author: CULPEPPER, Judge.

text:
    CITY OF LAKE CHARLES, Plaintiff and Appellee, v. James N. FRANK, Defendant and Appellant.
    No. 6116.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 30, 1977.
    Maurice L. Tynes of Hunt, Godwin, Painter & Roddy, Lake Charles, for defendant and appellant.
    McHale & Bufkin by Louis D. Bufkin and Michael K. Dees, Peter A. Ciambotti, Lake Charles, for plaintiff and appellee.
    Before CULPEPPER, FORET and GUI-DRY, JJ.
   CULPEPPER, Judge.

The City of Lake Charles filed this suit to enjoin James N. Frank from using a lot zoned residential (hereinafter referred to as Lot 22) as a parking lot for customers of his bar and lounge located on adjacent property. The defense is a prior non-conforming use. The district judge found that although Lot 22 had a prior non-conforming use for parking in connection with an auto repair shop and a construction business, this was not use of the same character as parking for a bar and lounge. Hence, the new use was enjoined as a violation of the zoning ordinance. Defendant appealed.

The facts are that Lot 22 was annexed to the city and was automatically zoned Residential in 1969. At that time, Mr. Okin Carvin, Sr. owned Lot 22, but from 1969 until February of 1973 it was used for parking for lounge customers, parking for an adjacent auto mechanics garage, and storage of vehicles used by defendant Frank’s contracting business. Defendant bought Lot 22 from Mr. Carvin in August of 1974. The lot has never been changed from residential zoning.

Defendant’s family had acquired Lots 4 and 5, which abut Lot 22 on the rear, in about 1965 and had operated a bar and lounge on these two lots until February of 1973, at which time the bar and lounge closed for a period of two years. During this two-year period, while the bar and lounge were closed, defendant used the building on Lots 4 and 5 as an office for his construction business, and he used adjoining Lot 22 for storage and for the parking of equipment and trucks used in his construction business. Also, a neighbor, who owned an automobile repair shop on adjacent property, used Lot 22 to park the cars on which he was working, as well as to store junked cars.

In January of 1975, defendant applied to the Lake Charles Zoning Commission to rezone Lots 4, 5 and 22 to permit the lounge which he planned to reopen on Lots 4 and 5 and parking on Lot 22. The Commission granted the request as to Lots 4 and 5 but denied it as to Lot 22.

In February of 1975, defendant reopened the lounge on Lots 4 and 5. Despite the fact that the city had refused to rezone Lot 22, defendant placed shell on it and started using it for parking in conjunction with his bar and lounge. The city seeks to enjoin this use of Lot 22.

Ordinance No. 4526, the comprehensive zoning law of the City of Lake Charles, was adopted in 1972. The pertinent provisions of this ordinance are contained in Article IX as follows:

“Section 1. Existing nonconforming uses.
“The lawful use of any building on land existing at the time of the enactment of this ordinance may be continued, although such use does not conform with the provisions of this ordinance.”
* * * * * *
“Section 3. Extension.
“A nonconforming use shall not be extended or enlarged except when required to do so by law or by ordinance. . . ”
“Section 9. Discontinuance.
“Whenever a building on land used in whole or in part for nonconforming purposes becomes and remains vacant for a continuous period of six months, or when the operations normally carried on in such building or on such land have been discontinued for a period of six months, such nonconforming use shall not thereafter be reestablished and any future use shall be in conformity with the provisions of this ordinance.”

Under the above quoted provisions of the ordinance, it is clear that any right to a prior nonconforming use of Lot 22 for parking in connection with the bar and lounge terminated when the operation of the lounge was discontinued from February of 1973 to February of 1975. Thus, the only nonconforming use, which can be urged by defendant as exempting Lot 22 from residential restrictions, is the use of Lot 22 for parking in connection with the automobile repair shop on adjacent property and the use for parking in connection with defendant’s construction business.

Defendant contends that his use of Lot 22 for the parking of vehicles in connection with the operation of the bar and lounge since May of 1975, is essentially the same as the use of the lot for the parking of vehicles in connection with the operation of defendant’s construction business, and in connection with the operation of the automobile repair shop on adjacent property, and that therefore a prior nonconforming use of the property for commercial parking still exists and exempts Lot 22 from the residential zone restrictions.

On the other hand, the plaintiff contends that use for parking in connection with the operation of a construction business or an automobile repair shop is of a different character from use for parking in connection with the operation of a bar and lounge. Plaintiff argues that parking for lounge purposes is far more objectionable because lounge customers are loud and boisterous and they come and park their cars and leave late at night, thus disturbing those who live in the adjacent residential areas. The city contends that defendant has no prior nonconforming use which would permit parking for a bar and lounge.

The district judge held there is a “vast difference” between use for parking by customers of a bar and lounge and use for parking in conjunction with a construction business or an automobile repair garage. The district court pointed out that Section 6 of the zoning ordinance in question, which provides for Zone B-2 “Community Service District”, allows commercial parking lots and parking garages, but does not permit bars and lounges where alcoholic beverages are served. Bars and lounges fall within Zone B-3.

Defendant cites several cases for the rule that an increase in the volume or intensity of a nonconforming use does not violate the • zoning ordinance so long as such increase is not substantial and there is no enlargement of the area used nor change in the character of use. For instance, in City of Crowley v. Prejean, 173 So.2d 832 (La.App. 3rd Cir. 1965) the nonconforming use of a residential tract to rent space for one house trailer was held to permit the rental of space for two or more house trailers. Also, in Adrouny v. International City Bank & Trust Company, 266 So.2d 524 (La.App. 4th Cir. 1974) the. prior nonconforming use of a residential lot for parking and driveways for bank customers was held not to be extended or enlarged within the meaning of the zoning ordinance by the use of the same property for a drive-through banking service. See the general discussion in 101 C.J.S. Zoning, §§ 191-193.

We find these cases are distinguished from the present matter. In the cited cases, there was a mere increase in the volume, amount or intensity of the nonconforming use. There was no change in the nature or character of the nonconforming use, as in the present case.

Counsel have not cited, nor have we found, any cases from the appellate courts of Louisiana dealing with the precise question of whether there has been a change in the quality or character of the nonconforming use. However, other states have established several general rules which we find persuasive. The general purpose of allowing nonconforming uses is to avoid the imposition of hardship on the owner of property already devoted to a use which is proscribed under the new zoning ordinance. However, provisions for the continuation of a nonconforming use should be strictly construed to secure their gradual elimination. See the general discussions in 101 C.J.S. Zoning §§ 181-182, and McQuil-lin, Municipal Corporations, 3rd Ed. Section 25.189. Of course, the burden of proof rests on the party urging a nonconforming use. City of Lafayette v. Black, 336 So.2d 982 (La.App. 3rd Cir. 1976).

Particularly applicable here is the general rule established in other jurisdictions that the preservation of nonconforming uses protects the right to continue only use of the same quality or character as existed before the date of the new zoning regulation. 101 C.J.S. Zoning § 189; McQuillin, Sections 25.200 and 25.202. And, one of the tests to be used in determining whether there has been a change in quality or character is whether there has been a change from a higher to a lower classification under the zoning regulations in question. 101 C.J.S. Zoning § 190; McQuillin, Section 25.204.

Of course, each case must be decided under its own facts. Under the circumstances of this particular case, we conclude the trial judge correctly found that the new use which the defendant is making of Lot 22 is of a different quality and character from the nonconforming use existing at the time the zoning regulations became effective. Prior to the zoning regulations, the property was being used for the storage of vehicles being repaired in an adjoining automobile repair shop, and also for the parking of vehicles used in connection with defendant’s construction business. Defendant has now changed the character of this use. He has constructed a shelled parking lot for customers of his lounge. This new use is in a lower classification under the ordinance and is more objectionable because lounge customers tend to be loud and boisterous and they park their automobiles and leave late at night.

For the reasons assigned, the judgment appealed is affirmed. All costs of this appeal are assessed against the defendant-appellant.

AFFIRMED.


source: Caselaw Access Project

author: GUIDRY, Judge.

license: Public Domain

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. GRANT PARISH SHERIFF'S DEPARTMENT et al., Defendants-Appellees.
    No. 6118.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 30, 1977.
    Rehearing Denied Oct. 11, 1977.
    Writ Refused Nov. 23, 1977.

      Bolen, Halcomb & Erwin, by Gregory S. Erwin, Alexandria, for plaintiff-appellant.
    Durrett, Hardin, Hunter, Dameron & Fritchie by Dan E. West, Baton Rouge, for defendants-appellees.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   GUIDRY, Judge.

Liberty Mutual Insurance Company (hereinafter referred to as “Liberty”), the workmen’s compensation insurer of the City of Natchitoches Police Department, seeks a judgment holding the defendants, hereinafter named, solidarily liable to it for the full sum of medical payments and compensation paid by it as a result of the death of Morris E. Brossette, a Natchitoches city policeman. Additionally, plaintiff prays that the defendants be ordered to pay the sum of all remaining compensation and benefits due discounted at a rate of 6% per annum. Alternatively, plaintiff prays that the defendants be cast in judgment for one-half of all medical bills and compensation payments expended by it and for one-half of the future compensation payments due, discounted at the rate of 6% per annum.

