author: COVINGTON, Judge.

text:
    Myrtle Moseley PARKER et al. v. TRAVELERS INSURANCE COMPANY et al. Jonathan PELLEGRIN et al. v. TRAVELERS INSURANCE COMPANY et al.
    Nos. 12430, 12431.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Rehearings Denied April 16, 1979.
    Writ Refused June 11, 1979.
    Jules D. Boquet and Laddie L. Freeman, Houma, for plaintiffs and appellants.

      Ronald C. Levy & David L. Morgan, Jr., New Orleans, for plaintiffs and appellees.
    Edmund J. Connely, Houma, for defendant and appellant Jonathan Pellegrin, and plaintiffs and appellants.
    Philip J. McMahan, Houma, for defendant and appellant Travelers Ins. Co. and Third Party defendant Clarence Parker.
    Robert M. Johnston, New Orleans, for defendants and appellants Fireman’s Ins. Co.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge.

These consolidated cases were occasioned by a head-on collision which occurred at or near the intersection .of U. S. Highway 90 and Savanne Road in Terrebonne Parish, Louisiana, on June 8, 1975, at approximately 1:50 P.M. on a rainy Sunday afternoon.

Clarence Parker (Parker), accompanied by his wife, Myrtle Moseley Parker, was driving his 1966 Pontiac automobile in a southeasterly direction on Savanne Road, the inferior highway which intersects Highway 90. Jonathan Pellegrin (Pellegrin), accompanied by his wife, Anita Pellegrin, and his infant daughter, Tonia, was driving a 1964 GMC truck, owned by his father, Allen Pellegrin, in a easterly direction on Highway 90. Neither Parker nor Pellegrin sustained any noticeable injuries. The wives and the child sustained the injuries complained of in these two suits.

Jonathan Pellegrin, individually and as administrator of the estáte of his minor child, Tonia, Anita Pellegrin and Allen Pel-legrin brought suit against Clarence Parker and Travelers Insurance Company (Travelers), the liability insurer of the Parker vehicle, for the alleged personal injuries and damages. These named defendants filed a general denial, asserting that the accident was caused solely through the negligence of Pellegrin, and alternatively, a plea of contributory negligence. These defendants also filed a third-party demand against Pel-legrin as a joint tortfeasor for one-half of any judgment rendered against them. Pel-legrin filed a general denial to the third-party demand. Subsequently, these named plaintiffs amended to include Fireman’s Insurance Company of Newark, New Jersey (Fireman’s), the liability insurer of the Pel-legrin vehicle, as a party defendant. Fireman’s filed a general denial. Thereafter, Anita Pellegrin was substituted as party plaintiff to pursue the action on behalf of the minor child, Tonia, when Anita Pelleg-rin was awarded custody of the child.

Myrtle Moseley Parker brought suit against Jonathan Pellegrin and Fireman’s, Pellegrin’s insurer, and against Travelers, Parker’s insurer, alleging that as a guest passenger in the Parker vehicle, she was damaged by the combined negligence of Parker and Pellegrin. The defendants herein filed a general denial. Mrs. Parker subsequently amended her petition to ask for uninsured motorist coverage under the Travelers’ policy.

Following trial on the merits, the lower court found that plaintiffs, Myrtle Moseley Parker, Allen Pellegrin, Anita Pellegrin, individually and as custodian and natural tu-trix for Tonia Pellegrin, had proved by a preponderance of the evidence that the defendant, Jonathan Pellegrin, and the defendant, Clarence Parker, were each negligent in causing the accident, and that the combined and concurrent negligence of Parker and Pellegrin caused the damages of the named plaintiffs. The trial court further found that Travelers Insurance Company was the public liability insurer of the vehicle driven by Clarence Parker and was liable to the plaintiff, Myrtle Moseley Parker, and solidarily liable with Parker to the plaintiffs, Allen Pellegrin and Anita Pelleg-rin, individually and as natural tutrix of the minor child, Tonia Pellegrin, and also found that Fireman’s Insurance Company of Newark, New Jersey was the liability insurer of the vehicle owned by Allen Pellegrin and driven by Jonathan Pellegrin, and, as such, was solidarily liable with Pellegrin to the plaintiffs. Accordingly, the trial court rendered judgment in favor of Myrtle Moseley Parker against Travelers Insurance Company, Jonathan Pellegrin and Fireman’s Insurance Company of Newark, New Jersey, in solido, in the amount of $25,000.00, but limiting the liability of Travelers to $10,-000.00; judgment in favor of Allen Pelleg-rin against Fireman’s, Parker, and Travelers, in solido, in the amount of $300.00; judgment in favor of Anita Pellegrin, individually, against Fireman’s, Parker and Travelers, in solido, in the amount of $9,895.00; and judgment in favor of Anita Pellegrin, as the parent awarded the care, custody and control and tutorship of the minor child, Tonia Pellegrin, by virtue of a decree of legal separation from Jonathan Pellegrin, for the use and benefit of said minor child, against Parker, Travelers and Fireman’s, in solido, in the amount of $2,500.00.

, Thereupon, Pellegrin and Fireman’s moved for a new trial. Myrtle Moseley Parker also moved for a new trial, as did Parker and Travelers. The district court denied the motions.

Thereafter, Pellegrin and Fireman’s sus-pensively appealed the judgments. Travelers and Parker also took a suspensive appeal. Myrtle Moseley Parker answered the appeals, complaining of the limitation of liability on Travelers and the inadequacy of the award, inter alia. Anita Pellegrin, individually and as natural tutrix, answered the appeals, complaining of the inadequacy of the awards.

We are faced with a joint tortfeasor situation. There was. a collision between the vehicles being driven by Parker and Pelleg-rin. As a direct result of this collision, the passengers, who are innocent third parties according to the evidence in the record of these consolidated actions, were injured. Either Parker, Pellegrin, or both caused the collision which in turn caused the injuries to the passengers of the two vehicles.

Our law is well settled that when an innocent third party, such as a guest passenger in a motor vehicle, is injured as a result of a collision between two drivers, each of the drivers is presumed guilty of negligence, and the burden of proof falls upon each to exculpate himself from negligence proximately causing the injury to the third party. Poche v. Frazier, 232 So.2d 851 (La.App. 4 Cir. 1970), writ denied, 256 La. 266, 236 So.2d 36 (1970); see also Michel v. State Farm Mutual Automobile Insurance Company, 314 So.2d 535 (La.App. 1 Cir. 1975).

To satisfy his burden, Parker testified the Pellegrin truck turned left from U. S. Highway 90 across Savanne Road in such a manner as to come into the Parker lane of traffic, causing the two vehicles to collide on Parker’s side of Savanne Road. Parker said that Pellegrin “took the short cut” on him and caught the Parker car, pulling it and causing it to slip on over, with the vehicles stopping near the middle of the road.

On the other hand, Pellegrin testified the Parker vehicle crossed the center line of Savanne Road in a curve in such a manner that Parker lost control of his vehicle, failed to make the curve, and ran into the left side of the Pellegrin vehicle near the driver’s door, knocking the Pellegrin vehicle onto the shoulder of the road with both vehicles stopping on Pellegrin’s side of Savanne Road.

