author: LEMMON, Judge. MORIAL, Judge

text:
    Robert A. AINSWORTH, III and Diane Delaney Ainsworth v. ASSOCIATION LIFE INSURANCE COMPANY, INC., and Professional Mass Marketing of American, Inc.
    No. 7069.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Rehearing Denied Feb. 10, 1976.
    Writ Refused March 16, 1976.

      Meunier, Martin & Meunier, Richard J. Meunier, New Orleans, for plaintiffs-ap-pellees.
    Schumacher, McGlinchey, Stafford, Mintz & Hoffman, Donald A. Hoffman and Frederick B. Alexius, New Orleans, for defendants-appellants.
    Before SAMUEL, LEMMON, BOU-TALL, SCHOTT and MORIAL, JJ.
   LEMMON, Judge.

This is a suit for reimbursement of medical expenses allegedly covered by a group insurance policy. Defendants, the insurer and the corporation through which the policy was issued, have appealed from a judgment which awarded- maximum benefits to plaintiffs, Mr. and Mrs. Robert Ainsworth.

When the policy was issued on April 15, 1972, Ainsworth was a member of the group to which coverage was extended, and he became a certificateholder under the policy. It is undisputed that Mrs. Ainsworth then qualified as a dependent under the terms and conditions of the policy and was covered by the policy.

On April 10, 1973 Mrs. Ainsworth obtained a judgment of separation from bed and board. The parties never reconciled thereafter. . On May 14, 1973 Mrs. Ains-worth sustained severe injuries in an accident and thereafter incurred the medical expenses on which this suit is based.

Defendants denied the claim, contending that Mrs. Ainsworth’s coverage under the policy had terminated' prior to the accident. The determination of that contention is the only issue on appeal.

I

The pertinent policy provisions under “Definitions” include:

“ ‘Dependent’ means
“(1) the Certificateholder’s spouse not divorced or legally separated from the Certificateholder, * * * ”
“ ‘Policy Month’ means the period of consecutive days commencing on each premium due date and ending on the day before the next premium due date.”

The pertinent policy provision under “Individual Terminations” is:

“All coverages of an Insured Person terminate upon the occurrence of either:
“(4) the last day of the policy month coinciding with or next following his termination of membership in the classes eligible for insurance ”

Since premiums were due on the 15th, the policy month commenced on the 15th day of each month and extended through the 14th day of the following month. Mrs. Ainsworth’s membership in the class eligible for insurance under the terms of the policy terminated on April 10, during the policy month between March 15 and April 14.

As to the determination of the date Mrs. Ainsworth’s coverage terminated, defendants contend the policy clearly provided for individual coverage of an insured person to terminate on a specific day — the last day of the policy month — whether that day coincides with or follows the day on which the person’s membership in the class eligible for insurance terminates. Therefore, defendants argue that after Mrs. Ainsworth’s membership in the class eligible for insurance terminated on April 10, her individual coverage under the policy terminated on the last day of the policy month next following the day of termination, or April 14.

The Ainsworths argue, on the other hand, that the policy provision governing individual terminations can reasonably be interpreted so that the phráse “coinciding with or next following” modifies “month” rather than “day”, and that when an insurance policy is susceptible of more than one reasonable interpretation, rules of construction require adoption of that interpretation which is favorable to the insured.

In our opinion the Ainsworths’ interpretation is not reasonable. Termination of membership necessarily occurs on a single day within a “policy month”. Thus, while there is a “policy month” “coinciding with” termination of membership, it is always different from the “policy month” “next following” termination of membership. Stated otherwise, the day on which membership terminates always falls within a coincidental “policy month” and never falls within a “policy month” next following termination. Consequently, it would be absurd to construe the policy to provide for termination of coverage in either one “policy month” or the next following “policy month”. A proposed interpretation of contractual language which would lead to absurd consequences must be rejected as unreasonable. C.C. art. 1945.

On the other hand, the “last day” (of the policy month) can either coincide with or follow the day of termination of membership. If the days coincide, coverage terminates on that day; if the days do not coincide, coverage terminates on the “next following” last day (of the policy month).

The Ainsworths argue, however, that the purpose of the individual termination clause is to provide a reasonable period of time within which the insured person whose coverage is terminated may obtain other insurance. They therefore argue defendants’ interpretation of the clause is unreasonable, since only 24 hours is provided if the day of termination of the person’s eligibility coincides with the last day of the policy month.

We do not believe it is reasonable to attribute that purpose to the termination clause. First, this clause does not involve a termination at the instance of the insurer (the policy provides for a 31-day notice when the insurer cancels); this involves a termination of coverage on account of termination of eligibility, an event over which the insurer exercises no control. Furthermore, if the purpose of the clause were to assure a reasonable minimum period for obtaining other coverage (say, thirty days), then that purpose would be more evident in a provision for termination of individual coverage thirty days after the day of termination of eligibility, or perhaps thirty days after the last day of the policy month coinciding with or next following termination of eligibility.

In our opinion the purpose of this particular individual termination clause is to achieve administrative uniformity and efficiency by having all coverages under that group policy terminate at the end of the month for which the premiums have been paid and collected. See Crawford, Group Insurance § 32 (1936). This purpose accords with the desire to facilitate accounting procedures by making all premiums fall due at the beginning of each policy month, covering the period through the end of that policy month, and by obvert-ing the necessity for refunds when terminations of coverage occur during the policy month for which premiums have been collected.

We conclude that the phrase “coinciding with or next' following” clearly modifies “day”, and that Mrs. Ainsworth’s coverage terminated under the terms of the policy on April 14.

II

Plaintiffs next contend that since Mr. Ainsworth had until May 14 to file a suspensive appeal, Mrs. Ainsworth was not “legally separated” until after that date and was therefore covered by the policy on the day of the accident.

Plaintiffs’ argument would perhaps pose an interesting question as to whether the appeal had the effect of vacating the judgment (if Mr. Ainsworth had appealed, and particularly if the judgment of separation had been reversed on appeal). However, these hypothetical facts did not occur, and that issue is not presented here.

While the judgment did not acquire the authority of the “thing adjudged” [C.C. art. 3556(31)] until the time fixed by law for appealing had elapsed, the parties became “legally separated” on that date within the meaning of the policy. The fact that the judgment which decreed their legal separation was appealable through May 14 does not change the date they became “legally separated”, at least not under the facts of this case in which no appeal was in fact taken.

III

Plaintiffs further contend that the exclusion of a separated spouse from coverage is void as against public policy, since the husband owes his separated wife the duty of support.

Louisiana does not prohibit married men from procuring policies of hospitalization insurance covering only themselves and not their dependents, nor does the State prohibit insurers from writing such policies. Furthermore, we perceive no basis for a public policy either requiring hospitalization insurers to define dependents as those to whom the insured owes a legal obligation of support or requiring such insurers to only insure persons who also purchase coverage for those dependents to whom they owe support.

We therefore conclude that the policy provision terminating coverage of a legally separated wife is not void as against public policy.

IV

Finally, plaintiffs contend defendants, by accepting a premium for coverage of the entire Ainsworth family (including Mrs. Ainsworth and their five children) through the date of the accident, and by failing to return any portion of the premium after learning of the separation, are estopped to deny coverage. There was no showing that defendants, prior to accepting the premium, had knowledge of the event which terminated Mrs. Ainsworth’s coverage. Under the facts of this case, therefore, neither defendants’ acceptance of the scheduled premium nor their failure to refund a partial premium (if a refund is due) can be deemed to constitute a waiver of their right to plead termination of coverage, since knowledge of all relevant facts is essential to a determination that a party waived any rights.'

For these reasons, the judgment of the trial court is reversed, and it is now ordered that plaintiffs’ petition be dismissed, with each side bearing their own costs.

Reversed and rendered.

MORIAL, J., dissents and assigns reasons.

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

MORIAL, Judge

(dissenting).

In my opinion the “Individual Terminations” clause of this adhesion contract of insurance is manifestly ambiguous and must be construed against the insurer.

      . “Insured Person” is defined in the policy as “either a Certificate-holder or a Dependent during the period he is insured under that benefit provision.”

      . This purpose of administrative uniformity is also evidenced by the policy provisions dealing with effective dates of insurance. An eligible person’s coverage becomes effective on the “first of the Policy Month coinciding with or next following” the date he became eligible and enrolled. Thus, all coverages uniformly commence on the first day of the policy month and terminate on the last day of the policy month.

      . April 14 also marked the end of the policy year. Therefore, even under plaintiffs’ suggested reformation of the policy to consider policy year rather than policy month (based on the contention that Ainsworth paid annual premiums, although the evidence does not establish this fact), Mrs. Ainsworth’s coverage still terminated on that date.

      . We were informed in oral argument that the same premium for dependents applies regardless of the number of dependents although there was no evidence on this point.


source: Caselaw Access Project

author: BLANCHE, Judge.

license: Public Domain

text:
    Darlene R. ALEXANDER v. F. D. GOTTWALD, Jr., et al.
    No. 10433.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.
    Joseph W. Cole, Jr., Port Allen, for appellant.

      W. S. McKenzie, Baton Rouge, for ap-pellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, Darlene R. Alexander, appeals a judgment of the Nineteenth Judicial District Court which denied her wrongful death action against the defendants-appellees, I. G. Butler, J. C. Pollard, Willard Green, Chris L. Mehl, Henry-Smith, J. M. Gill, Robert Herzog, and The Travelers Indemnity Company.

In 1968 the plaintiffs husband was hired by Ethyl Corporation to work in its polyvinyl chloride plant at Baton Rouge, Louisiana.

The plant’s purpose is to convert vinyl chloride monomer, a dangerous chlorinated hydrocarbon gas, into polyvinyl chloride granules, a type of plastic which Ethyl sells to other manufacturers for the production of plastic products. One step in the production of the granules results in a slurry composed of the granules and water. This slurry is stored in seven large stainless steel tanks twenty feet high by fourteen feet in diameter.