The allegations of Liberty’s petition set forth that Morris E. Brossette, a scuba diver, was loaned by the City of Natchitoches Police Department to the Grant Parish Sheriff’s Department for the purpose of searching Nantachie Spillway for the body of a drowned person. Morris E. Brossette drowned while diving in search of the body. Made defendants are the Grant Parish Sheriff’s Department, Joe T. Morgan, Sheriff of Grant Parish; Will Fletcher, Chief Deputy Sheriff of Grant Parish; and, Jerry Brevelle, Danny Dison, and Brian Perot, Deputy Sheriffs of the Grant Parish Sheriff’s Department. Plaintiff alleges that the named defendants were negligent in that they failed to provide adequate safety and rescue equipment for the diver; failed to properly supervise the diving operation; and, failed to warn the diver of the dangerous water conditions of which they had knowledge. Alternatively plaintiff asserts that Morris Brossette was a borrowed employee of the Grant Parish Sheriff’s Department and that he was killed while in the course and scope of a hazardous occupation covered by the Louisiana Workmen’s Compensation Act. Before an answer was filed the court granted plaintiff’s motion to dismiss Danny Dison and Brian Perot as defendants. The remaining defendants answered generally denying the allegations of the plaintiff’s petition, specifically denying that Morris Brossette was either a “borrowed employee” or “borrowed servant”. Defendants alternatively pled the contributory negligence of Morris Brossette as a bar to plaintiff’s recovery. Thereafter, the defendants filed an exception of no cause of action alleging that the entity sued as the Grant Parish Sheriff’s Department, is not a legal entity which can sue or be sued. Further, defendants allege that insofar as plaintiff seeks to assert a cause of action on the theory that the decedent was a “borrowed servant or employee” of the defendants, it is apparent that plaintiff has no cause of action against Will Fletcher and Jerry D. Brevelle since neither individual was or could have been the employer of the decedent. Subsequently plaintiff filed an amending and supplemental petition naming only “Joe T. Morgan, former Sheriff of Grant Parish and L. R. Hataway, present Sheriff of Grant Parish” as defendants. Simultaneously plaintiff presented to the court a motion to dismiss Will Fletcher and Jerry Brevelle as defendants. Following amendment of plaintiff’s petition and the filing of the motion to dismiss the exceptions were considered abandoned. After the filing of the amended and supplemental petition the defendant L. R. Hataway, Sheriff of Grant Parish filed a motion for summary judgment seeking the dismissal of plaintiff’s action as against him alleging his non-responsibility in workmen’s compensation or damages since he was not Sheriff of Grant Parish at the time of the accident. Additionally, the defendant Sheriff Hata-way alleged that plaintiff’s action against him had prescribed since the accident sued upon occurred on April 16, 1974 and it was not until plaintiff filed its amending and supplemental petition on October 15, 1976 that L. R. Hataway, Sheriff of Grant Parish, was named as defendant. After a hearing on the motion for summary judgment the trial court, without assigning written reasons for judgment, ordered judgment in favor of L. R. Hataway, and the “Office of Sheriff of Grant Parish”, and dismissed plaintiff’s action insofar as it related to these defendants. Plaintiff appeals from this judgment.

As provided in LSA-C.C.P. Article 966 a motion for summary judgment shall be rendered,

“forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.”

In this summary judgment proceeding, the facts as recited above were established by the pleadings and the affidavit of Sheriff L. R. Hataway. The stated facts are not disputed.

The sole issue presented herein is whether the present Sheriff of Grant Parish, L. R. Hataway, is entitled to summary judgment dismissing him from the instant suit since on the date of Morris Brossette’s accidental death he was neither the Sheriff of Grant Parish, nor had he at any time employed Morris Brossette. Stated another way, the sole question presented is whether L. R. Hataway, the present Sheriff of Grant Parish can be held liable, individually, in his official capacity as Sheriff, for the alleged acts of negligence committed by his predecessor, Joe T. Morgan while in the discharge of his duties as Sheriff or for workmen’s compensation benefits due employees of the former Sheriff.

Basically appellant contends that it is the “Office of Sheriff of Grant Parish” who should be held responsible for Morris Bros-sette’s death either ex delicto or in workmen’s compensation and that L. R. Hata-way, as successor to Joe T. Morgan, is responsible for prior official acts of his predecessor.

We note at the outset that the Sheriff of Grant Parish is a constitutional officer elected by the qualified voters for a term of four years, with certain definite rights, powers and duties. See La.Const. 1974 Art. 5 § 27; Richardson v. Heyd, in and for the Parish of Orleans, 278 So.2d 167 (La.App. 4th Cir. 1973). Clearly, it is the Sheriff, individually, and not the “Parish Sheriff’s Department” that is constitutionally designated as the chief law enforcement officer of the Parish. The law of Louisiana affords no legal status to the “Parish Sheriff’s Department” wherein said department can sue or be sued, such status being reserved for the Sheriff, individually. The Parish Sheriff’s Department is not a body of elected public officials who represent the state, a state agency or a political subdivision thereof, as do the police juries, school boards, and municipalities. Instead the “Parish Sheriff’s Department” is a law enforcement agency headed by the Sheriff and comprised of deputy sheriffs all appointed by the elected Sheriff for his term of office. The “Parish Sheriff’s Department” is not a legal entity capable of suing and being sued.

It is well settled in the jurisprudence that a Sheriff, individually, and his official surety are liable in damages for wrongful or negligent acts committed while in the discharge of the duties of his office. Gray v. De Bretton, 192 La. 628, 188 So. 722 (1939); Frank v. Pitre, 341 So.2d 1376 (La.App. 3rd Cir. 1977). In Gray v. De Bretton, supra, the court gave the following example, 188 So. at page 726:

“The driving of an automobile is not an official act of a sheriff, unless the driving of the car directly involves the discharge of an official duty, e. q. if the sheriff or a deputy has a car under seizure, and by reason of the negligent driving or handling of the car, it is damaged, the negligence in that case involves an official act. Likewise, it is the duty of the sheriff and his deputy to secure and protect a prisoner in his custody, and if, by the negligent operation of a car, or the careless handling of a pistol, the prisoner is injured, such negligence and carelessness constitutes a violation of an official duty for which the sheriff and the surety on his official bond are liable.”

LSA-R.S. 33:1450.1 provides that a Sheriff is authorized to contract for insurance to cover loss or damage from any negligent acts committed by himself or his deputies, while in the performance of the duties of the office. The statute further provides that the premiums for said insurance are to be paid by the Sheriff as an expense of the office out of the Sheriff’s Salary Fund.

There is no question but that the Sheriff, individually, is liable for his negligent acts committed while in the performance of his duties. The liability is personal to the Sheriff. This liability is not that of the Sheriff’s Department therefore it must necessarily follow that the personal liability of a former Sheriff is not continued or transferred to the successor sheriff. It is clear therefore that L. R. Hataway, who did not become Sheriff of Grant Parish until July 1, 1976, cannot be held individually liable for the alleged negligent acts of his predecessor occurring in April of 1974.

Plaintiff does not seriously argue otherwise and virtually concedes that Sheriff Hataway cannot be held responsible for the alleged delictual acts of his predecessor. Plaintiff contends however, that in matters of workmen’s compensation it is not the Sheriff as an individual who is personally responsible but rather it is the constitutional entity, i. e., the “Sheriff of Grant Parish”. Plaintiff refers us to no authority in support of this contention and our research has disclosed none.

We have previously demonstrated, on the basis of well settled authority, that the Sheriff, individually, and not the “Parish Sheriff’s Department” is liable for wrongful or negligent acts committed by him and/or his deputies in the performance of official duties. Further, we have concluded that a successor Sheriff cannot be held liable for the delictual acts of his predecessor. We fail to see why a different conclusion can or should be reached with regard to a claim in workmen’s compensation based upon an alleged contract of employment which was confected and which terminated during the tenure in office of a former Sheriff. It would seem axiomatic that, if it be determined after trial on the merits that Morris Brossette was an “employee” of Sheriff Morgan within the in-tendment of the Louisiana Workmen’s Compensation Act, then it would be the former Sheriff, Joe T. Morgan, Brossette’s employer, who would be personally responsible for any benefits due. Any responsibility for workmen’s compensation arising out of the hiring of Morris Brossette could not be that of the “Parish Sheriff’s Department” for the latter enjoys no legal status. It could not be that of L. R. Hataway because on the date of Brossette’s employment and death he was neither the Sheriff of Grant Parish nor was he Mr. Brossette’s employer.

For the above and foregoing reasons we conclude that the trial court properly sustained the motion for summary judgment filed by Sheriff L. R. Hataway. This conclusion renders unnecessary our consideration of Sheriff Hataway’s allegation that plaintiff’s cause of action, as to him, has prescribed.

For the above and foregoing reasons the judgment appealed from is affirmed. All costs of this appeal are to be borne by the plaintiff-appellant.

AFFIRMED.

      . L. R. Hataway replaced Joe T. Morgan as Sheriff of Grant Parish and was sworn in on July 1, 1976. The accident complained of herein occurred on April 16, 1974. The original petition in this matter was filed on March 27, 1975.
      “Grant Parish Sheriff’s Department”, Will Fletcher, Jerry Brevelle, Danny Dison and Brian Perot were specifically deleted as named defendants in the amending petition.

      . The judgment of the trial court which dismisses this action as to the alleged entity “Office of Sheriff of Grant Parish” is superfluous as this alleged entity is not made a party defendant in this proceeding.

      . Plaintiff concedes that a Sheriff is not liable for workmen’s compensation benefits to his deputies. Plaintiff contends however, that Morris Brossette was a borrowed servant of the Sheriff of Grant Parish, who was not deputized.

      . We do not purport to decide the question as to whether a Sheriff has authority to employ an individual who does not enjoy the status of “deputy sheriff’. LSA-R.S. 33:1433.


author: FORET, Judge.

text:
    William J. MOREAUX, Individually, etc., Plaintiff-Appellee, v. ARGONAUT INSURANCE COMPANY, Defendant-Appellant.
    No. 6122.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 30, 1977.
    Rehearing Denied Oct. 11, 1977.
    Writ Refused Nov. 11, 1977.

      Stockwell, Sievert, Viccellio, Clements & Shaddock, by Robert W. Clements, Lake Charles, for defendant-appellant.
    Russell T. Tritico, Lake Charles, for plaintiff-appellee.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   FORET, Judge.

This appeal was filed by Argonaut Insurance Company (the insurer of St. Patrick Hospital in Lake Charles, Louisiana), the defendant in this suit in which plaintiff, William J. Moreaux, on behalf of himself and his two minor children, Kimberly Kristina and Maricia Rachelle, alleges the malpractice of the insured resulting in the death of his wife, Bonita Moreaux. The case was tried before a jury which returned judgments in favor of the two minor children in the amount of $50,000.00 each, and judgment against the plaintiff husband-father dismissing his demands. We reverse in part and affirm in part.

In the morning and afternoon of July 4, 1974, Bonita Moreaux, her husband, William, and her brother and sister-in-law, the Bernon Doucets, went to a park, celebrated the national holiday, and had a picnic. In the late afternoon they returned to their respective homes and attired themselves for the evening. In midevening at about 8:00 or 9:00 o’clock P.M., in the Moreaux vehicle, they traveled to the Bamboo Lounge in Lake Charles, Louisiana, where the two couples danced and partook of alcoholic beverages.