Trooper Morris testified he investigated the accident. He was not an eyewitness, so his testimony was concerned mainly with the position of the vehicles and the statements given to him by the two drivers. The trooper did observe fluids which had drained from the two vehicles in the Pelleg-rin lane of traffic. He gave the position of the Pellegrin truck as on the shoulder on the Pellegrin side of the road, with the Parker car substantially across the center line in the Pellegrin lane. He testified the accident occurred during heavy rain.

The trooper stated that Parker told him that he (Parker) was slowing down for the stop sign on his side of the road when Pellegrin turned into his traffic lane causing him to collide in Parker’s lane; that Pellegrin told him that he (Pellegrin) was traveling toward Houma on U. S. 90, blacktop side, and made a left turn onto Savanne Road, and that when he saw the Parker vehicle coming toward him in Pellegrin’s lane, he tried to avoid a collision by taking to the shoulder, but that the Parker vehicle continued on and struck the left side of the Pellegrin truck. Pellegrin told the trooper the impact was in Pellegrin’s traffic lane. Damage appeared to be primarily to the left front of each vehicle. Both were rendered inoperable by the collision.

Neither of the adult passengers of the two vehicles saw the collision, so their evidence can not corroborate the testimony of either driver. Havis, who testified for Pel-legrin, was a friend of Pellegrin and arrived on the scene after the collision had occurred. He left almost immediately to take Mrs. Pellegrin and her infant daughter to the hospital. Thus, his testimony is not helpful to either party. Mr. Parker’s two sisters and two cousins were in a ear following some distance behind the Parker car. Although there was some testimony from them that the Pellegrin vehicle came into the Parker lane of traffic, they were not in a position to see the actual collision, which happened in a curve during heavy rain.

Considering all of the testimony and the evidence in the record, we find that both drivers failed to exculpate themselves from negligence and they were negligent in failing to main a proper lookout and in failing to keep their respective vehicles under control and in the proper lane of traffic, and that it was this concurrent negligence that was the proximate cause of the accident. Perry v. Law, 334 So.2d 523 (La.App. 1 Cir. 1976), writs denied, 337 So.2d 527, 529 (La.1976). The trial court did not err in finding both drivers guilty of negligence proximately causing the accident.

We thus agree with this conclusion of the trial judge. As the Supreme Court held in Dixie Drive It Yourself System New Orleans Co., Inc. v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962), when the actionable negligence of two tort-feasors contributes in causing harm to a third party, the tortfeasors are solidarily liable for the damage.

We now consider the damage awards made by the trial judge.

The award to Tonia Pellegrin through her natural tutrix was $2,500.00. At the time of the accident she was not quite one year old (IOV2 months). She was seated between her parents and was thrown forward by the collision, striking her head, causing a deep laceration of the forehead and a cerebral concussion. The cut required stitches to sew it up, with the stitches removed in six days. She was fortunate in that she received only minor injuries, and she is left only with a small scar in the hair-line which is hardly noticeable.

The award to Anita Pellegrin was $8,895.00. Mrs. Pellegrin was seated on the passenger side of the seat of the truck, but the impact caused her to strike the windshield near the steering wheel with force sufficient to break the glass. She sustained multiple lacerations of the forehead and nose, requiring 28 stitches to close (which were removed in six days). She was discharged 14 days after the accident from further medical treatment. At the time of the emergency treatment, she was given an antibiotic, a tetanus shot and vitamin C (to help the healing process) and local anesthetics for the suturing. She was also given medicine for pain. There is some testimony of glass particles still remaining in her forehead. She was left with several noticeable facial scars, which evidence some tenderness and itching. In the central forehead there were four scars, two of about four centimeters and two of about 1.5 centimeters. There were two scars, of one centimeter and five centimeters, over the right eyebrow, and one small scar on the bridge of the nose. A nice cosmetic result could be obtained by a sanding process (dermabrasion), which would cost about $500.00, but no such process has yet been performed or definitely scheduled.

Mrs. Parker was awarded $25,000.00. Her left leg and hip were injured in the accident. She also probably sustained a back injury as a result of the accident.

Dr. B. W. Hillman, the treating physician, testified that Mrs. Parker sustained contusions about the left hip and left leg, with radiating pain. She had symptoms consistent with a herniated disc, so he referred her to an orthopedist.

The orthopedist, Dr. Dexter A. Gary, examined Mrs. Parker and later took a myelo-gram, which revealed a herniated lumbar disc at L-4 and probably at L-5. Dr. Gary recommended surgery, which had not been performed at the time of the trial. He testified the surgery fee for such an operation would be $1,500.00. Future hospital costs would amount to an additional $1,500.00. Dr. Gary expressed the opinion that Mrs. Parker would have a permanent 10% disability of the body, with or without the laminectomy.

In considering the award for general damages, we will allude briefly to our duty as a reviewing court. We have come from the doctrine of uniformity of awards, Grissom v. Heard, 47 So.2d 108 (La.App. 1 Cir. 1950), through the philosophy of Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963), that previous awards should be used only as an aid in determining whether the trier had abused its “much discretion,” LSA-C.C. art. 1934(3), to the current rule of Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), which purports to clarify the Gaspard v. LeMaire admonition. Under the Coco doctrine, while we might modify the damage award of the trier if it is inadequate or excessive after a Gaspard examination, we must first find, in order to modify an award for general damages, an abuse of the trier’s discretion, and then limit our modification to an increase or decrease so that it comes within our determination of the minimum or maximum amount which would not have constituted such abuse had it been granted by the trier. Using these principles and the evidence in the record, we can not say that the trier of fact, the trial judge, abused his “much discretion.” Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974). Thus, we will not modify the award because of any abuse of discretion.

Moreover, Mrs. Parker’s complaint that the judgment failed to provide for special damages is without merit. The trial court rendered judgment for a lump sum award in the amount of $25,000.00, which included both special and general damages. Likewise, the complaint that the judgment did not allow proper interest is without merit. A reading of the judgment reveals that legal interest is allowed on the entire award.

However, Travelers correctly complains that the awards exceed its policy limits of $20,000.00 per accident. The trial court limited the liability of Travelers to Mrs. Parker to $10,000.00, and left standing the sum of the awards to Anita Pellegrin, individually and on behalf of her minor • child, Tonia, $12,395.00, they being $9,895.00 and $2,500.00, respectively. Because the total awards for personal injuries amounted to $22,395.00, each should be reduced proportionately. Therefore, we limit the liability of Travelers as follows:

$ 8,930.57 to Myrtle Moseley Parker 8,836.79 to Anita Pellegrin, individually 2,232.64 to Anita Pellegrin, on behalf of the minor, Tonia $20,000.00

As amended, the judgment is affirmed at the cost of the appellants Parker, Travelers, Pellegrin and Fireman’s said costs to be shared equally.

AMENDED AND AFFIRMED.

      .That is, 20,000 22,395 X 10,000; 20,000 22,395 9,895; and 22*395 X 2’500’ respectively.


source: Caselaw Access Project

author: LANDRY, Judge.

license: Public Domain

text:
    Kenneth R. WHATLEY v. STATE of Louisiana et al.
    No. 12441.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.

