
“However, the Court is equally aware of the jurisprudential authorities which hold that a negligent standard of care does not constitute a valid defense; Favalora v. Aetna, 144 So.2d 544 (La.App. 1st Cir. 1962) Cert. Denied.
“Defendants have averred that Brian has exercised his optometric skills in a good and reasonable manner. This is probably correct insofar as his optometric skills are concerned. However, Verne Brian, assisted by Stanocola, transcended the bounds of optometry and, in so doing, is subject to the same rules relating to the duty of care and liability as the ophthalmologist. See Butler v. Louisiana State Board of Education, 331 So.2d 192 (La. App. 3rd Cir. 1976). Rehearing Denied. “The testimony and evidence have clearly established that early senile cataract is an eye disease. Further, the reasonable standard of care among ophthalmologists would be to dilate the eye subsequent to an initial determination that a cataract exists. Thus, the Court has no alternative but to conclude that defendant Brian was negligent and that such negligence is imputed to his employer, Stanocola.”

The trial court thereafter determined that defendants’ negligence was not a proximate cause of plaintiffs’ damages. The basis for the trial court’s holding was that the crucial question was whether or not plaintiffs had proven by a preponderance of the evidence that Mrs. Fairchild had a retinal detachment on January 8, 1974. We disagree and hold that the crucial question is whether or not plaintiff’s failure to receive the proper standard of care contributed to her injury.

In holding that the plaintiffs had failed to carry their burden of proof the trial court relied in part upon his finding that Dr. Marks had made a statement to the effect that if the angioma was peripheral, it would not even have been seen in the dilated eye. The trial court was in error in this finding because a careful review of Dr. Marks’ testimony does not reveal any such statement made by him. To the contrary, his testimony was that in the undilated eye a peripheral angioma would not be seen. His testimony on this point is in accord with the other ophthalmologist who testified in this case to the effect that it would have been necessary to dilate Mrs. Fairchild’s eye in order to view the peripheral area of her eye. The evidence is overwhelming that Mrs. Fairchild’s eye should have been dilated, and the only reason this was not done was because of Brian’s negligence in not referring her to a qualified ophthalmologist.

Drs. Hebert and Cockerham did not examine Mrs. Fairchild for cataracts or opacity of the eyes, and the only ophthalmologist who did examine her for cataract was Dr. Marks who testified that the lenticular aberration was essentially the same in each eye. Dr. Marks further testified that while it is true that some lens opacity in some people cause more blurring than the same lens opacity in another, it is very unusual or virtually impossible for the same amount of lens opacity in the same person to cause different vision in the two eyes. To say that lens opacity can cause visual acuity, such as Mrs. Fairchild had, does not explain the disparity in vision for one with bilateral cataracts. Had Mrs. Fairchild’s eyes been dilated in January, 1974, and a finding of opacities such as Dr. Marks made, with a known disparity of 20/25 and 20/40, an ophthalmologist would have known that there must have been some other reason for the loss of central vision and would have therefore performed other tests to determine the cause of the disparity. If the cause could not have been discovered at that time, an ophthalmologist would have closely supervised the case until the cause could have been determined. The only reason that we do not know the condition of Mrs. Fairchild’s eyes on January 8, 1974, is because of the failure of defendant Brian to refer her to an ophthalmologist who would have dilated her eyes and would have viewed the peripheral area of the eye where the angioma was located. To speculate as to what an ophthalmologist may or may not have found in an examination of Mrs. Fair-child in January of 1974, is, as all expert ophthalmologists who testified in this case stated in one way or another, sheer guess work. We do know that one trained in pathology and diseases of the eye would have done more than Brian did to discover the cause of Mrs. Fairchild’s eye problem.

The delay in discovering the detached retina until it was too late to save the sight of the right eye is directly attributable to the failure of defendants to provide Mrs. Fairchild with the applicable standard of care.

Defendants, in the alternative, aver that plaintiff was contributorily negligent in failing to seek the proper medical attention that a reasonable person would have sought under the circumstances. We do not find plaintiff contributorily negligent because she had been reassured as to what her trouble was and had been led to believe that a qualified medical doctor had diagnosed her problem to be cataract which could become progressively worse and eventually corrected by surgery.

Turning our attention to the amount of damages, the evidence substantiates a finding that Mrs. Helen Fairchild has suffered, for all practical purposes, a permanent loss of the sight of her right eye or impairment thereto, equivalent to such a loss. Considering Mrs. Fairchild’s age, the nature, extent and permanence of her injury, we shall award to her the sum of $25,-000.00, and shall award to Mr. Fairchild the sum of $2,722.15 for medical expenses incurred as a result of said injury.