In the early morning hours of July 5, at approximately 1:00 o’clock A.M., although Bonita relentlessly expressed her intention to continue partying, the two couples departed to the Bernon Doucet household and the Moreauxs picked up their children. At the driveway, the Moreauxs argued as to who was to operate the motor vehicle on the trip homeward. A settlement, by which William would operate the automobile, was finally reached. However, Bonita then refused to allow William to stay overnight in their trailer. After he brought Bonita and the children home, William went to Jennings, where he stayed overnight in his sister’s home. (The incident, the Moreauxs sleeping in different households, was not an unusual occurrence. It had happened a number of times before. In fact, William and Bonita had just recently reconciled after a short period of separation.)

Bonita Moreaux was a young (in her twenties), aggressive, obstinate, and strongly built woman who suffered from the disease known as petit mal epilepsy, for the treatment of which the medication Mysoline had been prescribed. This woman had suffered stages of depression, for which she had, on at least one prior occasion, attempted suicide. In the early morning of July 5, 1974, consuming an excess dosage of Myso-line and cutting her wrists, she again attempted to kill herself.

Bonita was transported by ambulance to the emergency care unit of St. Patrick’s Hospital in Lake Charles. There she was treated by Dr. Buttress (a specialist in the fields of cardiology and internal medicine), who had once before treated her for an overdose of medication. After his initial examination and treatment, and after Bonita had been hospitalized one day in the unit, Dr. Buttress recommended Bonita’s transfer to an area of the hospital known as “Five North” under the care and supervision of Dr. Gilíes Morin, a psychiatrist.

For about one-half hour, in the emergency care unit, Dr. Morin examined Bonita. She was then transferred to Five North, the psychiatric ward of St. Patrick’s Hospital. For another one-quarter hour, in the morning and midnight of July 7, he again treated the patient. From his short interviews, Dr. Morin opined that Bonita was not psychotic; that she knew that psychiatric treatment had been provided her, and the reasons therefor; that she was not depressed, but rather somewhat excited over the prospect of treatment; and he prescribed medication- — Mysoline and Librium, a mild tranquilizer — for her treatment.

While Bonita occupied the emergency care unit and Room No. 556 of Five North, she was visited very often by her parents, the Fred Doucets, and her husband William, and constantly cared for by employees of St. Patrick’s. The nurses who treated her, and her father were of the opinion that as time passed, Bonita’s condition improved— she became physically and mentally stronger. She showed signs of optimism, of a hope for the future.

At midnight on July 8, Mattie McVay, a nurses’ aide, made a check of Room No. 556, the room in which Bonita was hospitalized. She found Bonita hanging from the shower rod, a cord around her neck, her face toward the tub, her feet above the floor, and her hands tied, palms facing her thighs. A sheet or sheets and a pillow or pillows, from her bed, and an overturned wastepaper basket were seen in the shower. Bonita was immediately removed from the bathroom and placed on her bed. Because her hands were so tightly tied, the cutting of the cords around her arms was required before any emergency care could be provided. All emergency rescue operations proved fruitless. Dr. Davidson pronounced Bonita dead.

As the death was mysterious, and as the hospital rules so required, an autopsy was conducted upon the body of Bonita Mor-eaux. Dr. Louis Remus, pathologist, discovered pressure marks around the neck and wrists (indicative of a typical strangulation); healing cuts around the wrists; no finger marks on the neck; contusions in the periorbital regions of the face; purplish discolorations around the face; that Bonita had had sexual intercourse within several hours of her death; and concluded that the death was due to strangulation. (The death certificate was not admitted into evidence and the time of death was not established.)

Unless the record demonstrates that the jury’s conclusions of fact are not supported by the evidence and/or its application of law is clearly erroneous, we should affirm the judgment of the jury. Garrison v. Hotel Dieu, 319 So.2d 557 (La.App. 4 Cir. 1975), writ denied, La., 323 So.2d 129; Duray v. Continental Insurance Company, 311 So.2d 491 (La.App. 4 Cir. 1975); Mayes v. McKeithen, 213 So.2d 340 (La.App. 1 Cir. 1968); cases too numerous to cite. In this case, as the jury did not have to provide written reasons for the judgment and as no written interrogatories were propounded to it so that its factual conclusions could be determined, we do not know what factual conclusions the jury reached.

In the case of Hunt v. Bogalusa Community Medical Center, 303 So.2d 745, 747 (La.1974), the Louisiana Supreme Court succinctly stated the law which should be applied in this case:

“A hospital is bound to exercise the requisite amount of care toward a patient that the particular patient’s condition may require. It is the hospital’s duty to protect a patient from dangers that may result from the patient’s physical and mental incapacities as well as from external circumstances peculiarly within the hospital’s control. A determination of whether a hospital has breached the duty of care it owes to a particular patient depends upon the circumstances and facts of that case.” Williams v. Sisters of Incarnate Word of Galveston, Tex., 341 So.2d 1299 (La.App. 3 Cir. 1977); Jenkins v. Bogalusa Community Medical Center, 340 So.2d 1065 (La.App. 1 Cir. 1976); Pettis v. State, Dept. of Hospitals, 336 So.2d 521 (La.App. 3 Cir. 1976), modified, La.App. 3 Cir., 340 So.2d 1108; Guidry v. State, Dept. of Hospitals, 317 So.2d 222 (La.App. 3 Cir. 1975), application denied, La., 320 So.2d 904.

However, Louisiana jurisprudence has limited the above general rule of the duty of a hospital.

“. .A private hospital is not an insurer of a patient’s safety and the rules as to the care required are limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen.” Goodeaux v. Martin Hospital, Inc., 333 So.2d 717 (La.App. 2 Cir. 1976), writ denied, La., 338 So.2d 295; Williams v. Sisters of Incarnate Word of Galveston, Tex., supra; Jenkins v. Bogalusa Community Medical Center, supra. “The duty owed by a hospital to its patients is to exercise the degree of care, skill and diligence used by hospitals generally in that community.” Pettis v. State, Dept. of Hospitals, supra, at page 531; Charouleau v. Charity Hospital of Louisiana at New Orleans, 319 So.2d 464 (La.App. 4 Cir. 1975), writ denied, La., 323 So.2d 137; Lauro v. Travelers Insurance Co., 261 So.2d 261 (La.App. 4 Cir. 1972).

As to what degree of care a hospital owes to its patients, a review of several cases in Louisiana jurisprudence may be of interest. In Williams v. Sisters of Incarnate Word of Galveston, Texas, supra, the symptoms of a 13-year old hospitalized patient were dizziness and fainting. When that patient announced that she wished to bathe, the nurse stated that she would aid in that endeavor. The patient’s mother advised the nurse that she would provide all the aid that was needed. The patient, after the bath, dressed in the bathroom and, while walking back to her bed, felt dizzy and collapsed, injuring herself. This Court ruled that as the mother had undertaken to provide the amount of care that her daughter’s condition required, the defendant hospital was not so obligated.

In Jenkins v. Bogalusa Community Medical Center, supra, the plaintiff, suffering from gouty arthritis, was admitted as a patient in defendant hospital. Plaintiff’s medical condition did not enable him to walk with ease, but only with the greatest of difficulty. The employees of defendant placed rails around the bed of plaintiff and advised plaintiff not to get out of bed without signalling for assistance. In direct diso-beyance of the orders of the hospital, plaintiff got out of bed, walked to the bathroom, and on the return trip to the bed, fell. The First Circuit Court of Appeal held that the defendant hospital was not liable, as the hospital provided routine services in accordance with the standard of care commensurate with that prevailing in hospitals in the general area. As defendant exercised the amount of care required by plaintiff’s medical condition, and as plaintiff was fully aware of his surroundings, being mentally capable, he should have reasonably anticipated that which befell him.

In the case of Hunt v. Bogalusa Community Medical Center, supra, plaintiff had undergone surgery for the removal of his gall bladder and was incapable of walking, or of balancing himself without assistance. Two partial rails were placed on his bed. Plaintiff, an aged person, fell from the bed and sustained serious injuries. The Louisiana Supreme Court, in ruling that defendant hospital did not exercise that degree of care required because of the patient’s condition, rendered judgment in favor of plaintiff.

Prom a close scrutiny of the evidence in the record, we conclude that the death of Bonita Moreaux was, more likely than not, a case of homicide rather than suicide. The method by which her hands were tied— palms facing the thighs, the cords wrapped around her wrists and legs, pulled under her crotch, and around her waist — and the degree of tightness with which the cords were tied made it an almost physical impossibility for Bonita Moreaux to have taken her own life. The medical opinion of Dr. Morin — that Bonita exhibited signs of a longing for the future, the antitheses of one possessing suicidal tendencies — and that of lay witnesses also corroborates our so holding.

In the record, evidence was presented as to what precautionary measures were taken by another hospital in the general area, Memorial Hospital, to prevent a case of homicide. As to the ground entrances to the hospital, after 8:00 o’clock P.M., the only entrances open were the lobby, the emergency room entrance, and the employee entrance. As to the lobby entrance, the switchboard operator maintained constant surveillance. All other doors were locked from the outside. To open any door, a key was required. A twenty-four-hour-a-day security guard (a member of the Pinkerton Detectives) was employed. He had a daily regular routine and was equipped with a walkie-talkie with which he and the switchboard operator could communicate.

As to the ground entrances of St. Patrick’s Hospital, in the evening (at approximately 9:00 o’clock P.M.) all entrances, other than the rear emergency room entrance, were locked. The front entrance was capable of being opened. It was a controlled access entrance — the switchboard operator maintained constant visual surveillance thereof and monitored the front doors; by the placing of her finger on a buzzer, the front door would be opened. Although there was no nurses’ station between the rear emergency room entrance and an elevator, the entrance was monitored by nurses. The hospital maintained twenty-four hour staffing. There was never a patient care area in the hospital that lacked personnel. A security guard always worked between the hours of 8:00 o’clock P.M. and 4:00 o’clock A.M. and was equipped with a voice beeper with which he and the switchboard operator could communicate.

It was, however, possible for a person to ascend from the elevator near the rear emergency room entrance to Five North and to traverse the halls thereof to Room No. 556 without ever being seen. At 11:20 o’clock P.M. July 7, Mattie McVay, nurses’ aide, saw a “young man” in Room No. 556. At 12:00 o’clock midnight, the man was not in the room. No one had seen him enter into, nor depart from it.