In the next production step, the slurry is transported by pipeline to a dryer unit for removal of the water and any unreacted vinyl chloride monomer which is trapped in the pores of the polyvinyl chloride granules.

A small amount of the slurry usually, remains in the tank after -its contents are removed to the dryer unit. If the residue is great, the tank is washed out by the workmen using a common water hose. This is done in order to avoid cross-contamination with other products subsequently stored in the same tank.

To accomplish this washing, the workman ascends to the top of the tank, inserts the water hose into a manway opening, rotates the hose at 360 degrees, and thereby rinses the residue from the walls of the tank into the bottom where it flows into a drainage ditch. The manway is a raised opening similar to a barrel which protrudes approximately two feet above the tank’s top.

At 2:30 P.M. on December 2, 1973, the plaintiff’s husband, Peter M. Alexander, reported for work as usual. At approximately 4:00 P.M. he was found on the top of tank “D” with his upper body slumped into the manway and his lower body and legs on the outside. All parties agreed that at the time of the accident Alexander was apparently in the process of rinsing the inside of the tank because water was running from the hose which was protruding through the manway into the tank. Also, a water flush valve that facilitates the washing of the slurry into the disposal ditch had been opened and was flooding the tank from the bottom.

All attempts to revive Alexander failed. It is undisputed that the ultimate cause of death was inhalation of vinyl chloride monomer.

The plaintiff received $8,826 in workmen’s compensation benefits as a result of her husband’s death. She subsequently brought this suit against many of the corporate executives and supervisors in Ethyl’s chain of command. However, after various legal maneuvers, only the above-named defendants who were the deceased’s immediate supervisory personnel, remain.

It was stipulated at trial that any judgment against said defendants would be subject to a credit for the workmen’s compensation benefits already paid.

jThere is no dispute that at the time of this accident vinyl chloride monomer was known to be a dangerous gas. The evidence established that vinyl chloride monomer has been used experimentally as an anesthetic agent and that continuous inhalation of it can have adverse effects on the human body. It has a pungent odor that can be detected in concentrations of 400-800 parts per million. At one point it was used as a propellant in aerosol cans. The first adverse effect noticed by a person in contact with a reactionable concentration of the monomer is dizziness. This is followed by a drunken feeling, nausea, then finally blackout and death. Other than by odor, the gas gives no warning of its presence.

In finding for the defendants, the trial court stated that they “acted reasonably under the circumstances, based on years of experience at Ethyl and other plants and further based on the available scientific information, in believing that the washing operation could be performed safely by an operator exercising reasonable care in the performance of his job who was observing these simple and basic precautions, together with the general rule — if you smell vinyl chloride, get out.” (Reasons for Judgment, p. 72)

I.

The legal requirements necessary to impose liability upon executive or supervisory personnel have "been clarified recently in Canter v. Koehring Company, 283 So.2d 716 (La.Sup.Ct.1973). After acknowledging that a duty must be owed by the executive to the injured worker, the Court stated that one criterion for imposing individual liability is the executive’s breach of duty through personal fault:

“ * * * The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfea-sance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.” (283 So.2d at 721)

The plaintiff has not contended that the safety procedures established by the Ethyl Corporation for this vinyl chloride plant were not being followed at the time of the accident. She does, however, contend that those procedures were inadequate. She argues, in essence, that since the individual defendants herein were skilled in handling this potentially dangerous gas, they, by the exercise of the ordinary prudence of similarly skilled men, knew or should have known that the said safety standards were inadequate. Accordingly, since the defendants did not advise her husband that the procedure for washing the storage tank was unsafe, they breached their duty to him and in accordance with the above-quoted language of Canter, supra, they are liable for his death.

Alternatively, plaintiff contends that the trial judge failed to require the defendants to display the high degree of care which is required of those engaged in the manufacture and sale of an inherently dangerous material.

To substantiate her contention that the washing procedure was unsafe, the plaintiff relied heavily upon the testimony of Dr. Clayton D. Callihan, recognized by the court as an expert in the field of chemical engineering, particularly in the field of bioengineering, polymerization of hydrocarbons, and plant design.

Dr. Callihan explained that after the tank is drained of the slurry, the remaining polyvinyl chloride granules slowly release the unreacted vinyl chloride monomer from their pores. The monomer then builds up in the tank and even though it is heavier than air, its high diffusion rate causes it to become evenly dispersed throughout the 20,000 gallon tank. According to Dr. Calli-han, the concentration reaches approximately 180,000 parts per million inside the tank.

He then commented that the diffusion rate and the spraying of water into the tank causes the monomer to escape through the manway and subjects the workmen to a much higher concentration than 500 parts per million, which was the accepted standard for human exposure for an eight-hour period at the time of the accident.

He surmised that Alexander was exposed to a high concentration of the monomer, collapsed with his upper body hanging into the manway, and subsequently died from continued inhalation of a high concentration of the gas inside the tank.

On cross-examination Dr. Callihan admitted that he did not know the exact concentration an individual could withstand before experiencing an adverse reaction, nor could he calculate the concentration of the gas on the outside of the tank at the manway opening during a typical washing operation.

To rebut plaintiff’s contentions, the defendants introduced an article form the Industrial Hygiene Journal, May-June 1963, by Drs. Lester, Greenberg and Adams, entitled “Effects of Single and Repeated Exposures of Humans and Rats to Vinyl Chloride.” The article established that in the six humans tested, concentrations varying from 8,000 to 12,000 parts per million could be inhaled for five minutes with no effect. Also, from the responses of the individuals it was evident that “vinyl chloride causes clear-cut intoxicating symptoms which can serve as adequate warning signs of its presence.”

To establish the actual concentration to which a workman is subjected at the man-way opening, defendant Mehl stated that he tested the exit of the manway to tank “D” approximately two hours after the accident and found 200 parts per million concentration of the monomer.

The next day an operation was performed that was similar to that done by the plaintiff’s husband. When the lower water valve was opened, as decedent had done, and the water hose inserted into the manway, the reading at the top of the manway was. approximately 800 parts per million. Mehl surmised that the difference in the two readings was due to the passage of time.

To establish the actual position of the workman’s body during the washing operation and, therefore, establish the concentration of gas to which he is exposed, Mehl testified that there is no requirement to wash the^ tank completely clean and the workmen have no reason to subject themselves to higher than 800 parts per million concentration by leaning over into the manway to inspect the sides. Because of the position of the manway, the workman can completely circle it and visually observe the inside walls while standing. He then squats down with his head on the outside of the manway, inserts the water hose and rotates it 360 degrees to wash the sides. Mehl concluded that a workman performing the job in this manner could not fall into the manway as did the decedent.

All the defendants who testified stated that the washing was a routine operation performed by only one workman and that even though the method for performing the actual rinsing with the water hose was done in a slightly different manner by each workman, they all insisted that every man was instructed never to put his head into the manway because of the possibility of inhaling large quantities of the gas. Also implicit in the instructions was the rule that the workman was never to allow his body to he positioned where he would fall into the manway if he fainted. That instruction was obviously disregarded by the deceased, as he was found with his upper body inside the manway hole.

The trial judge found as a fact that even though there were variances concerning body position when performing the rinsing job, they were “insignificant.”

It was established by defendant, I. G. Butler, that it takes approximately three to five minutes to perform the washing operation.

We note that the plaintiff did not call any witnesses to refute this contention of the defendants, and the only evidence submitted at the trial to establish the actual concentration of vinyl chloride monomer required to produce an adverse reaction in the human body was contained in the Industrial Hygiene Journal, It is apparent from the Journal that concentrations greatly in excess of those measured by defendant Mehl at the exit of the manway could be inhaled by humans for five minutes, which is the maximum time required to complete the entire washing process with no adverse effect.

The standard of care demanded of these executive officer defendants by the Canter case, supra, is necessarily related to the degree of danger inherent in the substance under their care, Hartford Fire Insurance Company v. Captain, 278 So.2d 821 (La.App. 2nd Cir. 1973). In view of the foregoing testimony and evidence brought out at the trial of this matter, we conclude that any workman performing the decedent’s job in accordance with the instructions of the defendants would not be subjected to what was considered at the time of the accident to be a dangerously high concentration of vinyl chloride monomer.

Based upon the foregoing, we conclude that the procedures utilized to wash these storage tanks conformed to the standard of care required under the circumstances.

II.

We find unrefuted evidence that the decedent was instructed concerning the safety procedures established by the plant.

Defendants Smith and Mehl, both chemical engineers and supervisors in the decedent’s chain of command, testified that all employees were thoroughly instructed as to the dangers of vinyl chloride monomer and that periodic checks were made to insure that the safety procedures established at the plant were being followed.

Ethyl’s vinyl chloride section conducts paid safety meetings once a month for each shift. Defendant, I. G. Butler, decedent’s immediate supervisor on the day of the accident, stated the decedent obviously attended those meetings since he was never “called on the carpet” for failure to attend, as is the plant policy.

It is also obvious from the trial testimony that each workman is instructed concerning the dangerous propensities of the gas and told to immediately leave an area if he begins experiencing the tell-tale symptoms of vinyl chloride monomer intoxication. It is uncontroverted that face masks supplying fresh air were available throughout the area to any worker who might feel the adverse effects of the gas. In fact, some such masks were within 50 to 75 feet of the tank “D” manway.

We conclude that the workmen were adequately instructed concerning safety measures to be taken when confronted by a hazardous condition in the plant. Therefore, each worker, once he became aware that he was experiencing dizziness or other adverse effects from inhalation of the gas, was trained to extricate himself from the danger.

In this regard the plaintiff would have this Court hold that her husband was overcome by the gas and passed out with his upper body inside of the manway before he could react to the danger or extricate himself therefrom. Implicit in such a holding would be the conclusion that the safety rules failed to consider that such a rapid reaction to the gas would deprive the workman of his ability to remove himself from the area of exposure. As such, the safety rules would be inadequate and, therefore, liability would be imposed upon the defendants.