      John B. Cornish, Baton Rouge, for plaintiff-appellee Kenneth R. Whatley.
    Thomas S. Halligan, Baton Rouge, for defendant-appellant State of Louisiana.
    William H. Cooper, Jr., Baton Rouge, for defendants-appellees Warden Rodger N. Aucoin, et al.
    Frank J. Gremillion, Baton Rouge, for third party defendant-appellee City of Baton Rouge and Parish of East Baton Rouge.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

The State of Louisiana (Appellant), made defendant in plaintiff’s action for damages for personal injuries allegedly resulting from a beating administered by deputy sheriffs and prison officials while plaintiff was prisoner in the East Baton Rouge Parish jail, appeals from judgment dismissing Appellant’s third party demand for indemnification against the City of Baton Rouge — Parish of East Baton Rouge (City-Parish) on exception of no cause of action filed by said third party defendants. We affirm in part, reverse in part, and remand for trial on the merits.

Plaintiff’s petition alleges that on March 13, 1977, he was an inmate in the East Baton Rouge Parish Prison. On the aforesaid date, an aborted escape was attempted by three other prisoners with whom plaintiff shared a cell. Plaintiff’s cellmates allegedly lured a deputy into the cell and attempted to overpower the deputy with intent to escape. Plaintiff allegedly took no part in the escape attempt and throughout the incident remained in his bunk. Plaintiff also alleges that after the escape attempt was foiled, deputies and other prison officials intentionally inflicted beatings and other atrocities upon all occupants of the cell, plaintiff included, notwithstanding plaintiff’s continued assertions of non-involvement in the attempted escape.

In addition to Appellant, plaintiff made defendants herein the Warden of East Baton Rouge Parish Prison, four deputies of the Sheriff of East Baton Rouge Parish, and two liability insurers of defendants.

Appellant answered plaintiff’s petition and third partied the City-Parish for indemnification, alleging vicarious liability on the part of the City-Parish for the tortious conduct of the sheriff and his deputies. Appellant also alleges City-Parish liability on the basis of certain statutes which place parish prisons under the supervision and control of parish governing authorities, including the following:

LSA-R.S. 15:702:
“The governing authority of each parish shall pass all by-laws and regulations they may deem expedient for the police and good government of all jails and prisons in the parish.”
LSA-R.S. 15:704:
“Each sheriff shall be the keeper of the public jail of his parish, and shall by all lawful means preserve the peace and apprehend all disturbers thereof, and other public offenders.”
LSA-R.S. 33:1435:
“. . Each sheriff shall be the keeper of the public jail of his parish, and shall preserve the peace and. apprehend public offenders.”

Appellant contends the above cited statutes place responsibility for the policing, governing and maintenance of discipline in parish prisons upon the sheriffs of each parish which officers are assertedly guided, and perhaps controlled, in the performance of these duties by rules and regulations required to be established by parish governing authorities pursuant to LSA-R.S. 15:702, above. The City-Parish concedes no such rules or regulations have been adopted. Appellant contends that the failure to adopt such rules and regulations establishing and defining the limits of reasonable discipline and good government for the parish prison by the City-Parish may well have contributed to the harm allegedly sustained by Appellant in this instance. Appellant also argues that such failure constitutes fault on the part of the City-Parish and that consequently a cause of action is alleged and the exception of no cause of action was improperly sustained.

In rebuttal, the City-Parish argues that the mandate contained in LSA-R.S. 15:702 is not mandatory considering it requires enactment of rules which the parish governing authority “may deem expedient.” The City-Parish contends first that it is not in violation of the statute because it did not deem such rules expedient. Secondly, it is contended that passage of such regulations would not have prevented plaintiff’s injuries because the conduct of the deputies is alleged to have been intentional. Additionally, the City-Parish, relying on Foster v. Hampton, 343 So.2d 219 (La.App. 1st Cir. 1977), affirmed 352 So.2d 197 (La.1977), and Nielson v. Jefferson Parish Sheriff’s Office, 242 So.2d 91 (La.App. 4th Cir. 1970) argues the lack of vicarious liability on the part of the City-Parish for the actions of deputy sheriffs.

Foster v. Hampton, supra, has laid to rest the question of whether a parish is liable for the actions of deputy sheriffs. Foster was an action against the Parish of East Baton Rouge, the Sheriff and a Deputy Sheriff of the Parish of East Baton Rouge, and their insurers, for injuries sustained in a collision involving a sheriff department’s vehicle being driven by a deputy sheriff. The decision explicitly held that there is no vicarious liability on the part of a parish for the actions of a deputy sheriff. The rationale of the decision is that the office of sheriff is a constitutional office pursuant to La.Const.1974, Article 5, Section 27, which exists and functions independently of the parish governing authorities. We apply that same rationale and hold that cities are likewise not liable vicariously for the actions of deputy sheriffs. We therefore hold that neither the City nor the Parish is vicariously liable for the actions of the deputy sheriffs in this instance.

We find, however, that the statute in question, LSA-R.S. 15:702, imposes upon parish governing authorities the mandatory duty to enact rules and regulations for the policing and governing of parish prisons and jails. The statutory qualifying provision “they may deem expedient” does not pertain to the duty to enact such rules in the discretion of parish governing authorities but applies, instead, to the nature and scope of the rules which the statute mandates. We note also that the statute imposes no such duty or obligation on municipalities, only upon the governing authority of each parish.

There being no duty in this regard on the part of defendant City, the exception of no cause of action filed by that entity was properly sustained below.

Notwithstanding the immunity of the Parish from vicarious liability herein, the Parish may have been guilty of fault in not adopting the required regulations. We do not at this juncture make a finding of such fault, which decision must be made initially by the trier of fact. We in no way address the merits of plaintiff’s claim on the crucial question of whether there was fault and required causal connection between such fault and plaintiff’s alleged injuries. Neither do we consider the duty-risk aspect of fault insofar as it pertains to the alleged liability of the Parish in this instance.

For purposes of determining the validity of an exception of no cause of action, all well-pleaded allegations of plaintiff’s petition are considered to be true, and the exception must be overruled if the allegations set forth a cause of action as to any part of the demand. Haskins v. Clary, 346 So.2d 193 (La.1977); Pence v. Ketchum, 326 So.2d 831 (La.1976).

In considering a petition against which an exception of no cause of action has been raised, every reasonable interpretation must be accorded its language in favor of maintaining the sufficiency of the petition and affording the litigant an opportunity to present evidence in support thereof. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975).

Applying the foregoing principles, we find that Appellant’s third party petition alleges sufficient facts to state a cause of action against the Parish on either the main or third party demand.

Accordingly, the judgment maintaining the exception of no cause of action on behalf of defendant City of Baton Rouge is affirmed, and the judgment sustaining the exception of no cause of action on behalf of the Parish of East Baton Rouge is overruled, and this matter is remanded to the trial court for proceedings consistent with the views herein expressed; costs of this present appeal are assessed against defendant Parish of East Baton Rouge.