A person alighting from the elevator at Five North could traverse through one of two passageways to reach Room No. 556. In one passageway (No. 1) he would walk directly in front of the nurses’ station prior to the time in which he would reach the desired destination. In the other passageway (No. 2), he would walk through unlocked doors, through long halls, and ultimately reach Room No. 556 without ever having passed the nurses’ station. (P-13)

Plaintiffs Exhibit No. 13

On the night of the death of Mrs. Bonita Moreaux, there were fifteen patients in Five North. The eleven-to-seven shift was composed of three (3) employees. They were Mrs. Mattie McVay, nurses’ aide, Mrs. Gladys Miller, nurses’ aide, and Marybelle Rideaux, L.P.N. According to the general floor policies of Five North, they were to constantly traverse the halls, to make bed-checks of all of the patients on a regular thirty-minute basis, and to ascertain the identity of all visitors. (P-20) On the night in question, the 11:00 o’clock P.M. and the 12:00 o’clock midnight bedchecks were made, but the 11:30 o’clock P.M. bedcheck was not made. The identity of the visitor in Room No. 556 at 11:20 o’clock P.M. was never discovered. Mrs. Moreaux, however, was seen at 10:45 o’clock P.M. and at 11:20 o’clock P.M. At the earlier time, she walked out of her room and went to the door of the nurses’ station; at the later time, Mrs. McVay, after having responded to a call from a patient in an adjoining room, passed by Room No. 556, the door of which was slightly ajar, and looked in. She saw a body lying in the bed and the back of a man standing at the head of the bed. In her statement given to the police, Mrs. McVay said that she saw the faces of Bonita and her husband, and that the latter persons made signs of recognition. In her testimony, however, she said that the statement was true of the night before the death, and not of the night of the death.

The room in which Bonita Moreaux was hospitalized was no different from any other room in the hospital as regards furnishings. The room was furnished with draperies, the nylon cord of which was used in the homicide, and bed lamps, an electrical cord of which was tied around the body of Bonita Moreaux, binding her hands and wrists.

St. Patrick’s Hospital was a private medical institution which could accommodate up to 246 patients. In July, 1974, it was accredited by the Joint Commission on Accreditation of Hospitals. Although the accreditation was purely voluntary, it represented a per se compliance with the standards required to secure a hospital license from the State of Louisiana. In order to be so accredited, a hospital had to comply with strict guidelines as to the overall facilities, nursing care, and special care units of the Commission. In 1974, compliance was determined by a committee (a doctor, nurse, and/or hospital administrators) which spent semi-annually a two (2) or three (3) day period in which it reviewed the different facilities of a hospital. Any lack of complete compliance with the guidelines resulted in a notice of deficiencies, which deficiencies had to be corrected within the stated time, or the hospital would lose its accreditation.

Although it housed only patients with mental problems and was a psychiatric ward, Five North did not fall within the classification of a Special Care Unit of the Joint Commission on Accreditation of Hospitals. A common element of that classification is that the patients therein are critically ill and require intensive nursing care. The Joint Commission had inspected Five North a number of times and, at all such inspections, did not consider Five North a Special Care Unit, and found that Five North was not lacking in a proper staff, personnel, construction, and operation.

A hospital is an institution, the main concern and responsibility of which is the medical care of its patients. Its duties span no further than those perimeters. As to any breach of medical care, the hospital is liable. However, as to any circumstance in which a patient dies as a result of a homicide, the hospital cannot be held liable, unless it is shown that the patient’s condition required constant surveillance, there was notice of a possible homicide as to such patient, and the hospital took no, or very little, precautions to prevent same. Were the law otherwise, the hospital would, in effect, be the insurer of the safety of all of its patients.

As stated heretofore, the degree of care which a hospital must provide should be commensurate with the patient’s condition, mental as well as physical, and with the degree of care provided by hospitals in the general area. In this case, although Bonita Moreaux had attempted suicide, Dr. Morin, the psychiatrist treating her, opined that she was not psychotic, was aware of her surroundings, in good spirits, and apparently out of danger of other suicidal attempts. From the very minimal evidence presented as to the care provided by other hospitals, we can but say that St. Patrick’s Hospital provided similar quality services and precautionary measures. It is our opinion that St. Patrick’s Hospital violated no legal duty to Bonita Moreaux — albeit whether she committed suicide or was killed by another person or persons.

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review, the appellate court should not disturb this factual finding in the absence of manifest error. Canter v. Koehring, 283 So.2d 716, 724 (La.1973). Accordingly, we must give great weight to the factual conclusions of the trier of fact, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. However, in the case at bar, a careful review of the record strongly convinces us that the verdict of the jury was manifestly erroneous, and the judgment rendered as a result of the said verdict should be reversed. We conclude that there was no reasonable factual or legal basis upon which a jury verdict could be rendered against Argonaut Insurance Company, the insurer of St. Patrick’s Hospital.

Accordingly, we reverse the judgment of the trial court holding that defendant-insurer, Argonaut Insurance Company, was liable to the two minor children of Bonita Moreaux in the sum of $50,000.00 each, and we affirm the judgment of the trial court rejecting the demands of William Moreaux.

.All costs of this appeal are to be borne by plaintiff-appellee.

REVERSED IN PART AND AFFIRMED IN PART.


author: FORET, Judge. PER CURIAM.

text:
    Theophile O. MOSS, Jr., Plaintiff-Appellant, v. SECURITY NATIONAL INSURANCE CO. and Karl A. Fortier, Jr., Defendants-Appellees.
    No. 6123.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 2, 1977.
    Rehearing Denied Oct. 11, 1977.
    Writ Refused Nov. 23, 1977.

      Roy & Forrest by Leon E, Roy, Jr., New Iberia, for plaintiff-appellant.
    Landry, Watkins, Cousin & Bonin by Wm. O. Bonin, New Iberia, for defendants-appellees.
    Before CULPEPPER, GUIDRY and FORET, JJ.
   FORET, Judge.

Plaintiff filed suit against Karl A. Fortier and his insurer, Security National Insurance Company, alleging that he suffered severe cervical, lumbar and anterior chest pains as a result of an automobile accident. All parties stipulated as to the negligence of defendant Fortier and the lack of contributory negligence of plaintiff Moss. Trial was held before a jury, and the only issue to be resolved was that of the extent of damages, if any. From the judgment of the jury which returned a verdict of “No Amount”, plaintiff-appellant, Moss appeals.

On May 18, 1974, in the early morning between the hours of 1:30 o’clock and 2:30 o’clock A. M., near the community of Brous-sard, Louisiana, a vehicle operated by plaintiff, Theophile O. Moss, Jr., occupied also by his wife Sandra, and proceeding in an easterly direction in the right outside lane of U. S. Highway No. 90, a four-lane thoroughfare, was rear-ended by the 1973 Dodge automobile owned and driven by defendant, Karl A. Fortier, Jr. The Moss vehicle, which was inoperable after the collision, was shoved sixty-five (65') to seventy-five (75') feet from the point of impact and rolled into a gulley on the right-hand side of the roadway.

In order to fully appreciate the damages alleged — lumbar, and chest and cervical pain, in that order — and the evidence presented as to their extent, we shall separately discuss them.

I.

LUMBAR PAIN

On the same day of the accident, and but a few hours later, Moss was examined and treated by Dr. Joseph A. Musso, who was accepted by the trial court as a specialist in the field of family medicine. Moss complained to the doctor of pain in his low back. The physical examination consisted of tests which were conducted to determine the range of motion in Moss’ back. He was required to lay on his back and raise his legs. Although plaintiff complained of soreness in his low back, his range of motion was not restricted. X-rays of plaintiffs lumbar spine were taken, and they revealed a slight dextroscolosis (curve to the left) and the straightening of the lumbar lordosis (abnormal forward curvature). No other physical infirmity was seen. The clinical part of the examination consisted of those x-rays. From his clinical and physical examination, Dr. Musso concluded that Moss “had a muscle strain in his low back .” For a complete recovery therefrom, Dr. Musso recommended that Moss lay off his brick laying job for a period between four (4) to six (6) weeks and get plenty of rest.

Dr. Musso examined plaintiff two (2) more times. On June 3, 1974, plaintiff did not complain of back pain. The examination of his back revealed that he had a normal range of motion. He was told to miss work for at least four (4) more weeks. On Monday, June 17, 1974, plaintiff made no complaints about his back, and even told Dr. Musso that he had returned to work on June 14. Conducting no physical and clinical examinations, Dr. Musso discharged him from his care.

If, after June 17, Moss suffered low back pain, Dr. Musso believed that the recurrence would have been the result of a new incident, and not the automobile collision.

On July 26, 1974, plaintiff was examined and treated by Dr. Homer Kirgis, a neurosurgeon at Oschner Foundation Clinic in New Orleans, Louisiana. To this expert, plaintiff presented the following history: He was injured on May 18, 1974, in an automobile accident in which the vehicle which he operated was thrown forward about seventy-five (75') feet into a ditch. On the day of the accident, he suffered no physical problems. On the following day, his entire body was sore, and he visited a local physician, Dr. Musso. His greatest discomfort was situated in his lower back. No fracture was revealed by the x-rays taken of that part of his anatomy. Dr. Musso concluded that he sustained a severe strain or sprain of his lower back. Since there was recurrence of pain in his lower back, plaintiff continued to consult Dr. Kir-gis. (Although Dr. Kirgis had a note in his records that the symptoms Moss manifested were not present prior to the accident, he did not know whether the note meant that the symptoms never existed or that they did not exist immediately prior to the accident.)

Dr. Kirgis’ treatment of plaintiff Moss consisted of an examination of the stance, gait, movements of the extremities, strength, coordination, reflexes and movements of the back. The tests revealed a slight restriction of the lower back, which was secondary to the discomfort suffered and the slight degree of spasm in the lumbar paraspinous muscles. The findings suggested that Moss had sustained a strain or sprain of his lower back. We quote from Dr. Kirgis’ testimony:

“The spasms of the muscles of these areas with the history presented by Mr. Moss suggested that he might have sustained a straining injury of the muscles or a straining injury of the ligaments in these regions of the spine.” (Tr., pg. 56. Emphasis added.)

