author: EDWARDS, Judge:

text:
    Stephen DANOS et al. v. Charlene RICHOUX et al.
    No. 11807.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Rehearing Denied March 20, 1978.
    Writ Refused May 12, 1978.
    Roger J. Larue, Jr., New Orleans, for plaintiffs and appellants.
    Robert M. Johnston, Beard, Blue, Schmitt & Mathes, New Orleans, for defendants and appellees.
    Robert H. Wood, Jr., New Orleans, for National Fire & Marine Ins. Co. and appel-lee.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   EDWARDS, Judge:

This is a suit for wrongful death arising out of an automobile-pedestrian accident in which Naricess Danos was killed. Stephen Danos and Donald Danos, the decedent’s sons, and Roy Guidry as natural tutor of Gayle and Tanial Guidry, the decedent’s grandchildren from a predeceased daughter, sued Charlene Richoux, the driver of the automobile, and her insurers, American Insurance Company and National Fire and Marine Insurance Company. The trial court dismissed Guidry’s claim on defendants’ exceptions of no cause of action and no right of action. After trial on the merits, the trial court rendered judgment in favor of defendants and dismissed the entire suit. Plaintiffs, Stephen and Donald Danos, have appealed. Roy Guidry did not appeal and as to him the trial court’s judgment is final.

The accident occurred on February 13, 1975, at approximately 6:30 p. m. in front of Linton Duet’s Grocery Store on Louisiana Highway 308 in Cut Off, Louisiana. La. 308 is a two lane highway, approximately 20 feet wide, which runs north and south on the east bank of Bayou Lafourche. Duet’s store fronts on La. 308 on the far side of the highway from the bayou. On the bayou side of La. 308 opposite Duet’s store is a building known as the “shrimp shed.”

On the evening of the accident, the decedent and his wife went to Duet’s store to purchase groceries. They parked on the shoulder of La. 308 in front of the shrimp shed and crossed the highway to the store. After a short time, decedent left the store to use the bathroom in the shrimp shed. Mrs. Danos continued shopping.

About this time, Ms. Richoux left her home about a block north of the store, turned onto La. 308, and drove southbound with her lights on and at a lawful rate of speed. As she approached the shrimp shed the decedent stepped from her right into the path of the car and was struck by the right side of the vehicle. The point of impact was in the southbound lane. Ms. Richoux testified that she did not see the decedent prior to impact. Ms. Richoux was the only witness to the accident.

The trial court held that the sole cause of the accident was the decedent’s negligence in being intoxicated and in failing to observe and yield to the approaching Richoux vehicle. The trial court also held that Ms. Richoux was not negligent.

Plaintiffs list four errors allegedly committed by the trial court. Two of these errors relate to the trial court’s factual conclusions that the decedent stepped onto the highway from Ms. Richoux’s right and that the decedent was negligent. The third specification of error maintains that the trial court allowed improper cross-examination of a witness on matters not brought out on direct examination. The last error urges the applicability of the doctrine of last clear chance.

We find no merit in the two specifications of error attacking the trial court’s factual findings and conclusions. The trial judge set forth these findings and conclusions in seven (7) pages of Written Reasons for Judgment. Our examination of the record reveals that there is ample evidence in the record to support the trial court’s findings. We find no error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Next, plaintiffs contend that the trial court erred in allowing counsel for defendants to cross-examine a witness on matters not related to evidence brought out on direct examination. Plaintiffs argue that Louisiana follows the “narrow rule” regarding the scope of cross-examination.

We find plaintiffs’ contention untenable.

The scope of cross-examination in Louisiana in civil cases is not statutorily defined, as in criminal cases. Cf. LSA-R.S. 15:280. However, our jurisprudence from the earliest time has recognized that the scope of cross-examination lies within the sound discretion of the trial court and that cross-examination is not limited to matters inquired into on direct examination. Durnford v. Clark, 1 Mart. (O.S.) 202 (1811). See 10 Tul.L.Rev. 294 (1936).

Plaintiffs cite Vanzant v. Bodcaw Lumber Co., 128 La. 923, 55 So. 577 (1911), in which the Supreme Court, disregarding the prior jurisprudence, held that cross-examination of a witness must be confined to matters stated by him on direct examination.

However, Vanzant was rendered nugatory by the case of Schwing v. Dunlap, 130 La. 498, 58 So. 162 (1912), decided a year later. In Schwing, the Supreme Court held that although a witness cannot be questioned on matters unrelated to the issues before the court, nonetheless, “a good deal of latitude is generally allowed in cross-examination.” Thus the Court recognized that the “broad rule” of cross-examination is applicable in civil cases in Louisiana.

The holding in Schwing was followed and further amplified in Davis v. Unity Life Ins. Co., 43 So.2d 67 (La.App.Orl.Cir.1949) wherein it was held:

“The rule prevailing in this state is that a witness on his cross-examination may be interrogated upon matters wholly unconnected with those upon which he was examined in chief.” (citations omitted).

Accordingly, we find that the cross-examination allowed in this case was proper.

Finally, plaintiffs contend that the trial court erred in not applying the doctrine of last clear chance.

We find, as did the trial court, that the doctrine is not applicable to the instant factual situation because Ms. Richoux was not negligent. Butler v. State Farm Mutual Automobile Insurance Co., 265 So.2d 252 (La.App. 1st Cir. 1972).

Accordingly we reject plaintiffs’ contention.

For the above reasons, the judgment of the trial court is affirmed at plaintiffs-appellants’ cost.

AFFIRMED.

      . Ms. Richoux was married after the accident. Her married name is Charlene Richoux Orger-on. In this opinion, she is referred to by her maiden name, Richoux.

      . Decedent’s blood alcohol content, tested after the accident, was .25 percent alcohol by weight.


source: Caselaw Access Project

author: PONDER, Judge.

license: Public Domain

text:
    Raymond M. PETERSON et al. v. OLINDE HARDWARE AND SUPPLY COMPANY, INC.
    No. 11819.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Writ Refused May 5, 1978.
    George Clauer, III, Baton Rouge, of counsel for plaintiff-appellant Raymond M. Peterson et al.
    Ralph W. Brewer, Baton Rouge, of counsel for defendant-appellee Olinde Hardware and Supply Co., Inc.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge.

Plaintiffs have appealed from the denial of damages and attorney’s fees for the wrongful seizure of property belonging to them.

The issues are: (1) damage (2) attorney’s fees.

We amend and affirm.

Raymond Peterson, a neighbor of Juanita Gatlin, had lent to her over a period of years a color television, and two air conditioners. While helping Mrs. Gatlin’s son, Stanley Tuttle, do some repair work on a bathroom, he had also brought over a radio cassette recorder so they could listen while working.

Defendant had previously obtained a judgment against Mrs. Gatlin but had been unable to get it satisfied. The credit manager for the defendant secured a writ of fi. fa. and accompanied the deputy sheriff to point out the articles to be seized. At first only the credit manager, the deputy sheriff and Mrs. Gatlin were present; however, Mr. Peterson came in and claimed that some of the seized items belonged to him. When he was unable to produce proof of ownership, the credit manager proceeded with the seizure. Mr. Tuttle, Mrs. Gatlin’s son, claimed ownership of a stereo that was seized.

The lower court issued a rule to show cause why the sale of the claimed items should not be enjoined. The disposition of that rule is not shown. However, on trial of the merits, the court ordered return of the claimed items. Since the defendant has neither appealed nor answered the appeal, we believe this part of the judgment to be no longer an issue.

However, the plaintiffs appealed and asserted they were entitled to damages and attorney’s fees.

One whose property has been subjected to an illegal seizure for the debt of another is entitled to damages for humiliation, mortification, mental anxiety and the deprivation of use and enjoyment of the property. Hernandez v. Harson, 237 La. 389, 111 So.2d 320 (1959). Malice or bad faith is not required. Escat v. National Bank of Commerce in New Orleans, 284 So.2d 832 (La.App. 4th Cir., 1973).

Although there are some court of appeal cases to the contrary, the latest Supreme Court case on the question of attorney’s fees in the contesting of an illegal seizure is Hernandez v. Harson, supra, which followed the general rule that such fees are not allowed unless authorized by statute or contract and expressed doubt of the correctness of some of the cases cited by plaintiffs but did not overrule them. Under these circumstances we believe the lower court was correct in disallowing these fees.

For these reasons the judgment in favor of Raymond Peterson is amended to award $500.00 damages. The judgment in favor of Stanley Tuttle is amended to award $250.00 damages. As amended the judgments are affirmed. Appellee is cast with costs.

AMENDED AND AFFIRMED.

      . Cox v. Smith, 275 So.2d 459 (2d Cir., 1973); Walker v. J. J. Eilis Lake Providence Furniture Corp., 107 So.2d 550 (2d Cir., 1958); Skelley v. Accounts Supervision Co., 53 So.2d 520 (2d Cir., 1951); and Gunn v. Credit Service Corp., 46 So.2d 628 (2d Cir., 1950). The Third Circuit refuses attorney’s fees in fieri facias cases. Dubois v. Travelers indemnity Co., 261 So.2d 94 (3d Cir., 1972) and Moses v. American Security Bank of Ville Platte, 222 So.2d 899 (3d Cir., 1969).


author: BLANCHE, Judge.

text:
    Mrs. Clarissa BROUSSARD v. The STATE of Louisiana Through the DIVISION OF HOSPITALS et al.
    No. 11780.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Rehearing Denied March 20, 1978.
    Writ Refused May 12, 1978.
    Dennis R. Whalen, Joseph R. Raggio, Baton Rouge, of counsel for plaintiff-appellant Mrs. Clarissa Broussard.
    Donald E. Puckett, Baton Rouge, of counsel for defendant-appellee The State of La., through Division of Hospitals et al.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Plaintiff, Clarissa Broussard, is appealing the quantum awarded for the suicide death of her son; and the defendant, the State of Louisiana, through the Division of Hospitals, has answered the appeal asking that the trial court judgment be reversed.