However, there is absolutely nothing in the record to indicate that vinyl chloride monomer, regardless of its concentration, causes immediate loss of consciousness which would have prevented this workman from removing himself from the manway opening. It is uncontested that during the decedent’s four years of employment at the plant he performed this procedure a number of times and never once complained to his supervisors that he considered it to be dangerous or that he had experienced an adverse reaction to the gas.

III.

Although not controlling, an additional factor which may be utilized to determine the degree of care which must be exercised is the standard of the industry, Roberie v. Sinclair Refining Company, 252 So.2d 488 (La.App. 3rd Cir. 1971); Pitre v. Employers Liability Assurance Corporation, 234 So.2d 847 (La.App. 1st Cir. 1970). The evidence established that the washing method utilized by Ethyl’s plant in Baton Rouge was standard in the industry and that up until the time of this unfortunate accident the Vinyl Chloride Safety Association, a worldwide association of companies engaged in the manufacture of vinyl chloride, had never received a report of a workman being overcome by fumes while performing this particular operation. In this regard, the evidence indicates there had never been a case of dizziness or other untoward reaction reported at Ethyl’s Baton Rouge plant. We conclude that the procedure conformed to the standards of the industry, and this strengthens our conclusion that the defendants did not breach their duty to plaintiff’s husband.

IV.

Another theory postulated by Dr. Callihan was that since vinyl chloride monomer is nonbiodegradable, that is, the body is incapable of disposing of it once it is inhaled, the decedent’s continued exposure to it made him more susceptible and the last exposure caused a sensitivity reaction resulting in death.

This theory was refuted by the testimony of Dr. Albert L. McQuown, a pathologist who examined tissue taken from the body of the deceased. Based on his studies of vinyl chloride, he concluded that the cause of death was not a sensitivity reaction as advocated by Dr. Callihan.

Dr. McQuown concluded that death was due to the dangerous nature of the substance and specifically denied that it resulted from a sensitivity reaction.

Without elaborating upon the other requirements of the Canter case, supra, we are of the opinion that under the circumstances of this case the plaintiff has failed to show that the defendants breached a duty to her husband which caused his death. Absent a breach of duty, there can be no liability imposed upon them.

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

Affirmed.

      . C2H3CI, a clear liquid under pressure and a colorless gas at atmospheric levels.

      . Defendants Smith and Mehl are engineers. The record discloses no special qualifications for defendants Pollard, Butler and Green except for their employment in supervisory positions at the plant. Defendants Gill and Herzog did not testify and the record does not disclose their capabilities.


author: SCHOTT, Judge.

text:
    James P. RAYMOND, Jr. v. UNITED FEDERAL SAVINGS & LOAN ASSOCIATION.
    No. 7149.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Schumacher, McGlinchey, Stafford & Mintz, New Orleans (Donald R. Mintz), New Orleans, for plaintiff-appellant.
    James A. Smith, Lake Charles, for defendant-appellee.
    Before SAMUEL, LEMMON and SCHOTT, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his suit for damages based upon allegations that defendant breached a collateral pledge agreement between the parties.

In connection with a mortgage loan made by defendant to Mr. and Mrs. Errol J. Meadoux in January, 1972, plaintiff deposited $3,000 in a savings account with defendant and pledged this sum to secure the mortgage loan to Meadoux. The pledge agreement contained the following;

“ . . . It is hereby expressly agreed in consideration of the aforesaid matters that before this pledge is used to remedy any delinquency in the payment of said indebtedness, said association shall give the undersigned pledgor notice of such delinquency at the address stated above or any. other address supplied by the pledgor to the pledgee in writing by mail; and the depositing of such notice in the United States mail, postage prepaid, shall constitute service of such notice upon the undersigned pledgor. After such notice and within 30 days thereof, the' undersigned pledgor shall have the privilege (1) of paying the amount of such delinquency or (2) of taking an assignment of said note and mortgage, without recourse, for the unpaid balance thereof, including such advances and costs, upon payment of such amount. If within 30 days of such notice such delinquency is not remedied and such loan is not bought and transferred to the undersigned pledgor, then any officer of said Association is appointed áttorney-in-fact for the undersigned pledgor and is expressly authorized to execute a withdrawal request against said Savings Account in the name of the undersigned pledgor and to withdraw any or all of the funds in said Savings Account. . It is specifically agreed that at the option of the pledgee, it may exhaust the real estate security securing said indebtedness and retain this pledge to secure any deficiency and acting as above provided but without further notice, apply sold Savings Account toward the liquidation of any deficiency, provided 30 days’ notice is given of the foreclosure sale of the real estate security.”

By August of 1972 the loan account had become delinquent provoking a meeting in February, 1973, between plaintiff and defendant’s representative and Meadoux at which it was agreed that Meadoux would make two payments per month beginning in March, 1973, until the account was brought up to date. Defendants’ representative also agreed to notify plaintiff in the event Meadoux failed to comply with his agreement. On February 14, 1973, a letter was sent to plaintiff confirming this understanding, including a statement that “As requested, notification will be forwarded to you when delinquency occurs.”

The two payments were made in each of the months of March, April and May, 1973, but none thereafter with the result that the matter was referred by defendant to its attorney in October, 1973, for foreclosure on the mortgage and execution on the pledge agreement. On November 13, 1973, the foreclosure proceedings were filed and in January, 1974, defendant withdrew $3,000 from plaintiff’s savings account in execution of the pledge.

Plaintiff’s charge that defendant breached the pledge agreement is based upon defendant’s failure to notify him of the delinquencies in Meadoux’s account and failing to notify him that the mortgaged property would be seized and sold.

Plaintiff testified that he was never contacted by anyone at the defendant’s Savings and Loan Association from the time of the meeting in February, but he acknowledged that he spoke to defendant’s attorney in August or September of 1973, and he was told that the account “looked bad; that something would have to be done.” He stated that he first learned of the forfeiture of the pledge from his account when he went to defendant’s office in February, 1974, to have his interest posted to his pass book. He specifically denied that he received any letter from defendant notifying him that the account was delinquent.

James A. Smith, attorney for defendant, testified that upon his receipt of the account for foreclosure he mailed to plaintiff a letter on October 8, 1973, providing as follows:

“This is to notify you, in accordance with the Collateral Pledge Agreement executed on January 5, 1972, that the mortgage account of Mr. and Mrs. Errol J. Meadoux at United Federal Savings and Loan Association is seriously delinquent.
“Mr. & Mrs. Meadoux have been notified that unless the account is made current immediately foreclosure proceedings will be instituted.
“In accordance with terms of the “Pledge Agreement: you have 30 days to remedy the delinquent situation, as outlined in the agreement.
“We have written and spoken to the Meadoux’s repeatedly about the situation, but to no avail. Perhaps your influence may have some effect.”

He also testified regarding the telephone conversation he had with plaintiff prior to writing the above letter, that he told plaintiff that unless action were taken to correct the delinquency foreclosure proceedings would be instituted.

In reasons for judgment the trial judge said the following:

“The Court has found that the notice of delinquency required by the pledged instrument was, in fact, mailed by Mr. Smith but was not delivered to Mr. Raymond. The pledge agreement specifically provides that mere deposit of the notice is sufficient. Delivery by necessary implication, is not essential.
Civil Code Art. 3165 provides, in part:
‘ . . . but in all pledges of movable property, or rights, or credits, stocks, bonds or other movable property, it shall be lawful for the pledger to authorize the sale or other disposition of the property pledged, in such manner as. may be agreed upon by the parties without the intervention of courts of justice; . . . ’
“While Art. 3165 dispenses with judicial and other formalities in the forfeiture of a pledge, notice is nevertheless required unless it is waived. Broussard v. O’Bryan [La.App.], 270 So.2d 127, Elmer v. Elmer [La.App.], 203 So.2d 391. But where the pledge instrument is clear and unambiguous in its notice requirements, its terms are binding between the parties, and compliance therewith is all that is required.”

We agree with the foregoing to the effect that the law of pledge does not under the contract prevailing here require that the notice be received by plaintiff where the evidence shows that defendant complied with the letter of the agreement in mailing the notice to plaintiff. This letter served not only to notify plaintiff of Meadoux’s delinquency, but also to notify plaintiff of the foreclosure sale of the real estate security when defendant exercised its option to exhaust that security while retaining the pledge to secure any further deficiency.

Plaintiff relies upon Broadway v. All Star Insurance Co., 285 So.2d 536 (La.1974), Cuccia v. Allstate Ins. Co., 262 La. 545, 263 So.2d 884 (1972) and Skipper v. Federal Ins. Co., 238 La. 779, 116 So.2d 520 (1959) in support of his argument. These cases concern the adequacy of notice under LSA-R.S. 22:636 relative to the cancellation of insurance policies and are in-apposite.

Finally, plaintiff attempts to bring this case within the ambit of Elmer v. Elmer, 203 So.2d 391 (La.App. 4th Cir. 1967) in which this Court set aside the execution of a pledge and said the following:

“A mere literal compliance with the terms of the pledge is not in itself sufficient to render valid the sale and purchase by the pledgee of the subject of the pledge, since the pledgee occupies the fiduciary relation to the pledgor, being regarded as a trustee or agent of the pledgor and making the sale, owing the pledgor the duty of acting fairly and in good faith.”

The language of the cited case must be interpreted in the light of its facts which were wholly dissimilar from those of the instant case. Plaintiff contends that defendant undertook the duty to notify him of any delinquency which might occur in the loan account and that defendant’s failure to do so constituted a violation of a trust plaintiff had placed in defendant. He contends that the assurances given him in February at the meeting and in defendant’s letter were violated so that his position was much the same as that of the pledgor in the Elmer case.