At that time Dr. Kirgis was of the opinion that plaintiff Moss was slowly recovering. He advised his patient to apply heat to the pain area, to take mild analgesics as he needed them, to avoid physical activities that might unduly aggravate the pain, and to undertake those activities which he thought his body could endure and tolerate.

Moss reported to Dr. Kirgis’ office on November 22, 1974. At that time, Moss stated that the pain in his lower back had continued, but at a lesser degree; that, although he had worked, he had been unable to perform his work at the same degree of efficiency; and that during the past few weeks, he experienced more discomfort than previously.

The examination conducted by Dr. Kirgis revealed the same symptoms as found on July 26. Accordingly, Dr. Kirgis advised the plaintiff to continue to apply heat, to avoid activities, and to take mild analgesics, and he believed that the plaintiff would recover if he followed that advice.

Dr. Kirgis examined plaintiff on January 15, 1975, at which time he was not working and was still experiencing pain in his lower back. On February 21, 1975, Dr. Kirgis recommended further diagnostic procedures, especially that a myelogram, or spinal puncture, be performed.

On March 2, 1975, plaintiff Moss, complaining of pain in his lower back, was admitted to Oschner Foundation Hospital. The next day, he underwent a spinal myelo-gram. Two (2) days later, on March 5, a bilateral laminectomy was performed. On March 10, the day of discharge, plaintiff Moss was transferred to an area of the hospital for physiotherapy.

The lumbar myelogram revealed a herniation of the fourth lumbar disc, which ruptured disc irritated the fifth lumbar nerve. Plaintiff Moss, suffering from pain in his back, knees and ankles, was advised to continue to rest, to sleep on a hard bed, to take hot baths, to exercise to tolerance (sitting up, back bending, walking, and isometric exercises), and to apply an electric heating pad to the areas of pain.

A month later, on April 15, 1975, plaintiff Moss visited Dr. Kirgis, who noted that the incision was well healed, and that there was a spasm of muscles in the patient’s lower back, and who advised continued use of mild analgesics and heat application, and a gradual increase of the patient’s physical activity.

At the doctor’s office a month later, Moss again complained of pain in his lower back. He stated that although he had tried to do the prescribed exercises and that he had applied a heat pad to his back, he still experienced much discomfort. The examination at that time revealed restricted movement of the lower back. Dr. Kirgis was somewhat surprised, in that he had expected plaintiff Moss to have recovered a great deal more.

On July 18, 1975, Moss, with the same complaints, again was treated by Dr. Kirgis. He told the doctor that he had not yet gone back to work. The general neurological examination revealed a normal gait and stance, a slight to moderate restriction of movement of the lower back, and a residual tightness of the muscles of the lower back, of plaintiff. At that time, the doctor opined that plaintiff Moss could engage in light work.

“It was my impression that he would have a permanent degree of disability, between fifteen to ten percent, as a result of the rupture . . . Fifteen to twenty percent as a result of the rupture of the lower lumbar . . . ” (Tr., pg. 103)

On August 26,1975, for the last time, Dr. Kirgis treated plaintiff Moss. Moss stated that he suffered pain in his lower back, that he had supervised masonry jobs for a few hours a day, and that he slept on a hard bed and took aspirin to relieve pain. The clinical examination revealed normal findings other than a slight decrease in the range of movement of the back and a slight decrease in the activity of the left anklature.

Dr. Kirgis stated that it was quite usual for one suffering injury to a vertebral disc to continue to experience pain. In plaintiff’s case, as he was a bricklayer, it would have been rare had he not continually suffered. From his aforementioned treatments and examinations of plaintiff Moss, Dr. Kirgis opined that Moss’ pain was not continuous, that Moss satisfactorily recovered, and that

“If the history is accurate that he wasn't having any difficulty like this prior to the accident, but did so immediately after the accident, then it would seem reasonable to conclude that the accident had caused this discomfort.” (Tr., pg. 118. Emphasis added.)

When questioned regarding the recurrence of pain in one suffering from a ruptured disc, Dr. Kirgis stated that it was not unusual for a disc problem to become worse, thereby causing great pain; to temporarily remit; and then to flare up again. Had plaintiff suffered from similar pains prior to the accident, Dr. Kirgis thought the accident could have been the precipitating cause of the renewal of the back pain.

“. . .1 wish to point out that the injuries of this type that he sustained don’t very often cause a real rupture of a normal lumbar disc. It causes great injury to the cervical disc, but not to the lumbar disc. So, if he had trouble with his back before, it’s more reasonable that he had this much trouble after the accident.” (Tr., pg. 121. Emphasis added.)

Dr. Steven Goldware, neurosurgeon, examined plaintiff Moss three times. On December 8, 1975, for the first time, plaintiff complained of low back pain. Patient Moss gave a history of the accident and subsequent medical treatment, and a history of muscular aches and pains through the years which did not prevent him from working.

The physical examination of the plaintiff illustrated a normal gait and walk, lumbar curves in the spine, tight muscles in the back and buttock, and nerve root irritation or injury in the hip, and ham-string tightness. The inspection of the lumbar myelo-gram and of the x-rays of the back showed a ruptured disc at the L-4-5 level.

Cognizant of all of the previous medical treatment received by Moss, and of Moss’ occupation, Dr. Goldware stated:

“The lumbar disc has been removed between L-4 and 5. If this was done on both sides, that would account for five percent impairment of the whole man for each side. (Tr., pg. 485)
“. . . Specifically, I do not know whether he can be a full-time bricklayer or not. On the basis of my minimal experience in that area, I would doubt that he would be able to do a full-time bricklayer’s job. And that’s based on just the idea of the amount of stooping and bending and lifting that he would have— might have to do.” (Tr., pg. 498)

In fact, plaintiff Moss had had similar low back pain complaints prior to the accident. On October 12, 1960, he was treated by Dr. Orien Dalton for sacroiliac pain complaints. The physical examination conducted at that time revealed tenderness over the sacroiliac area and pain upon pressure at the joint, and Butazolidin and two injections of muscle relaxants were prescribed.

On November 30, 1960, Dr. William Meuleman, an orthopedist, examined plaintiff, who complained of pain in the lower back. Although no x-rays were taken, all physical tests indicated that there were no objective medical bases for the complaints. Relief, not in the form of medical prescriptions, but rather in the form of corrective shoes, was “prescribed”.

Dr. Meuleman agreed with Dr. Kirgis that one suffering from a ruptured disc usually passes through stages at which there is much pain, little pain, or no pain; that a disc problem is usually preceded by a long period of back pain, and that a ruptured disc does not usually result from a singular event. However, Dr. Meuleman stated that it would be very difficult, if not impossible, for a doctor who had not treated the patient for quite some time to determine, with any degree of accuracy, the cause of the patient’s ruptured disc.

Numerous times in July and August, 1973, plaintiff Moss consulted Dr. Connie Peavy, a chiropractor, relative to the pain in his back. To this doctor, answering a medical questionnaire in order to furnish a medical history, plaintiff wrote that he suffered from frequent cramps in his legs, that his weak ankles made his life miserable, and that the pain in his back made it difficult for him to maintain his job.

II.

CERVICAL & ANTERIOR CHEST PAIN

On his first visit to Dr. Musso, Moss complained of severe pain in his neck and right anterior chest. Dr. Musso found that plaintiff “had some pain on motion of his neck, but there was no . limitation of motion at the time”. (Tr., pg. 892) X-rays of the cervical spine revealed that there was some straightening of the spine and that the neck was slightly tilted to the right. Those of the chest revealed no fractures or abnormalities, and there was no external evidence of bruises and contusions on the chest.

Prom the findings of his physical and clinical examinations, Dr. Musso concluded that Moss

“Had a muscle strain in . his neck and an area of contusion of his right chest, even though there was no external evidence to substantiate that he had hit his chest.” (Tr., pg. 895)

He prescribed the discontinuation from work for four (4) to six (6) weeks and rest as cures for the complaints.

On the two subsequent occasions that plaintiff visited Dr. Musso, he made no complaints of pain. On the June 3d visit, he easily performed the neck exercises that he was requested to do. The examinations revealed the normal range of neck motion. He was advised to absent himself from his job for at least four (4) more weeks. On the June 17th visit Moss seemed relaxed and fully recuperated. Since plaintiff made no complaints of pain, neither a physical nor a clinical examination was conducted, and he was discharged.

On July 26,1974, the first examination of plaintiff Moss by Dr. Kirgis, Moss stated that he suffered from an aching sensation in the back of his neck. The physical examination conducted by the doctor involved Moss’ moving of his neck in various positions and revealed a slight restriction thereof. A slight spasm of the cervical paraspi-nous muscles was thought to be one of the causes therefor. Dr. Kirgis concluded that plaintiff had suffered either a strain or sprain of the muscles and ligaments of the cervical area of his intervertebral spine.

On the next examination (November 22, 1974), plaintiff Moss stated that he had continued to experience discomfort in his neck and the physical tests revealed that. At that time, Dr. Kirgis was somewhat startled, in that he had opined that Moss would have almost completely recovered, and advised plaintiff to apply heat to his neck and to avoid strenuous activities.

As the same neck complaints were made on the January 15, 1975 visit, a cervical collar was prescribed. At the February 21, 1975 meeting between the doctor and patient, the doctor opined that further diagnostic proceedings were required inasmuch as plaintiff Moss had worn the cervical collar until that time, had followed the doctor’s advice, and still complained of neck pain.

On only two (2) subsequent visits did the physical and/or clinical examinations reveal objective findings of neck injury. The March 3rd cervical myelogram and the tests conducted on April 15,1975, and August 26, 1976, were normal. Those conducted on May 15 and July 18, 1975, revealed restriction of movement in the neck. Dr. Kirgis opined that as a result of the cervical injury, Moss would have a ten (10%) per cent permanent degree of disability.

On January 6,1975, Dr. Steven Goldware, neurosurgeon, conducted an examination of Moss, who complained of a sense of weakness in the neck and a tendency of his head to slump forward. The neurological test — a medical review of the gait, stance, walk, and neck of plaintiff — led the doctor to believe that there was a great likelihood of no injury to plaintiff’s neck.