Accordingly, the judgment of the trial court dismissing plaintiffs’ suit at their costs is reversed and judgment is rendered in favor of Mrs. Helen Fairchild and against the defendants, C. Verne Brian, Stanocola Employees Medical and Hospital Association and St. Paul Fire and Marine Insurance Company, in solido, in the sum of Twenty-Five Thousand and No/100 ($25,-000.00) Dollars; and judgment is rendered in favor of Mr. Russell Fairchild and against the defendants, C. Verne Brian, Stanocola Employees Medical and Hospital Association and St. Paul Fire and Marine Insurance Company, in solido, in the sum of Two Thousand, Seven Hundred Twenty-Two and 15/100 ($2,722.15) Dollars, both sums with legal interest thereon from date of judicial demand, until paid.

All costs of this appeal and in the trial court, including the expert witness fees, as set out in the trial court’s judgment, are assessed against defendants.

REVERSED AND RENDERED.

COVINGTON, Judge,

dissenting:

I agree that Mrs. Fairchild was not con-tributorily negligent. Further, the action of Stanocola, which very possibly could have led her to believe that she was seeing an ophthalmologist, not an optometrist, is not to be admired. Nevertheless, regardless of how much we may deplore or disapprove of such mode of conduct, no matter how reprehensible it may be thought to be, irrespective of the negligence of Dr. Brian and Stanocola, the trial judge correctly considered proximate cause as the focal issue and resolved it adversely to the plaintiffs.

I concur therein.

In a tort action, a basic inquiry is always whether any casual relationship exists between the harm and the alleged negligent conduct. See Tiger Well Service, Inc. v. Travelers Insurance Co., 343 So.2d 1158 (La.App. 3 Cir. 1977). In the instant case the trial judge concluded that the defendants’ negligence in having an optometrist to diagnose eye pathology and in failing to dilate the eye which the local standard of care required under the circumstances had no casual relationship to Mrs. Fairchild’s retinal detachment and resultant harm to her. In reviewing the record in this case, there is a reasonable factual basis for this conclusion.

The record reveals that the plaintiffs’ experts, Drs. Marks and Jones, both ophthalmologists, one who examined the patient several months after the retinal surgery and the other who examined and gave an opinion from the medical records only, testified that a retinal detachment was probably present on January 8, 1974. Dr. Hebert, who was one of the treating physicians and the one who first detected the retinal detachment, expressed the opinion that, more probably than not, the retinal detachment was not present on the date in question. Dr. Cockerham, the retinal surgeon, opined that the retinal detachment occurred six to eight weeks prior to his examination, placing the time of detachment seven to twenty days after the January date. Both Drs. Hebert and Cockerham testified on behalf of the defendants, as did Dr. Oliver, an ophthalmologist, who testified that from the medical records he saw nothing to indicate a retinal detachment on January 8, 1974.

Even though the expert witnesses’ testimony differed on this point, it is largely a matter of fact for the trial judge to determine the most credible evidence and a finding of fact in this regard should not be overturned unless manifest error appears in the record. Green v. State, Southwest Louisiana Charity Hospital, 309 So.2d 706 (La.App. 3 Cir. 1975), writ denied, 313 So.2d 601 (La.1975).

Moreover, the evidence supports the trial judge’s conclusion that blurring on the temporal side of the right eye, as complained of by Mrs. Fairchild, is not consistent with a temporal detachment of the retina of the right eye, the eye condition for which surgery later became necessary. Mrs. Fair-child testified that she was experiencing a blurring of the vision in the right (temporal) corner of the right eye, which led her to make the January 8, 1974, appointment at Stanocola clinic. Drs. Hebert and Cocker-ham described the retinal detachment in Mrs. Fairchild’s right eye as being located in the temporal area, or the right corner of her eye.

Dr. Jones testified that a description of temporal blur in the right side of the eye would be inconsistent with the finding of a temporal retinal detachment (which would produce a nasal field defect). Dr. Marks testified that Mrs. Fairchild’s symptom of blur on the temporal side of her eye would be difficult to explain as a temporal retinal detachment. Dr. Risinger, an optometrist, also testified that a temporal detachment would showup as a nasal field defect. Finally, Dr. Oliver testified that a blurring of vision in the temporal area of the right eye would be inconsistent with a detached retina in the temporal area. This testimony establishes a factual basis for the trial court’s finding that the symptom of blurring of the right side of the right eye was not consistent with a detachment on the right side of the retina of the eye.

It is now settled that a determination made by the trier of fact is not to be reversed on appeal if there is credible evidence in the record reasonably supporting the factual findings. This rule was recently reaffirmed in Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976), where the standards announced in Canter v. Koehring Company, 283 So.2d 716 (La.1973), were restated to the effect that even if another interpretation or conclusion to be drawn from the facts is equally as reasonable as that found by the trial judge, the appellate court is not to substitute its own version of the facts for that of the trier of fact.

The findings of fact made by the trial judge in determining the issue of proximate causation in the instant case are supported by credible evidence contained in the record. He committed no manifest error in those findings, and his decision should be affirmed.

Therefore, I respectfully dissent.