Affirmed in part, reversed in part, and remanded.


text:
    Dewey Joseph LAPEYROUSE as the Administrator of the Estate of his minor child, Dewey Paul Lapeyrouse v. PILOT LIFE INSURANCE COMPANY.
    No. 12443.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.

      Michael J. Samanie and Robert L. Barrios, Houma, for plaintiff-appellee.
    Carlos E. Lazarus, Jr., Houma, for defendant-appellant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge.

The defendant, Pilot Life Insurance Company, has appealed the judgment of the trial court in favor of the plaintiff, Dewey Joseph Lapeyrouse, awarding him $3,270.33 as damages, $3,270.33 as penalties, and $1,500.00 as attorney fees. The judgment also fixed the expert witness fees and taxed them as costs.

This case arises out of a claim under a “24 hour” Scholastic Accident Insurance policy issued by the defendant-appellant. While the policy was in effect, Dewey Paul Lapeyrouse, the minor son of plaintiff, Dewey Joseph Lapeyrouse, sustained an accidental injury on the school grounds when knocked down by an unknown student while .at recess at Upper Little Caillou School, Chauvin, Terrebonne Parish, Louisiana. The orthopedic surgeon diagnosed the injury as a slipped capital femoral empiphy-sis, which necessitated surgery to secure the femoral head to the femoral neck.

On this appeal, the appellant contends that there was no coverage under the insurance policy because medical treatment of the injured student did not commence within thirty days following the date of the accident and that no claim was timely made by the insured. The insurer further contends that the insurance policy excludes ■from coverage “aggravation of an existing condition.” The insurer also urges that the trial court erred in awarding penalties and attorney fees, and in awarding benefits exceeding policy limitations.

There is no merit in the appellant’s contention that the medical treatment of young Dewey Paul did not commence within thirty days of the accident. The facts adduced at the trial do not support this contention. The young boy’s mother, Mrs. Dewey Lapeyrouse, testified as follows:

“Q. Okay, Mrs. Lapeyrouse, when Dewey came home and told you about the accident did you take him to a doctor?
A. Not at the moment, no.
Q. When did Dewey first see a doctor? A. The next day.
■Q. Which doctor was that?
A. Dr. Spence.
Q. Mrs. Lapeyrouse, do you know when the accident happened? Do you know what day it happened?
A. No, sir.
Q. Okay. And you say that you took Dewey to the doctor the day after the accident happened?
A. As much as I can remember because he was complaining of his knee.
Q. Okay. But it’s correct that you really don’t remember when he saw Dr. Spence, is that correct?
A. I sure don’t, no sir.
Q. Okay. So your testimony that he saw Dr. Spence the day after the accident probably is . you don’t know whether that’s true or not?
A. No, sir, I don’t, but I know it wasn’t long after he had, you know .
Q. Mrs. Lapeyrouse, you testified as far as when you brought Dewey to Dr. Spence after the accident . you said, it is not long can you pin that down a little bit as to a time span?
A. I know it wasn’t long after he had the accident that I brought him to the doctor, but I don’t know.
THE COURT:
Could it have been as long as a week after the accident before you brought him?
THE WITNESS:
It could ... I doubt if it was a week, I don’t think so myself.
THE COURT:
Do you think it was less than a week probably?
THE WITNESS:
Probably so, yes, sir.
THE COURT:
All right.”

The testimony of Mrs. Lapeyrouse is corroborated to some extent by the records of Dr. Charles C. Spence, which shows Dr. Spence saw Dewey on November 10th for an injury caused when “some boys jumped on him in school in October during the noon hour,” and by the testimony of Bonnie Deti-veaux, school secretary, who said the accident was reported to her. towards the beginning of school, “in the first six (6) to eight (8) weeks.” In addition, the appellant stipulated that the “accident was reported and a claim made,” and that it was reported timely.

In Miller v. Marcantel, 221 So.2d 557 (La. App. 3 Cir. 1969), the Court said:

“. . . [PJolicy clauses are interpreted in the light of their function and in view of the fundamental purpose of the insuring contract entered into between the parties: to effectuate the substantive coverage intended by the policy, rather than to defeat it by applying technically a clause designed merely to protect the insurer from prejudice, not to trap the insured.” .

We find these words of the Miller Court peculiarly applicable to the instant set of facts.

We also find no merit in the specification of error that the insured’s condition was excluded under the exclusionary clause of the policy, which reads:

“No payment of any kind shall be made for injury, death or any other loss caused, wholly or partly, directly or indirectly by . (3) disease or bodily or mental infirmity (or by medical or surgical diagnosis or treatment thereof) including, but not limited to, furuncles (boils), athlete’s foot, impetigo or similar skin infection, warts, blisters, allergies, ingrown nails, appendicitis, cardiac disease, diabetes, or aggravation of an existing condition.”

Appellant cites this exclusion and states that Dewey Paul Lapeyrouse was suffering from some type of disease or pre-existing condition at the time of his accident. In support of this contention, the appellant cites a definition of “disease” from Taber’s Cyclopedic Medical Dictionary, 11th Ed. (1972), and refers to the testimony of Drs. Rhymes and Spence regarding Dewey’s condition. A careful reading of the testimony of both doctors indicates that there was no basis for the appellant’s denial of coverage on the ground of disease or pre-existing condition.

Dr. Pete H. Rhymes described Dewey’s injury as a slipping of epiphyseal plate at the upper end of the femur, the growth area in adolescents where lengthening of the bone occurs. Dr. Rhymes described several factors which contribute to a lack of inherent strength in this area, such as:

1. During adolescence, the epiphyseal plate (growth area) changes from a horizontal to an oblique position. This change in .the angle increases the shearing stresses at the femoral neck, making injury of the kind suffered by Dewey more likely to happen;

2. The epiphyseal plate, in adolescent years, is subjected to the predominant influence of growth hormone and undergoes a decrease in its shearing strength. This decrease in shearing strength makes the injury suffered by Dewey more likely to happen;

3. In adolescent years, the periosteum, the membrane covering the bones, undergoes atrophy and thins. This weakening of the periosteum increases the likelihood of the type of injury which Dewey suffered.