“I’m not sure whether Mr. Moss really has anything in his neck or not. He may have an ulnar compression. That is constriction over the nerve of the elbow, the ulnar nerve.” (Tr., pg. 478)

On his last two (2) visits to Dr. Goldware, Moss complained of neck pain. The examinations done at those times did not iead the doctor to objective findings of neck pain. On the latter visit (December 8,1975), Moss could easily toe and heel walk and twist his neck. His spine possessed normal cervical curve. The doctor opined that plaintiff had satisfactorily recovered from his possible neck injury.

When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court’s finding, on review, the appellate court should not disturb this factual finding in the absence of manifest error. Canter v. Koehring, 283 So.2d 716, 724 (La.1973). Accordingly, we must give great weight to the factual conclusions of the trier of fact, and reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. However, in the case at bar, a careful review of the record convinces us that the verdict of the jury was manifestly erroneous, and the judgment rendered as a result of the said verdict should be reversed. We conclude that there was no reasonable factual or legal basis upon which a jury verdict of “No Amount” could be rendered. See Robinson v. General Motors Corporation, 328 So.2d 751 (La.App. 4 Cir., 1976).

We are thoroughly convinced that Moss sustained, in the accident of May 18, 1974, injuries to the cervical and lumbar regions of his spine. We further conclude that any pre-existing low back disease, if any, which Moss may have had must certainly have been aggravated by the accident. It is noted that after the accident, his low back condition deteriorated to such an extent that on March 5,1975, a bilateral laminecto-my was necessary; this, only nine and one-half months after the accident.

In reversing the trial jury, and making an assessment of damages where the trial jury awarded no damages, we must look for guidance to Coco v. Winston Industries, Inc., 341 So.2d 332 (La.,1976), and Schexnayder v. Carpenter, 346 So.2d 196 (La.,1977). Both of these cases dealt with a reduction of trial jury awards by this Court, and subsequent reversals by the Supreme Court to increase the damages. In the Coco case the Supreme Court wholly reinstated the trial jury award. In Schexnayder the Supreme Court acquiesced with us in reducing the jury award, but disagreed as to our award and increased same to what the Supreme Court thought, in its judgment, the award should be. In accordance with Coco and Schexnayder, we should award the lowest amount which the jury reasonably could have awarded.

We are of the opinion that the trier of fact, even under the evidence least favorable to plaintiff, could reasonably have awarded to him no less than the amount of $15,000.00 for general damages, i. e., pain and suffering, mental anguish, etc., plus $3,098.50 for medical expenses. We further conclude that the trier of fact was not manifestly erroneous in refusing to award loss of earnings to plaintiff. Prior to the accident, plaintiff and his father were in partnership engaged in a brick laying business. Subsequent to the accident, plaintiff and his father incorporated their business. Plaintiff received funds from the corporation, although the bookkeeper for the corporation stated that such funds were only paid for work done. We conclude that the jury did not abuse its discretion in not allowing damages for loss of earnings, inasmuch as a reasonable evidentiary basis existed for its decision on that point. Canter v. Koehring, supra.

In accordance with the above, we reverse the trial court judgment and award the plaintiff the amount of $18,098.50, plus legal interest thereon from date of judicial demand until paid.

All costs of this appeal are assessed against defendants-appellees.

REVERSED AND RENDERED.

ON APPLICATION FOR REHEARING

PER CURIAM.

Plaintiff, Theophile 0. Moss, Jr., has applied for a rehearing, contending that we erred in our original opinion by not also assessing the costs in the trial court against defendants. Our failure to do so was an oversight, and accordingly we amend our original judgment, to assess all costs, both in the trial court and on appeal, against the defendants.

      . No motion for a new trial was filed by Moss.

      . Coco — page 335:
      “Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.”


author: SAMUEL, Judge. SCHOTT, Judge, REDMANN, Judge,

text:
    Victor J. FOSTER, Jr. v. R. E. SCHANZER, INC.
    No. 7634.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1977.
    Rehearing Denied Oct. 12, 1977.

      George W. Reese and Gilbert Bernstein, New Orleans, for plaintiff-appellee.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John J. Weigel, New Orleans, for defendant-appellant.
    Lemle, Kelleher, Kohlmeyer & Matthews, Paul B. Deal, New Orleans, for Employers Nat. Ins. Co. and Louisiana Stevedores, Inc.
    Before SAMUEL, REDMANN and SCHOTT, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit against R. E. Schanzer, Inc. for personal injuries he sustained when struck by falling bags of chicory during the course of discharging and stowing cargo from a ship docked in the Mississippi River.

Defendant answered, denying negligence on its part and alternatively pleading negligence and assumption of risk on the part of plaintiff.

Employers National Insurance Company intervened for reimbursement of compensation benefits and medical payments made by it under the Longshoremen’s and Harbor Workers’ Act. Defendant answered the petition of intervention and sought indemnity and, alternatively, contribution by re-conventional and third party demands against Employers National and Louisiana Stevedores, Inc., its liability insurer, on the basis of Louisiana Stevedores’ alleged breach of its implied in law contractual responsibility to unload and stow in a safe manner.

After a trial on the merits, judgment was rendered in plaintiff’s favor against defendant for $22,000, out of which sum $4,432.95 was awarded to intervenor for compensation benefits it paid plaintiff. In addition, intervenor was awarded $6,501.51 for medical expenses incurred on plaintiff’s behalf and defendant’s reconventional demand against intervenor was denied. Defendant has appealed. Plaintiff has answered the appeal seeking an increase in quantum. In-tervenor also has answered the appeal seeking amendment of the judgment: (1) to award interest on the sum of $4,432.95 reimbursed it for compensation benefits; and (2) to specifically dismiss defendant’s third party demand against Louisiana Stevedores, Inc.

The record shows defendant imported chicory from the nation of Poland on a Polish vessel. The vessel, obtained by the Polish government through Dalton Steamship Agency, docked to discharge defendant’s cargo in the free foreign trade zone in New Orleans. Dalton engaged Louisiana Stevedores, Inc. to unload and stow the cargo for defendant.

The cargo was stored in six storage areas leased by defendant from the Board of Commissioners for the Port of New Orleans. These spaces are commonly called “bins” and measure 30 feet wide, 100 feet long, and 35 feet high. They are situated back-to-back and divided by a concrete partition.

At the time of the accident, plaintiff was employed as a stevedore by Louisiana Stevedores, Inc. and he was assigned to unload and stow defendant’s cargo of chicory. The chicory was shipped in sacks or bags weighing approximately 110 pounds each. Sixteen to 20 bags at a time were removed from the ship in cargo slings. Each sling filled a trailer or wagon and, after three trailers were loaded, they were hauled from the ship to the storage bin by a tractor. Plaintiff was operating one of these tractors on the day he was injured.

The unloading operation consisted of three tractors with trailers. While one such rig was being loaded with discharged cargo, another was being unloaded in the appropriate bin, while a third was in transit between the ship and the bins. G. Watson Tebo, a vice president of the defendant corporation, was located at least part of the time at a gate in the free trade zone to make a tally of the number of sacks which passed from the ship to the bins. Plaintiff contends Tebo also spent a substantial amount of time at the bins directing the operation and ordering the stevedores, despite their complaints, to store quantities of chicory in each bin as he directed. Plaintiff contends Tebo ordered the sacks stacked to an excessive height and the unsafe condition which resulted therefrom caused bags to fall and strike plaintiff.

The entrance to each bin was divided by a post located in the center. The tractor operator drove tractor and trailers into one side and, after the sacks were unloaded, proceeded out the other side of the bin door in a circular movement.

The bin in which plaintiff was injured was outfitted with an overhead electrical crane. The top of the crane’s cab was attached to a track mounted on runners, and it was capable of moving the length and width of the entire bin. In front of the cab was a drum hoist on which a line was attached for lifting the slings which contained the chicory sacks. The crane operator in the bin in which the accident occurred was employed by defendant.

The tractor driver and another stevedore assigned to work on the bin floor attached the crane’s hook to the sling, and signaled defendant’s crane operator to lift. Upon lifting the sling the crane moved toward the rear of the bin and deposited the load onto the pile of stacked chicory bags. Six men worked on this pile in pairs, with each pair handling and stacking bags from one sling load.

The sacks were stacked in the bin in a manner appropriate for this type cargo. The stacking is done in a stair-step manner so that the piles in the rear of the bin are always maintained at a higher level than those in front of it, and the level of each pile is progressively lower as one proceeds from the back of the bin to the front. By doing this, there is always physical access to the highest pile of sacks, and this “stepping” operation continues until the last sacks are placed at the top of a pile. After each pile is completed, it is then squared off for balance. As the bin approaches completion, the forward rows of chicory bags are stacked in a configuration known as a bulkhead. The bulkhead is built by alternating rows of three lengthwise and two crosswise sacks, and it is constructed when the stored cargo reaches a distance of 12 to 16 feet from the entrance.. After the cargo reaches this point the bulkhead is built up simultaneously with the loading of the remainder of the bin. Because the bulkhead consists of the last rows of sacks placed in the bin it is generally the lowest point in the storing operation.

The basic issue on liability is whether negligence of defendant’s employee caused the chicory sacks to fall and injure plaintiff.

The basic contentions by plaintiff are: (1) the sacks fell on him because they were stacked too high on direct orders of defendant’s vice president, which orders were given in disregard of complaints made by the longshoremen; and (2) the stack was negligently bumped by defendant’s crane operator in such a way as to loosen the sacks which fell on plaintiff.

Both plaintiff and defendant offered evidence in the form of testimony of numerous witnesses over the course of a three day trial. There is ample evidence to support a finding of negligence on the part of defendant’s vice president and there is also evidence to contradict this. Similarly, there is evidence establishing defendant’s crane operator, in carrying the loaded slings from the front to the rear of the bin, did not raise the load high enough to avoid bumping the bulkhead and loosening the sacks stacked thereon and there is some evidence to contradict this contention. Defendant’s brief dedicates itself to an extended coverage of contradictions and inconsistencies it asserts exists in the testimony offered by plaintiff’s witnesses and the record reveals inconsistencies and disparities in the evidence presented by defendant.

Defendant also argues plaintiff’s proof relies substantially on circumstantial evidence to prove its alleged negligence. Defendant points to the rule that while circumstantial evidence has value, it must exclude other reasonable hypotheses with a fair amount of certainty so that it is more probable than not that the causative negligence complained of was in fact the result of tortious conduct by the defendant.