Plaintiff’s son, Joseph Carl Broussard, was committed to East Louisiana State Hospital by Dr. Hypolite Landry on August 5, 1974, and remained there from August 6, 1974, until September 1,1974, when he committed suicide by using a tie from a robe to hang himself. The trial court found negligence on the part of the defendant and awarded the sum of $15,500 to plaintiff. We reverse.

A reading of the record compels us to agree with the trial judge when he stated in his Written Reasons for Judgment:

“The evidence demonstrates without serious dispute that the authorities and personnel of the hospital were aware that Broussard had a serious mental condition, and that by history, he had suicidal tendencies. * * * ” (Record, pp. 66, 67) “Yes, there was a note that I think had come from the Coroner that he had a razor blade on his way to the Coroner’s office and wanted to do something with that, but I think he had changed his mind, or something to that effect, and, also, the psychiatrist’s evaluation stated that he was suicidal.” (Record, p. 167)

Dr. Francisco A. Silva, Deputy Coroner, testified that Broussard’s history of two attempts at suicide and his personal observations caused him to concur with Dr. Landry in committing Broussard to East Louisiana State Hospital. Mrs. Doris Calcóte, a nurse at East Louisiana State Hospital, when asked if Broussard were suicidal, testified:

We also find, as did the trial judge, that the record further shows the hospital personnel closely monitored Broussard’s activities and attempted to supervise him properly in view of his known condition. Next, we reach the question rhetorically stated by the trial judge:

“ * * * Thus is raised the critical and decisive issue in the lawsuit which is whether the hospital, through its personnel, exerted reasonable efforts to keep the means of self-destruction from the patient’s grasp.” (Record, p. 67)

Mrs. Calcóte testified in her deposition that it was against hospital policy to issue a robe with a tie to a suicidal patient, and this was corroborated by another nurse, Jimmie Rae Morgan. Dr. Terry Charles Philastre, who was on duty at the time of Broussard’s death and attempted to resuscitate him, reconstructed what caused his death:

“My conclusion was that he had probably tied some kind of a cloth, something made of cloth or — [he did not recall its precise nature] * * * It was something that was long enough to allow him to tie it to a far rail of the bed * * * and then to his own neck and to sit or kind of like a sitting motion off of the side of the bed.” (Record, p. 184)

Dr. Philastre also testified that the Joint Committee on Accreditation of Hospitals required privacy screens around the beds of patients and that these privacy screens were installed at the time of Broussard’s suicide. In his opinion, this increased the problem with patient security in a mental ward. Aside from Dr. Philastre’s testimony, the autopsy report revealed that Brous-sard used a tie from a robe to kill himself.

Despite the absence of evidence that Broussard was actually issued a robe with a tie, the trial judge concluded that it became available to him. The trial judge found that it was reasonable for the hospital personnel to anticipate that a person with known suicidal tendencies would use such an object to terminate his life and, accordingly, should have removed the possibility of his access to the object. Reluctantly reaching the decision that the defendant was negligent, the trial judge stated:

“ * * * Although the result seems obviously unfair, it must be understood that the State undertook the responsibility for his care, and further, in view of his mental instability, he cannot be held accountable for his own actions.” (Record, p. 69)

We agree with the remarks of the trial judge but find that his judgment virtually makes the State an insurer of the patient’s safety when their duty is only one of reasonable care. In this regard we do not find that the hospital failed in its duty to use reasonable care, as will be explained more particularly hereinafter.

This duty must necessarily be balanced and reconciled with the hospital’s duty to restore the patient to a state of health where he will no longer be suicidal. The manner in which these duties are discharged is within the sound discretion of the medical authorities and would range, depending on the condition of the patient, to the extreme of placing him in complete restraint to the point where only minimum restriction and supervision would be required.

At the time of Broussard’s death, he had been in the hospital for over three weeks and had been placed in the infirmary due to a toxicity that developed as a resulted of taking certain medication. The hospital record shows that on the evening prior to his death he was in the lobby of the hospital trying to pick a fight and was placed in soft restriction. The following morning the head nurse in the hospital’s infirmary area observed him approximately every half hour during the time she came on duty at 7:00 A. M. until she went to lunch and noticed him ambulating about the ward and into the lobby area. She testified that the restraint of the patient at that time was not necessary.

There is testimony from practically all of the medical experts that if a patient is bent on committing suicide, it is practically impossible to prevent such an occurrence. In this connection, the testimony is that the usual articles of self-destruction such as knives, razor blades and other obvious instruments are removed from the patient or he is prevented from having access to such objects; but without either constant restraint or constant observation, it is practically impossible to prevent one from committing suicide if he really wants to do so.

Furthermore, the medical testimony indicates that to keep one in constant restriction would make the environment for the patient like a concentration camp and would be counterproductive to his mental improvement.

It is also a fact that while in the infirmary the patient cannot be kept under constant observation at all times because of the privacy screens placed around each bed. While plaintiff was concealed by such a screen, he fastened a robe tie around his neck and committed suicide.

Thus, when all of the facts and circumstances are taken into consideration, we do not believe that the hospital breached its duty toward the plaintiffs son because in some unexplained manner he was able to obtain possession of a robe tie. In our view, the hospital exercised reasonable care to prevent his suicide and it was not unreasonable under the circumstances to permit him to be with other patients where he might obtain a robe tie. There is no proof that the hospital issued a robe to him with a tie, and their observation of Broussard in the infirmary preceding his death was reasonable for his safety.

Since the plaintiff failed to prove a breach of duty, we must reverse the judgment of the trial court and dismiss plaintiff’s suit at her costs.

REVERSED AND RENDERED.


text:
    Warren J. DIXON v. Ira J. SHOCKLEY et al.
    No. 11814.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Writ Refused May 12, 1978.

      Dennis R. Whalen, Baton Rouge, of counsel for plaintiff-appellant Warren J. Dixon.
    W. Luther Wilson, Baton Rouge, of counsel for defendant-appellee Ira J. Shockley et al.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

Plaintiff, Warren J. Dixon, is appealing the granting of a motion for summary judgment dismissing defendant, The Travelers Indemnity Company, in an “officers and executives” liability suit.

Plaintiff was injured while working for Crawford Enterprises and alleges negligence on the part of his supervisor, Ira J. Shockley, defendant, as the cause of the accident. The Travelers Companies had issued a special business policy for multi-peril coverage which included general liability insurance. Plaintiff claims that Travelers covered Crawford’s executive officers because in the policy issued by Travelers to the named insured were, inter alia, Floyd 0. Crawford d/b/a Crawford Enterprises and in the general declarations the named insureds were designed as being an individual, a partnership and a corporation.

A pertinent policy provision is:

“C. Persons Insured — Each of the following is an Insured under this insurance to the extent set forth below:
‡ 4: $ £ ‡ *
“(3) if the Named Insured is designated in the GENERAL DECLARATIONS as other than an individual, partnership or joint venture, the organization so designated and any executive officer, director or stockholder thereof while acting within the scope of his duties as such.” (Record, p. 67)

Plaintiff takes the position that the designation of the named insureds as a “corporation,” coupled with the above language, casts Shockley in the role of an executive officer who should properly be considered as a named insured despite evidence that Crawford Enterprises is a sole proprietorship. Plaintiff also relies heavily on portions of Part XIV of the Louisiana Insurance Code on “The Insurance Contract,” particularly Article 628, which states, in part:

“No agreement in conflict with, modifying or extending the coverage of any contract of insurance shall be valid unless in writing and made a part of the policy. !}: is sf:

Plaintiff further relies on LSA-R.S. 22:655, which states, in part:

“It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured persons, his or her survivors or heirs, to whom the insured is liable; and that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tortfeasor within the terms and limits of said policy. * * *”

The obvious purpose of R.S. 22:655 is to provide liability coverage for the benefit of injured parties where there exists a contract of liability coverage between an insured and an insurance company.

Plaintiff maintains that because the liability provisions of the Travelers policy were issued with the corporation designation that it became a contract for the benefit of third parties and that liability attached and cannot be changed to the detriment of third parties. Travelers introduced evidence to show that Floyd 0. Crawford who was doing business as Crawford Enterprises was not incorporated; that Crawford had no intention to contract to cover Shockley as an executive officer; and that the designation of the named insureds as a corporation was a clerical error committed in an insurance office.

In his Written Reasons for Judgment, the trial judge said:

“The deposition [of Floyd Crawford] has now been furnished to the court and shows that Mr. Crawford did not intend to insure anyone but himself and his wife under said policy; that his business was not incorporated; that he was not a corporation and did not know that a small box marked ‘Corporation’ on the policy had a check mark on it until brought to his attention during the course of the deposition.” (Record, p. 141)

The trial judge further pointed out that the affidavit of John A. Durrett of Wright & Percy Insurance Agency indicated “that a clerical error was made at Travelers’ office” and that the deposition of Crawford and affidavit of Durrett clearly showed “that it was never the intention of the insured or the insurer that any type of corporation coverage be afforded.”

We recognize the rule relied upon by the plaintiff which states that between parties to a contract either party is always permitted to correct any error in the instrument purporting to evidence the contract so as to make it express truly and correctly the intention of the parties, provided the rights of third parties have not intervened and there is further mutuality as to the mistake. Reynaud v. Bullock, 195 La. 86, 196 So. 29 (1940), and the cases therein cited. We also recognize that parol or extrinsic evidence would be inadmissible to show the extent of coverage intended by the parties unless the language of the policy created doubt as to what the parties intended. Liberty Mutual Insurance Company v. Rambin, 185 So.2d 851 (La.App. 2nd Cir. 1966). However, these legal precepts are of no moment to plaintiff unless he can show that some rights accrued to him under the insurance contract as written, whether it had been confected by mistake or otherwise. We find that no such right accrued so as to enable him to recover from Shockley as an executive officer.

We have quoted the salient part of the insurance policy which states, in effect, that only if there is a corporation is there any coverage for “any executive officer, director or stockholder thereof while acting within the scope of his duties.” The record is clear that Crawford was not a corporation, and in the absence of a corporate entity, it would have been impossible for Shockley to have been an executive officer thereof. Thus, the impossibility of coverage under the written terms of the policy prevents the accrual of any right in plaintiff, and we are unable to let him profit by virtue of the alleged mistake or clerical error. We are further convinced that a clerical error does not, ipso facto, create a corporation.