The trial court, in order to ascertain the facts regarding Dewey Lapeyrouse’s condition, questioned Dr. Rhymes as follows:

“THE COURT: I think you’re both finished . . . we’ve had recross .
because I’d like to ask some questions. Doctor, so that I can fully understand some of the aspects of this . first of all, this disease that you describe is it inherent in all males of the age of this boy?
THE WITNESS: At the end of every bone, particularly in, well, primarily in pre-adolescence and adolescence there is a growth center which contributes to the growth of the bone and to the lengthening of the bone so that we wind up with longer legs and arms when we’re adults than we did as babies. Since this is growing and is not bone then it is inherently weaker than bone .
THE COURT: ... All right . .
THE WITNESS: . . . Therefore it is apt to slip or break ... we call it a slip . . basically it is a fracture, it is a break to the growth center .
THE COURT: ... All right . .
THE WITNESS: ... And this can occur not only in the hip but it can occur in the fingers and the forearms and the end of any bone, and in a growing child we frequently see this and most, and all orthopedists are concerned that a fracture toward the end of a bone may go through the growth center and interfere with growth. This particular one at the hip as in early life the growth center is more horizontal as we approach adolescence the plane of the growth center changes from horizontal to more vertical.
THE COURT: Almost oblique.
THE WITNESS: So that it is subjected to the shear force.
THE COURT: All right.
THE WITNESS: Across the envelope which encloses the bone in childhood and infancy and up until the mid-twenties it is fairly thick which to some extent gives support to this growth center. As we begin to get into adolescence this envelope tends to thin out until by the time we’re in the mid-twenties or early thirties it’s pretty thin. It’s still there but it’s relatively thin as we’re adults, but in early adolescence it begins to thin out giving less and less support. Growth hormones and usual hormones of adolescence of course affect this growth. All of us have these potentials that this growth center is inherently weak, the angle of the growth line changes as we become adolescents, the periosteum or envelope becomes thinner. If you add some unknown factors . . extra weight to this then as this changes its angle then the stress has become greater weight above it. If it is a particular type of weight, if it’s some type of endocrine dysfunction or abnormality which may influence growth then this obviously could affect this in some way . . the growth itself. So you begin to add another factor and another factor. We all have this potential of being weak here.
THE COURT: We all have the growth area . . every child of his age has the growth area in approximately the same place and at approximately the same angle.
THE WITNESS: That’s right.
THE COURT: In his case it may well have been aggravated because of his obesity.
THE WITNESS: Right.
THE COURT: All right . . . and it is the, the lack of strength, if you will, in the growth area that you refer to as the disease.
THE WITNESS: That’s correct.
THE COURT: So in truth and in fact it is endemic and inherent in all adolescent boys of his age. (Emphasis added).
THE WITNESS: That’s correct.”

Dr. Charles C. Spence, the Lapeyrouse family physician, testified regarding any signs of a pre-existing condition in Dewey Lapeyrouse as follows:

“Q. Doctor, you say aggravated, brought on or caused ... do you know which '. . can you give an opinion as to which one?
A. No . . uh, I wish I was smart enough, intelligent enough to be able to tell everything that happened in the past, but unfortunately that’s not so. I’ve known this child since he was a baby, he’s never had any problem with his skeletal system prior to the time that his mother brought him to me with the complaint of pain in his leg. As everyone knows and as previously stated from this stand by Dr. Rhymes the condition can occur spontaneously. Little Dewey has always been overweight, but the fact that he’s never had any problem with his skeletal system prior to this and from the years that I’ve known him he’s never been a complainer. I think that probably as a result of the original injury to his leg or knee as the case may be he probably developed this condition secondary to the trauma and I’m sure that the limp with the extra weight put on the joint aggravated the already weakened condition and thus caused the slipped femoral epiphysis.”

Dr. Spence also testified regarding the characterization of Dewey’s condition as a disease:

“Q. Doctor, there’s been a lot of use of the word disease . . . when you use the word disease are you referring to the weakness that is inherent in the growth center in all young adolescent males?
A. Yes. Not disease from the standpoint that you would think a fracture is a disease or tuberculosis is a disease . . . it’s changes that are going on within the body that, uh, may be an overgrowth at the time or . as the other attorney says a disorder in the standpoint of the development, uh, growth hormones and so forth . we really don’t know.
Q. These changes that are going on in the body . . these changes are common to all young adolescent males going through their growth cycle?
A. To one degree or another, yes, sir.”

In interpreting an exclusionary clause, respect must be accorded to the well-established principle that the primary object of all insurance is to insure, and exclusionary clauses are strictly construed against the insurer. Commercial Capital Systems, Inc. v. Paille, 333 So.2d 293 (La. App. 1 Cir. 1976).

The plaintiff’s claim for penalties and attorney fees under LSA-R.S. 22:657(A) is meritorious. The test for awarding penalties and attorney fees is whether the insurer withheld payment of the claim more than 30 days without reasonable grounds, such as would put a reasonable and prudent business man on his guard. Miller v. American Casualty Company, 263 So.2d 398 (La.App. 4 Cir. 1972), writ denied, 262 La. 1151, 266 So.2d 441 (1972). We are of the opinion that the action of the insurer in declining to pay the policy benefits must be adjudged to be “unreasonable” under the circumstances.

When an insurer chooses to resist liability based on a supposed defense, which a reasonable investigation would have proved to be without merit, it will be liable for statutory penalties. Matthews v. Coastal States Life Insurance Company, 291 So.2d 475 (La.App. 3 Cir. 1974).

An insurer must take the risk of its misinterpretation of its insurance policy. An erroneous interpretation of its policy where there is no substantial issue of fact does not constitute “reasonable grounds” within the meaning of the penalty statute, LSA-R.S. 22:657. Thomas v. Universal Life Insurance Company, 201 So.2d 529 (La.App. 3 Cir. 1967).

We can not believe that the appellant is seriously questioning the amount of the award as excessive. The medical expenses were stipulated to be in the sum of $3,270.33, and the exhibits in evidence clearly show that the policy limit is the sum of $3,500.00. The award of $3,270.33 is within the policy limits.

In view of the foregoing reasons, we affirm the judgment of the trial court at the costs of the appellant.

AFFIRMED.

      . The appellee has requested an increase in attorney fees in his brief, but since he did not appeal or answer the appeal, we are unable to consider this request.


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    Gary Raymond BOUÉ v. LOUISIANA DEPARTMENT OF HIGHWAYS and William Henderson Slaydon. James D. SLAYTON, Individually and as Administrator of the Estate of his minor son, James D. Slayton, Jr. v. LOUISIANA DEPARTMENT OF HIGHWAYS and William Henderson Slaydon. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and James D. Slayton v. William H. SLAYDON, Gary Boué and State of Louisiana.
    Nos. 12444-12446.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Writs Granted April 27, 1979.

      Benjamin B. Saunders, Metairie, for plaintiff-appellee and defendant-appellee Gary Boué.
    Ron S. Macaluso, Hammond, for defendants-appellants State of La., and State of La., Dept, of Highways.
    John W. Wellman, New Orleans, for defendant-appellee William H. Slaydon.
    Dale E. Branch, Bogalusa, for plaintiffs-appellees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

The Louisiana Department of Highways (Department) appeals from judgment awarding plaintiffs damages for personal injuries, related medical expense and property damages resulting from an automobile accident in which a vehicle owned and being driven by plaintiff Gary Boué struck a cow while said vehicle was being driven southerly along Interstate 59 (1-59) in St. Tammany Parish. Boué and his guest passenger, James Slayton, Jr., were injured in the accident. State Farm Mutual Automobile Insurance Company (State Farm), insurer of the Boué vehicle, was granted recovery on its subrogation claim for medical benefits paid Boué’s guest passenger. The trial court found the Department negligent in failing to properly maintain the fences along 1-59, thus permitting cattle to enter the highway. We reverse upon finding no negligence on the part of the Department.

The issues presented are: (1) was the Department negligent in failing to prevent the animal from entering the interstate highway by its alleged failure to maintain fences constructed along the highway right-of-way; (2) was the Department negligent in failing to timely remove the animal from the highway; and (3) was the Department at fault in failing to erect signs in the area warning motorists of the possibility of livestock being on or near the highway.