When defendant’s attorney told plaintiff that the account was delinquent in August or September of 1973 the commitment made in February was carried out by defendant. Furthermore, when the pledge agreement was complied with by defendant by mailing the letter of October 8 to'plaintiff, this also constituted a compliance with the February assurances made by defendant since there is no evidence to show that the original agreement’s method of notice was ever changed. The facts of this case do not show any breach of trust on defendant’s part as they did in the Elmer case.

Accordingly, the judgment appealed from is affirmed.

Affirmed.


author: BEER, Judge.

text:
    John F. AUSTIN, Jr. v. Jack PERRY.
    No. 7183.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Rehearing Denied Feb. 10, 1976.
    Writ Refused March 19, 1976.

      Faris, Ellis, Gilmore, Cutrone & Lau-tenschlaeger, Camille A. Cutrone, New Orleans, for plaintiff-appellant.
    Frank C. Dudenhefer and Arthur L. Ballin, New Orleans, for defendant-appel-lee.
    Before REDMANN, STOULIG and BEER, JJ.
   BEER, Judge.

On September 21, 1967, defendant-appel-lee, Jack Perry borrowed $150,000 from the Bank of New Orleans and Trust Company, (hereafter, BNO) and executed a promissory note, payable on demand, in that amount. Commensurate therewith, John F. Austin, Jr., plaintiff-appellant, executed a separate continuing guarantee agreement in favor of BNO.

Perry defaulted on the note and Austin was called by BNO under the continuing guarantee agreement. In response, Austin executed a promissory note in favor of BNO on August 6, 1970 in the amount of $150,000. BNO then endorsed Perry’s original note to Austin without recourse.

On September 10, 1974 Austin sued Perry on the original note (dated September 21, 1967) in Civil District Court for the Parish of Orleans. Perry filed an exception of prescription and Austin amended his petition to allege that defendant had obtained a loan in August, 1969, part of the proceeds of which had been used to pay interest on the note sued upon thereby keeping it current, at least to that date, insofar as prescription was concerned. From a judgment maintaining the exception, plaintiff-appellant appeals.

The only testimony offered at the hearing on the exception was that of defendant, Perry. He acknowledged execution of the original note in favor of BNO for $150,000 on September 21, 1967 and acknowledged that Austin signed a continuing guarantee in connection therewith.

He admitted that he made no payments on the note, notwithstanding repeated calls from the president of BNO, Mr. Merrigan, relative to making payments.

He then executed a note for $48,500 in favor of BNO on August 16, 1969 and acknowledges that these new funds, held in escrow by BNO, were used to pay the interest on several notes including the one of September 21, 1967 in the amount of $150,000.

On its face the promissory note of September 21, 1967 had prescribed on September 10, 1974 when this suit was filed. Thus, plaintiff-appellant clearly had the burden, on the basis of these dates, to allege and stand ready to prove such interruption of prescription as would indicate that the note was fully current, at least as of September 10, 1969. See: Lake Providence Equipment Company v. Tallulah Prod. Credit Ass’n, 228 So.2d 315 (La.App. 2nd Cir. 1969).

On August 16, 1969 (approximately twenty-five days short of the September 10, 1969 date above noted), Perry borrowed $48,500 from BNO and specifically agreed that the proceeds from that loan were to be applied in such a way as to make and keep the interest payments current on, among others, the note of September 21, 1967 in the amount of $150,000. Perry had “several notes over there” (at BNO); and admits that the proceeds from the $48,500 loan were earmarked by he and BNO “to keep the interest on those notes current.” He acknowledges that “those notes” did “include the promissory note for $150,000 which forms the basis of this suit.”

Perry’s own testimony convinces us that the note of September 21, 1967 was certainly current, with respect to interest payments, as of August 16, 1969.

Was anything done subsequent to August 16, 1969 to keep the note current at least until September 10, 1969?

Turning again to Perry’s own testimony we find evidence of his acknowledgement that the proceeds of the $48,500 loan would continue to be applied by BNO to keep the notes (including the one that is the subject matter of this litigation) current. Perry acknowledges that BNO has his authorization to apply the proceeds of the $48,500 loan to “any note” and “all notes” that BNO held in any manner that they “saw fit to do” in order to maintain the currency of those notes. The record is barren with respect to any indication that the note which is the subject matter of this litigation was treated differently then any of Perry’s other outstanding notes with BNO. We deem it reasonable to conclude, under these circumstances, that the interest payments on the $150,000 note were maintained in a current status by the use of the proceeds from the $48,500 note at least until September 10, 1969. This conclusion is bolstered by the evidence in the record which indicates that the date (August 6, 1970) that Austin assumed full financial obligation for the original note in his capacity as guarantor, the interest was then current since the total amount assumed was only the face amount of the note.

If Perry had evidence of any other allocation of interest payments inconsistent with or contrary to this conclusion, then the burden was on him to adduce such evidence in view of his own acknowledgement of the procedures noted above. The fact that a BNO official, who was present in court in response to a subpoena duces tec-um for certain of BNO’s records, was not called as a witness is no more or less damning to one party’s position than the other’s. If BNO’s records were supportive of Perry’s counsel’s articulate contentions regarding prescription, then such evidence could have been placed in the record by him. The record clearly shows that both counsel not only knew that the BNO representative and the BNO records were in court in response to a subpoena duces tec-um but each had an opportunity to review those records notwithstanding the fact that the subpoena had been originally issued by counsel for plaintiff-appellant, Austin.

Likewise, the lack of inscriptions on the note with respect to interest payments is non-conclusive. See: Bordes v. Bordes, 297 So.2d 512 (La.App. 4th Cir. 1974).

We find that the affirmative allegations of appellant’s amended petition, coupled with the evidence adduced at the hearing on the exception are sufficient to overrule the exception of prescription. Accordingly, the trial court’s judgment sustaining the exception of prescription is reversed. The exception is overruled. The case is remanded for further proceeding not inconsistent with this judgment. Cost of this appeal are taxed against appellee.

Reversed and remanded.

      . LSA-C.C. Article 3540.

      . One might theorize that the $48,500 note was but an agreement to extend maturity of the earlier notes to such time as $48,500 would pay prior interest. The result would be the same.


author: GULOTTA, Judge.

text:
    Vincent CASTIGLIONE and Edward Baradell v. James J. GALPIN.
    No. 7174.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Rehearing Denied Feb. 10, 1976.
    Richard S. Vale, Metairie, for plaintiffs-appellees.
    Joseph A. Barreca, New Orleans, for defendant-appellant.
    Before GULOTTA, BOUTALL and MORIAL, JJ.
   GULOTTA, Judge.

This is a suit for damages resulting from an alleged assault based on plaintiffs’, Sewerage & Water Board employees, claims that they were placed in reasonable apprehension of receiving a battery when defendant pointed a shotgun at them. This incident occurred after plaintiffs informed defendant that the water would be turned off because of defendant’s nonpayment of a water bill. The trial judge rendered judgment in favor of each plaintiff in the sum of $750.00. Defendant appeals. We affirm.

According to plaintiffs’ versions of the incident, upon arrival at defendant’s residence and after informing him that they were under instructions to turn the water off if the bill was not paid, Galpin stated, “I’ll get a gun and shoot you if you dare to close that water.” Whereupon, after reiterating the threat, defendant obtained a shotgun from inside the premises and returned to the front porch, where he pointed the gun at plaintiffs while they were preparing to turn the water off at the water main located in the front yard.

Defendant’s version of the incident is that he objected to plaintiffs’ stated intention to turn off the water and obtained a shotgun. However, he denied that he at any time pointed the weapon at plaintiffs. According to his version, he merely laid the gun across his knee while in a squatting position.

In the absence of trial court reasons, we are unable to ascertain whether the judge made a factual determination that the gun was either in defendant’s lap, or pointed at plaintiffs. Nevertheless, we are convinced from the circumstances surrounding the incident that defendant’s action (whether the gun remained on defendant’s lap or was pointed at plaintiffs) resulted in plaintiffs being placed in reasonable apprehension of receiving a battery and was sufficient to constitute an assault.

Words alone may not be sufficient to constitute an assault; however, threats coupled with the present ability to carry out the threats are sufficient when one is placed in reasonable apprehension of receiving an injury. See State in Interest of Cortez, 319 So.2d 496 (La.App., 4th Cir. 1975); Osborne v. People’s Benev. Industrial Life Ins. Co. of Louisiana, 19 La.App. 667, 139 So. 733 (2d Cir. 1932) and the authorities cited therein. It is clear that defendant threatened plaintiffs with bodily harm in the event they turned the water off and that defendant did possess the ability to carry out those threats. Under the circumstances, it is plausible that plaintiffs were in reasonable apprehension of receiving a battery. Accordingly, we find no error on the part of the trial judge finding defendant liable.

Nor do we find merit in defendant’s claim that the amount of the award to each plaintiff in the sum of $750.00 is excessive. Castiglione testified that he was unable to continue to work that day and remained away from work for “a couple of days”. He did not seek any medical attention from a physician, however, he remained nervous and upset for a period of approximately one week. He further stated that he did take “nerve pills” which had been prescribed for his wife.

According to the testimony of Mrs. Baradell, her husband came home early from work and was upset and nervous. Althqugh he did not take any medication or see a doctor, he remained nervous and upset for approximately a week. She further testified that her husband missed “a couple of days” from work.

We cannot say, under the circumstances, that the amount of the awards is so excessive as to constitute an abuse of the much discretion rule. See Squyres v. Phillips, 285 So.2d 337 (La.App., 3d Cir. 1973). The judgment is affirmed.

Affirmed.

      . Plaintiff Baradell was deceased at the time of trial.


author: LEMMON, Judge. REDMANN, Judge

text:
    Mrs. Vera Donley Wunstell, wife of Billy Maurice WUNSTELL, and natural mother of Shantell Donley v. Mrs. Eleanor Crochet, widow of Joseph CROCHET.
    No. 6301.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 1976.
    Dunn & Rasch, J. Morris Dunn, III and Michael H. Rasch, Metairie, for plaintiffs-appellants.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for defendant-appellee.
    Before REDMANN and LEMMON, JJ., and BOURG, J. Pro Tern.
   LEMMON, Judge.