With regard to the subject of impossibility, we refer to LSA-C.C. art. 2031, which provides:

“Every condition of a thing impossible, or contra bonos mores (repugnant to moral conduct) or prohibited by law, is null, and renders void the agreement which depends on it.”

In “Impossible Conditions in Roman and Modern Law: A Summary Review,” 16 Tul. L.Rev. 439 (1942), Dr. Denis A. Cooper writes:

“It may be stated as a primary rule of the civil law governing contracts that any obligation entered into upon an illegal, impossible, immoral or unintelligible condition is void. * * *”

He supports his statement with this impressive footnote:

“ ‘Every condition of an impossible thing or something contrary to good morals or prohibited by law is void and renders invalid the agreement which depends on it.’ Art. 1172, French Civil Code. Similar provisions are found in Art. 564, Argentine Civil Code; Art. 763 Civil Code Bolivia; Art. 678, Civil Code of Costa Rica; Art. 1116, Civil Code of Cuba; Art. 1172, Civil Code of Dominican Republic; Art. 962, Civil Code of Haiti; Art. 1378, Civil Code of Honduras; Art. 1943, Civil Code of Mexico. As to other civil codes, see Pound, op. cit. supra note 1, at p. 55 et seq.; Pound, Legacies on Impossible or Illegal Conditions Precedent, 3 Ill.L.Rev. 1, 11 (1908).”

We must conclude, therefore, that insofar as this case is concerned the provisions of the last paragraph of Section 655 of the Louisiana Insurance Code are not applicable to the Travelers Insurance policy.

For the reasons given, we affirm the judgment of the trial court, with costs to be paid by the plaintiff-appellant.

AFFIRMED.


text:
    INTERNATIONAL CITY BANK AND TRUST COMPANY v. The ROUND TABLE OF LOUISIANA, INC.
    No. 11815.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Rehearing Denied March 20, 1978.
    Writ Refused May 12, 1978.

      Roy F. Cangelosi, Jr., Baton Rouge, of counsel for plaintiff-appellee International City Bank and Trust Co.
    Dennis R. Whalen, Donald C. Theriot, Baton Rouge, of counsel for intervenor-ap-pellant Brook Read & Associates, Inc.
    William T. Robinson, agent for the Round Table of Louisiana, Inc., Baton Rouge, of counsel for defendant-appellee The Round. Table of Louisiana, Inc.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   BLANCHE, Judge.

This is a controversy between two creditors; one is the holder of a conventional mortgage and the other is the holder of a judicial mortgage. Appellee-conventional mortgage holder, International City Bank and Trust Company, is the holder of a note executed by the debtor, The Round Table of Louisiana, Inc. The note was secured by a mortgage in favor of International on file and of record in the office of the Clerk and Recorder of Mortgages in and for the Parish of East Baton Rouge. This mortgage having been executed and duly recorded prior to the creation of the judicial mortgage hereinafter referred to, if valid as to third persons, constitutes a first lien on the property mortgaged to secure International’s debt.

Appellant-judicial mortgage holder, Brooks Read and Associates, Inc., obtained its judgment against Round Table after the execution and recordation of the mortgage in International’s favor.

Subsequently, Round Table defaulted on the note and International filed this execu-tory process action to foreclose the mortgage and Brooks Read intervened. The intervention set at issue the validity of the mortgage as to third persons such as Brooks Read on the grounds that the person who executed the mortgage on behalf of the corporation, Lewis Ray Sleeth, was not duly authorized to so act for the corporation. It is also alleged that said defect appears on the face of the public records since the mortgage itself does not state that he was so authorized, nor was there ever recorded on the face of the public records any written resolution authorizing Sleeth to execute said mortgage.

The judgment of the trial court sustaining the exception of no cause and no right of action filed by the conventional mortgage holder, International, should be affirmed.

The mortgage meets the definition of an authentic act. It was executed before a notary and two witnesses and was duly recorded in the office of the Clerk and Recorder of Mortgages in and for the Parish of East Baton Rouge, LSA-C.C. arts. 2234, 2264 and 3347, and was signed by a person purportedly representing the mortgagor as its president. Its recordation serves as notice of its existence to all who rely on the public records.

The fact that the authority of the president to represent the corporation does not appear in the public records may be a personal defense to the mortgage debtor in a suit for executory process, but it is of no moment to intervenor in the absence of a charge that the mortgage debtor committed some act of fraud or ill practice detrimental to its rights as a judicial mortgage holder. As an intervenor, he may not plead a special defense of the mortgage debtor because he may not object to any defects or infor-malities personal to the original parties. LSA-C.C.P. art. 1094; Pringle-Associated Mortgage Corporation v. Eanes, 197 So.2d 160 (La.App. 1st Cir. 1967); reversed on other grounds, 251 La. 711, 206 So.2d 81 (1968). Had such an objection been made by the mortgage debtor, as noted by the trial judge, then plaintiff could prove the authority of Sleeth to represent the corporation in the execution of the mortgage by any competent evidence including the ratification of such act by the corporation.

Furthermore, appellant does not cite and our independent research does not reveal any statutory or jurisprudential requirement that the authority of the president of a corporation to mortgage the corporation’s property be recorded in order to affect third parties.

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

AFFIRMED.


author: COVINGTON, Judge.

text:
    Stafford RICHE v. STATE FARM FIRE AND CASUALTY COMPANY.
    No. 11777.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Rehearing Denied March 20, 1978.
    Writ Refused May 12, 1978.

      Arthur J. Cobb, Baton Rouge, of counsel for plaintiff-appellant Stafford Riche.
    Frank A. Fertitta, Baton Rouge, of counsel for defendant-appellee State Farm Fire and Cas. Co.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   COVINGTON, Judge.

The plaintiff, Stafford Riche, has appealed the judgment of the trial court dismissing his suit to recover under his homeowner’s policy for loss of his fishing gear which was on the bass boat of Mike Safer. The boat sank during a windstorm in the Toledo Bend Reservoir. We reverse.

On this appeal, the appellant contends that there was coverage under the policy because there was direct loss of property defined as “unscheduled personal property” caused by one of the named perils, “windstorm.” It is the appellee’s contention that “there was no direct loss caused by (a) the wind making waves from surface water; (b) the waves causing the water to flow into the boat; (c) all of which was compounded by a defective bilge pump. This loss was not caused by windstorm, but by the sinking of a boat containing the fishing equipment.” (Emphasis by the ap-pellee).

“Direct loss” has been construed to mean the dominant and efficient cause of the loss, as distinguished from a remote cause. It is sufficient to show that the particular peril was the efficient cause of the loss notwithstanding that another cause or causes contributed to the loss. See An-not., What Constitutes “Direct Loss” Under Windstorm Insurance Coverage, 65 A.L. R.3d 1128, 1136.

In the case of Roach-Strayhan-Holland Post v. Continental Insurance Company, 237 La. 973, 112 So.2d 680 (1959), the Court observed:

“Moreover, since in a great number of factual situations it has been shown that wind is often not the sole contributing cause of the loss or damage, acceptance has been accorded the view that it is sufficient, in order to recover upon a windstorm insurance policy not otherwise limited or defined, that the wind was the proximate or efficient cause of the loss or damage, notwithstanding other factors contributing thereto.”

The trial court’s finding of fact that “Mr. Riche and Mr. Michael Safer were fishing on Toledo Bend Reservoir in a boat owned by Mike Safer, when a windstorm and the resulting waves either caused Mr. Riche’s fishing equipment to wash overboard or cause (d) the boat to sink . . .”, will not be reversed in the absence of manifest error. The testimony of Mr. Safer supports this factual finding. He testified that the high winds came up, the waves got “real rough” and the boat sank “in a matter of a minute.” The only other testimony was that of the plaintiff, which was substantially the same as that of Mr. Safer.

The next issue presented to the trial court was whether or not the policy that Mr. Riche had at the time of the loss limited or excluded coverage for the loss of “unscheduled personal property”, including certain fishing gear.

The trial judge was of the opinion that the section in the policy entitled “Perils Insured Against”, Section 3(c) excluded coverage to watercraft, including furnishings and equipment, while such property was not inside a fully enclosed building.

In his “Oral Reasons for Judgment”, on this point, the trial judge stated:

“There can be no other reading than an exclusion of the property in this case because it was a watercraft that was lost while not in an enclosed building.”

We do not agree. It is not the watercraft with which we are concerned. The claim in the case at bar is for the loss of fishing gear owned by the plaintiff Riche, which formed no part of the furnishings or equipment of Safer’s boat. We find that the fishing gear of Mr. Riche does not fall within the limitations of the “perils” section.

The trial judge also held that coverage was excluded under the exclusion section of the policy. This exclusion section reads:

“This policy does not insure against loss:
3. Caused by, resulting from, contributed to or aggravated by any of the following:
(a) Flood, surface water, waves, tidal water or tidal wave, overflow of streams or other bodies of water, or spray from any of the foregoing, all whether driven by wind or not ...”

This exclusion, when read as a whole, contemplates only such damage caused by water which has risen over and covered areas not ordinarily covered by water. We find that damage caused by windstorm (or resulting waves) over a body of water, such as a lake or reservoir, does not come within the scope of this exclusion. This interpretation is in line with the rule of construction that exclusionary clauses are strictly construed. See Bezue v. Hartford Accident and Indemnity Company, Hartford, Connecticut, 224 So.2d 76 (La. App. 1 Cir. 1969).

Therefore, we hold that this insurance policy contains no limitation or exclusion preventing coverage of the loss of the fishing gear.

Accordingly, the judgment of the trial court is reversed and judgment is hereby rendered in favor of Stafford Riche and against State Farm Fire and Casualty Company in the sum of $1,000.00, at defendant-appellee’s costs.

We deny the plaintiff’s claim for penalties and attorney’s fees; there is no evidence in the record to support his allegation of arbitrariness, capriciousness, unreasonableness or bad faith on the part of the insurer.

REVERSED AND RENDERED.