Subject accident occurred between 9:00 and 10:00 P.M. August 9, 1975, approximately one and one-half miles south of the Mississippi-Louisiana line. Boué was driving his 1966 Volkwagen van southerly in the right or outside lane. He did not see the cow prior to impact. After impact, the van veered off the roadway and collided with a tree near the highway right-of-way.

At the accident scene, 1-59 is bounded on the east by an area known as Honey Island Swamp Reserve (swamp), and on the west by a wooded area which includes open range on which cattle are known to graze. Both sides of the highway are largely uninhabited. The highway is fenced on both the east and west side. The fence is located approximately one foot within the right-of-way and is constructed with wood posts in some places and metal posts in other locations. A mesh hog wire fencing material is affixed to the posts at ground level and extends upward approximately three or four feet. Above the hog wire is installed two or three strands of barbed wire, the topmost strand of which is about five feet above the ground. The Department’s Assistant District Maintenance Engineer, M. K. Johnston Civil Engineer, testified that the fence along the highway is required by Federal regulations because 1-59 is a Federal project constructed largely with Federal funds. He explained that the fence was not intended to keep out cattle but is meant principally to mark the highway right-of-way limits and to preserve the limited access feature of the highway by preventing ingress and egress to the highway at other than established and permissible exits and entrances.

Plaintiffs contend the Department was negligent because the swamp was known as a cattle pasture and because the Department knew or had reason to know that the fence on the swamp side of the highway was constantly being breached by hunters and fishermen to gain access to the swamp which is in effect a game preserve. Plaintiffs also contend the Department was aware of the prevailing conditions and failed to take adequate measures to either repair fences, inspect for breaks, timely remove cattle from the highway, or post warning signs to alert motorists to the danger of animals on the highway.

Although the Department is required to maintain highways in such condition that they are reasonably safe for persons exercising reasonable prudence and caution under the circumstances, the Department is not the insurer of the safety of motorists using the public highways. Doucet v. State, Department of Highways, 309 So.2d 382 (La.App.3d Cir. 1975).

There is no fixed rule for determining what is a dangerous" defect in a public highway. Each case must be determined in the light of its own peculiar facts and circumstances. The test to be applied is whether the roadway was maintained in a reasonably safe condition for persons exercising ordinary care and caution. Pickens v. St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975).

The duty of the Department to maintain roads in a reasonably safe condition for the traveling public includes the duty of reasonable, continuous inspection of the highways and bridges. McCullin v. State Department of Highways, 216 So.2d 832 (La.App.2d Cir. 1968).

The Department has the duty to repair and make safe any defects in the highways of which it has or should have notice. Hale v. Aetna Casualty & Surety Company, 273 So.2d 860 (La.App.2d Cir. 1973).

For liability of the Department to attach because of its failure to correct or repair a defective roadway, it must be shown that the Department had real or constructive notice of the defect and failed to correct it within a reasonable time. Wilkinson v. American Insurance Co. of Newark, N. J., 311 So.2d 584 (La.App.3d Cir. 1975).

Conditions on a highway which amount to a trap of which an unknowing, unsuspecting motorist has no knowledge, which are known or should be known to the Department of Highways, and from which danger can reasonably be anticipated, constitute actionable negligence on the part of the Department. Cain v. Houston General Insurance Co., 327 So.2d 526 (La.App.2d Cir. 1976).

The record establishes beyond doubt that to the knowledge of the Department the fences in the area were cut or broken with some frequency due to four primary causes: (1) sportsmen cutting the fence on the east side of the highway to enter the game preserve; (2) vehicles running off the highway and crashing into the fence; (3) falling limbs or trees; and, (4) periodic rising waters. There is some indication that in rare instances cattle are believed to have entered the roadway by jumping the fence near a bridge where the fence was constructed on a downslope.

Plaintiffs rely mainly on the testimony of three State Troopers who were assigned to patrol subject highway prior, at the time of, and subsequent to the accident in question, to establish the Department’s alleged negligence. The accident was investigated by Trooper O. E. Singletary who attested to having received frequent reports of cattle on the highway prior to the accident. He investigated each report personally or else relayed the information to headquarters when he could not make a personal investigation. He also mentioned having assisted in removing cattle from the highway on numerous occasions. In many instances he could not determine how or where the cattle entered the roadway because no evidence of a fence gap could be found. He acknowledged that the fence on the swamp side of the highway was cut frequently by sportsmen who parked vehicles in the right-of-way. To discourage fence cutting, citations were issued arid parked vehicles were towed away. He acknowledged that the problem had improved considerably some time prior to subject accident, due to the mentioned enforcement program. He knew of no instance of breaks in the fences immediately prior to subject accident. Neither did he know how the cow in question gained access to the highway or how long the animal was on the road prior to the accident. He could not state whether the Department had actual notice that the animal was in the right-of-way. During his patrols, it was his custom to report to his superior any evidence of a fence break. In turn, the matter was reported to either the Department or the State Police Livestock Patrol, which dispatched horses and men to round up the cattle and remove them from the highway. On occasion he assisted in removing animals from the highway.

Patrick Canulette, State Trooper, Patrolman, assisted Singletary in the investigation of subject accident. In essence he testified to the same effect as did Singletary. He did not know how this particular animal gained entry to the highway. He added, however, that the animal in question was familiar to him in that he had seen this same animal on the highway on previous occasions.

J. N. Shillings, Member, Livestock Patrol, State Police, testified to having rounded up stock on the highway in question. He explained that his duties were to round up cattle, not to fix fences. He added that whenever he observed a fence break he reported the matter via two-way radio to his headquarters or the nearest local sheriff’s office, whichever was most convenient. The office contacted would in turn report the break to the Department of Highways. He did not know how the animal in question gained entry to the highway or how long it had been on the highway prior to the accident.

William H. Slaydon, alleged owner of subject animal, also attested to fences being cut by sportsmen and knocked down by vehicles. He saw no fence down near the accident site at any time prior to the accident. He denied ownership of the animal in question and could not say how long it was on the highway prior to the accident.

From the foregoing it is clear that plaintiffs failed to show how the animal entered the highway or how long it had been on the road before the accident. It is also clear that the Department did not have actual knowledge of the animal being on the highway. Under the circumstances there can be no liability on the part of the Department on the ground that the Department knew or should have known of the presence of this particular animal on the highway. Wilkinson v. American Insurance Co. of Newark, N. J., supra.

Under the jurisprudence, we find there can be no liability on the part of the Department unless it appears by a preponderance of evidence that the Department was remiss in failing to conduct adequate inspections, taking measures to repair broken fences and/or posting signs to warn motorists of the possible presence of livestock on the highway.

George Decker, Department employee (Foreman) in charge of grass cutting in the area in question, stated it was customary for his crews to make temporary repairs (when possible) of fences found to have been broken or knocked down, and to report the incident to higher authority for permanent repairs. He was unaware of any other accident in this same area resulting from an animal straying onto the highway. He also attested to keeping fencing materials available to make repairs when necessary.