Plaintiff has appealed from a judgment, rendered after trial on the merits, which dismissed her suit against her lessor for the wrongful death of her infant child.

Plaintiff and her present husband had leased a two bedroom apartment owned by-defendant, which had the following floor plan:

O'

The apartment was heated by a floor furnace located in the hall which connected the two bedrooms and the bath. The thermostat for the, furnace was located in the master bedroom, which also contained a large window air conditioning unit that provided cooling for the entire apartment.

Defendant lit the pilot light for the floor furnace when plaintiff and her husband moved into the apartment in February, 1972, and the tenants used the heating system during cold weather thereafter without incident. When warmer weather began, they did not turn off the furnace, but simply moved the thermostat .to its lowest setting of 55°. The themostat did not have an on-off switch.

On the evening of May 12, 1972 plaintiff and her husband went to sleep with the door to the hall closed, the door to the kitchen covered with a quilt, and the air conditioning unit running. When they awoke the nest morning, they discovered that the child’s bedroom was excessively hot and that the furnace had been in operation for some period of time, although plaintiff’s husband found the thermostat still set at 55°. The limp child was rushed to the hospital and eventually recovered.

Defendant theorized on a “common sense” basis that cooling the bedroom with the large air conditioning unit had activated the thermostat and that the cool temperature maintained in the closed room had caused the furnace to run all night. She warned the tenants not to close off the bedroom completely when operating the cooling unit.

On the night of June 13, 1972 plaintiff and the child were at home alone. Plaintiff put the child to bed and closed off the master bedroom, with the air conditioning unit running. When her husband returned from work the next morning, they discovered that the floor furnace was operating and had apparently run for a long period of time, and that the child had died from the excessive heat.

This action ensued. The trial judge dismissed the suit on the basis that the “death resulted . . • . from an unfortunate series of events precipitated by a mistake of judgment by plaintiff.”

Plaintiff seeks reversal, contending that (1) the thermostat and/or furnace was defective and (2) the placement of the furnace outside of the master bedroom, with the thermostat in the bedroom and in the direct line of flow of cool air, was a hazard which rendered the premises unsafe.

Plaintiff did not prove a defect in the thermostat or the furnace. The mechanical engineer that she presented had not inspected the premises or the equipment. The engineer employed by defendant to test the equipment found the thermostat and furnace in satisfactory operating condition. Defendant furthermore testified that the unaltered system was still operating without problems at time of trial.

As to plaintiff’s second contention, we emphasize that the child’s death resulted from a second of two incidents involving almost identical circumstances.

If the child had died following the first incident, defendant would probably have been liable on two bases. First, defendant breached her duty as lessor to provide safe premises, inasmuch as a hazard existed in the apartment because of the location of the thermostat, particularly at the change of seasons when weather conditions could call for either heating or cooling. This hazard, moreover, was not readily apparent to a reasonable tenant.

Second, strict liability (in the sense that liability does not depend upon proof of defendant’s negligence or of her knowledge of the defect) is imposed upon an owner-lessor of premises for injury sustained because the premises are defective. Fault is analogized from the conduct required by C.C. art. 2322, and responsibility for the fault-caused damage attaches under C.C. art. 2315. Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971); see also the specific language in dissenting opinion in Wooten v. Wimberly, La., 272 So.2d 303, 309 (1972).

After the first incident, defendant did not discharge her duty to provide safe premises by simply instructing the tenants to keep the master bedroom door open. She had a duty to go forward and remedy the hazard. Nevertheless, we conclude that defendant’s failure to act affirmatively in remedying the hazard does not create liability in this plaintiff under the circumstances of this particular case, since the premises were only potentially hazardous without concurrent willful action on the part of the plaintiff.

Rules of law impose certain duties designed to protect certain persons against certain risks under certain circumstances. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Malone, Ruminations on Cause-In-Fact, 9 Stanford L.Rev. 60, 73 (1956). The scope of the duty imposed upon a defendant marks the extent of his liability; risks falling outside the scope of this duty fall on the victim (unless another defendant is liable). And where the defendant’s duty ends, the assumption of risks by the victim begins. In this sense assumption of risks is but the negative of duty. Green, Assumed Risk as a Defense, XXII La.L. Rev. 77 (1961).

In the present case the potentially dangerous heating system required concurrent action on the part of the tenant before harm would be produced. The key inquiry as to whether the risk fell within the scope of defendant’s duty for liability purposes (or as to whether the risk was assumed for defense purposes) is whether plaintiff took the action she did voluntarily and with knowledge of the possible consequences.

The first incident dramatically illustrated to plaintiff and her husband the risk of operating the air conditioning unit in the closed bedroom with the thermostat for the hearing system merely turned to a low setting. They were also warned by defendant (after she realized the danger because of the first incident) to avoid creating the same combination of circumstances. Nevertheless, on the night of her child’s death, plaintiff in order to make herself more comfortable not only created the exact same circumstances as had existed in the previous incident, but also failed to take any precautions whatsoever (such as opening the child’s window) to prevent the same result. Perhaps she did not understand the mechanics of the forces set into operation by her action, but she had to be aware of the possible consequences by the result so forcefully demonstrated only a short time before. Plaintiff acted in such a manner as to invite injury by voluntarily and unreasonably exposing her child to harm from the exact risk known by her to result when she created that combination of circumstances. In effect, she accepted or consented to the risk.

As to whether her consent to the risk was voluntary, plaintiff argues that they would have moved after the first incident but were compelled to remain in the apartment because they had no money and her husband was out of a job. The important factor in plaintiff’s consenting to the risk was not her staying'in the apartment, but rather her operating the air conditioning unit as a matter of convenience under the same circumstances as had previously existed when the child was previously exposed to excessive heat.

We perceive two approaches to resolution of the liability question. From the duty-risk approach, we note that defendant’s duty did not encompass protection of this particular plaintiff against this particular risk under these particular circumstances (although defendant’s substandard conduct may have constituted a breach of duty to others). From the assumption of risk approach (and this defense was specifically pleaded), plaintiff was fully aware of the risk already created by defendant’s negligence and knew her action could produce a disastrous result; yet, she voluntarily proceeded to encounter the risk. Prosser, The Law of Torts § 68 (4th ed. 1971); Restatement, Second, Torts § 496 C (1965). We do not choose one approach over the other; under either, defendant is not liable for plaintiff’s damages.

The judgment is affirmed.

Affirmed.

REDMANN, Judge

(dissenting).

At worst, plaintiff’s closing off her own bedroom with the air conditioner running was contributory negligence (and in that sense only might be called assumption of risk). But contributory negligence is not a defense against strict liability, Langlois v. Allied Chem. Corp., 1971, 258 La. 1067, 249 So.2d 133. Only when it amounts to consent to be injured is assumption of risk a defense against strict liability. It is not reasonable to assert that plaintiff’s disbelief in defendant’s “common sense” explanation of the near-fatal event a month earlier, or plaintiff’s forgetfulness, or even plaintiff’s stupidity constituted consent on her part to suffer the death of her infant.

      . At trial a mechanical engineer confirmed that this theory was a plausible explanation of the occurrence. He opined further that the stream of air, discharged from the cooling unit at 46 to 50° directly toward the thermostat, could also produce this result. Testing revealed that the thermostat was four to seven degrees off calibration and would be activated at a higher temperature than that indicated on the dial of the instrument.

      . Defendant testified that when she advised plaintiff and her husband to turn off the furnace, the husband told her he liked to use the heating on cool mornings.
      Plaintiff’s husband denied telling this to defendant, insisting he asked defendant to have the furnace checked or turned off. He admitted, however, that defendant warned him ■about closing off the bedroom, but claimed he didn’t understand the significance, thinking the occurrence was a freak accident.

      .There was no direct medical proof of the cause of death, but on the issue of causation a policeman called to the scene stated “you couldn’t hardly breathe when you went into the room.”

      . Perhaps the pertinent inquiry is whether this particular defendant was under a duty to protect this particular plaintiff against this particular risk, since the plaintiff was in at least an equal position to protect herself.
      In a comparative negligence jurisdiction plaintiff would be held to be at least 50% at fault.

      . We distinguish this case from one, for example, in which a slum landlord provides only a rickety stairway as a means of entrance and the impoverished tenant is injured when the obviously unsafe stairway gives way. In such a case the tenant, although aware of the risk of injury, does not voluntarily consent to subject himself to this risk, but virtually has no freedom of choice, since this is his only means of entrance.
      In the present case plaintiff was not forced to choose between two unreasonable ■ alternatives. She had no compelling reason to operate the air conditioning unit, except for her own comfort, before steps were taken to make the system safe.

      . Since plaintiff’s conduct in voluntarily encountering the known risk was unreasonable, the conduct also amounted to contributory negligence.
      Although contributory negligence (which is measured by the objective standard of the reasonable man) is not a defense to strict liability, assumption of risk (which is controlled by the subjective intent of the plaintiff) is. Langlois v. Allied Chemical Co., supra; Restatement, Second, Torts §§ 515 (pertaining to the strict liability of the possessor of an animal), 524 and 525 (pertaining to strict liability for abnormally dangerous activity).


author: MARVIN, Judge.

text:
    J. George NOMEY v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS.
    No. 12799.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.
    D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Baton Rouge, Johnson, Johnson & Duke by Don H. Johnson, Monroe, for defendant-appellant.
    Holloway, Baker, Culpepper & Brunson by William H. Baker, Herman A. Castete and John H. Helm, Jonesboro, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ-
   MARVIN, Judge.

In this case, as in the case of Namie v. Department of Highways, La.App., 325 So.2d 734, orders of appeal were sought, granted and perfected from a judgment of the lower court but before the judgment was signed. The judgment in each case was signed six days after the appeal and is in the record of each case.