      . Coverage B of the homeowner’s policy provides that:
      “This policy covers unscheduled personal property usual or incidental to the occupancy of the premises as a dwelling and owned or used by an insured, while on the described premises and, at the option of the Named Insured, owned by others while on the portion of the premises occupied exclusively by the Insured.
      “This coverage also includes such unscheduled personal property while elsewhere than on the described premises, anywhere in the world: (1) owned or used by an insured . .

      . This section reads:
      “3. Windstorm or hail, excluding loss:
      (a) Caused directly or indirectly by frost or cold weather or ice (other than hail), snow or sleet, all whether driven by wind or not;
      (b) Caused by rain, snow, sand or dust, all whether driven by wind or not .
      (c)To watercraft (except rowboats and canoes on premises) including their trailers, furnishings, equipment and outboard motors while such property is not inside fully enclosed buildings.”

      . Under Coverage B(3), the insured’s liability for unscheduled personal property away from the premises is 10% of the limits for unscheduled personal property (in this case, $10,-000.00), “but in no event less than $1,000.” Plaintiff claimed a loss of over 300 items, rods, reels, lures, et cetera, of a total value of $1,051.53.


author: CHIASSON, Judge.

text:
    John B. BUNCH, Jr. and Sharon Bunch v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
    No. 11811.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 1978.
    Rehearing Denied March 20, 1978.

      Donna D. Fraiche of McCollister, Belcher, McCleary, Fazio, Mixon, Holliday & Jones, Baton Rouge, for plaintiffs.
    Don M. Arata, Bogalusa, for defendant.
    Before BLANCHE, COVINGTON and CHIASSON, JJ.
   CHIASSON, Judge.

Defendant-appellant, South Central Bell Telephone Company, appeals a judgment awarding plaintiffs-appellees, John B. Bunch, Jr. and Sharon Bunch, the sum of $3,315.00 in damages for expenses incurred and loss of profits to plaintiffs’ business due to the negligent listing of plaintiffs’ business competitor’s telephone number as that of plaintiffs’ in the defendant’s telephone directory during the period of September, 1975 to September 1976.

Plaintiffs answered the appeal seeking to increase the amount of the award to $5,000.00 and requesting an award for expert witness fees in the amount of $150.00.

The facts giving rise to this suit are as follows:

In April of 1975 plaintiffs purchased a franchise from the Creole Corporation for the operation of the Tastee Freez drive-in food service business located at 622 Rio Grande in Bogalusa, Louisiana, which had been previously operated by Mr. Clinton Barber. At the time plaintiffs began their operation of the Tastee Freez, there was no telephone listing since Mr. Barber had retained the existing phone number and opened a Tasty Creme drive-in food service business located at 1211 Sunset Drive, also in Bogalusa. The telephone company’s directory assistant started giving the wrong number for Tastee Freez as soon as plaintiffs went into business.

In the telephone directory of September, 1975, the listing was as follows:

“Tastee Freez 1211 Sunset Dr _732-2123
Tastee Freez 622 Rio Grande__732-7300
Tasty Creme 1211 Sunset Dr _732-2123”

Consequently, if the first listing of Tastee Freez was called by a customer they would actually reach plaintiffs’ competitor, Tasty Creme.

In Reasons for Judgment the trial court concluded: “Under the jurisprudence of this state there is no question of defendant’s liability for these incorrect listings whether for breach of contract or sounding in tort.” And, with respect to damages, the trial court concluded:

“The evidence indicates that plaintiff had a loss in business of around $1000.00 per month from September of 1975 until September of 1976 when the new directories came out with the correct listing. The evidence further indicates a profit margin of 12% of gross sales. Consequently, a $1440.00 loss can be attributed to the incorrect listing. In addition there are advertising costs over and above normal in an attempt to overcome the error. Bills in the amount of $750.00 were introduced. At least 50% of these are attributable to the incorrect listing, or $375.00. “The correct listing came out in August of 1976, and plaintiffs continued to operate the business until March of 1977. The business never regained its former level of profit. However, it is entirely too speculative to fix with a degree of mathematical certainty any loss of profits carrying over from the incorrect listing during the period the business was open under a correct listing.
“Loss of profits must be proved with reasonable certainty. Falcon v. South Central Bell Telephone Co., 327 So.2d 631. However,
‘Notwithstanding the absence of “provable damages” . . . (T)he provisions of LSA-R.C.C. Art. 1934, Par. 3 afford recovery when damage cannot be proven with precise mathematical certainty. . . . ’ Falcon v. South Central Bell Telephone Co., supra, at pg. 632.
“It is apparent that the incorrect listing damaged plaintiff to some extent after the listing was corrected, since obviously some business was lost from the incorrect listing which was never recovered. Although this loss is not provable with mathematical certainty the Court finds that an additional $1500.00 will compensate plaintiff for defendant’s negligence.”

South Central Bell asserts the following assignment of errors:

“1. There was no evidence that defendant breached its contract with plaintiffs.
•“2. Plaintiffs’ sole complaint concerns listing ‘Tastee Freez’ at an incorrect address and with an incorrect number; plaintiffs were not the exclusive owners of the ‘Tastee Freez’ name and Creole Corporation has not objected.
“3. Plaintiffs failed to show any damages with legal certainty, and nonpecuni-ary damages are not proper in this case.
“4. If plaintiffs were damaged, and damages were proven, the amount is limited by the contract to abatement of charges.”

South Central Bell first contends that it published all listings requested by plaintiffs, that there were no omissions, and that therefore it should not be liable to plaintiffs for breach of contract.

The evidence supports a finding that South Central Bell fulfilled its obligations under the contract, however, plaintiffs’ claims, as well as the basis for the judgment of the trial court, were not limited to the contract between the parties. South Central Bell negligently listed the phone number of plaintiffs’ competitor’s business as that of plaintiffs’ business immediately before that of plaintiffs’ correct listing. Plaintiffs’ business suffered injury as a result of the preceding incorrect listing notwithstanding the fact that plaintiffs’ listing was correct. Article 2315 of the Civil Code provides: “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

South Central Bell further contends that plaintiffs have no cause to complain about the incorrect listing because plaintiffs were not the exclusive owners of the “Tas-tee Freez” name, and Creole Corporation has not objected. However, there was no other “Tastee Freez” in the area; consequently, South Central Bell had no reason to make such a listing. Furthermore, the injury lies not in the listing of the name “Tastee Freez”, rather it lies in the listing of that name together with that of plaintiffs’ competitor’s phone number and address. Therefore, we find no merit in South Central Bell’s second contention.

South Central Bell next asserts that plaintiffs failed to show any damages with legal certainty. We cannot agree. The award for loss of profits and increased advertising expenses attributable to the incorrect listing was amply supported by credible evidence. As to that portion of the trial court’s judgment which awarded $1,500.00 to plaintiffs for damages occurring after the listing had been corrected, we affirm as being within the “much discretion” granted to trial judges by the last paragraph in La.C.C. Art. 1934(3).

Finally, South Central Bell asserts that damages should be limited by the terms of their contract to abatement of the charges. Having determined that plaintiffs’ cause of action is not one in contract, there is no merit in this contention.

The damages awarded are within the trial court’s discretion and plaintiffs’ request for an increase thereof is denied.

Finally, there is no evidence of record upon which to support an award of expert witness fees.

The judgment of the trial court is therefore affirmed at defendant-appellant’s costs.

AFFIRMED.


author: WICKER, Judge.

text:
    Elsie SERPAS v. NEW ORLEANS PUBLIC BELT RAILROAD.
    No. 8796.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 14, 1978.

      Frank J. D’Amico, New Orleans, for plaintiff-appellant.
    Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Raymond J. Salassi, Jr., New Orleans, for defendant-appellee.
    Before GULOTTA, SCHOTT and WICKER, JJ.
   WICKER, Judge.

Plaintiff appeals from a judgment dismissing her suit for personal injuries sustained as a result of an accident between her automobile and a defendant train. The collision occurred at approximately 6:30 a. m. on December 24,1974 at a railroad crossing on the eastbound side of Chef Menteur Highway near France Road in the City of New Orleans.

Testifying on behalf of plaintiff, in addition to herself, was the investigating police officer. Defendant introduced the testimony of their train crew and an independent eye witness, Warren P. Borras.

Plaintiff testified she left home at 6 a. m. to go to work, traveling the same route on Chef Menteur Highway, as she had for the past three months. Because of heavy fog she was proceeding at 10 miles per hour. Her headlights and windshield wipers were on. She stopped at a red light two blocks from the France Road intersection. When the light changed she proceeded toward France Road in the left-hand lane of traffic and slowed down before reaching the tracks. She looked around as far as possible, but because of heavy fog she could see nothing. Nor did she hear bells, whistles or railroad signals at the crossing prior to the accident. About 150 feet from the intersection, where the tracks cross Chef Menteur Highway, her automobile was struck by the “cowcatcher” of the train, damaging the left front fender of her automobile and injuring plaintiff, breaking her legs.

On cross examination it was established that in answer to interrogatories plaintiff had stated she saw a signal light as she approached the tracks and heard the train whistle blow at that time. Then she applied her brakes. In a deposition plaintiff stated she had heard a train whistle while she was being struck. At the trial she denied hearing or seeing anything at all until after the accident.

The investigating police officer, who arrived one hour after the accident, testified he spoke with the engineer who stated the flashing signal was not working, so he sounded the bell and then the car ran into the train.

The engineer testified the train, which consisted of 28 cars, was traveling on the inside track near the Chef-France Road crossing at a speed of 4 to 5 miles per hour. The weather was a light haze. He had a clear view of eastbound traffic as he approached the Chef crossing. The bell was on, the front train light was on, and the whistle was blowing. The train crossed the westbound track and about 40 to 50 feet from the eastbound side he noticed a car stopped on the curb side of the road, and plaintiff’s automobile on the neutral ground side of the road proceeding directly into the path of the train. Plaintiff did not appear to see the train, so he immediately put his engine in emergency which automatically sets the brakes. However, it was too late to avoid the accident and plaintiff’s vehicle ran into the front steps of the train which are located at the front of the engine on the right side. The testimony of the railroad employees is essentially the same as that of their engineer. They agree that the whistle was blowing and the signals were working.