M. K. Johnston, Civil Engineer, Department Assistant District Maintenance Engineer, was in charge of subject area at the time of the accident. He acknowledged receipt of reports of broken fences due to automobile accidents, falling trees, cutting of wire by sportsmen and floodwaters. Most reports were submitted by State Troopers patrolling the area. On occasion his own crews reported damage to fences. Upon receipt of such notice he scheduled repairs at the first possible opportunity. He had no knowledge of how subject animal gained access to the highway but assumed entry was through a downed fence. He had no knowledge of this particular animal being on the highway prior to the accident.

James Breland, a longtime Department employee, became Maintenance Superintendent for St. Tammany Parish in December, 1975, following subject accident. He testified regarding inspection of the highways in St. Tammany Parish (400 miles in all) prior to the accident and to his making a bi-weekly inspection of all highways after becoming Maintenance Superintendent. Whenever a report was received concerning damaged fencing, he sent out repair crews. To discourage cutting of fences by sportsmen he enlisted the aid of State Troopers who issued citations to owners of vehicles parked on the highway right-of-way or else towed away such illegally parked vehicles. Since becoming Maintenance Superintendent, he included fence inspection as part of his duties..

We find no breach of the Department’s duty to maintain fences in a condition reasonably anticipated to keep cattle off the highway. Although the fences in question were not constructed primarily to prevent cattle from entering the highway, the record establishes overwhelmingly that the fences adequately served this purpose. The difficulties encountered were not due to design or material defects but to circumstances beyond the control of the Department. The Department could not prevent vehicles from crashing the fences, trees or limbs from falling on the fences or flood waters from rising. The cutting of fences was dealt with by the Department in a reasonable manner since the Department has no law enforcement authority.

The duty of reasonable maintenance incumbent upon the Department includes the obligation to continuously inspect the highways. Although such duty does not impose the onus of perfect inspection, reasonable care is required in this regard to keep highways reasonably safe. Vervik v. State, Department of Highways, 278 So.2d 530 (La. App.1st Cir. 1973) reversed on other grounds, 302 So.2d 895 (La.1974).

We find the Department employed reasonable inspection procedures in this instance. It employed a systematic inspection procedure through its Maintenance Superintendent, required maintenance and grass cutting crews to make temporary repairs and report fence damage to superiors, and worked in conjunction with patrolling State Troopers. When made aware of animals on the highway, it took timely and reasonable steps to remove the animals and repair fence damage which allowed their entry. We find nothing to impose the duty of conducting a continuous 24-hour patrol to detect the presence of livestock on the highway.

Neither do we find the Department negligent for failing to post signs warning of the possibility of livestock on the highway. The Department’s duty to post signs exists primarily in areas where there is inherent danger such as in the case of obstructions or excavations in a highway or a highway ends abruptly, or where a dangerous or unusual curve exists or a bridge has been destroyed. Watts v. City of Baton Rouge, 248 So.2d 42 (La.App.1st Cir. 1971); LeJeune v. State, Department of Highways, 215 So.2d 50 (La.App.3d Cir. 1968). We find no such danger in this instance. Several witnesses testified that although they were aware of the problem of cows entering the highway through broken fences, they were unaware of accidents resulting therefrom.

In effect plaintiff would have us impose (and the trial court did impose) on the Department the same burden of proof incumbent upon the owner of livestock pursuant to La.R.S. 3:2803, as judicially interpreted. An owner whose stock escapes and enters a public highway in an area where such animals are not permitted to roam at large, must exculpate himself from a presumption of negligence. Ross v. Del Valle, 277 So.2d 163 (La.App.3d Cir. 1973). No such burden rests on the Department.

We find that the trial court erred as a matter of law in imposing upon the Department a burden it does not bear. In effect, the reasons given by the trial court make the Department the insurer of the safety of persons using public highways, contrary to established jurisprudence. U.S.F.&G. Company v. State, Dept. of Highways, 339 So.2d 780 (La.1976).

The judgments in favor of plaintiffs Gary Raymond Boué, James D. Slayton, Administrator, and State Farm Mutual Automobile Insurance Company against the Department are hereby annulled, reversed and set aside and said plaintiffs’ actions against the Department are dismissed with prejudice. In all other respects the judgment is affirmed. All costs of these proceedings are assessed against plaintiffs Gary Raymond Boué, James D. Slayton, Administrator, and State Farm Mutual Automobile Insurance Company in equal proportion.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.


text:
    CHARLES CARTER AND COMPANY, INC. v. CAST CRETE CORPORATION OF FLORIDA.
    No. 12455.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.

      George Clauer, III, Baton Rouge, for plaintiff-appellee Charles Carter & Company, Inc.
    Paul Hebert, Baton Rouge, for defendant-appellant Cast Crete Corp. of Florida.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Defendant-appellant Cast Crete Corporation of Florida (Cast Crete) appeals from judgment awarding plaintiff-appellee Charles Carter & Company, Inc. (Carter) $4,038.36, representing return of the purchase price paid by Carter for materials fabricated and sold by Cast Crete, dismissing Cast Crete’s reconventional demand for storage charges allegedly incurred in holding the materials pending litigation, and rejecting Cast Crete’s request for an allowance of additional time to make delivery of the goods in question. We reverse and allow Cast Crete forty-five days in which to make delivery of the materials.

This action is a sequel to our decision in Cast-Crete Corp. v. West Baro Corp., 339 So.2d 413 (La.App.1st Cir. 1976). The source of the litigation is a contract between these parties under date of March 21, 1974, pursuant to which Cast Crete agreed to furnish Carter pre-cast concrete slab and roof joists for a motel being constructed by Carter as prime contractor. The circumstances attending execution of the agreement are related in detail in our earlier opinion. Briefly put, Cast Crete supplied a major portion of the materials for the project until Carter discontinued payment of invoices submitted. Deliveries were discontinued by Cast Crete when Carter became delinquent. When shipment was stopped, Cast Crete had on hand at its Florida plant additional unshipped fabricated materials which Cast Crete refused to transmit until payment was received. Cast Crete liened Carter’s job and brought suit against Carter to enforce the lien. Carter’s surety, Insurance Company of North America, was substituted as defendant in the action in lieu of the owner involved. Carter defended and reconvened for damages on the ground that the materials did not meet the plans and specifications therefor, and required alteration for use in the project for which they were designed. In our prior opinion we found that Carter breached the contract by stopping payment for allegedly defective materials which we found to have been fabricated according to drawings approved by Carter’s agents. Judgment was rendered against Carter and its surety in the sum of $17,332.04, in solido, for materials previously delivered. We also found that Cast Crete stood ready, willing and able to deliver the remaining materials and would have made delivery except for Carter’s breach by nonpayment. Finding that the undelivered materials were custom-made and unsuitable for use otherwise, we rendered judgment against Carter for the cost thereof, namely, $4,038.76.