It is well settled an appellate court must give great weight to factual conclusions of the trial judge. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon appellate review, even if the reviewing court should disagree with the holding of the trial court. Defendant’s lengthy argument regarding the legal cause-in-fact of the accident resolves itself into an ultimate determination by the trial judge as a fact question. In short, the judgment of the trial court is amply supported by the evidence and therefore must be affirmed.

By this appeal, defendant alternatively seeks a decrease in the trial court’s award for general damages, and by answer to the appeal, plaintiff seeks an increase in that award. Plaintiff argues he is totally disabled to perform a longshoreman’s duties and should be compensated accordingly.

Plaintiff proved some disability, but its exact degree is in serious dispute. The blow he received apparently caused neurologic involvement, resulting in some weakness in both hands and some diminished ability to lift, push and pull. However, the same weight to which the findings of the trial court are entitled on the issue of liability must also be afforded his assessment of damages. We find the evidence in the record is not sufficient to disturb the award for general damages as being either insufficient or excessive.

Regarding intervenor’s answer to the appeal, Employers National complains that the portion of the judgment which awards repayment to it from plaintiff’s award of compensation benefits does not clearly provide for interest. Intervenor suggests the judgment should be amended to award it interest from the date of judicial demand, and we agree.

Intervenor further seeks to amend the judgment to rectify its silence as to the defendant’s third party demand against its insured, Louisiana Stevedores, Inc. While under the facts of this case the legal effect of the judgment’s silence is a rejection of that demand, the record discloses no basis for an award against Louisiana Stevedores, and there is no reason for refusing this request.

For the reasons assigned, the judgment appealed from is amended by awarding in-tervenor, Employers National Insurance Company, legal interest from date of judicial demand until paid on that sum of money awarded to it as reimbursement of compensation benefits paid plaintiff, and by dismissing defendant’s third party demand against Louisiana Stevedores, Inc. As thus amended, and in all other respects, the judgment appealed from is affirmed.

AMENDED AND AFFIRMED.

SCHOTT, J., concurred with written reasons.

REDMANN, J., dissents with written reasons.

SCHOTT, Judge,

concurring.

Upon examining this record, according to the standards of Canter v. Koehring Co., 283 So.2d 716 (1973), I find that there was evidence before the trial judge which furnished a reasonable factual basis for his apparent finding that defendant was guilty of some negligence which contributed to this accident in that it permitted an excessive stacking of these uneven bags of chicory at the front or bulkhead of the stack; it was bumped occasionally by the crane which had the effect of disturbing the equilibrium of the stack; and that this condition combined with the activity of Williams in climbing on the stack to cause one of the bags to fall on Foster.

REDMANN, Judge,

dissenting.

The evidence can justify only one factual conclusion arguably supporting liability on Schanzer, namely that the chicory-laden sling of the crane struck the “bulkhead” of bags of chicory (which was only “too high” in the sense that it required the sling to be shortened). But the crane sling was moving towards the rear of the bin and would therefore not have knocked the bags forward onto plaintiff. The inference that a rearward blow knocked bags forward is not supported by testimony of anyone’s having seen it occur. The record does not support the judgment appealed from.

      . 33 U.S.C.A. § 901, et seq.

      . The judgment provides for interest on the award for medical expenses but fails to clearly provide for interest on the award for compensation benefits.

      . Defendant relies on Townsend v. State, Department of Highways, La., 322 So.2d 139.

      . Canter v. Koehring Company, La., 283 So.2d 716.

      . LSA-C.C. Art. 1934(3); see Canter v. Koehring Company, id.

      . See, e. g., Succession of Foster, 240 La. 269, 122 So.2d 96.

      . See Mexic Bros., Inc. v. Sauviac, La.App., 191 So.2d 873.


author: GULOTTA, Judge.

text:
    PROFESSIONAL BILLING AGENCY, INC. v. Ernest E. TARANTINO, D.D.S.
    No. 7949.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1977.
    Rehearing Denied Oct. 12, 1977.

      I. Bernard Salomon, New Orleans, for plaintiff-appellee.
    Robert F. Fadaol, Gretna, for defendant-appellant.
    Before LEMMON, GULOTTA and BEER, JJ.
   GULOTTA, Judge.

Plaintiff, assignee of one of the defendant-doctor’s accounts receivable, upon failure to collect the balance from the principal debtor, the doctor’s patient, seeks reimbursement from the defendant-assignor of the principal amount due plus accrued, stipulated interest at the rate of 1V2% per month. Defendant appeals from an award in favor of plaintiff in the sum of $635.40, together with stipulated interest, subject to a credit in the sum of $100.00, which was paid on the account by the debtor after suit had been filed. We affirm.

On February 20, 1974, Dr. Ernest E. Tarantino and plaintiff entered into a “CONTRACT FOR THE ASSIGNMENT OF ACCOUNTS RECEIVABLE”. This instrument provided that the assignee would pay the assignor 95% of the principal amount of each account assigned. The agreement also contained a “repurchase” ^provision relied upon by plaintiff in the instant suit. The pertinent part of the “repurchase” clause of the assignment agreement reads as follows:

“Assignor agrees that in the event the account receivable debtor fails or refuses to make payment in accordance with the credit agreement and said failure or refusal continues for a period of 90 days, then and in that event, Assignee shall have the option to designate the said account a “defaulted account,” and Assignor unconditionally guarantees to repurchase any such defaulted account for the full balance thereof immediately upon demand by Assignee.
“By mutual consent of Assignor and Assignee, a defaulted account may be retained by Assignee for legal and/or judicial collection, with the understanding that Assignee may reassert its demand for repurchase at any time, and further that any portion of principal or interest and all court costs . . . not recovered by Assignee from the defaulted account debtor, shall be the responsibility of the Assignor and shall be due and collectible from Assignor upon demand.”

In connection with' the assignment agreement, the parties also signed a “STATEMENT OF ASSIGNMENT OF ACCOUNTS RECEIVABLE” in which the assignor declared that he “has assigned and may continue to assign, accounts receivable to PROFESSIONAL BILLING AGENCY, INC.” according to the provisions of LSA-R.S. 9:3102 et seq.

Pursuant to the assignment agreement, Tarantino, on May 15, 1974, assigned the patient’s account in question to plaintiff. An “AGREEMENT” entered into between the doctor and the patient stipulates, among other things, that the patient acknowledges that the doctor may assign the account to Professional Billing Agency and that the unpaid balance would be subject to a finance charge of 1V2% per month corresponding to an annual percentage rate of 18%. A copy of this agreement was forwarded to the plaintiff who in turn paid 95% of the principal balance to defendant. The debtor failed to pay the balance due, however, and on January 8, 1975, plaintiff, invoking the “repurchase” provision of the contract between assignor and assignee, demanded full payment of the defaulted account by the dentist. On February 5, 1975, defendant was advised that the defaulted account had been sent to an attorney for collection, and demand against defendant for full payment was reasserted. Following further demands against both the debtor-patient and defendant-doctor, the instant suit was filed against the doctor on January 15, 1976. On January 30, 1976, the debtor-patient paid $100.00 on the balance due and promised further payment. Thereafter, she moved to Alaska and no further payments were made.

It is defendant’s first contention, on appeal, that plaintiff failed to carry out the obligations imposed upon it by the assignment-agreement and that this breach prevents enforcement of the contract. According to defendant, once the debtor defaulted, the assignee had the duty to exercise one of the three following options:

1. Declare the account defaulted and make a demand upon the assignor for remittance of the amount due; or,
2. With the consent of the assignor, turn the account over to an attorney for collection; or,
3. Grant an extension to the debtor of the amount due.

Defendant argues that plaintiff granted extensions to the debtor for an inordinate amount of time (from August 31, 1974 when the account became 90 days delinquent until January 8, 1975 when permission was sought from the assignor to place the account with an attorney). Defendant complains that plaintiff’s breach was in granting unreasonable extensions to the debtor permitting the debtor to leave the jurisdiction and in failing to file suit against the patient-debtor before reasserting the demand for repurchase. According to defendant, plaintiff could have availed itself of the first option provided for in the agreement by declaring the account defaulted after the expiration of a period of 90 days. In such instance, he argues, demand would have been made immediately on defendant for reimbursement and defendant could have then pursued collection against the debtor, when the debtor was still living in New Orleans and the debt was collectible.

It is true, as pointed out by defendant, that plaintiff could have demanded repurchase at the expiration of 90 days and that the debtor was permitted an inordinate amount of time to pay the indebtedness. However, as pointed out by plaintiff, the failure to file suit against the debtor was caused by the fact that the debtor’s husband was in the military service, a fact known to defendant. Furthermore, plaintiff was under the reasonable impression the debtor was a friend of the assignor, and in a gesture of good will granted extensions for payment to the debtor. John K. Dewey, president of Professional Billing Agency, Inc., testified that Tarantino had been informed by telephone and computer printout that the debtor-patient was overdue in paying her bill. Dewey further stated that it was his understanding that defendant did not want legal action to proceed against the patient because she was a friend of the assignor. Moreover, Larayne Keane, a former employee of plaintiff, stated in deposition that monthly statements were sent to the debtor-patient. This witness further stated that she had contacted the patient by telephone in August and November, 1974, and had received promises of weekly payments and that defendant had assured her that the patient would make a payment. Under these circumstances, we cannot say the delays in collection by plaintiff were unreasonable. We are in agreement with the trial judge who stated in written reasons that plaintiff performed “its obligations” under the assignment.

Considering defendant’s further contentions, we find no merit to his claim that the assignment agreement is null because it contains a potestative condition. LSA-C.C. arts 2024 and 2034. In support of his argument, defendant cites the following provisions of the assignment contract:

“Assignee shall have the right to grant extensions and indulgences to accounts receivable debtors in its sole discretion, and such action shall in no wise affect, limit or discharge Assignor’s obligations under this contract.”

Tarantino contends that the clause above permits plaintiff the right to grant unlimited extensions without ever collecting the debt. According to defendant, the assign-ee’s diligence in collection against the debt- or depends upon the will of the assignee and in the event the assignee fails to exercise diligence, reimbursement of the full amount plus interest can be obtained from 'the assignor. We disagree.