Of particular importance is the testimony of Warren Borras, the only independent eye witness. Borras testified: He was on his way to work proceeding on Chef Menteur Highway in the far right-hand lane of traffic, i. e., the curb side. When he approached France Road he saw the train approaching and brought his vehicle to a stop. The train was on the left-hand, or opposite side of the street from him, moving from left to right. He saw two flashing lights, heard the horn, saw the train light and heard the bell ringing. He contemplated trying to get across the tracks before the train, but realized he did not have time. Plaintiff passed his car in the left-hand lane at a high rate of speed and struck the train. This witness immediately got out of his car and went to assist plaintiff.

Appellant contends: (1) The trial court erred in disregarding the testimony of the investigating police officer; and (2) defendant violated Traffic Ordinance 38-103 of the City of New Orleans, in failing to have a crossing gate lowered, or a flagman present.

We do not agree with appellant’s first contention. The officer was not an eye witness, nor was he the only disinterested witness. Nor do we agree that the trial court disregarded this officer’s testimony.

Relative to appellant’s second contention, we are of the opinion that the trial court found, and we agree, that defendant has not violated any provisions of Traffic Ordinance 38-103. According to a preponderance of the evidence, the lights and signals were working and warning signals were given which plaintiff could have and should have seen and heard. Thus, we fail to see wherein the circumstances surrounding the crossing involved in this litigation were such to require additional warnings when defendant train was in the act of traversing this intersection.

In Sule v. Missouri Pacific Railroad Company, La.App., 181 So.2d 280, at 283, this court said:

“Our settled jurisprudence is that, in negotiating a railroad crossing, the driver of a motor vehicle must use his senses of sight and hearing for possible oncoming trains; he is burdened with the responsibility of seeing and hearing that which he might and could have seen and heard; he is required to use such care as is commensurate with the existing danger; and, if his view of the right-of-way is obstructed, he must use a higher degree of caution.”

The presence of heavy fog or mist does not make an ordinary crossing a dangerous trap or a blind corner.

In the instant case, plaintiff was familiar with the intersection and, if the fog was thick as she claims, she was under an even greater duty to proceed with caution. Yet, plaintiff never saw the train until impact. She also failed to hear the bell and whistle which all of the other eye witnesses heard, or if she did hear it, as she averred in her deposition and interrogatories, she failed to take any evasive action.

Even if there was no negligence on the part of plaintiff, we cannot hold the defendant liable, for we find no negligence in the operation of the train, and where there is no fault there can be no liability under LSA-C.C. Art. 2315. We conclude that the defendant was in no way negligent and at all times acted properly and in conformance with its legal duties.

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

AFFIRMED.

      .“Section 38-103. Obedience to signal indicating approach of railroad train.
      Whenever any person driving a vehicle approaches a railroad grade crossing under any of the circumstances stated in this section, the driver of such vehicle shall stop not less than fifteen feet (15') from the nearest rail of such railroad and shall not proceed until he can do so safely. The foregoing requirements shall apply when:
      (1) A clearly visible electrical or mechanical signal device gives warning of the immediate approach of a railroad train; or
      (2) A crossing gate is lowered or a human flagman gives or continues to give a signal of the approach or passage of a railroad train; or
      (3) A railroad train approaching within approximately fifteen hundred feet of the highway crossing emits a signal audible from such distance and such railroad train by reason of its speed or nearness to such crossing is an immediate hazard; or
      (4)An approaching railroad train is plainly visible and is in hazardous proximity of such crossing.
      No person shall drive any vehicle through, around or under any crossing gate or barrier at a railroad grade crossing while such gate or barrier is closed or is being opened or closed. (M.C.S., Ord. No. 3816, § 1, 6-6-68.)”

      . See also Watts v. New Orleans Public Belt Railroad, La.App., 287 So.2d 812; Kavanaugh v. Travelers Insurance Company, La.App., 203 So.2d 780; Bertrand v. Missouri Pacific Railroad Company, La.App., 160 So.2d 19.

      . Breaux v. Texas and Pacific Railway Company, La.App., 176 So.2d 640; Gray v. Illinois Central Railroad Company, La.App., 132 So.2d 61; Guidry v. Texas & N. O. R. Co., La.App., 56 So.2d 611.


author: JOHNSON, Judge.

text:
    LOUISIANA RESOURCES COMPANY v. William Arthur FISKE et al. LOUISIANA RESOURCES COMPANY v. Harold H. STREAM, III, Trustee, et al. LOUISIANA RESOURCES COMPANY v. Alice Kurtz ARGUELTO, Trustee, et al. LOUISIANA RESOURCES COMPANY v. Matilda Gray STREAM et al. LOUISIANA RESOURCES COMPANY v. Joseph D. ROBERTS et ux.
    Nos. 5933-5936, 5938.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 16, 1978.

      Camp, Carmouche, Palmer, Carwile & Barsh, A. J. Gray, III, Lake Charles, for defendants-appellants.
    Hargrove, Guyton, Ramey & Barlow, Michael R. Mangham, Shreveport, Jones, Jones & Alexander by Jerry G. Jones, Cameron, for plaintiff-appellee.
    Before GUIDRY, FORET and JOHNSON, JJ.
   JOHNSON, Judge.

The above numbered and entitled matter was consolidated for trial in the District Court with the following cases: Louisiana Resources Company v. Harold H. Stream, III, Trustee, et al., our Docket Number 5934; Louisiana Resources Company v. Alice Kurtz Arguello, Trustee, et al., our Docket Number 5935; Louisiana Resources Company v. Matilda Gray Stream, et al., our Docket Number 5936; and Louisiana Resources Company v. Joseph C. Roberts, et ux., our Docket Number 5938. These cases remain consolidated on appeal and we decide all of these cases today. The facts and law are common to each case.

These cases have been before this Court at other times on other phases of the cases. The only question before this Court at the present time is to determine who will be cast for court costs. The trial court east the defendants in the same proportions as the amounts awarded them for their respective properties. Defendants appeal.

These cases were tried by a jury and awards have been made to the defendants for the pipeline rights-of-way. The evidence shows that in every one of the cases, the jury awarded much less to the defendants than had been offered to them by the plaintiff prior to the institution of the suits. From our analysis of the record, we have found the offers and the awards to be as follows:

Our Docket Amount Amount Offered Awarded by Jury
5933 $ 4,130.00 $ 1,250.00
5934 31,106.15 27,475.00
5935 17,635.20 9,775.00
5936 11,237.10 9,050.00
5938 420.00 200.00

The trial court held, on the basis of the evidence presented, that it would have been a vain and useless thing for the plaintiff to have made an actual tender of the amounts offered. Accordingly, the trial court, relying on Louisiana Highway Commission v. Bullis, 197 La. 14, 200 So. 805 (La.1941) and American Tel. & Tel. Co. of La. v. Maguire, 219 La. 740, 54 So.2d 4 (La.1951), concluded that a tender under LSA-R.S. 19:12 was not required; and, considering that the jury award was considerably less than the amounts offered, assessed all costs to the defendants.

We feel that the able trial judge has correctly analyzed the factual situation and has applied the appropriate law. Accordingly, we adopt and quote his reasons for judgment as our own. His opinion follows:

“These expropriation cases were consolidated and tried before a jury. The awards to the respective landowners were less than the amounts offered them by the plaintiff prior to institution of the suits, and the court must now determine who is liable for court costs.”

“The legal issue presented is whether an actual tender of the true value of the property expropriated or merely an offer thereon (and a refusal by the landowner) is required under the provisions of LSA-R.S. 19:12, which reads as follows:

‘If a tender is made of the true value of the property to the owner thereof, before proceeding to a forced expropriation, the costs of the expropriation proceedings shall be paid by the owner.’

“In support of its position that the defendants should be assessed with the costs, even though no actual tender was made, the plaintiff relies principally on two decisions of the Louisiana Supreme Court, Louisiana Highway Commission vs. Bullis, 197 La. 14, 200 So. 805 (1941) and American Tel. & Tel. Co. of La. vs. Maguire, 219 La. 740, 54 So.2d 4 (1951).”

“In Bullis the court said:
‘The evidence in this case shows that an agent of the Commission carried on negotiations with the defendants with a view of amicably acquiring the right-of-way in controversy without exercising the rights of expropriation and that the defendant Bullis, who is also of counsel for his co-defendants, informed the agent the least amount the defendants would take for the land was $150 an acre, this to be exclusive of any damage to crops, which amount the agent considered excessive and so informed defendant Bullis. This is admitted by the only defendant who testified in this case, J. B. Thomas.’
‘(3) The jurisprudence in our state conforms with the universal rule of law to the effect that a formal tender is not required, where it would be of no avail. * * * The reason for this rule is that the law does not require anyone to do a vain and useless thing.’
‘(4) Under the facts in this case a tender was unnecessary unless the Louisiana Highway Commission was willing to pay the defendants at least the amount of $150 an acre — more than twice the actual value of the land as found by the jury.’ (200 So. 806. Underscoring by this court.)
“In Maguire the court said:
‘Counsel also assert that the trial judge erroneously assessed costs against defendant because the evidence does not disclose that any offer was made as compensation for the damages sustained.’ ‘We find no merit in the point. Article 2638 of the Civil Code declared that the costs in expropriation proceedings may be taxed against the owner where there has been a tender of the true value of the land and it was held in Louisiana Highway Commission v. Bullis, 197 La. 14, 200 So. 805, that the tender provided for by the Article is not essential when it would be of no avail. While it is true in the case at bar that no specific sum was offered as damages, it clearly appears from defendant’s testimony that none was necessary as he was steadfast in his position that he would resist the granting of the right of wav at the particular location designated bv plaintiff, stating that “I would not accept any sum of money to let them go where they had the line * * *”.’ (54 So.2d 5. Underscoring by this court.)