Our original judgment became final when, on February 1, 1977, the Supreme Court denied Carter’s application for supervisory writs, 341 So.2d 900 (La.1977). On February 23,1977, Carter mailed Cast Crete a check in payment of the judgment. On February 25, 1977, Cast Crete notified Carter that shipment of the materials would be made within seven days. Later, on March 4, 1977, Cast Crete notified Carter that shipment would not be made until Carter paid storage charges computed at $50.00 per month and aggregating $1,569.73. Carter was also advised to add $16.44 as storage charges for each additional day until payment of these charges.

Carter responded by filing the instant suit for cancellation of the sale and return of $4,038.76, the price paid for the undelivered merchandise. Cast Crete reconvened for $1,919.73, the amount of storage allegedly due to the date of reconvention.

In holding Carter entitled to cancellation of the sale and return of the purchase price of the undelivered goods, the trial court relied upon La.C.C. Article 2485, which provides:

“If the seller fails to make the delivery at the time agreed on between the parties, the buyer will be at liberty to demand, either a canceling of the sale, or to be put into possession, if the delay is occasioned only by the deed of the seller.” (Emphasis added)

The cited codal provision grants a buyer the option of either demanding specific performance or rescission of the sale when a delay in delivery results solely from the seller’s fault. The trial court reasoned that although Cast Crete was not obliged to deliver until Carter remitted the purchase price, as provided by La.C.C. Article 2487, once Carter made payment, Cast Crete was obligated to make delivery unless Carter was otherwise legally justified in refusing delivery. In refusing delivery, Cast Crete relied upon La.C.C. Article 2555, which states, inter alia:

“The purchaser, who neglects to obtain delivery of the thing sold, after having been put in default, is answerable to the vendor for the . reimbursement of the expense which may have been incurred for the preservation of the thing.”

The trial court found that Article 2555 did not support Cast Crete’s claim for storage charges because Carter was at all times ready to accept delivery. On this basis the trial court found Cast Crete was unjustified in refusing delivery and ordered cancellation of the sale.

We find the trial court erred manifestly in its application of Article 2555, above, to the uncontroverted facts herein. As previously noted, our prior opinion, which is the law of the case in this instance, found and held that Cast Crete was ready, willing and able to make delivery of the remaining materials, and actually offered delivery and would in fact have delivered but for Carter’s breach of the contract. Moreover, it is clear that Cast Crete had no duty to deliver until Carter made payment. La.C.C. Article 2487.

Under the circumstances, we hold that the failure in delivery resulted from Carter’s failure to pay the cost of the materials until east in judgment to do so. Consequently, Cast Crete is entitled to reasonable costs of preservation of the goods in the interval following Carter’s failure to pay, La.C.C. Articles 2549 and 2555. Carter being in default in its failure to pay, was not entitled to delivery until it honored the claim for storage charges. The delay in delivery occasioned by failure to honor such charges was not a delay “occasioned only by the deed of the seller” and the trial court erred in holding otherwise.

We find, however, that Cast Crete’s claim for storage charges must be denied for lack of proof. The record contains only an invoice, unsupported by testimony as to' the value of the storage charges represented thereby. Insofar as a claim for such charges is concerned, the invoice is purely self-serving; it does not constitute proof of the value of such services.

Having found the sale complete (the price having been paid) and that Cast Crete is not entitled to storage charges, we also find that Cast Crete should be allowed a reasonable time in which to make delivery.

Accordingly, it is ordered, adjudged and decreed that there be judgment herein reversing the judgment decreeing cancellation of the sale and return of the purchase price to Carter; affirming the judgment denying Cast Crete’s reconventional demand for storage charges; and allowing Cast Crete forty-five days in which to effect delivery of the materials in question, all costs of these proceedings to be shared equally by Carter and Cast Crete.

Affirmed in part, reversed in part, amended and rendered.


author: PONDER, Judge.

text:
    James K. PORTER v. Walter R. JOHNSON.
    No. 12460.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1979.
    Writ Refused April 27, 1979.

      John B. Williams, Baton Rouge, for plaintiff.
    Miriam T. Attaya, Gonzales, for defendant.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

This is a suit for damages allegedly resulting from a wrongful seizure purportedly under a lessor’s privilege. Plaintiff has appealed from a judgment for the defendant.

Plaintiff complains of: the finding of abandonment of property by him, the failure to allow the removal of the camp building or to award the value thereof, the failure to find the value of the camphouse, the failure to qualify an expert witness, the failure to order the return of some personal property, the failure to find a wrongful eviction and the finding that he was a party to the lease.

We reverse and render.

A Mr. Gilbert leased a campsite from the defendant. Plaintiff purchased from the prior owner, who was not the landowner, a building on the campsite. Both plaintiff and the Gilberts used the camp. The Gil-berts failed to pay the annual rental within sixty days of the due date. Acting under the terms of the lease, defendant took possession of the camp and removed from the premises a boat, motor, trailer and a television set, belonging to plaintiff. When plaintiff became aware of what had happened, he offered to pay the rental. Defendant refused the offer and refused to pay for the camp or for the moveables and to return them to plaintiff.

During argument, defendant’s counsel conceded that plaintiff was entitled to the moveable items he claimed. The return to plaintiff is ordered.

The cancellation of a lease for nonpayment of rent is effective only when a court grants the termination and possession. La.R.S.-C.C.P. Arts. 4701 et seq.; Louisiana Materials Co., Inc. v. Cronvich, 236 So.2d 510 (4th Cir. 1979). The only exception occurs on the voluntary abandonment of the property. Bunel of New Orleans, Inc. v. Cigali, 348 So.2d 993 (4th Cir. 1977).

Defendant asserts that he thought the premises had been abandoned. Mrs. Gilbert testified she had sent a check to defendant and did not realize he had not received the payment. Various items of considerable value were left at the camp. We find defendant was not justified in believing the premises abandoned or in employing self-help in taking over the premises and property.

As a result we believe that plaintiff should be allowed to remove the building or to receive the value thereof. He proved that he paid $2,500.00 for it. In the absence of other evidence we set that figure as the value of the building. Plaintiff complains of the court’s refusal to allow an expert witness to testify on that point. However, the qualification of an expert witness is within the broad discretion of the trial court. Maddox v. Percy, 351 So.2d 1249 (1st Cir. 1977). We find no abuse.

We find it unnecessary to make findings on the technical points of whether plaintiff was a party to the lease and whether there was a wrongful eviction of a lessee.

However, defendant wrongfully deprived plaintiff of the use of his property. While the evidence on the value of the use was inflated and somewhat speculative, nevertheless, we believe that plaintiff is entitled to some recovery. We award $500.00 for the loss of use and wrongful seizure.

For these reasons, the judgment is reversed and there is now judgment ordering the return of plaintiff’s personal property to him, ordering the return of the camp building to him or in the alternative the payment of $2,500.00 therefor; and awarding $500.00 damages for wrongful seizure and deprivation of use. The right of defendant to compensation for property damages resulting from the act of removing of the camp building from the premises, if that occurs, is reserved.

All costs are assessed against the defendant.

REVERSED AND RENDERED.

      . “9
      “Lessee further agrees that upon termination of this lease, for any cause whatsoever, all the improvements placed upon the leased premises shall become the property of the lessor without his having to pay any value therefor.”