It is clear from Dewey’s testimony that the continuance and existence of plaintiff’s business enterprise is dependent upon the effectiveness with which it pursues the collection of the amounts owed from the debtors. In this regard, he stated that his corporation, itself borrowing money to purchase the accounts, can only be profitable by rapidly collecting the assigned accounts. Furthermore, in the event, as claimed by defendant, plaintiff fails to pursue collection but resorts to reimbursement, together with interest from the assignor-doctor, further assignments would not be made by the doctors and plaintiff’s business would become nonexistent. Clearly the performance of the contract is not dependent upon the sole will of the assignee. See LSA-C.C. art. 2035. Rather, plaintiff must act reasonably and make an effort to collect the accounts if his factoring business is to be profitable. The -extensions or indulgences contemplated in the agreement are those reasonable indulgences allowed by creditors. We conclude collection does not depend on the sole will of the assignee and the assignment does not contain a prohibited potesta-tive condition. See King v. King, 185 So.2d 893, 895 (La.App. 3d Cir. 1966), application not considered, 249 La. 479, 187 So.2d 448 (1966), where the court stated:

“ * * * . . . although performance may be dependent to some degree upon the obligor’s will, if exercise or non-exercise of his will involves some detriment, disadvantage, or inconvenience to him, the condition is not considered potes-tative. * * * ”

If, indeed, the repurchase provision of the assignment contract is potestative, it is in the nature of a non-objectionable resolutory potestative condition pertaining only to the duration of the contract (LSA-C.C. art. 2036) as distinguished from an objectionable suspensive potestative condition (LSA-C.C. arts. 2034 and 2035). Both parties have performed — defendant in assigning the account and plaintiff in advancing 95% of the balance and in pursuing collection of the account — and the act of will involves only plaintiff’s demand that defendant repurchase the account. Such a resolutory condition will not nullify the contract. See Long v. Foster & Associates, Inc., 242 La. 295, 136 So.2d 48 (1961); Palmer and Plauche, “A Review of the Louisiana Law on Potestative Conditions”, 47 Tul.L.Rev. 284, 303 et seq. (1973).

We likewise find no merit to defendant’s next argument that because of the ambiguity in the general assignment agreement and because the agreement between plaintiff and defendant does not include a reference to stipulated interest (when the delinquent account is repurchased), plaintiff is not entitled to collect the stipulated interest in addition to the amount owed on the account. Reading the general assignment agreement between plaintiff and defendant and the agreement between the doctor and the patient together, it is clear plaintiff is entitled to recover the amount owed on the account, together with stipulated interest. The general contract for the assignment provides for the payment of the “full balance” by the defendant-assignor upon demand by assignee. The agreement further provides that

“. . . a defaulted account may be retained by Assignee for legal and/or judicial collection, with the understanding that Assignee may reassert its demand for repurchase at any time, and further that any portion of principal or interest and all court costs . . . not recovered by Assignee from the defaulted account debtor, shall be the responsibility of the Assignor and shall be due and collectible from Assignor upon demand.”

We do not interpret this language, as defendant argues, to mean that suit must be filed against the debtor before the repurchase provision of the contract can be invoked. Furthermore, the “interest” referred to in the general contract of assignment between plaintiff and defendant, though not specified in that instrument, refers to the stipulated interest of V/2% in the agreement signed by the debtor-patient and defendant-doctor.

Accordingly, we conclude the trial judge properly rendered judgment in favor of plaintiff in the amount of $635.40 less a credit of $100.00, plus stipulated interest. The judgment is affirmed.

AFFIRMED.

      . Plaintiff’s letter of January 8, 1975, to defendant also stated that the delinquent account would, with the doctor’s approval, be sent to an attorney, presumably for collection. The doctor was instructed to indicate if he did not want an account sent to the attorney. Defendant did not respond.

      . The debtor’s delinquent account, first referred to an attorney for collection in February, 1975, was referred to a second attorney, plaintiff’s counsel, in April, 1975, along with a mint-ber of other files. Plaintiff’s counsel testified that he made demand on the patient in August and September, 1975, and against the doctor in July and September, 1975. The record does not disclose what actions the first attorney took to collect the account.

      .The debtor last contacted plaintiff’s counsel in early February, 1976. The record does not disclose when she left for Alaska.


author: GULOTTA, Judge. STOULIG, Judge, SCHOTT, Judge,

text:
    Robert SANDERS, John Cantry, Lawrence Hudson, Michael Conner and Joshua Berry v. Lev HALL, Jr., and New Orleans Public Service Inc.
    No. 8099.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1977.
    Rehearing Denied Oct. 12, 1977.
    Writ Refused Dec. 2, 1977.
    Gerald P. Aurillo, Metairie, for plaintiffs-appellants.
    A. R. Christovich, Jr., New Orleans, for defendants-appellants.
    Before GULOTTA, STOULIG and SCHOTT, JJ.
   GULOTTA, Judge.

On remand from the Louisiana Supreme Court, and on reconsideration of the record in this matter involving suspicious similarity of soft tissue injuries and treatment to five plaintiffs occupying the same automobile, as set forth in our earlier decision, we are of the opinion that the medical testimony adduced at trial warrants a maximum general damage award of $800.00 to each plaintiff.

Accordingly, the judgment of the trial court awarding $2,000.00 as general damages to each of the plaintiffs — Robert Sanders, John Cantry, Lawrence Hudson, Michael Conner and Joshua Berry — is reduced to $300.00 to each of the above named parties. In all other respects, the judgment is affirmed.

AMENDED AND AFFIRMED.

STOULIG, Judge,

concurring.

I concur. The trial judge did find injury as a matter of fact. Appellate courts may only modify the trial court’s factual conclusions where there is manifest error. Conceding that this accident could have produced soft tissue injury, I concur in the award of nominal damages.

SCHOTT, Judge,

concurring.

In compliance with the mandate of the Supreme Court, I have reconsidered the awards for general damage in the light of Art. 5, § 10(B), La.Const. and LSA-C.C. Art. 1934(3), and would adhere to my original opinion that an affirmance of the judgment of the trial court is clearly indicated under Coco v. Winston Industries, Inc., 341 So.2d 332 (1977). However, the action of the Supreme Court in this case seems tantamount to a reconsideration by that Court of the principles set forth in Coco v. Winston Industries, Inc. and seems to mandate a reduction in this case.

Accordingly, I concur in the action taken by my colleagues.

      . Sanders v. Hall, 347 So.2d 248 (La. 1977). In re: Lev Hall, Jr. and N. O. Public Service, Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans. “Writ granted. The case is remanded to the court of appeal for reconsideration in the light of art. 5, Section 10(B), La.Const. and article 1934(3) of the Louisiana Civil Code.”

      . Sanders v. Hall, 345 So.2d 590 (La.App. 4th Cir. 1977).


author: LEMMON, Judge. LEMMON, J.,

text:
    Mrs. Claire Williamson SCHULZ v. Elaine M. LOUVIERE and Sandra Fust, divorced wife of/and Peter Williamson Schulz.
    No. 8142.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 8, 1977.
    Concurring Opinion On Denial of Rehearing Oct. 12, 1977.
    Writ Refused Nov. 23,1977.
    J. Joseph Blotner, Gretna, and Benjamin Washastrom, New Orleans, for plaintiff-appellant.

      Perez, Fernandez & Egan, G. Frederick Seemann, Chalmette, for defendants-appel-lees.
    Before LEMMON, GULOTTA and BEER, JJ.
   LEMMON, Judge.

In this action plaintiff, claiming to be a creditor of the community which formerly existed between Peter Schulz (plaintiff’s son) and his divorced wife, seeks (1) to annul a judicial sale of immovable property made pursuant to a judgment which ordered partition by licitation and (2) to declare that the ownership of the property was still in Schulz and his former wife, subject to plaintiff’s mortgage which was executed and recorded after the judicial sale. The trial court dismissed the nullity suit on an exception of no cause of action, and plaintiff appealed.

The petition for nullity alleges the following facts, which we accept as true: On October 14, 1969 Schulz and his wife were divorced by judgment of the Civil District Court for the Parish of Orleans in Suit No. 465-498. Neither the judgment of divorce nor the earlier judgment of separation in the same suit contained any reference to community property. On November 10, 1969 Mrs. Sandra Schulz filed, in the same proceeding, a petition for partition of the community property, and on April 12, 1971 judgment was rendered ordering the judicial sale of certain immovable property situated in Jefferson Parish. On March 1,1972 defendant Elaine Louviere purchased the property at the judicial sale.

Plaintiff’s attack on the validity of the judicial sale is based on the argument that the parties became co-owners of the property upon rendition of the judgment of divorce and C.C.P. art. 4603 limits venue in a suit for partition between co-owners to the parish where the immovable property is situated.

C.C.P. art. 44 provides that objections to venue are waived when the defendant fails to plead the declinatory exception timely. The article does specify certain cases in which venue is jurisdictional and may not be waived, but none of the enumerated exceptions are applicable here.

The defendant in the partition suit apparently failed to object timely to the venue. The objection was therefore waived and cannot now be invoked by a person who was not a party to the partition suit as a basis for annulling the judgment which ordered the partition.

The judgment is affirmed.

AFFIRMED.

LEMMON, J.,

concurs in the denial of the application for rehearing and assigns reasons.

LEMMON, Judge.

Plaintiff’s application for rehearing argues that a separate suit was required for the partition action and that the judgment ordering the partition should be annulled because the petition for partition was filed with the same docket number as the divorce proceeding. In support of this argument plaintiff cites R.S. 13:1216, which she asserts requires the clerk of the Civil District Court to keep separate dockets for partition and divorce proceedings.

Plaintiff, therefore, does not attack the substance of the partition proceeding, but only the procedure whereby Mrs. Schulz used the same docket number instead of a new docket number. Rules of procedure are designed to implement the substantive law and are not an end in themselves. C.C.P. art. 5051. A court must decline to be so technical and inflexible as to strike this substantively valid proceeding with nullity simply because a procedural rule of convenience and clerical orderliness was not followed.

      . Some of the dates stated in the petition are incorrect, but for purposes of this opinion we use the admittedly correct dates which appear elsewhere in the record and the briefs.

      . There is no allegation in the petition for nullity that the partition proceeding was not commenced with a petition, followed by citation and service, answer, and judgment after trial.