“On the other hand, the defendants have cited numerous decisions, mostly from the Courts of Appeal, which generally state that to avoid the imposition of court costs the expropriating authority must ‘tender’ the true value of the property. However, none of the opinions in these cases, except Collins Pipeline Company vs. New Orleans East, Inc., 250 So.2d 29 (La.App. 4 Cir. 1971), clearly reflect that the real issue with respect to assessment of court costs was whether there was an actual tender as opposed to an offer of the true value of the land and whether the evidence revealed that such a tender would have been to no avail and a vain and useless thing. In Collins the Court said:

‘We can find no evidence of a tender made by Collins. The trial judge properly refused evidence which would have established a “final offer” bv Collins because unless there was a tender Collins could not avoid court costs. Therefore, it was error for the trial court to cast each party for its own costs and this portion of the judgment will be reversed and remanded for a determination of costs, including expert witness fees to be paid by Collins.’ (Page 38. Underscoring by this court.)”

“However, that case was remanded for further proceedings and the refusal of writs by the Supreme Court was based simply on the fact that the judgment was not then final. This court is not aware of any decision by the Louisiana Supreme Court altering the rule of law set forth in the Bullis and Maguire cases.”

“From its review of the jurisprudence on this subject, the court concludes that to avoid liability for court costs in an expropriation proceeding the plaintiff must make an actual tender, equal to or more than the amount finally awarded to the landowner, prior to institution of the suit, unless the facts and circumstances of the case clearly indicate such tender would have been a vain and useless thing. In the latter situation, a bona fide offer in that amount, and its refusal, will necessitate taxing the court costs to the landowner.”

“Turning now to the facts of these suits, it was stipulated that no actual cash tender was made to any of the defendants. However, it was further agreed that oral and written offers in excess of the amounts of the verdicts rendered by the jury in each case, were made to the defendants before the suits were filed. Mr. Jerry G. Jones, one of the attorneys for the plaintiff, testified that he met with the attorneys for the defendants on several occasions to negotiate the acquisition of the rights-of-ways and submitted written offers. However, he was informed by such attorneys the plaintiff’s offers had been discussed with all of their clients in these cases and they would not accept same. No counter offers were made. Mr. Jones’ testimony on the subject was uncontradicted. ’ ’

“There is no indication whatsoever in the record that any of these defendants would have accepted the amounts offered and granted the rights-of-way prior to the institution of the suits. Nor did they give Mr. Jones any indication that they wanted to discuss the matter any further when he submitted the last offer shortly before the suits were filed. The inescapable conclusion is that the defendants then would not have accepted actual cash tenders in the lesser amounts awarded by the jury. Certainly, under these circumstances actual tenders of the amounts awarded the respective landowners for their land and losses would have been to no avail and a vain and useless thing. Therefore, under the law the landowners are liable for the court costs.”

“For the foregoing reasons, there will be judgment herein assessing the costs of court to the defendants in each of the cases in the same proportions as the amounts awarded them for their respective properties. The fees of the experts who testified at the trial of these cases will be fixed as follows:

Mr. William B. Coleman .$4,300.00
Mr. Dan A. Ritchie.$4,300.00
Mr. Norman Terry .$3,000.00

and taxed as costs.”

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are taxed against the appellants.

AFFIRMED.


author: FORET, Judge.

text:
    Mrs. Sharon ROBBINS, Plaintiff-Appellant, v. ESTATE of Camille BORDELON, Defendant-Appellee.
    No. 6480.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 24, 1978.

      Nel F. Vezina, Gretna, for plaintiff-appellant.
    Laborde & Lafargue by C. E. Laborde, Jr., Marksville, for defendant-appellee.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   FORET, Judge.

MOTION TO DISMISS

Because an examination of this record revealed an apparent jurisdictional defect, we issued, ex proprio motu, a rule to show cause why this appeal should not be dismissed due to the appellant’s failure to timely file the appeal bond required by her order of appeal dated November 8, 1977. The appellant has timely responded to the rule.

Plaintiff-appellant filed this suit on June 6, 1977. On September 23, 1977, the trial judge signed a final judgment sustaining defendant-appellee’s exception of no cause or right of action, dismissing plaintiff-appellant’s suit.

On November 8,1977, the plaintiff moved for and was granted a devolutive appeal, returnable to this court on December 9, 1977. Bond was set at $300.00. The plaintiff filed her appeal bond on December 7, 1977.

Since the case was not taken under advisement, nor was a request for notice made, no notice of the signing of the judgment was required. LSA-C.C.P. art. 1913. Thus, the delay for applying for a new trial began on September 26, 1977, and ended on October 4, 1977. LSA-C.C.P. art. 1974. Under LSA-C.C.P. art. 2087, the plaintiff had until December 5, 1977 (December 4 being a Sunday) within which to furnish her security. Since the appeal bond was not filed until December 7, 1977, the appeal must be dismissed.

The plaintiff-appellant’s appeal is hereby dismissed at her cost.

APPEAL DISMISSED.


author: WATSON, Judge.

text:
    TENNESSEE GAS PIPELINE COMPANY v. ADMINISTRATOR, DEPARTMENT OF EMPLOYMENT SECURITY of the State of Louisiana, et al.
    No. 6341.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1978.
    Writ Granted April 28, 1978.

      Shotwell, Brown & Sperry, by George M. Wear, Jr., Monroe, for plaintiff-appellant.
    James A. McGraw, Baton Rouge, Gaddie Scroggins, Natchitoches, for defendant-ap-pellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   WATSON, Judge.

The issue is whether a retired employee who received a lump sum settlement of his rights to a pension fund to which both he and the employer had contributed is disqualified for unemployment compensation' benefits under the terms of LSA-R.S. 23:1601(7)(c) , which provides essentially that a person may not collect unemployment compensation for a week when he is receiving or has received payments under a pension plan to which his employer has contributed.

The employee, Gaddie Scroggins, retired and chose to take his pension in a lump sum of $55,951.87 instead of under various monthly options. Scroggins had contributed $4,844.22 to the retirement fund. Tennessee Gas Pipeline Company, Scroggins’ former employer, contends that he is not entitled to unemployment compensation because of the pension payment, although he is otherwise eligible.

Defendant, Administrator, Department of Employment Security of the State of Louisiana, through hearings and appeals as provided by statute, concluded that Scrog-gins was disqualified for unemployment benefits only during the week in which he received the lump sum payment. In reaching the decision the board of review of the department applied the department’s policy of not prorating a lump sum payment. The case of Hale v. Gerace, 324 So.2d 558 (La. App. 1 Cir. 1976), writ denied, La., 326 So.2d 344, was cited as authority.

The matter was appealed to the Tenth Judicial District Court and the decision of the board of review was affirmed by the trial court.

Our review is limited to questions of law. LSA-R.S. 23:1634.

The question is whether Scroggins is considered to have received remuneration for any week other than the one in which he took the lump sum payment. The statute does not require or forbid proration; the department has declined to prorate, as a matter of policy. This appears to be a legislative problem. The statutes governing payments of unemployment compensation benefits are to be liberally construed in favor of the employee, Lambert v. Brown, 169 So.2d 4 (La.App. 2 Cir. 1964), and Southern Hardware and Lumber Company v. Vesich, 250 So.2d 780 (La.App. 4 Cir. 1971).

“The Louisiana Employment Security law is remedial social legislation. It is to be construed liberally and in the interest of the statute’s beneficiaries.” In Matter Of The Claims Of Parker, et al., v. Gerace, et al., 354 So.2d 1022 at 1025 (La., 1978).

The Department of Employment Security has not exceeded its authority by declining to prorate.

The judgment of the trial court and the judgment of the Board of Review of the Louisiana Division of Employment Security are affirmed. Costs of these proceedings on appeal are taxed against appellant, Tennessee Gas Pipeline Company.

AFFIRMED.

      . LSA-R.S. 23:1601(7)(c):
      “(7) For any week with respect to which he is receiving or has received remuneration in the form of:
      * * * * * *
      “(c) payments under any retirement or pension plan, system or policy provided by a private employer or the state of Louisiana and any of its instrumentalities or political subdivisions, and towards the cost of which a base period employer is contributing or has contributed on behalf of the individual.”


text:
    Hulon B. JOHNSON, Jr., et al. v. Mrs. Bonnie BARDIN.
    No. 50124.
    Supreme Court of Mississippi.
    March 8, 1978.
    Kellis L. Madison, R. L. Houston, Jackson, for appellants.
    Bob L. McHann, Clinton, for appellee.
   Appeal from Chancery Court, Hinds County; J. C. Stennett, Chancellor.

Before SMITH, P. J., ROBERTSON and LEE, JJ., and FRED P. WRIGHT, Commissioner.

AFFIRMED.


text:
    James B. ROBERTS, personal representative of Ira Roberts, Deceased v. Doyle WEBB, Exec. of the Estate of W. H. Webb, Deceased.
    No. 50150.
    Supreme Court of Mississippi.
    March 8, 1978.
    George S. Shaddock, Pascagoula, for appellant.
    Curtis Breland, Leakesville, for appellee.
   Appeal from Chancery Court, Greene County; Rex Gordon, Chancellor.

Before SMITH, P. J., ROBERTSON and LEE, JJ., and FRED P. WRIGHT, Commissioner.

AFFIRMED.


author: WALKER, Justice,

text:
    Martha Schuh SMITH v. Mrs. Nelda T. HINTON.
    No. 50091.
    Supreme Court of Mississippi.
    March 8, 1978.
    David A. Harris, William E. McLellan, III, Jackson, for appellant.
    Satterfield, Allred & Colbert, William L. Colbert, Jr., Jackson, for appellee.
   WALKER, Justice,

for the Court.

AFFIRMED.


text:
    Alice GOOD v. John F. COOKE.
    No. 50171.
    Supreme Court of Mississippi.
    March 15, 1978.
    John B. Gee, Everette Verhine, Vicksburg, for appellant.
    Shell, Buford, Bufkin, Callicutt & Perry, Richard S. Bush, Cary E. Bufkin, Jackson, for appellee.
   Appeal from Circuit Court, Adams County; Lenox L. Forman, Judge.

Before PATTERSON, C. J., and BROOM and BOWLING, JJ.