In the recent case of Malbrough v. Kiff, 312 So.2d 915 (La.App. 1st Cir. 1975) the identical situation was presented. There the court squarely held, on its own motion, that the appeal must be dismissed. The effect of the dismissal there was to deny review because the delays for appealing from the signed judgment had elapsed. This is the issue which confronts us, because the judgment in each case we are considering was signed on May 29, 1975, after the appeal was granted and perfected.

This issue must ultimately be resolved by our highest court because there exists, since the adoption of the Code of Civil Procedure, conflicts in the decisions of the several circuits. We are now called on or compelled, so to speak, to choose sides in the controversy.

Since the issue hopefully will be resolved by the Supreme Court and since we see no real distinguishing factors and do not desire to burden the reporter system with lengthy discussion and reiteration of the reasoning and authorities behind the decisions of the other circuits, we shall state our opinion this way:

We believe it more in keeping with the spirit behind the Code of Civil Procedure to achieve an equitable and just result, that we- adopt and follow the reasoning, authorities and rationale of the cases cited in the footnote denying the dismissal of the appeal. Appeals are favored under the law and the signing of the judgment appealed from at a point close in time to the time the judgment was orally stated, cures the alleged defect of a premature appeal, especially where the judgment as signed is not substantially different from the oral judgment; where the adverse party (the appellee) is not prejudiced and is given fair notice (see Paxton v. Ballard, 289 So.2d 85 (La.1974); Townsend v. Cleve Heyl Chevrolet, 318 So.2d 618 (La.App. 2d Cir. 1975) of the aim and purpose of the appellant’s oral or written request to appeal, the court’s granting of the appeal and the perfection of the appeal. These factors are present here and we respectfully choose not to follow our learned brothers of the First Circuit by dismissing the appeal under these circumstances.

ON THE MERITS

The State’s appeal is from a writ of preliminary injunction prohibiting the Department of Highways from encroaching or constructing upon certain described property. The property in the instant case is contiguous to the property owned by appel-lee in the Namie appeal, above referred to. Each parcel of property fronts on U. S. Highway 167 in Jonesboro, which is being widened, overlayed and improved by the Department of Highways.

The evidence in each case is parallel and is similar to the evidence in the case of Moorhead v. State, through Dept. of Highways, La.App., 322 So.2d 330, rendered by this court on November 6, 1975 (Rehearing refused on December 10, 1975). Plaintiff owns or possesses the property described in the petition and judgment. There was some construction work being done on the property and even outside markings identifying or roughly delineating the highway right of way. Plaintiffs established their possession of the property to the paved portion of the highway and appellant produced no evidence showing the existence of a right of way beyond the paved protion.

While the proof here supporting the grounds for injunction is minimal, it is only necessary, as we pointed out in Moo'r-head, that a prima facie case be made in order to obtain a preliminary injunction. See Employers Overload v. Employers Overload Co. of N. O., 266 So.2d 546 (La.App. 4th Cir. 1972), writ refused, 263 La. 375, 268 So.2d 260 (1972).

For the reasons assigned in Moorhead, on issues and contentions which are made here and which were made there, the judgment appealed from is

Affirmed.

      . Compare Malbrough v. Kiff, 312 So.2d 915 (La.App. 1st Cir. 1975); DiSalvo v. Picard, 303 So.2d 900 (La.App. 1st Cir. 1974), and Forman v. May, 201 So.2d 683 (La.App. 3d Cir. 1967) dismissing the appeals; with Richardson v. Richardson, 264 So.2d 699 (La.App. 4th Cir. 1972) and American National Insurance Co. v. Ramon, 204 So.2d 798 (La.App. 4th Cir. 1967) denying dismissal. See further discussion at 29 L.L.R. 269, 270-271. For cases under the Code of Practice compare Consolidated Association of Planters of La. v. Mason, 24 La.Ann. 518 (1872); LeBlanc v. Lemaire, 52 La.Ann. 1635, 28 So. 105 (1900); Greene v. Baynard, 194 La. 409, 193 So. 690 (1940); Vivian State Bank v. Holcomb, 13 La.App. 169, 127 So. 410 (2d Cir. 1930); Fidelity and Casualty Company of New York v. Callicott, 83 So.2d 671 (La.App. 1st Cir. 1955), and Framer v. Muse, 88 So.2d 729 (La.App. 1st Cir. 1956) dismissing the appeals as premature; with Vicksburg, Shreveport and Texas Railroad Co. v. Hamilton, 15 La.Ann. 521 (1860); State v. Balize, 38 La.Ann. 542 (1886); State ex rel. Bush v. Trahan, 125 La. 312, 51 So. 216 (1910); Mossler Acceptance Co. v. Moliere, 181 So. 228 (La.App.Orl.1938); Erie v. Primos, 37 So.2d 832 (La.App.Orl.1948), and Cox v. Gross, 47 So.2d 102 (La.App. 1st Cir. 1950) denying dismissal. Prior to the Code of Practice, Belanger v. Gravier, 1 Mart (N.S.) 89 (1823); held an appeal granted prior to a subsequently signed judgment to be premature.


text:
    Alice Nomey NAMIE v. STATE of Louisiana, DEPARTMENT OF HIGHWAYS.
    No. 12800.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1976.
    D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Johnie E. Branch, Jr., Baton Rouge, Johnson, Johnson, & Duke by Don H. Johnson, Monroe, for defendant-appellant.
    Holloway, Baker, Culpepper & Brunson by William H. Baker and Herman A. Cas-tete, Jonesboro, for plaintiff-appellee.
    Before PRICE, HALL and MARVIN, JJ-
   MARVIN, Judge.

For the reasons expressed in Nomey v. Department of Highways, 325 So.2d 732 (La.App.2d Cir. 1975), the judgment appealed from at appellant’s cost is

Affirmed.


author: SARTAIN, Judge.

text:
    David Michael LEMONS, Plaintiff-Appellant, v. Patricia Ann Hestrest, wife of David Michael LEMONS, Defendant-Appellee.
    No. 10560.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.

      Larry J. Green, Covington, for plaintiff-appellant.
    Mike J. Balen, Covington, for defendant-appellee.
    Before SARTAIN, BAILES and PICKETT, JJ.
   SARTAIN, Judge.

This is an appeal by plaintiff, David Michael Lemons, from a judgment on a rule filed by defendant, Patricia Ann Hestrest, now wife of George J. Heine, and former wife of plaintiff, wherein defendant wife was granted a change in custody of a six year old girl from the plaintiff father to defendant mother.

The past history of these proceedings reveals that judgment by default granting plaintiff separation from bed and board as well as permanent care and custody of his minor daughter was rendered on December 11, 1970. Evidence adduced at the confirmation of said default consisted of testimony by plaintiff-husband that he was married to defendant, that she left without provocation, that she took the minor daughter with her but subsequently returned the minor to plaintiff six weeks later stating the child would be better off with the husband and that defendant had not returned. Plaintiff’s mother also testified and stated that defendant left plaintiff, that defendant originally took the child but returned the child six weeks later stating that defendant felt the child would be better off with plaintiff and his mother and that the child lived with her since that time.

Judgment by default granting plaintiff a final divorce was ultimately rendered on January 24, 1972. Evidence produced at the confirmation of those proceedings indicated through testimony from plaintiff that there was no community property acquired during the marriage and that he wished to retain permanent care and custody of the minor child. Plaintiff’s father testified that since December 11, 1970 plaintiff and his daughter lived in plaintiff’s father’s residence and that to his knowledge plaintiff and his wife had not lived together as man and wife since the beginning of the proceedings. Permanent care and custody was erroneously awarded to defendant mother in the divorce decree which award was subsequently corrected and amended by rule on February 14, 1972 to maintain custody with the father.

Subsequently on June 5, 1974 the rule which is the subject of the present suit was filed wherein defendant wife sought custody of the minor child alleging that at the time of the divorce “she had no permanent home nor any visible means of support and therefore relinquished custody of the minor child.” She alleged further that she had since remarried and could now provide for her minor daughter.

Following the hearing held on July 19, 1974 on the above rule, the trial judge, in his written reasons, stated that there was no moral unfitness on the part of either of the parties and that he was in fact impressed with each of them. The pertinent portion of his findings of fact as they appear in his written reasons is as follows:

“This record does not present facts suggestive of unfitness on the part of either parents. Both parents have remarried. Mr. Lemons and his present wife have a child of their own. The mother is now married to Mr. Heine and he is gainfully employed and he testified that he is very willing for the young child to live with them.
“This court’s understanding of the facts is that the child has actually spent a great deal of time in the home of the paternal grandmother, Mrs. George Lemons. Elizabeth apparently lived in the grandmother’s home from March of 1973 through June 1 of 1974 — this year. He had remarried in March of 1972 and the child actually resided with him and his new wife for a year — that is until March of 1973 and from March of 1973 through June 1 of 1974, resided with the grandmother, and then in June of this year the child was put again in the home of the father.
“This court makes this recitation of the facts because there is no suggestion of unfitness on the part of either of these parents. Both of them impressed the court as being decent young people who simply had an unsuccessful marriage. There is no factual basis in the record, in this court’s judgment, for any conclusion other than this one.
“What this trial court has on its hands now is simply a matter where the custody of this child is being presented to the court in a contested proceeding for the first time, and therefore, the Court would believe that it is in the best interest of this child that she be placed in the custody of her mother.
“This judgment does not carry with it any suggestion that the father has not done a good job, and it further is based on the understanding that if the wife were to have been made to meet the double-burden of proof in this case she did not do so because there has been no proof that it is detrimental to the child to remain where she is. This judgment rests simply on the proposition that the Court feels it must follow the Penton case and not require the wife to meet the double-burden of proof. Since she does not have to meet that double burden of proof you then look at the parties as if they are standing before the Court for the first time and the better interest of the child will lie with it being with the mother.”