AFFIRMED.


text:
    Jimmy E. GARRETT, Jr. v. Dallyjean Bailey GARRETT.
    No. 50575.
    Supreme Court of Mississippi.
    March 15, 1978.
    Joe L. Tennyson, Charleston, for appellant.
    Schissel & Stuckey, Luke J. Schissel, Greenwood, for appellee.
   Appeal from Chancery Court, Tallahat-chie County; Harvey T. Ross, Chancellor.

Before SMITH, P. J., and WALKER and LEE, JJ.

AFFIRMED.


text:
    Ulyess Louis BROWN v. STATE of Mississippi.
    No. 50332.
    Supreme Court of Mississippi.
    March 15, 1978.
    E. R. Arrington, Hazlehurst, for appellant.
    A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Copiah County; Joe N. Pigott, Judge.

Before SMITH, P. J., and ROBERTSON and LEE, JJ.

AFFIRMED.


text:
    OPINION OF THE JUSTICES.
    No. 239.
    Supreme Court of Alabama.
    Jan. 24, 1978.
   To the Members of the

House of Representatives

State Capitol

Montgomery, Alabama 36130

Dear Sirs and Mesdames:

We acknowledge receipt of House Bill No. 212.

This bill seeks to amend § 2 of Act No. 248, Acts of Alabama, 1945 Regular Session, p. 377, as amended, relating to the establishment of a county civil service system for certain counties, so as to include police officers and firemen who are employed by municipalities, whose population is 2,500, or more, according to the 1970, or any subsequent federal decennial census that are located in counties having a population of 400,000 or more inhabitants according to such census. Your question is: Must House Bill No. 212, a proposed local law, conform with § 106, Constitution 1901, as amended by Amendment No. 341, even though it would amend a presumably general law, to-wit, Act No. 248? Our answer is yes.

This court, in Peddycoart et al. v. City of Birmingham, 354 So.2d 808 (1977) held that general laws, with local application, are no longer constitutionally permissible. The court said the decision would be applied prospectively. House Bill No. 212 proposes local legislation, and, even though it would amend an act approved July 6, 1945, its effect would be prospective — not retroactive. In other words, the amendment would not revert back to 1945.

We conclude that the proposed bill would have to be advertised in accordance with the terms of § 106, Constitution 1901, as amended by Amendment No. 341. We express no opinion as to any other constitutional aspect of House Bill 212 not raised by House Resolution 58.

Respectfully submitted,

TORBERT,

Chief Justice

BLOODWORTH

MADDOX

FAULKNER

ALMON

SHORES

EMBRY

BEATTY

Justices.


author: BEATTY, Justice.

text:
    ELBA WOOD PRODUCTS, INC., a corporation, et al. v. Guy E. BRACKIN et al.
    SC 2471.
    Supreme Court of Alabama.
    Jan. 27, 1978.

      Alan C. Livingston of Lee & Mclnish, Dothan, for appellants.
    Kenneth W. Hooks of Pittman, Whittaker & Hooks, Enterprise, for appellees.
   BEATTY, Justice.

This is an appeal by the defendants, Elba Wood Products, Inc. and C. G. Nicholson, from a $30,000 judgment based on a jury verdict awarded to plaintiffs, Guy E. Brac-kin and United States Fidelity and Guaranty Company (USF&G), by the Circuit Court of Coffee County. We affirm.

Plaintiff Brackin, of Enterprise, is an experienced log truck driver in his mid-thirties, employed by his brother, R. M. Brac-kin, d/b/a Brackin Timber Company. On May 16, 1973, while on defendant Elba Wood Products’ woodyard in Elba, plaintiff was injured by a log which fell from plaintiff’s truck as the truck was about to be unloaded. As a result of the accident plaintiff’s right leg was broken, and his left leg was so severely injured that it had to be amputated.

Plaintiff brought suit alleging that defendants were negligent and/or subsequently negligent in causing or allowing a portion of the logs to fall from the truck and/or failing to provide protection for the plaintiff or assistance to the plaintiff with and by the use of a forklift. The defendants contended that the plaintiff was guilty of contributory negligence and/or subsequent contributory negligence, alleging that plaintiff commenced and continued with the unloading procedure knowing that the forklift was not yet braced against the logs and thus could not provide protection for the plaintiff.

The defendants’ first motion to dismiss was granted. The plaintiff then amended his complaint to add as party-plaintiff USF&G, the workmen’s compensation carrier for plaintiff’s employer. USF&G appeared and claimed in subrogation the sum of $14,356.75. Defendants’ second motion to dismiss was denied. Defendants’ answer was a general denial and a plea of contributory negligence on the part of the plaintiff.

At the conclusion of plaintiff’s (Brackin’s) ease, defendants’ motion for a directed verdict was denied. At the close of all evidence defendants refiled the motion for directed verdict and again it was denied. After the jury verdict in plaintiff’s favor and the judgment thereon, defendants filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial. Both motions were denied, whereupon defendants perfected this appeal.

Defendants raise four issues:

1. Whether plaintiff presented sufficient evidence to carry his burden of proof.

2. Whether evidence tending to show improper medical treatment by the hospital was admissible.

3. Whether a charge to the jury that the plaintiff might recover if the jury believed “the truthfulness of plaintiffs claim” was proper.

4. Whether plaintiff proved any entitlement to a recovery for future medical expenses.

The first issue raised by defendants is that the plaintiff failed to present sufficient proof to carry his burden of proof on alleged negligence and/or subsequent negligence of the defendants.

On many previous occasions this Court has stated the requisite elements of negligence and subsequent negligence. “Negligence” is the failure to do what a reasonably prudent person would have done under the same or similar circumstances, or the doing of something which a reasonably prudent person would not have done under the same or similar circumstances. Sanders v. Scarvey, 284 Ala. 215, 224 So.2d 247 (1969). In every action grounded upon negligence there are three essential elements to a right of recovery. First, a duty owed by the defendant to the plaintiff; second, a breach of that duty; and third, an injury to plaintiff in consequence of that breach. Sammons v. Garner, 284 Ala. 131, 222 So.2d 717 (1969). To predicate liability on “subsequent negligence” it must be shown that plaintiff was in peril and that defendant had actual knowledge of plaintiff’s peril but negligently failed to prevent the accident when he had the means available to do so. Scotch Lumber Co. v. Baugh, 288 Ala. 34, 256 So.2d 869 (1972); Hulsey v. Illinois Central R. Co., 242 Ala. 136, 5 So.2d 403 (1942).

Under the facts of this case, plaintiff was a “business invitee” of defendants. Winn-Dixie Montgomery, Inc. v. Rowell, 52 Ala.App. 1, 288 So.2d 785, cert. den., 292 Ala. 758, 288 So.2d 792 (1973). See Annotation, 86 A.L.R.2d 1399 (1962). Accord, Nowell v. Harris, 219 Miss. 363, 68 So.2d 464 (1953), where a truck driver delivering lumber for his employer to the buyer’s lumber yard was a “business invitee” of lumber yard operators. Thus defendants owed plaintiff the duty not to injure him negligently, willfully or wantonly. Farmers' and Merchants’ Warehouse Co. v. Perry, 218 Ala. 223, 118 So. 406 (1928).

Whether there is negligence on the part of an invitor or invitee necessarily depends upon all the facts and circumstances in each particular case. First National Bank of Mobile v. Ambrose, 270 Ala. 371, 119 So.2d 18 (1960).

The facts in this case show that the plaintiff had never been to the defendants’ woodyard prior to the day of the injury. Plaintiff’s log truck, which was specifically designed to carry logs, had been loaded by plaintiff’s employer and driven to the wood-yard by plaintiff. The logs were weighed on the woodyard’s scales and purchased by defendants. Defendants then told plaintiff that he should drive his truck to a designated unloading site, and that a forklift would be sent to assist in the unloading. Plaintiff proceeded to the designated site which was fifty to one hundred yards from the scales, and got out of the truck, leaving the motor running. Then he began unbinding the logs while he waited for the forklift to arrive.

The load consisted of logs 14 to 16 feet in length with diameters of 8 inches and larger. These logs were loaded “lengthwise” on plaintiff’s single-axle, poled trailer, in such a way that the lengths of the logs ran from the front of the trailer to the rear. The logs were secured by chains and binders wrapped around each end of the load. On each side of the trailer were 2 upright standards, or bolsters, which held the load on the trailer.

The unloading procedure required that the chains and binders be removed and that the bolster's be “tripped” from the left to the right by the plaintiff standing on the left side of the truck so that the logs would fall off on the right side of the truck. Defendant Nicholson was to operate the forklift which would brace the load while plaintiff tripped the bolsters, to prevent the logs from falling on the left side, where both plaintiff and defendant Nicholson were located. The tripping of the bolsters would then allow the logs to be pushed off the truck by the forklift onto the ground on the side away from the workers. Brackin testified that during the unloading procedure he was required to face the truck so that he could position the metal bar which would trip the bolsters.

Both parties agreed that in order for the forklift to provide protection it had to be directly against, and touching, the logs.

Unfortunately, before the unloading was completed, the top log on plaintiffs truck fell on the left side of the truck, grievously injuring plaintiff as he attempted to trip the bolsters. What caused the log to fall was not directly established. Plaintiff presented testimony tending to show that defendant Nicholson had arrived with the forklift, that the forklift was positioned 6 to 8 feet (the length of the prongs on the forklift) behind plaintiff, and that Nicholson had gotten out of the driver’s seat to stand on the running board of the forklift, leaving the motor of the forklift running. Defendants presented testimony tending to show that the forklift was still enroute to the truck, and was 15 to 20 feet away from the truck when the accident occurred. Thus the principal conflict in the testimony concerns the distance of the forklift from the truck when the log fell upon plaintiff.

It is fundamental in Alabama law that on appeal the Court does not weigh the evidence regarding its reasonably satisfying effect on the issue tendered, but rather indulges all favorable presumptions to sustain the trial court’s conclusion, and will not disturb that conclusion unless it is plainly erroneous or manifestly unjust. Gunnels v. Jimmerson, 331 So.2d 247 (Ala.1976). And upon appeal from the refusal of the trial court to give the affirmative charge for appellants, we have held that the evidence must be viewed in a light most favorable to appellees, and the action of the trial court will be affirmed if a reasonable inference to the appellants may be drawn from the evidence. Ramos v. Fell, 272 Ala. 53, 128 So.2d 481 (1961); Poole v. Life and Casualty Insurance Co. of Tennessee, 47 Ala.App. 453, 256 So.2d 193 (1971). The presumption in favor of the correctness of the jury’s verdict is strengthened when the trial court refused to grant a motion for a new trial. Edmondson v. Blakey, 341 So.2d 481 (Ala.1976); Prescott v. Martin, 331 So.2d 240 (1976).

The scintilla rule prevails in Alabama, and under that rule issues in civil cases must go to the jury if the evidence, or a reasonable inference therefrom, furnishes a mere glimmer, spark or smallest trace in support of an issue. Hartford Accident and Indemnity Co. v. Cosby, 277 Ala. 596, 173 So.2d 585 (1965). Under the facts of this case, we cannot say that as a matter of law the plaintiff failed to produce a scintilla of evidence, either as to the negligence or subsequent negligence of defendants. From the evidence the jury may well have decided that the defendants owed to the plaintiff the duty of protection, that defendants breached that duty by failing to prevent the log from falling and that the breach of that duty proximately caused plaintiff’s injury. Likewise, the jury reasonably may have believed that defendants had actual knowledge of plaintiff’s peril, had the opportunity to prevent plaintiff’s injury by use of the forklift, yet negligently failed to do so.

Proof of negligence may be established completely through circumstantial evidence, and if there is evidence that points to any plausible theory of causation, there is a basis for recovery. Green v. Reynolds Metals Co., 328 F.2d 372 (5th Cir.1964); Harbin v. Moore, 234 Ala. 266, 175 So. 264 (1937); Southern Ry. Co. v. Dickson, 211 Ala. 481, 100 So. 665 (1924). Where the jury’s verdict is based on evidence or reasonable inferences thereon, and is not plainly erroneous, it is not the function of this Court to consider the probabilities or possibilities of other conclusions that might have been reached.

The trial court also considered the defendants’ contentions that plaintiff was guilty of contributory negligence and/or subsequent contributory negligence. Defendants argue that their motion for a directed verdict and motion for judgment notwithstanding the verdict or in the alternative for a new trial were erroneously denied, since plaintiff commenced and continued the unloading procedure knowing that the defendants’ forklift had not yet moved into position to brace the load of logs. Defendants point to plaintiff’s own testimony that he “assumed” the forklift was in position or was getting into position, but he did not know for certain that it was in position.

Contributory negligence requires that the party charged have knowledge of the condition or failure, have appreciation of danger under the surrounding conditions and circumstances, and yet fail to exercise reasonable care but rather put himself into the way of danger. State Farm Mutual Auto Ins. Co. v. Dodd, 276 Ala. 410, 162 So.2d 621 (1964); Mackintosh Co. v. Wells, 218 Ala. 260, 118 So. 276 (1928). Contributory negligence is for the jury where there is a scintilla of evidence to the contrary. Nashville, Chattanooga & St. Louis Railway v. Wilson, 271 Ala. 615, 126 So.2d 110 (1961). The question of whether plaintiff is guilty of contributory negligence as a matter of law arises only when facts are such that all reasonable men must draw the same conclusion therefrom, and the question is for the jury when, under the facts and circumstances, reasonable minds may fairly differ on the question of negligence vel non. Baptist Medical Center v. Byars, 289 Ala. 713, 271 So.2d 847 (1972). These principles of law are likewise applicable to the defense of subsequent contributory negligence.

In Dees v. Gilley, 339 So.2d 1000 (Ala.1976), this Court stated that a victim’s initial contributory negligence in placing himself in a position of peril is no defense to subsequent negligence on the part of the defendant; for a victim’s negligence to be a defense to defendant’s subsequent negligence, the defendant must show subsequent contributory negligence on the part of the victim, i. e., a negligent act or omission with knowledge of the then present and impending peril. Accord, Southern Ry. Co. v. Stewart, 153 Ala. 133, 45 So. 51 (1907).

Under the facts of this case, we are unable to conclude that, as a matter of law, plaintiff was guilty of either contributory negligence or subsequent contributory negligence and therefore we cannot state that the case should not have been submitted to the jury. It follows that the trial court's refusal to enter a directed verdict for defendants on these grounds was not error.

Our conclusions find support in decisions in other jurisdictions when the same or similar fact-situation was presented. See McClendon v. Valley Lumber Co., 68 N.M. 127, 359 P.2d 520 (1961) (directed verdict for defendant reversed; questions of causation, negligence, and contributory negligence should have been submitted to the jury); Cox v. Al Peirce Lumber Co., 239 Or. 546, 398 P.2d 746 (1965) (upholding submission to jury of question of contributory negligence, and refusal of defendant’s motion for directed verdict); Bryant v. Conrad, 420 S.W.2d 666 (Ky.1967) (approving submission to jury of question of contributory negligence); Allen v. Fish, 64 Wash.2d 665, 393 P.2d 621 (1964) (jury verdict finding negligence on the part of defendant upheld, despite conflicting testimony on plaintiff’s alleged contributory negligence and defendant’s contention that there was no evidence to support a finding of negligence); Lokey v. Pine Mtn. Lumber Co., 205 Cal.App.2d 522, 23 Cal.Rptr. 293 (1962) (contributory negligence of logging truck driver, who unfastened log binders without use of any safety device, and who was injured when log fell from truck, was question for jury); Ellis v. Johnson Lumber Co., 150 So.2d 838 (La.App.1963) (reversing summary judgment in favor of defendant, where complaint alleged that defendants negligently failed to protect plaintiff with forklift during unloading of logs); Blaine v. Ross Lumber Co., 224 Or. 227, 355 P.2d 461 (1960) (evidence was sufficient for jury to con-elude that defendant’s failure to furnish safe machinery for use in unloading logs was a contributing cause of accident).

The' defendants contend that the trial court improperly admitted into evidence testimony concerning possible improper medical treatment received by plaintiff after the injury. On direct examination Brackin testified that after the injury he was taken to the hospital where his left leg was amputated. He further testified that he received no medical treatment to his right leg during the first week of his hospitalization, and that his right leg was not set for the first week because “they were afraid I wasn’t going to make it at all.” Objection to this testimony was overruled. The objection was based on the ground that any negligent treatment of plaintiff by the hospital had no bearing on the liability of defendants. Plaintiff contends that the testimony was admitted to show plaintiff’s weakened and critical condition resulting from the injury and subsequent amputation of plaintiff’s left leg. Plaintiff further argues that the testimony was not designed to show, nor did it show, any negligence on the part of the hospital.

The objection was properly overruled by the trial court. The plaintiff in a personal injury action may testify to physical pain suffered from and as the result of his injuries. Birmingham Railroad, Light and Power Co. v. Hunt, 200 Ala. 560, 76 So. 918 (1917); Conway v. Robinson, 216 Ala. 495, 113 So. 531 (1927). Where the testimony is admitted for the purpose of showing plaintiff’s disability and suffering, and not for the purpose of showing improper medical treatment by the hospital to augment plaintiff’s recovery (if any) from defendant, an objection should not be sustained. Southern Ry. Co. v. Lockridge, 222 Ala. 15, 130 So. 557 (1930). If there appeared any reason to apprehend that the testimony might be considered by the jury for purposes other than that for which it was admissible, the defendants should have guarded against that contingency by requesting proper instructions. Id. at 17, 130 So. 557.

Defendants also contend that the trial court erred in charging the jury as follows:

Now, the burden is on the plaintiff to reasonably satisfy you from the evidence of the truthfulness of his claim. If, after a consideration of all of the evidence in this case, you are not reasonably satisfied of the truthfulness of the plaintiff’s claim, your verdict should be for the defendants. ... On the other hand, if, after a consideration of all the evidence in the case, you are reasonably satisfied of the truthfulness of the plaintiff’s claim, your verdict should be for the plaintiff. .

Specifically, defendants argue that this portion of the charge would likely be misconstrued by the layman-juror to mean that the jury should return a verdict for plaintiff if the jury believes the truthfulness of plaintiff’s testimony. Further, defendants contend that this and other portions of the charge ignored the defense of contributory negligence, and were abstract and misleading.

These contentions are without merit. There are numerous portions of the jury charge wherein the trial court correctly charged the jury concerning contributory negligence, and the entire charge to the jury, taken as a whole, is free of error in this regard. Central of Georgia Ry. Co. v. Thweatt, 151 Ala. 388, 44 So. 380 (1907). We fail to see how the jurors could have misconstrued the plain references to the plaintiff’s claim, but if the defendants entertained such a concern they could have requested explanatory charges. Shannon v. Hollingsworth, 291 Ala. 159, 279 So.2d 428 (1973); Thompson v. Magic City Trucking Service, 275 Ala. 291, 154 So.2d 306 (1963).

Finally, defendants argue that the trial court erred in giving plaintiff’s requested charge to the jury that his future medical expenses were recoverable damages. Defendants objected to this charge on the ground that there was no showing at trial that these expenses will be necessary or reasonable in amount and argue that in the absence of such proof, the jury, having no evidence as to past or future medical expenses to serve as a guide, was allowed to speculate on the amount of these damages. In support of this argument defendants cite Baros v. Kazmierczwk, 68 N.M. 421, 362 P.2d 798 (1961).

We disagree. The case cited by defendants is inapposite to the case at bar, where the record reveals substantial testimony as to future medical expenses. Plaintiff testified that, in the interval between the time of the injury and the time of trial, he had been fitted with an artificial leg at a cost of approximately five hundred dollars. Plaintiff further testified that the first artificial leg, also costing about five hundred dollars, was about to wear out after a year and one-half of use.

Future medical expenses are a proper element of damages in a personal injury action. Fleming v. Knowles, 272 Ala. 271, 130 So.2d 326 (1961). The testimony presented by plaintiff provided a sufficient basis upon which to award as damages such expenses as being necessary and reasonable.

There being no reversible error, the judgment appealed from is due to be, and is, affirmed.

AFFIRMED.

BLOODWORTH, MADDOX, JONES and SHORES, JJ., concur.