Plaintiff-appellant now urges on appeal that the trial judge erred in holding that there had not been an initial determination of custody by the court and thus not requiring the wife to meet the so-called “double-burden” of proof normally required of a party seeking a change in custody. He alleges further error on the part of the trial judge in holding that it is in the best interest of a child to grant custody to the mother during its “tender years.”

We affirm the decision of the trial judge for reasons stated herein.

The “double-burden” of proof referred to by plaintiff-appellant is well enunciated by our Supreme Court in Decker v. Landry, 227 La. 603, 80 So.2d 91 (1955) wherein the court states that when an initial custody decree has been rendered and a subsequent modification of that decree is sought, then it is incumbent upon the party requesting modification to prove that the conditions under which the children are presently living are detrimental to their interests, and secondly, that the applicant can and will provide a good home and better environment should custody be changed.

Subsequently, in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971), the Supreme Court, citing Landry, stated:

“(3) When the trial court has made a considered decree of permanent custody in the light of the above principles, even though such custody is subject to modification at any time when a change of conditions demands it, the party seeking the change bears a heavy burden of proving that the continuation of the present custody is so deleterious to the children as to justify removing them for the environment to which they are accustomed.” (authorities omitted)

The “above principles” in light of which the “considered decree” is to be made are enumerated in Fulco as follows:

“(1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children, (authorities omitted)
“(2) The general rule is that it is in the best interest of the children of the marriage to'grant custody to the mother, especially when they are of tender years. Such paramount right of the mother to custody should not be denied unless she is morally unfit or otherwise unsuitable, and it is only in exceptional cases that the better interest of the children is served by changing their custody from the mother to the father.” (authorities omitted)

In relying on Fulco, the trial judge concluded in the present case that there had not been a considered decree of custody and therefore the wife need not prove the factors set out in Decker, supra. We are inclined to agree with- this conclusion.

This court held in Gulino v. Gulino, 303 So.2d 299 (La.App. 1st Cir., 1974) that a considered decree of custody is one which is rendered after a trial of the issue and decision thereon applying pertinent principles of law. Thus in Gulino a custody decree rendered merely with the consent of the parties was held not to be a “considered decree” as required by Decker through Fulco, and therefore the applicant was not required to overcome the “double burden” standard. The same result was also reached in Penton v. Penton, 260 So. 2d 5 (La.App. 1st Cir. 1972) where the court was again faced with a consent judgment.

In the case of Southern v. Southern, 308 So.2d 424 (La.App. 3rd Cir. 1975), writs refused La., 313 So.2d 242, the court held that the default judgment that was there presented was a considered decree of custody based upon the evidence taken prior to the judgment’s rendition. The court in its discretion found such evidence to show moral unfitness on the part of the mother and thus the “double burden” rule was there held to be applicable.

That same court in Swann v. Young, 311 So.2d 617 (La.App. 3rd Cir. 1975) explained Southern as follows:

“ . . . The wife in Southern had been personally served but did not respond to her husband’s suit. This court, however, held that this default judgment was a ‘considered decree’ based upon evidence taken prior to the judgment establishing: (a) that the wife left the marital home, abandoning the husband, and did not return; (b) that the children lived with the wife’s mother, however, the husband and not the wife actually cared for the children with the assistance of the mother-in-law; and (c) that the wife rarely visited the children and then only for very limited periods.”

The court in Swann then went on to hold that the default judgment that it was presented with was not a considered decree of custody because

“ . . . there was no evidence offered at the ‘default or consent’ judgment granting custody to the father, in regard to the mother’s fitness to have the care, custody and control of the children.”

Thus the “double burden” rule was held not to apply.

In the present case, after a careful perusal of the evidence presented at the confirmation hearings, we conclude the trial judge was correct in ruling that there was not a considered decree of custody within the meaning of the jurisprudence as no evidence was offered reflecting upon the mother’s moral fitness.

Pursuant' to this finding the trial judge correctly applied the principles of Fulco to be considered in cases of initial determinations of custody that in light of the best welfare of the children it is generally best to grant custody to the mother especially in children of tender years, unless it be shown that the mother is morally unfit or otherwise unsuitable. As pointed out in Fulco and numerous other cases, the trial judge’s findings with respect to these matters are entitled to great weight and his discretion on these issues shall not be disturbed absent a clear showing of abuse thereof.

The testimony adduced at the hearing on the rule clearly convinces us that the trial judge was well within his judicial discretion in finding no moral unfitness on the part of the mother herein. Certain testimony distinctly shows that the mother called and visited with the child on a very frequent basis throughout the time the child was away from her. It further shows that on several occasions when the child was sick the mother would go to where the child was presently residing and stay with the child attending to her needs from morning until night. No evidence was offered or even implied that the mother was ever anything other than a faithful and dutiful parent. Thus it is obvious that we can not say there has been a clear abuse of discretion by the trial judge on this issue for its substantiation in the record is more than adequate.

Accordingly, for the above and foregoing reasons, the decision of the trial court is affirmed with all costs of these proceedings to be borne by plaintiff-appellant.

Affirmed.


author: LANDRY, Judge.

text:
    Curtis BOURG v. CANE AIR, INC.
    No. 10548.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.

      Larry p- Boudreaux, Thibodaux, for appellant.
    Donald T. Carmouche, Donaldsonville, for appellee.
   LANDRY, Judge.

This appeal by plaintiff Curtis Bourg (Appellant) is from a judgment awarding Appellant $220.00, without interest, as damages for the destruction of Appellant’s home vegetable garden by crop dusting activities conducted by defendant, Cane Air, Inc., on nearby property. Appellant was denied interest, and also condemned to pay cost upon the trial court’s finding that a legal tender was made by defendant prior to Appellant’s instituting suit. We amend the award to increase the amount of damages and reverse that portion of the decree which denied Appellant interest and cast Appellant for costs.

Appellee’s concession of liability leaves quantum and tender the sole issues on appeal. During the summer of 1973, as in previous years, Appellant and his wife planted and cultivated a vegetable garden near their home along Bayou Lafourche, south of Napoleonville, in Assumption Parish. Although there is some disparity between the testimony of Appellant and his wife and that of two experts who examined the plot subsequent to its destruction relative to the size of the garden, it is shown that the project consisted of approximately 13 or 14 rows each approximately 168 feet long. It is not disputed that the garden contained 2 rows of okra, 2 to Z]/2 rows of butter beans; 1 or 2 rows of squash; 3j/¿ rows of peas; 2 rows of snap beans; 2 or 3 rows of cucumbers; and 16 hot pepper plants. Prior to July 18, 1973, the garden was green and healthy, and according to the testimony of Mrs. Bourg, harvest thereof would have commenced about the end of July.

On July 18, 1973, Appellee conducted aerial crop dusting activities on property situated across Bayou Lafourche from Appellant’s residence. In the process, Appel-lee’s plane crossed Appellant’s premises several times. Immediately following the dusting operation, Appellant’s garden turned brown and died.

Within one or two days of the spraying operation, Appellant complained to the Louisiana Department of Agriculture and the Assumption Parish County Agent. Both agencies conducted investigations • which disclosed that the garden was destroyed by chemicals used in Appellee’s spraying operation.

Mrs. Bourg testified that a portion of the garden produce was used for home consumption and part was sold. She gave no estimate of percentages consumed and sold. She explained that in prior years she sold from $250.00 to $300.00 worth of vegetables annually. She stated that some produce was sold by her along the roadside, and some as the result of telephone orders both voluntary and solicited. She also stated that what she and Appellant could not sell or consume daily, she put in her deep freeze. She acknowledged that she incurred some expense, such as gasoline for her truck, in making roadside sales and filling telephone orders which she delivered.

Robert Willett, Inspector, Louisiana Department of Agriculture, investigated Appellant’s complaint on July 22, 1973. He found the garden had been destroyed by chemical spray. Utilizing yield and retail price charts supplied by the Louisiana Cooperative Extension Service, but omitting the 2 rows of snap beans and 16 hot pepper plants, Willett valued the garden at $303.34. He determined each row was 168 feet in length and, using retail value of the prospective yield, found the following val-use: 31/2 rows of peas, $44.80 ; 2 rows okra, $129.60; 3 rows butter beans, $36.00; 1 row squash, $68.94; and 2 rows cucumbers, $24.00. Mr. Willett conceded that the retail prices indicated on his chart represented state wide average retail prices which are changed frequently to represent fluctuating values. Being unaware that Appellant sold part of the garden production, he explained that the value thus reached is that which Appellant would have to pay for the garden yield if purchased at a retail store.

Assumption Parish County Agent, Arthur J. Bergeron, examined subject garden two weeks to a month after the spraying by which time the garden was completely abandoned. Using wholesale value and estimating the rows at 150 feet each, Mr. Bergeron valued the loss at $220.00. He itemized his estimates as follows: 3Vá rows peas, $35.00; 2 rows okra, $70.00; 2 rows butter beans, $20.00; 2 rows squash, $20.00; 2 rows cucumbers, $35.00; 2 rows snap beans, $25.00; and 16 hot pepper plants, $15.00. Mr. Bergeron based his valuations on charts prepared by Louisiana State University Extension Service specialists, which charts show state wide raw produce average values. He explained that the chart gives average values paid at large open markets such as the New Orleans French Market, which he adjusted to reflect local values in Assumption Parish. Mr. Bergeron conceded his valuations, based on estimated 150 foot rows, should be increased approximately 10% if the rows were 168 feet long.

We find no error in the trial court’s employment of the valuation method followed by Mr. Bergeron. We do find, however, that the lower court erred in failing to add 10% to Mr. Bergeron’s appraisal because the rows were 168 feet in length instead of 150 feet as estimated by Mr. Bergeron. In this regard, we note the above mentioned testimony of Mrs. Bourg that the rows were 168 feet long, which testimony is corroborated by that of the disinterested witness, Willett.

Appellant’s contention that the award should be increased to include loss of profit from that portion of the crop sold was properly rejected by the trial court. As above stated, Mrs. Bourg attested to the sale of vegetables each year. We also note the record contains ample proof of such sales. However, the record contains no evidence indicating the percentage of the crop sold; neither does it indicate the expenses incident to sales, such as delivery expense, cost of hampers and containers and other costs. It is elementary that a claimant must establish his damages with reasonable certainty. Obviously plaintiff is not entitled to recover full retail value as the measure of alleged lost profits where marketing expense is involved and not shown. Under the circumstances, Appellant’s recovery is limited to the wholesale values attested by the expert, Willett.

Appellee contends a tender was made by Willett of a check in the sum of $220.00 presented to Mrs. Bourg prior to institution of suit. During trial, Appellee again offered Appellant a check in similar amount in payment of Appellant’s claim. Relying upon LSA-C.C. arts. 2167 and 2168, Appellee maintains this proffer constitutes a legal tender which relieves Ap-pellee of liability for interest on the award to Appellant and costs as well.

Appellant argues that the offer was not a legal tender because the offer to Mrs. Bourg did not disclose the amount of the check, and also for other technical reasons unnecessary to mention.

It is well established law that a tender does not have the effect of relieving a debtor of the obligation to pay interest on a judgment and costs of litigation unless the tender is for the full amount ultimately found due the creditor. This principle applies even where the debtor tenders the full amount found due by the trial court but the award is subsequently increased on appeal. Orleans Shoring Company v. Murphy, La.App., 151 So.2d 529; Ledbetter v. Hammond Milk Corporation, La.App., 126 So.2d 658; Southern Plumbing & Supply Corporation v. Egert, La.App., 110 So.2d 762; American Employers’ Insurance Company v. Hyman, 18 La.App. 455, 138 So. 719.

Assuming the tender made by Ap-pellee was valid as to form, it does not re-’ieve Appellee of the obligation of paying interest on Appellant’s judgment and costs of this litigation.

It is ordered, adjudged and decreed that the judgment of the trial court be amended to increase the award in favor of Appellant to the sum of $246.00, and reversed insofar as it denies Appellant interest and costs and that there be judgment herein in favor of Appellant Curtis Bourg and against Appellee Cane Air, Inc., in the sum of $246.00 with legal interest thereon from date of judicial demand, until paid, and all costs of these proceedings.

Amended and remanded.


text:
    Charles WELCH v. Robert MAYHALL and the Aetna Casualty & Surety Company.
    No. 10518.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 12, 1976.

      Robert S. Cooper, Jr., Baton Rouge, for appellant.
    James E. Moore, Baton Rouge, for ap-pellees.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, Charles Welch, appeals the judgment of the trial court, denying his claim for damages against defendenats-appellees, Robert Mayhall and the Aetna Casualty & Surety Company, resulting from an automobile-pedestrian accident.

On September 5, 1973, defendant Robert Mayhall, and a friend, Charles Keith Brady, traveled from their home in Norco, Louisiana, to Baton Rouge to visit Brady’s brother who was attending Louisiana State University. After their visit and on returning to Norco, defendant and Brady proceeded in a southerly direction down Highland Road in East Baton Rouge Parish. . At a point approximately one-half mile north of the intersection of Highland Road and Louisiana Highway 327, the defendant Mayhall’s 1972 Toyota automobile struck the pedestrian plaintiff, causing the damages complained of.

At the point of the accident, Highland Road is a two-lane asphalt surfaced roadway running generally in a north-south direction. The roadway is twenty-two feet wide, each lane being eleven feet in width. The area is mixed residential and commercial, with a Pak-A-Sak Convenience Store, two service stations and a large shopping center on the east side of the road, and residences and trailer parks on the west side.

Plaintiff’s version of the accident is as follows: At approximately 7:00 P.M. on the date of the accident, he left his home, which was located on the west side of Highland Road, crossed the roadway and walked up to the Pak-A-Sak Store. Before he left home, it had been raining heavily and he had waited to leave until the rain diminished. While plaintiff was at the Pak-A-Sak Store, it again began to rain heavily and he waited for the rain to stop. When the rain slacked to a drizzle, he left the Pak-A-Sak Store and proceeded down the east side of Highland Road until he reached a driveway in the shopping center diagonally across from his residence.

Plaintiff then walked diagonally onto the highway toward his residence, and he was struck on his right side by defendant’s automobile in defendant’s lane of travel at a point approximately two to three feet pri- or to completion of his crossing.

It is uncontroverted that the accident occurred during the hours of darkness at approximately 7:00 P.M.; that a drizzling rain was falling; that defendant was driving with his bright lights on and within the posted speed limit at thirty miles per hour; that defendant’s automobile left no skid marks; and that defendant’s automobile traveled approximately five to six feet past the point of collision before coming to a halt while still on the road surface. There were no vehicles directly ahead nor behind the defendant, and there was no oncoming traffic.

The plaintiff admitted to attempting to cross this heavily traveled road during a drizzling rain at a point where there was no intersection nor crosswalk. There were also no streetlights nor other illumination by which the plaintiff might have become more visible to approaching traffic. At the time of the accident plaintiff was wearing khaki pants and a plaid shirt and was carrying a brown paper sack.

The plaintiff testified that he looked for oncoming cars twice before entering the roadway, once on the shoulder before stepping onto the pavement and again prior to entering defendant’s lane of travel. We observe here that it is obvious that he did not see the defendant either time.

Defendant Mayhall’s version of the accident reveals that he saw plaintiff just one or two steps before he reached the yellow median line, and that plaintiff had his head down and was proceeding into defendant’s lane of travel. At that point he estimated that plaintiff was approximately forty feet in front of his vehicle. The defendant testified that he instantaneously applied his brakes and blew his horn but it was too late. Brady, the guest passenger and the only witness to the accident, corroborated the defendant’s version of the accident in its entirety.

Based upon the foregoing evidence and without written reasons, the trial judge found for the defendants, rejecting and dismissing plaintiff’s suit at his costs. The expert witness fee of Dr. John Loupe was set at $75 and taxed as costs. From this judgment, plaintiff has appealed. We affirm.

Plaintiff’s principal assignment of error is the failure of the trial judge to find that the defendant was negligent, and, alternatively, assuming that the plaintiff was negligent (which was denied), the failure of the trial judge to find that defendant had the last clear chance to avoid the accident.

We immediately dispose of plaintiff’s contention that he was not negligent. Plaintiff was attempting to cross a favored highway in a unlighted area-on a dark, rainy night where there was no crosswalk nor intersection, in violation of LSA-R.S. 32:213. That statute requires a pedestrian who is attempting to cross a roadway at any other point than within a marked crosswalk or at an intersection to yield the right of way to all vehicles upon the highway. The plaintiff failed in his duty to yield the right of way to the defendant and was, therefore, negligent.

A more difficult question posed by the appeal is whether the defendant was negligent and/or had the last clear chance to avoid the accident.

To bolster his contention that defendant was negligent and/or had the last clear chance to avoid the accident, plaintiff called Alvin Doyle, Jr., as an expert automobile consultant and photographer, who gave testimony concerning speed and braking distances. Doyle used the defendant’s own estimate of speed as well as the distance required by the plaintiff to cross the highway at average walking speed and concluded that at the moment plaintiff entered the roadway the defendant could and should have seen him and, furthermore, the defendant mathematically could have brought his vehicle under control in time to have avoided the accident.

The relevance of such testimony is weakened if we reject the premise that defendant should have seen plaintiff when he first stepped onto the roadway. As noted above, plaintiff emerged from a dark, unlighted area onto the highway where there was no crosswalk nor intersection at a time when visibility conditions were impaired by a drizzling rain. It is uncontradicted that at the moment the defendant first noticed the plaintiff, the defendant could not have avoided him.

We agree with plaintiff that the defendant was under a duty at all times to keep a vigilant lookout ahead. The failure to heed this duty constitutes negligence, and under the settled jurisprudence of this state, such failure imposes liability on persons in control of motor vehicles for injuries which they inflict upon less armored members of society who happen upon the roadway. Jackson v. Cook, 189 La. 860, 181 So. 195 (1938).

Furthermore, a motorist who looks and does not see what he should have seen in the exercise of reasonable care is in the same legal position as one who does not look at all, i. e., a driver is presumed to see that which he should have seen. Magenta v. Fireman’s Fund Insurance Company, 284 So.2d 839 (La.App. 4th Cir. 1973); Cheramie v. Great American Insurance Company, 198 So.2d 726 (La.App. 1st Cir. 1967).

Beyond this point, the Court and the plaintiff part ways, for we are of the opinion that the defendant did well under the ‘circumstances to have noticed the plaintiff as soon as he did and, accordingly, did not fail in his duty toward the plaintiff.

The “assured clear distance rule” is governed by the circumstances of the case. Craker v. Allstate Insurance Company, 259 La. 578, 250 So.2d 746 (1971); Murphy v. Allstate Insurance Company, 295 So.2d 29 (La.App. 2nd Cir. 1974), writ refused, 299 So.2d 787; Calais v. Thibodeaux, 220 So.2d 209 (La.App. 3rd Cir. 1969), writ refused, 254 La. 15, 222 So.2d 67; and Frank v. State Farm Mutual Automobile Insurance Company, 254 So.2d 102 (La.App. 3rd Cir. 1971). Therefore, we are not inclined to charge the defendant with the duty of having noticed the plaintiff the moment he stepped onto the highway. A motorist, particularly at night, is not charged with the duty of guarding against unusual or unexpected obstructions which he has no reason to anticipate he will encounter on the highway and which, under the circumstances, are difficult to discover. In addition, we are not impressed that the plaintiff’s light colored clothing would have made him any more discoverable.

In finding that the defendant did not breach a duty toward plaintiff, we are under no necessity to discuss plaintiff’s argument involving “last clear chance.”

For the above reasons, the judgment of the trial court is affirmed, plaintiff to pay all costs of this appeal.

Affirmed.